Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

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Although we expected more from the judges in Karlsruhe, we did not let ourselves become
discouraged, and continued to work diligently towards a change in the understanding
of marriage. This was also the case in 1998, when the BÜNDNIS 90/DIE GRÜNEN
campaigned in a federal election demanding that access to the institution of marriage
be granted. As a compromise, the coalition contract with the SPD in 1998 foresaw the
creation of the legal institution of the registered partnership, which entailed rights and
obligations. This was, despite the coalition contract, by no means a self-starter. While
the Bündnis BÜNDNIS 90/DIE GRÜNEN insisted on the realisation of the same rights and
obligations as in a marriage, this went too far 5 for the Federal Minister of Justice at that
time, Herta Däubler Gmelin. She saw a risk in terms of constitutional law, arguing that
the constitution “mandates differentiation” between such a partnership and a marriage,
since the latter enjoys special protection under the Basic Law. This understanding became
the prevailing opinion in legal literature. The churches also warned against establishing
equality. And the Federal Minister of Justice was, in the beginning, by no means
ready to assume a leading role and to discuss the individual legal consequences of life
partnerships on areas ranging from tax law through to licensing regulations for the
spouses of milk farmers, beginning with the Ministry of Finance all the way through to
the Ministry of Agriculture.
In order to promote this process, a coalition working group consisting of representatives
of both of the factions that formed the government was established, and it finally managed
to wrench regulations for the recognition of legal partnerships from all of the relevant
ministries in months of tedious negotiations. On the side of the SPD, the greatest
contributions to the ultimate success of this process were made by the representatives
Margot von Renesse and Alfred Hartenbach. In the end, the red-green coalition factions
presented a draft law, 6 which foresaw an extensive and comprehensive equalisation of
the rights and obligations of a registered life partnership and a marriage. Some of the
essential rights, which were still in the draft law, such as those related to tax law, required
the approval of the Bundesrat, which was dominated by the CDU/CSU (conservatives).
The CDU/CSU rejected the project outright. 7 In an ironic footnote to this story, the General
Secretary of the FDP at that time, Guido Westerwelle, was also convinced both that
the “marriage registry solution” should be rejected and “that they cannot be equal, alone
on constitutional grounds.” 8 In order to manoeuvre around the Bundesrat, the draft law
was divided, in one part that did not require approval (Life Partnership Act as well as a
change in the Civil Code and other federal regulations) and another part that required
approval (Act to Amend the Life Partnership Act). This was done to ensure that life partnerships
would not be prevented by the Bundesrat. The introduction of registered life