By Anne Sanders
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Abstract
Suggested Citation: Anne Sanders, Marriage, Same-Sex Partnership, and the German Constitution, 13 German Law Journal 911-940 (2012), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1448
A. Introduction
Marriage today does not only involve
private interests; it is also an important legal and political issue.
The question of what marriage means today and whether it should be open
to same-sex unions is under debate all over the world. In many
countries, for example in Germany and the United States, such questions
are not only debated in the political arena, but also in relation to
constitutional law. This Article will trace the development of how
marriage has been understood in relation to German constitutional law
and critically discuss the law’s approach to same-sex marriage.
The Federal Constitutional Court of
Germany (Bundesverfassungsgericht, FCC) celebrated its 60th anniversary
in September of 2011. Since 1951, the court has not only had a
considerable influence on administrative and criminal law, but on family
law as well. This might be surprising to a non-German reader as not
all constitutions include rights concerning marriage and family as
guaranteed human rights. The Basic Law, however, protects these rights
in Article 6.
This article begins by applying a
descriptive approach. First is an introduction to the history of
Germany’s constitutional protection of marriage and the drafting of
Article 6. Next, this article introduces the reader to the German
constitutional understanding of marriage as developed in the case law of
the German Federal Constitutional Court. After supplementing this with
a brief discussion of the court’s approach to divorce, the article then
stresses the importance of gender equality to the constitutional
understanding of marriage and discusses the case law related to
unmarried cohabitation and same-sex partnerships.
Next, this Article assumes a more
critical approach in evaluating the reasons given by the FCC and
academic commentators for denying same-sex partners Article 6
protection. Building on the case law of the FCC, this...
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