61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

to marry on the basis of Swiss ordre public was not discussed. A different view
was upheld by Basel City’s cantonal government member Adolf Imhof: he
regarded the anti-Semitic ban on marriage as incompatible with Swiss public
order and granted permission to marry without proof that the marriage would
be recognised in Germany. He justified this attitude to the authorities in Bern
as follows:
«We granted E.K.’s bride, a German national, dispensation from the
requirement to produce a certificate testifying suitability to marry as it was
clear from the outset that this certificate would not be issued by the
German authorities to a German woman wishing to marry an Israelite.
From the personal documents submitted, it was clear there was no impediment
to the bride’s marriage under Swiss law. We regard the dispensation
as appropriate, for on the grounds of ordre public, religious or political
impediments to marriage have never been regarded as relevant in the
practice of Federal law. Our Constitution guarantees equality before the
law and protects freedom of belief and conscience. Our laws therefore do
not permit any distinction to be made on grounds of race.» 135
This did not prevent the EAZD from immediately writing to the Swiss Legation
in Berlin, pointing out that while such marriages would not be approved in
light of the 1902 Hague Convention, the cantons had the final say on such
issues. 136 Two years later, the EAZD expressed the view that reference to Swiss
ordre public was only possible in theory if one of the two prospective marital
partners was Swiss; under no circumstances should the ordre public be invoked
with respect to marriage between two German emigrants, however. 137 The
EAZD took an even harder line in another similar case: it was not the canton’s
task «to judge, approve or reject the grounds for the prohibition»; its legal
standpoint must simply be that «foreigners could not marry if their home
country did not recognise the marriage as valid». 138 It apparently upheld this
view until the end of the war: even as late as September 1944, the EAZD stated:
«The fiancé is non-Aryan and the bride is Aryan. We therefore think it would
be advisable if the engaged couple could be patient for a little longer [...]». 139
Law and ethics (morality) do not necessarily coincide. 140 However, this does not
imply that law is an «ethics-free area»; on the contrary, in a state under the rule
of law, the law claims to guarantee justice. 141 This ethical component genuinely
existed in the Swiss legal system before 1945 (e.g., fundamental rights, loyalty
and good faith, prohibition on the misuse of rights, etc.). This is illustrated
especially clearly through the practice of the Swiss courts described above,
which consistently invoked «the Swiss notion of law» in order to deny the appli-
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