Recognition of same-sex unions in Germany

Since 1 August 2001, Germany has allowed registered life partnerships (Eingetragene Lebenspartnerschaft) for same-sex couples. These partnerships provide most but not all of the rights of marriage. Attempts to give equal rights to registered partners or to legalise marriage for same-sex couples have generally been blocked by the CDU/CSU. The Federal Constitutional Court of Germany has however issued various rulings in favour of equal rights for same-sex registered partners, requiring the governing coalition to change the law.

History

Registered life partnership

First and second Schröder governments (1998–2005)

An Act on Registered Life Partnerships of 2001 was a compromise between proponents of same-sex marriage and conservatives from the two major conservative parties, whose MPs' interpretation of marriage excludes gays. The act grants a number of rights enjoyed by married, opposite-sex couples. It was drafted by Volker Beck from The Greens and was approved under the Green/Social Democratic coalition government. The Bundestag approved it in November 2000 with the government parties voting in favour and the opposition parties CDU/CSU and FDP voting against. President Johannes Rau signed the law on 16 February 2001 and it entered into force on 1 August 2001.

On 17 July 2002, the Federal Constitutional Court of Germany upheld the act.^[1][2] The Court found, unanimously, that the process leading to the law's enactment was constitutional. The 8-member Court further ruled, with three dissenting votes, that the substance of the law conforms to the constitution, and ruled that these partnerships could be granted equal rights to those given to married couples. (The initial law had deliberately withheld certain privileges, such as joint adoption and pension rights for widow(er)s, in an effort to observe the "special protection" which the constitution provided for marriage and the family. The court determined that the "specialness" of the protection was not in the quantity of protection, but in the obligatory nature of this protection, whereas the protection of registered partnerships was at the Bundestag's discretion.)

On 12 October 2004, the Gesetz zur Überarbeitung des Lebenspartnerschaftsrechts (Registered Life Partnership Law (Revision) Act) was passed by the Bundestag, increasing the rights of registered life partners to include, among other things, the possibility of stepchild adoption and simpler alimony and divorce rules, but excluding the same tax benefits as in a marriage. It took effect on 1 January 2005.^[3]

First Merkel government (2005–2009)

In July 2008, Federal Constitutional Court of Germany ruled that a transsexual person who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the legislature one year to effect the necessary change in the relevant law.^[4]

On 22 October 2009, the Constitutional Court ruled that a man whose employer had given him and his registered partner inferior pension benefits on account of him not being married was entitled to the same benefits he would receive were he and his partner married and of opposite sexes.^[5] The court's decision mandated equal rights for same-sex registered couples not just in regard to pension benefits, but in regard to all rights and responsibilities currently applying to married couples.^[6]

Second Merkel government (2009–2013)

On 25 October 2009, the Government Programme of the new Christian Democratic-Free Democratic coalition was released. It stipulated that any inequality of rights between (same-sex) life partners and (opposite-sex) married couples would be removed, and would codify into law the Constitutional Court's ruling of 22 October 2009. However, the Government Programme did not mention adoption rights.^[7]

On 17 August 2010, the Federal Constitutional Court ruled that the surviving partners of registered partnerships are entitled to the same inheritance tax rules as the survivors of mixed-sex marriages. Surviving marital partners paid 7—30% inheritance tax while surviving registered partners paid 17—50%.^[8]

On 18 February 2013, the Federal Constitutional Court broadened the adoption rights for registered partners.^[9] A partner must be allowed to adopt the other partner's adopted child, a so-called "successive adoption", and not only a partner's biological child. However, the government did not bring up a vote in parliament to change the adoption laws before it adjourned in June 2013. The Court gave the Parliament the deadline of 30 June 2014 to change the laws.^[10]

On 6 June 2013, the Federal Constitutional Court ruled that registered partnerships should have joint tax filing benefits equal to those of married (opposite-sex) couples. The parliament had to change the law retroactively, and did so within a month.^[11][12]

Third Merkel government (2013–present)

While the new CDU/CSU-SPD government had to allow successive adoption by June 2014 as required by the 2013 Federal Constitutional Court ruling, the Court was expected to rule in 2014 whether registered partners must be allowed to jointly adopt children as well, but dismissed the case in February 2014 on procedural grounds.^[13][14]

In March 2014, the government approved the proposed law to allow successive adoption, with discussion on whether or not to implement full adoption equality. The Bundesrat recommended full adoption equality,^[15] and a Bundestag Committee held a hearing on the topic.^[16] On 22 May, the Bundestag passed the law while rejecting proposals by The Greens for full adoption equality.^[17] Another law to grant full tax equality passed unanimously in the Bundestag, finishing the required legal changes following the June 2013 court ruling.^[18]

In October 2015 the Bundestag approved a government bill modifying a series of laws concerning registered partnerships. It gave the same rights as married couples in several legal areas; there were however no noteworthy changes. The bill passed the Bundesrat in November.^[19]

Same-sex marriage

Laws regarding same-sex partnerships in Europe

  Marriage

  Foreign marriages recognized

  Other type of partnership

  Unregistered cohabitation

  Unrecognized

  Constitution limits marriage to opposite-sex couples

---- Includes laws that have not yet gone into effect.

CDU/CSU, the senior member party of Germany's coalition government is opposed to the legalisation of same-sex marriage. The Green Party, the Social Democratic Party, and the Left Party support same-sex marriage and voted for a defeated bill to legalise it.^[20][21][22] The Free Democratic Party also supports it but voted against during the 2009–2013 government because CDU/CSU opposes it. The Social Democratic Party supports it but voted against during the 2013-2017 government because CDU/CSU opposes it.

