Wednesday, August 22, 2012

Marriage, Same-Sex Partnership, and the German Constitution

By Anne Sanders
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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