Germany Approves Gay Marriage Next Stop Constitutional Court?

On Friday, German parliament passed a law paving the way for gay marriage. But the language of the country's constitution could lead to a serious legal challenge. It may be too soon to celebrate. By SPIEGEL Staff

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Last Saturday morning, the chancellor was sitting in the headquarters of her party, the Christian Democratic Union (CDU), together with Horst Seehofer, the head of its Bavarian sister party, the Christian Social Union (CSU). The parties were in the midst of two days of meetings to discuss their joint platform ahead of German parliamentary elections in September but Merkel wanted to discuss the most sensitive issues in a private meeting with Seehofer. And before long, over breakfast in Merkel's sixth-floor office, the conversation turned to gay marriage.

The issue is a very delicate one -- that was clear to both. The refusal to support same-sex marriages was one of the final slivers of ideology that the parties' more traditional voters could grab on to after years in which Merkel has steered the conservatives to the center. There was a time when Merkel still described the idea of gay marriage as a "sociopolitical aberration." But that was 17 years ago -- and Merkel was well aware that two-thirds of a Germans now support the idea of same-sex marriage. Even Seehofer's oldest daughter Ulrike, who lives in Berlin and visited her parents two weeks ago in Ingolstadt, asked her father how his CSU party could be so backward on the issue. She raised her eyebrows as Seehofer began trying to tell her about the natural order between men and women.

So, what were the conservatives to do?

Merkel could have proposed that the two parties publicly acknowledge that they were shifting positions on the issue. That would have been the courageous thing to do -- a statement that Germany is changing and that the CDU and CSU are too. But the two instead chose the more evasive option. They decided that the term "marriage for all," used recently to advocate changing German law to permit same-sex marriage, would not be included in the parties' election platform at all. And if a journalist were to ask them about the issue at their joint press conference following the two days of meetings, they agreed Merkel would say it was a "question of conscience" for members of parliament -- in other words, she would suspend party discipline for the vote. But only in the next legislative term, after the elections, in other words.

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But the plan failed badly -- kicking off a week that exposed Merkel's timid leadership style. Not long after her meeting with Seehofer, Merkel gave a long-winded answer to a question at an event hosted by the women's magazine Brigitte. An attentive journalist with the German news agency DPA quickly transformed the chancellor's response into a breaking news alert. And Merkel's timidity quickly transformed into a political debacle. In her answer, Merkel had indicated she would be open to a parliamentary vote that would pave the way to same-sex marriage.

Policy U-Turns

The news of Merkel's about-face had hardly broken before members of the center-left Social Democratic Party (SPD) decided to push for an accelerated vote in parliament just a few days later on Friday. And that parliamentary vote ended 393:226 in favor of equalizing the institution of marriage.

Merkel has never shown much interest in justifying her policy U-turns. It often seems as though she bumbles into far-reaching decisions. When, for example, Merkel called together her cabinet in the summer of 2010 to decide on billions in spending cuts, a surprise result was the end to Germany's decades long tradition of mandatory military conscription. And 48 hours after the reactor disaster at Fukushima, Merkel -- who had reversed legislation by the former SPD and Green Party government to phase out atomic energy -- lost her faith in nuclear to the point that she announced her own decision to end the atomic era in Germany. Merkel acted as though it were a brand new discovery that nuclear reactors had the potential to blow up.

Graphic: Gay marriage in Europe
DER SPIEGEL

Graphic: Gay marriage in Europe

This created the advantage that it made Merkel look as though she were implementing reforms against her own will. It allowed her to address the more conservative wing of her party and say that she was forced to shift positions because of the pressure of the moment. Now, though, she has jettisoned the final position that social conservatives still clutched to. And many are wondering why they should back a chancellor who ultimately only pushes through the political ideas of the Green Party and the SPD?

In a pointed remark made on Tuesday during a meeting of his party's caucus in parliament, veteran and influential CDU party member Wolfgang Bosbach said it would have been nice if Merkel had, at the time, declared efforts to save the European common currency to be a "question of conscience" for the Bundestag. But it was also clear to everyone in the room that Merkel's sudden generosity on same-sex marriage helped free her from a political dilemma. It was a deeply political decision.

