Vom Verbot zur Gleichberechtigung - Hirschfeld-Eddy-Stiftung

04 | From the Aktion Standesamt via the Registered Partnership to Full Access
to the Institution of Marriage
partnerships on August 1, 2001 could thus no longer be stopped. This, however, did not
mean that equal rights were attained. On the contrary, now a phase of legal proceedings
and hard-fought improvements regarding the details began.
In addition, on July 17, 2002, the Federal Constitutional Court explained to the governments
of Bavaria, Saxony and Thuringia, the plaintiffs in a case, that the introduction of
a new institution was by no means unconstitutional. On the contrary – the court made it
clear that the constitution did not foresee any “mandated differentiation” between registered
partnerships and marriage. “The special protection of the institution of marriage
in Art. 6, paragraph 1 of the Basic Law does not prevent lawmakers from foreseeing
rights and obligations for same sex partnerships, which are the same or very similar to
those pertaining to marriage.“ 9 The path for further alignment was thus blazed. In 2005,
the red-green coalition in the German Bundestag ratified the Law Revising the Life Partnership
Act, which also foresaw the same rights in relation to statutory old-age insurance
and survivor’s benefits. The option of adopting a stepchild was also conceded, a
measure specifically intended to counteract discrimination against the children of rainbow
families. Initially, the joint-adoption of a third-party child was prohibited. An additional
draft law, intended to establish equality in relation to a number of rights, and
which included regulations that required approval, could not be deliberated due to the
premature end of the legislative period.
With the end of the red-green coalition, the dynamic legal policy reform process was
also temporarily interrupted. Since then, progress has mainly been achieved under pressure
from the Federal Constitutional Court. While the federal government has mainly
been blocked by the veto of the CDU/CSU faction, couples still fighting for equality have
lodged suits in various courts in order to do away with individual inequality. The LSVD,
and especially Manfred Bruns, has offered them active support by providing expertise
and by writing statements. And this has been successful; in a decision handed down on
July 7, 2009, the Federal Constitutional Court made the landmark decision that simply
referring to a mandate to protect marriage according to Art. 6 of the Basic Law could not
justify disadvantaging registered partnerships in relation to marriage. Thus, it was again
confirmed that there is no “mandated differentiation” in relation to marriage. On the
contrary, all discrimination between registered partnerships and marriage must be objectively
justified. 10 In comparable circumstances, equality is constitutionally mandated.
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5 “Das Recht, anders zu leben,“ Interview in: Die Zeit, No. 40/1999. | 6 BT-Drucksache 14/3751. | 7 Cf. BT-Plenarprotokoll
14/131. | 8 BT-Plenarprotokoll 14/115, p. 10966f. | 9 BVerfGE 103, 313. | 10 1 BvR 1164/07 RN 105.
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