Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

01 | Sexual Identity, the Principle of Equality, and the Prohibition of Discrimination
the court, on the one hand, to refute attacks due to a purported breach of the fundamental
right to marry in light of its guaranteeing the essence or the protection of the institution:
the life partnership is, according to the will of lawmakers, not a marriage,
hence it can also not prejudice its regulations. 24 Thus, it also serves to codify the historical
understanding of a marriage as the union of two people of different sexes. 25
Whereby reflection upon the intention pursued by protecting marriage under the Basic
Law leads us in a different direction.
The argumentation of those opposed to the Life Partnership Act almost seemed to express
disrespect towards the institution of marriage by reducing it to merely a reproductive
function. Heterosexual couples who are childless, whether by choice or not, will
hardly be able to read many of the writings and statements submitted by those who
were purportedly defending the institution of marriage without feeling some degree of
rage: the value of their union, in itself, is completely denied.
Whereby the protection of constellations that include children is already found in Art. 6
of the Basic Law. It is inappropriate to link this protection too closely to marriage, because
Art. 6, paragraph 5 of the Basic Law already prohibits the discrimination of families
in which the parents are not married in the interest of the children. 26
The protection of the institution of marriage is therefore only relevant on its own, when
one views the decision by the partners to spend their lives together as a legally binding
commitment to mutually support each other, regardless of whether they have children
or not. Seen from this perspective, there his no justification for treating couples differently
according to their sexual orientation.
It is not necessary to provide constitutional protection for legally binding relationships
between couples. One could argue that constitutional policy only requires that adults
that live together with children require protection under constitutional law, and that
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16 BVerfGE 124, 199. | 17 BVerfGE 126, 400. | 18 BVerfGE 111, 160; also 111, 176, child-raising supplement.
19 BVerfGE 1 BvL 14/07 from February 2, 2012. In: NJW 2012. P. 1711. | 20 Cf. Michael, Lothar: “Lebenspartnerschaften
unter dem besonderen Schutze einer (über-)staatlichen Ordnung – Legitimation und Grenzen eines Grundrechtswandelskraft
europäischer Integration”. In: NJW 2010. Pp. 3537ff (the decision by the Federal Constitutional
Court is, however, also justified without an interpretation in keeping with European Law). | 21 AG Frankfurt NJW
1993, 940 | 22 BVerfG ( 3rd chamber of the first senate), Decision of October 4, 1993 – 1 BvR 640/93. In: NJW 1993.
P. 3058. | 23 BVerfGE 105, 313. | 24 Ibid, 313, 345ff. | 25 Ibid, 313, 345 | 26 BVerfGE 106, 166.
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