Handelsblatt Explains

Why Germany Waited so Long to Legalize Gay Marriage

Erste gleichgeschlechtliche Trauung der Berliner Landeskirche
In the name of the father, and the other father... Source: DPA/Wolfram Kastl

It was probably Angela Merkel’s most cringe-worthy moment ever: During a live televised debate in 2013, an audience member asked the chancellor whether it would one day be possible for him and his male partner to adopt a child together. Usually composed and eloquent, Ms. Merkel stumbled through a confused answer. She had “difficulties” with giving gay and lesbian couples the right to adopt, she said, admitting that this might seem old-fashioned. “I am unsure what is good for the child, and this uncertainty I would simply like to be allowed to express without wanting to discriminate against anyone.”

Four years on, and in another election campaign, the chancellor hasn’t changed her tune. Germany has long been seen as a liberal and progressive nation, and its capital, Berlin, is considered a global queer hub. Yet until late June 2017, the last day before the Bundestag’s summer recess, it was one of the last Western countries where gay marriage was not legal.

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Up until June 30, 2017, Germany was among the countries where gay marriage was banned.

Germany has always been ambivalent about homosexuality. On one hand, it has often been in the vanguard of gay culture. The world’s first lobby for homosexuals, the “Scientific-Humanitarian Committee,” was founded in Berlin in 1897. Schöneberg, a district of Berlin, was considered the world’s first gay village, and in the 1920s, German cabaret became famous for its gender-bending.

On the other hand, homosexuality (at least the male kind) was illegal during this entire time – banned under paragraph 175 of the criminal code that took effect in 1871, when Germany first unified. The Nazis broadened this paragraph, so that even a love letter from man to man became a crime. Tens of thousands were forced to wear the pink triangle in concentration camps; many were murdered. After 1945, even as the Allies insisted on Nazi-era laws being struck, West Germany kept paragraph 175. (East Germany reverted to an older version of it.) Between the end of the war and 1969, 100,000 men were indicted under the paragraph and about half of those went to prison.

The party bloc in government during those years was a combination of the conservative Christian Democratic Union (CDU) and its even more traditional Bavarian sister party, the Christian Social Union (CSU). Formed out of the remnants of Weimar-era Catholic and Protestant parties (hence “unions” in an ecumenical sense), the CDU-CSU bloc defined itself as a protector of family values and traditional morals. Other parties, such as the Greens, which sprang out of the counter-culture movement of the 1970s and first entered parliament in the 1980s, shifted the social consensus on sexual matters. Even so, paragraph 175 wasn’t completely deleted until 1994.

Since then, German laws have become more liberal. Since 2001, gays and lesbians can register civil unions. These couples enjoy many of the same legal benefits as marriage. They are taxed as partners and have the same rights to health insurance. But besides the formal title “marriage,” one other crucial piece is still missing.

This is right to have children together. Neighboring countries such as the Netherlands, France, Spain, Denmark and Belgium allow same-sex couples to adopt. But Germany throws up lots of legal hurdles. If a gay German couple wants to raise children together, one partner must adopt the other’s biological child as, in effect, a step child. Another option is “successive adoption,” if one partner adopts a child that has already been adopted by the other. Complicating matters further, Germany also has relatively strict laws on artificial insemination and surrogacy, which narrows those options. Germany’s legal system is out of date in other ways too: Birth certificates require both a mother’s and father’s name to be valid.

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The CDU and CSU, in power again since 2005 (albeit with different coalition partners), have indeed been the main obstacle to faster progress. Ms. Merkel, daughter of a Lutheran pastor, may have genuine personal reservations. But above all, she pragmatically senses a political constraint. She has already tugged her party’s conservatives left on a range of issues from eliminating the draft to exiting nuclear power, introducing a minimum wage to admitting hundreds of thousands of refugees. Gay marriage, she fears, would be a step too far, and could cause a rebellion in her own ranks.

“Since the beginning, the CDU has stated that legalizing gay marriage would be a danger to family and traditional marriage,” says Axel Hochrein, a board member of the Lesbian and Gay Federation in Germany. “But lesbians and gays have been in civil unions for 15 years and that hasn’t happened. In Germany, we have a lot of single mothers or fathers, we have heterosexual partners who do not want to get married. There is a diversity of families in Germany, and the Union sees itself as the guardian of longstanding tradition in order to serve its conservative voters.”

But public opinion is trending away from the CDU’s position and toward Mr. Hochrein’s. In January, Germany’s Anti-Discrimination Agency surveyed citizens to find that 83 percent are now for same-sex marriage. Even within the CDU there is movement. The newly-elected premier of Schleswig-Holstein, Daniel Günther, a staunch Catholic, recently came out in favor of gay marriage and adoption rights. Jens Spahn, a leading Christian Democrat who is also deputy finance minister, is openly gay and in a civil union. A June poll by Bild, the daily newspaper, showed that 73 percent of CDU/CSU voters favored equal marriage.

A step towards liberalization was taken last year in an important symbolic law that retroactively annulled all those old convictions under paragraph 175 and giving restitution to the men prosecuted who were still alive.

The issue was finally resolved in a sudden vote late in June, after a flurry of activity. Ms. Merkel’s main rival for the chancellery, Martin Schulz of the Social Democrats, called for “marriage for all” on the campaign trail. Then, Ms. Merkel casually said on a television chat show that politicians could vote with their consciences instead of along party lines, he seized the moment. Together with Green and Left Party politicians, he forced the issue to a vote, angering conservatives. On June 30, the day before the Bundestag’s summer recess lawmakers voted 393 to 226 in favor of legalizing gay marriage, in a historic move bringing German law on gay marriage into line with most other European countries.


Barbara Woolsey writes for Handelsblatt Global in Berlin. This article was updated on June 30. To contact the author: b.woolsey@extern.vhb.de

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