The Greens, in opposition, released a draft law on same-sex marriage in June 2009.^[20] In March 2010, the Senate of Berlin announced its intention to introduce a same-sex marriage bill in the Bundesrat, the federal representation of the German states. According to the Senate, this law would best fit the Constitutional Court's ruling that same-sex couples must be equally treated as heterosexual ones.^[23] The Bundesrat rejected the law in September 2010.^[24] Only Berlin, Brandenburg, Bremen and North Rhine-Westphalia voted in favour of the same-sex marriage bill. The other 12 Länder didn't vote in favour of the bill.

In June 2011, the Senate of Hamburg, following CDU losses in state elections around the country, also announced its intention to introduce a same-sex marriage bill in the Bundesrat.^[25]

On 28 June 2012, a Green Party motion in the Bundestag (Federal Diet) to legalise same-sex marriage was defeated by a vote of 309 to 260, with 12 abstentions. The motion was meant to give parity to same-sex couples in adoption and for tax purposes. Members of the ruling coalition of Union parties and Free Democratic Party voted against the proposal while opposition parties Social Democratic Party, Greens, and The Left supported it.^[26]

On 22 March 2013, the Bundesrat passed an initiative proposed by 5 states, which would open marriage to same-sex couples.^[27] The bill was sent to the Bundestag for a vote,^[28] however, the ruling coalition was still the same as in 2012 when the previous proposal was defeated.

Federal elections were held on 22 September 2013, after which a new government coalition needed to be formed. The new Bundestag, which started on 22 October, again consists of a theoretical majority of parties that favour LGBT rights (SPD, Die Linke and The Greens). Die Linke immediately introduced a bill to legalise same-sex marriage, however SPD was expected not to support it in order to not jeopardise the negotiations of the government formation.^[29][30] Even though SPD campaigned on "100% equality" for LGBT people, the coalition agreement between CDU, CSU and SPD does not contain any significant change regarding LGBT rights.^[31]

On 25 September 2015, the Bundesrat voted to approve a bill legalising same-sex marriage proposed by 9 states. The bill now goes to the Bundestag, where the government parties are expected to vote it down.^[32]

On 16 December 2015, the governing parties (CDU/CSU and SPD) blocked the consideration of a same-sex marriage bill in the Legal Affairs Committee proposed by the Greens.^[33]

On 14 August 2016, despite the lack of legal recognition for same-sex marriage, two men were married in Berlin's Marienkirche by two Protestant pastors, the first same-sex marriage performed in a German church.^[34]

Statistics

The registered partnerships act went into effect on 1 August 2001. By October 2004, 5,000 couples had registered their partnerships. By 2007, this number had increased to 15,000, two thirds of these being male couples.^[35] By 2010, this number had increased to 23,000.^[36][37] By 9 May 2011, this number had increased to 68,268.^[38]

Public opinion

In December 2006, a poll conducted by the Angus-Reid Global Monitor, seeking public attitudes on economic, political, and social issues for member-states of the European Union found that Germany ranked seventh supporting same-sex marriage with 52% popular support. German support for same-sex marriage was above the European Union average of 44%.^[39]

In January 2013, a poll conducted by the YouGov found that German support for same-sex marriage is 66% for, 24% opposed and 10% don’t know. Support for same-sex adoption is 59% for, 31% opposed and 11% don’t know.^[40]

A February 2013 poll found 74% of the German people supporting same-sex marriage, with 23% against. Support was recorded to be strongest among Greens and Social Democratic (SPD) voters, but even among voters of Chancellor Angela Merkel's governing Christian Democrats (CDU) almost two-thirds were in favour, the poll showed.^[41]

A May 2013 Ipsos poll found that 67% of respondents were in favour of same-sex marriage and another 12% supported other forms of recognition for same-sex couples.^[42]

According to the Ifop poll, conducted in May 2013, 74% of Germans supported allowing same-sex couples to marry and adopt children.^[43]

According to an October 2013 poll by TNS Emnid, 70% support full legal equality of registered partnerships and marriage.^[44]

According to a May 2015 poll by YouGov, 65% support same-sex marriage (by party: 57% of CDU voters, 79% of SPD voters, 68% of Die Linke voters and 94% of Green voters). Another 28% oppose same-sex couples to marry and 7% don't know. The support rises to 75% among 18- to 24-year-olds, but falls to 60% among those aged 55 and over, 64% among Catholics and 63% among Protestants. Support for same-sex adoption is 57% for, 35% opposed and 8% don't know.^[45]

The 2015 Eurobarometer found that 66% of Germans thought that same-sex marriage should be allowed throughout Europe, 29% were against.^[46]

Another May 2015 poll by TNS Emnid found out that 64% of Germans support same-sex marriage (by party: 63% of CDU/CSU voters, 77% of SPD voters, 63% of FDP voters, 62% of The Left voters, 89% of Green voters and 14% of AfD voters). Another 31% are opposed and 5% don't know.^[47]

A June 2015 poll by INSA showed that 65% of Germans supported same-sex marriage (by party: 58% of CDU voters, 75% of SPD voters, 72% of Die Linke voters, 79% of Green voters, 65% of FDP voters, and 42% of AfD voters).^[48]

See also

• LGBT rights in Germany
• Recognition of same-sex unions in Europe

References

External links

• Act on Registered Life Partnerships