To Make a Commitment

von Maximilian Steinbeis

Dear Friends of Verfassungsblog,

One of the most vexing aspects of constitutional law is that it is so well suited to dogmatize political preferences. Gay marriage – or rather: marriage for all, as the French ingeniously put it – is an example. Even the most rigidly conservative parts of the political spectrum in Germany are hard pressed nowadays to come up with a halfway presentable argument why same-sex couples should not have access to that thoroughly conservative institution of reciprocal legally binding responsibility for each other that is marriage. They are relieved from the burden of justification, however, when they can point to the constitution and say: Well, no matter what we want or do not want, we can’t anyway; it would be unconstitutional, as under the Grundgesetz, Art. 6, marriage and family enjoy special protection by the state, and "marriage" is understood both by the framers and the constitutional court as a bond between man and woman who produce offspring in a "natural" way, which can not be redefined by a simple majority. It’s not us, it’s the constitution! Get over it!

Which we won’t, of course. We still insist on getting an explanation why special protection for offspring-producing (or not) straight couples conceptually excludes special protection for offspring-raising (or not) gay couples. That our constitution of all things should compel us to discriminate against a vulnerable minority is obviously not a self-evident point to make. There could be a very fruitful debate on this matter, particularly on questions of constitutional law.

That is, as far as the legislator is concerned, unlikely to happen anytime soon. Several draft laws have been tabled in the German Bundestag during this legislature, one by the Greens, one by the Left, and another by the States (Bundesrat), to finally open marriage for all regardless of their sex ...

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