Published in author's edition

1. Introduction

Article 6(1) of the Basic Law ("Grundgesetz" = German Federal Constitution) provides that marriage and family shall enjoy the special protection of the state ("Ehe und Familie stehenunterdembesonderen Schutz der staatlichenOrdnung"). According to article 6(2) of the Basic Law the care and upbringing of children is the natural rights of parents and a duty primarily incumbent on them ("Pflege und Erziehung der Kinder sind dasnatьrlicheRecht der Eltern und die zuvцrderstihnenobliegendePflicht"). Traditionally, marriage has been defined as the life-long relationship between a man and a woman; parents are the father and the mother of a child; the family is the community of parents and children. This view was revised about ten years ago by the coalition of the Social Democrats and the Green Party in two statutes, namely the "Ending the discrimination

of same-sex relationships act" of 16 January 2001 and the "Revision of the civil partnership law act" of 15 December 2004.1 These two statutes passed in the Federal

Parliament ("Bundestag") and equated homosexual partnerships with marriage in ∗This article is the extended and revised version of a paper delivered by the author at the 5th Public Romanian-

German-Colloquium on European Law held at Saarland University, Saarbrucken, Germany on 30 October 2013. It has been published in the Tydskrifvir die Suid-AfrikaanseReg / Journal of

South African Law (TSAR), ISSN 0257-7747, University of Johannesburg, 2/2014, p. 277-287, and in the Revista de StiinteJuridice (RSJ), ISSN 1454-3699, University of Craiova, Romania, 2/2014,

p. 9-19.

1 "GesetzzurBeendigung der DiskriminierunggleichgeschlechtlicherGemeinschaften: Lebenspartnerschaften" of 16-2-2001, Bundesgesetzblatt(BGBl = Federal Gazette) I 266 and "GesetzzurЬberarbeitung desLebenspartnerschaftsrechts" of 15-12-2004 (BGBlI 3396). Grцpl, Marriage, parents and family 2 several areas. However, other areas, especially taxation and civil service law, were left unamended, because the "Bundesrat" (Federal Council, composed of representatives of the governments of the German federal states - "Lдnder"), which was then dominated by the conservative-liberal opposition, refused to consent. After Angela Merkel had taken over government in November 2005, this kind of legislation came to a halt. This is when the German Federal Constitutional Court ("Bundesverfassungsgericht") entered the scene. Within the past decade, it has developed its own dynamics in its jurisprudence promoting same-sex equalisation, something that has been impossible to do politically in parliament. This socio-political development is neither embraced nor questioned in this article; the focus is on the exigencies of the constitution and the way in which the Federal Constitutional Court has interpreted and applied the terms "marriage" ("Ehe"), "family" ("Familie") and "parents" ("Eltern").

2. Marriage

Unlike in France, in Germany marriage has consistently been considered as a permanent relationship between a man and a woman, even by the Federal Constitutional Court. Same-sex couples have had no access or claim to marriage or the privileges attached to marriage. To the extent that article 6(1) of the Basic Law protected marriage in the conventional sense, the institutional guarantee that "marriage enjoys a special protection by state and law" has been almost completely eradicated by the first senate of the Federal Constitutional Court. In its decision concerning the Civil Partnership Act of 17 July 2002, the "special protection" has been reduced to a mere constitutional protection.2 Since then the duty - especially of the legislature - to protect marriage has been reduced to providing for this form of cohabitation in the Civil Code to all, to refrain from harming it and not to discriminate legally between it and other forms of cohabitation. Any imperative or at least the option of privileging traditional marriage has been rejected explicitly. The legislature may not protect marriage in the conventional sense more than any other comparable form of cohabitation.

This Constitutional Court thus prepared the ground for going further in making same-sex civil partnerships even more equal than the way in which the red-green coalition handled the issue. To do this, the Federal Constitutional Court utilised the fundamental right of general equality contained in article 3(1) of the Basic Law which provides that "all human beings are equal before the law". The legislature has to ensure that it treats equal things equally and unequal things unequally. The Federal Constitutional Court considers marriage and civil partnership to be equal institutions, because they

both may be intended to last for life and to constitute a social community of mutual responsibility. However, the ability to produce children has been disregarded by the Federal Constitutional Court. If the legislature wishes to treat marriage and civil partnership in different ways, it has to comply with very strict requirements of proportionality to justify this, because it differentiates on the ground of sexual orientation and therefore on the ground of a personal attribute. So far, the reasons provided by the legislature have almost never been accepted by the Federal Constitutional Court.

