Considering the years of contentious debate on the topic, German conservatives were surprisingly acquiescent last Thursday when the Federal Constitutional Court ruled in favor of tax equality to same-sex couples. In the end, even deeply conservative Bavarian lawmaker Norbert Geis, who until recently had accused the court of being "on the wrong track" with its rulings on the rights of gay and lesbian couples, got on board.
The day after the ruling, Chancellor Angela Merkel's center-right Christian Democratic Union (CDU) and their Bavarian sister party the Christian Social Union (CSU) -- known together simply as the Union -- met at a swiftly convened special session, where Geis left no doubt that the decision had to be implemented, like it or not. A significant debate failed to materialize.
Because the conservatives want to keep the issue of gay rights, which is controversial within its ranks, out of the upcoming federal election campaign, they are now quickly implementing the equal tax treatment required by the high court. But their hope that this will put an end to the debate is probably in vain. The next decision on equal rights is already on the agenda at the high court, located in Karlsruhe. This time it will revolve around what many conservatives consider an untouchable last bastion: full adoption rights for same-sex couples.
Two cases on joint adoption are currently pending in Karlsruhe. A district court in Berlin's Schöneberg neighborhood submitted them to the high court judges in early March. They revolve around the adoption of two foster children by a couple in a registered domestic partnership. It is probably only a matter of time before the judges will force politicians to take action once again.
'A Certain Level of Discomfort'
But within the Union, there is significantly more resistance to the adoption issue than there is to the issue of equal tax treatment. Not just conservatives, but also politicians from the Union's left wing, like Annegret Kramp-Karrenbauer and Armin Laschet, are voicing their concerns. Even proponents of equal tax treatment shy away from the issue and point to France, where the controversy has divided society and led to mass demonstrations, some of them violent.
Among the public, as well, adoption rights for same-sex couples are more controversial than equal tax treatment. In a 2010 poll, about a third of those surveyed said they opposed adoption rights for gays and lesbian couples. By comparison, only 17 percent opposed equal tax treatment in a poll conducted last year.
"The debate over full adoption rights is not about money, but about the well-being of children," says Volker Bouffier, the governor of the western state of Hesse and deputy CDU chairman. Of course there are same-sex couples who are loving parents, he says. Nevertheless, Bouffier adds, many people across party lines feel "a certain level of discomfort" on this issue. "And I am one of those people."
Though Armin Laschet, family minister for the populous state of North Rhine-Westphalia, is seen as part of the party's left wing, he shares the concerns of the Hesse conservative. Children have the right to dissimilarity and diversity, to a father and a mother, says Laschet. "I think it's wrong to rule this out in principle, in order to give someone an individual right to equality."
"When it comes to adoption law, we will only act if and to the extent that the Federal Constitutional Court forces us to," says Gerda Hasselfeldt, CSU group leader in Germany's federal parliament, the Bundestag.
Even members of the so-called "Wild 13" -- a group of conservative parliamentarians so named because of their strong advocacy for gay tax equality -- shy away from publicly demanding full adoption rights. "We have to discuss this broadly. The explosive situation in France shows how this issue can divide society," says Jan-Marco Luczak, a CDU Bundestag representative from Berlin.
On the other hand, the German high court has been straightforward in its move toward full equality for gays and lesbians. In February, the court decided in favor of same-sex couples on the issue of successive adoption. Legally, a person can now adopt the children his or her domestic partner has already adopted. A careful reading reveals many indications that the judges are also likely to overturn the ban on joint adoption.
The Best Interest of the Child
Both supporters and opponents of the full right of adoption base their arguments on the best interest of the child, but few see the situation as unambiguously as the judges at the Constitutional Court. Experts cannot say with certainty, says CDU politician Marco Wanderwitz, "that it is not a problem for children to grow up in same-sex relationships." That, he says, is one of the reasons he opposes full adoption.
The judges, at any rate, have already picked apart the opposing arguments. They concluded that objections to "children growing up with same-sex parents were rejected in the overwhelming majority of expert opinions."
This conclusion is also shared by Labor Minister Ursula von der Leyen, a member of the CDU, who came forward over the weekend in support of equal adoption rights. "I know of no study that says that children growing up in same-sex partnerships fare any differently than children who grow up in heterosexual marriages or partnerships," the minister told German public broadcaster Deutschlandfunk on Sunday.
Von der Leyen went on to confirm that the debate on adoption rights would "certainly go forward," though she emphasized that the first step was implementing the tax equality ruling, which is supposed to go into force before the parliament's summer break.
Plenty of Models, No Proposals
When it comes to adoption rights for same-sex couples, nothing is likely to happen until the high court rules again. There is no lack of models for a new adoption law. The Green Party introduced a draft bill on the introduction of successive adoption immediately after the Karlsruhe decision. At the same time, the Greens, together with the center-left Social Democratic Party (SPD), presented a joint concept to legalize same-sex marriage.
In 2012, Justice Minister Sabine Leutheusser-Schnarrenberger even had her office prepare a "draft of a law to revise the rights of domestic partners," which puts gays and lesbians on equal footing with married couples in all conceivable spheres of life, including adoption.
Yet the conservative have yet to present a single proposal, and have still done nothing to implement the Karlsruhe decision on successive adoption. Neither the parliamentary group nor the CDU-led Family Ministry has taken any action.
The truth is that scientific research on the issue of the child's well-being in same-sex families has not yielded any clear results. In Germany, academics usually cite a study done for the Justice Ministry in 2009. But it has methodological deficits, because it is based on the statements of same-sex couples with children. In addition, fewer than 2 percent of the children included in the study were adopted.
The validity of many international studies has also been called into question. According to a July 2012 article in the International Journal of Humanities and Social Science, the data are ambiguous and often gathered over too short a time period. In addition, most researchers on same-sex parenting are gay themselves.
The sensitivity of the issue within the Union is evident in the fact that Family Minister Kristina Schröder, a CDU member, has yet to take a position. The minister was long known as an outspoken advocate of equal rights for gays and lesbians. But when it comes to the right to adopt, she avoids offering a clear answer. When asked about the issue, she refuses to comment. When Schröder was last questioned on the matter, in an interview last year, she said that the problem had to be addressed with nuance.