When it comes to the issue of marriage, the CDU and CSU have come a long way. As recently as 2002, the Catholic Church put then conservative chancellor candidate Edmund Stoiber under pressure to shuffle his campaign team and strip politician Katherina Reiche of her responsibility for family policies because she was unmarried. And Merkel herself has long rejected equal marriage rights for gays and lesbians -- and she voted against it on Friday as well.

The party also balked at adoption rights for same-sex couples. "The CDU will not do this of its own accord," Merkel said in 2013. Even in mid-2015, she was still saying: "For me personally, marriage is the cohabitation of a man and a woman."

Testing Her New Position

The fact that Merkel has now conceded is largely due to one man: Volker Beck, an openly gay member of the Green Party. During the Green Party's conference two weeks ago, he submitted a request to amend the party's platform to make same-sex marriage a condition for any post-election coalition it might become a part of. The party's lead candidates in the national election, Katrin Göring-Eckardt and Cem Özdemir, both support gay marriage but were afraid to draw red lines that couldn't easily be later crossed.

Into the night of the party conference, prominent members of the Greens tried to persuade Beck to withdraw the motion, but the politician refused and ultimately prevailed. Exactly one week later, the business-friendly Free Democratic Party, a frequent coalition partner to the CDU in the past, followed the Greens' example. Party head Christian Lindner tweeted: "I will recommend to my party that #marriageforall is included as a condition for the election." Martin Schulz, who is the Social Democrats' candidate for chancellor, would follow one day later at an SPD party conference. By then, it had become clear to Merkel that she would have to make a move if she wanted to be able to find a coalition partner for her next government.

Internally, Merkel, had tested the new position several times before her appearance on Monday. On Sunday evening, during a meeting of the leaders of the joint parliamentary caucus group of the CDU and the CSU at a restaurant in Berlin, she floated a trial balloon. She followed up by addressing the issue in a Monday morning meeting with the CDU's national executive. CSU boss Seehofer even stated publicly on Monday that it was his opinion that marriage for all should be a personal decision for members of parliament. But the leaders of both parties had been thinking about the distant future -- and not about the final week before parliament breaks for its summer recess. It was the comment Merkel made at the Brigitte talk and the breaking news alert from that event that got things moving.

The SPD's Schulz got the message about Merkel's involuntary offer later that night in his apartment, having been informed by Thomas Oppermann, the SPD's party whip. Oppermann also sent a message to Foreign Minister Sigmar Gabriel, likewise of the SPD. The three were all in agreement that the chancellor had made a mistake -- and it was one they should exploit. Merkel still had no idea at that point that she was about to get steamrolled. She telephoned with Seehofer at 10:30 p.m. that night, but she didn't say a word about her Brigitte appearance.

On Tuesday morning, officials at SPD headquarters quickly obtained a recording of Merkel's remarks. Schulz had a previously scheduled press conference that morning, ostensibly to provide his assessment of the work of the SPD's ministers in Merkel's coalition cabinet. Ahead of that news conference, party whip Oppermann undertook one last attempt at an amicable solution, asking Volker Kauder, his CDU counterpart, if the conservatives would support a pro-gay marriage bill that week. "No," Kauder answered in a text message. Whereupon Schulz then announced to the press that the SPD would push through marriage for all with votes from the Green Party and the Left Party. The opportunity was too good for the party to miss out on.

Opposing Views

At first glance, it is largely churchgoing CDU voters who were angered by Merkel's about-face. The country's Catholic bishops, in any case, were unhappy. "Even the creation myth of the Old Testament reflects the gender difference as the social primordial cell in creating life," says Berlin Archbishop Heiner Koch. Reinhard Marx, the president of the Catholic governing body, the German Bishops' Conference, also expressed his rejection of same-sex marriage.

Parliamentarians from the CDU's conservative wing also expressed opposition. "People have the feeling that the only binding values left are arbitrariness and boundless tolerance," said Veronika Belmann, a CDU parliamentarian from Saxony. Deputy party whip Franz Josef Jung said, "The Christian Democrats have always said 'no' to same-sex marriage. For me that still applies."

Even just a quick perusal of social media can quickly lead to doubts as to whether Germany is truly as liberal as it appears to be on the surface. Alexander Gauland, the lead candidate of the right-wing populist Alternative for Germany (AfD) party attracted 4,000 likes for his post stating, "Same-sex marriage makes no sense societally."

But if you look elsewhere, the image is different. Germany's Protestant Church, for example, is not nearly as literal in its interpretation of the bible as the Catholic Church hierarchy -- and the further down the Catholic leadership chain you get, the more openly people speak about gay marriage. "When two people cohabitate in fidelity, then they have a right to state protections," says Katharina Norpoth, chairwoman of the Federation of German Catholic Youth. "That's why we are calling for the full legal equality of hetero- and homosexual couples."

CDU member of parliament Anita Schäfer is a devout Catholic, but even she voted in favor of gay marriage on Friday. "Jesus Christ taught us brotherly love and that all people are equal in the eyes of god." Markus Gutfleisch was a Catholic seminary student and was preparing to become a priest when he outed himself as a gay man. Today he's the spokesman for the organization Ecumenical Working Group for Homosexuals and the Church and has little understanding for politicians like Kauder and the Catholic bishops. "They're on the sidelines, because they are rejecting today's theological views and are instead clinging to outmoded images of marriage and the family from the 1950s, a time when tens of thousands of homosexuals were still being thrown in prison."

A Daring Initiative

When CSU boss Seehofer told one of his ministers about how little understanding his daughter had for his party's position on the issue, the minister replied: "Do you think it's any different with my children?"

Even the AfD had trouble expressing opposition to Merkel's U-turn this week. "Marriage is a constitutionally protected institution and we have very good reasons for not wanting to change that," declared party head Frauke Petry. But Petry, once married to a Protestant pastor with whom she bore four children before leaving him for another member of her party, is hardly a poster girl for conservative family values. Meanwhile, her party's co-lead candidate in this year's election, Alice Weidel, also leads a life that isn't provided for in the AfD's political manifesto. She lives in a registered civil partnership with a woman from Sri Lanka with whom she is raising two sons.

In terms of the German Constitution, Friday's vote is also a daring initiative. Article Six of the Basic Law states that marriage "shall enjoy the special protection of the state" -- and it would be reasonable for one to assume that the drafters of the constitution were not thinking of any other models at the time than marriage between a man and a woman.

In previous rulings, Germany's Constitutional Court has left little doubt that, unless the constitution is amended, same-sex marriage would be unconstitutional. In a series of rulings since 2002, the court has taken incremental steps to bring civil unions closer to equality with marriage. But the justices have repeatedly noted that marriage in the sense of the constitution applied only to "a union between a man and a woman for a long-term life partnership."

The fact that the times have changed does not change this interpretation of the constitution, says former Constitutional Court President Hans-Jürgen Papier. "If people want to open marriage up, then the constitution has to be changed. Simple legislators cannot do so on their own."

Officially, that's also how Merkel's coalition government views the situation. In response to a query from the Green Party, the Justice Ministry under the leadership of SPD member Heiko Mass wrote in 2015 that "the opening of marriage for same-sex couples would require a constitutional amendment." Maas has since stated that he believes an amendment to be unnecessary.

The question of whether a simple legislative reform of marriage law rather than a constitutional amendment would suffice came up numerous times in this week's debate in the Bundestag. Both CDU party caucus leader Kauder and the head of the CSU's state group, Gerda Hasselfeldt, reminded Justice Minister Maas that his ministry had given a clear answer to the Green Party in mid-2015 that making same-sex marriage legal would also require modifying Article Six of the constitution.

In the view of Günter Kings, a high-level official in the Interior Ministry and a member of the CDU, "same-sex couples seeking to marry will not ultimately benefit" from what he described as "legislative haste" at the very end of the legislative period. "The price for it is a legal uncertainty that will be difficult to bear because an opening of marriage at a sub-constitutional level may ultimately be rejected as a violation of the constitutional definition of marriage." And prospects for a constitutional amendment are also problematic at the moment given that less than two-thirds of parliament voted in favor of same-sex marriage on Friday.

The debate over the institution of marriage in Germany, in any case, is unlikely to go away any time soon.

Melanie Amann, Maik Großekathöfer, Dietmar Hipp, Horand Knaup, Anne-Katrin Schade, Heide Neukirchen, René Pfister and Peter Wensierski

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