In the same way, a very dogmatic feature of article 3(1) of the Basic Law acts as a catalyst: the requirement of consistency ("Gebot der Folgerichtigkeit"). It involves congruent

action by the legislature: If a systemic decision has been made, it has to be carried through. Here the Federal Constitutional Court takes the "ending the discrimination of same-sex relationships act" as the starting-point: If civil partnerships are recognised

2 Entscheidungssammlung des Bundesverfassungsgerichts(BVerfGE) 105, 313 ff.

Grцpl, Marriage, parents and family 3 in certain parts of the law, this has to be done in all other parts of the legal order. In this way the Federal Constitutional Court used article 3(1) of the Basic Law to equalise civil partnerships in the areas of:

• corporate surviving dependants provision,3
• inheritance and donation tax,4
• land acquisition tax,5 and
• income tax splitting.6

This line of decision is questionable, because particularly not in 2001, the political majorities in parliament have not been able to bring about these far reaching changes by means of legislative measures. Moreover, the majorities in the Federal Parliament changed in November 2005, after which the legislature deliberately decided not to continue on the path of equalisation. A danger therefore exists that the Federal Constitutional Court is not only becoming a competitive legislature but also a sort of competitive constitutional convention.

3. Recognition of same-sex parents in the decision regarding successive adoption

3.1 Special relevance regarding questions of adoption of children Article 6 of the Basic Law refers not only to the traditional concept of marriage, but also to two much more controversial social-political terms: family and parents. The main question is whether parents and family presuppose man and woman, as well as father and mother, or whether same-sex couples can be deemed parents and constitute a family for the purposes of article 6.

This question is most relevant in the area of adoption: Are gay and lesbian couples allowed to adopt children they have not born? Until now this was difficult to do under German law. It was allowed to adopt the biological child of the other same-sex partner. But it is still illegal for two same-sex partners to adopt a child of a third party. The only way to deal with this would have been that one partner adopts the child, which will then successively be adopted by the other (so called "Sukzessivadoption" = successive adoption).

But as yet, this was not lawful in Germany either.

In its decision of 19 February 2013, the first senate of the Federal Constitutional Court declared the corresponding provision in § 9(7)7 of the Civil Partnership Act to be unconstitutional.8 This was supported again by the fundamental right of general equality in article 3(1) of the Basic Law because successive adoption was legal for married couples and therefore - from the point of view of the first senate of the Federal Constitutional Court - same-sex couples were discriminated against without proper cause. The same arguments apply here as above: By invoking the requirement of consistency, the Federal Constitutional Court considers itself to be the competitive legislature. What is even more interesting: The obiter dicta that the first senate propounds regarding article 6(1) and (2) of the Basic Law, obviously to prepare these norms for future application, are that the terms "family" and "parents" are explicitly extended for the first time to same-sex couples. In detail the senate argues as follows:

• 3 BVerfGE124, 199 ff - "BetrieblicheHinterbliebenenversorgung".
• 4 BVerfGE126, 400 ff - "Erbschaft- und Schenkungsteuer".
• 5 BVerfGE132, 179 ff - "Grunderwerbsteuer".
• 6 BVerfGE133, 377 ff - "Ehegattensplitting".
• 7 Most German Acts of Parliament are divided into "Paragraphen" (sections) which are abbreviated by the sign "§". They usually are subdivided in "Absдtze" (subsections).
• 8 BVerfGE133, 59 ff - "Sukzessivadoption".

Grцpl, Marriage, parents and family 4

3.2 The term "parents"

Admittedly, a person whose registered same-sex partner is an adoptive parent may not by default be protected by parent law, because there is no biological or legal parent relationship. However, the same sex of two people does not negate the view to see both as parents pursuant to article 6(2) of the Basic Law. As the senate of the court put it, this does not contradict the words of the provision because it does not read "mother" and "father", but uses the non-sex-specific term "parents".9 Apart from that, this neutral interpretation of the term "parents" is, according to the court, not contradictory to "deviating historical ideas".10

It may be presumed that while drafting the constitution in 1948/1949, the drafters only had "different-sex parents" in mind; however this was not a "conscious contraposition to the recognition of same-sex parents". Rather this has "simply been beyond the imagination of the times".11 "The limitations of the imagination back then and the underlying historical understanding of the term" were subsequently abandoned through the change in the legal position of homosexuals in terms of legalisation and the general equalisation in many member states of the European Union.12

3.3 The term "family"

When it comes to the term "family", the Federal Constitutional Court held that the fundamental human right concerning families protects "even the community made up of same-sex partners and a child, as long as it is made to last and consists of an all-embracing community".13 The fundamental right concerning families protects the psychological and social functions of familial relations. Therefore the lasting social community, consisting of a same-sex couple and a child, is a family according to the constitution - or at least according to the first senate of the Federal Constitutional Court.

4 The interpretation and application of the constitution

The decision of 19 February 2013 is based upon the senate's interpretation of articles 6(1) and (2) of the Basic Law and its application to same-sex civil partnerships. It may therefore be interesting to examine if the Federal Constitutional Court lives up to the requirements that the court itself imposes on the ordinary courts for interpreting and applying the law.

4.1 Methods of interpretation

Although Friedrich Carl von Savigny's contribution14 - in respect of a logical analysis - has been of special merits regarding a logical penetration and systematisation of legal interpretation, 15 his insights are nowadays often and thoroughly misunderstood.16 In the "normal" state of law, Savigny distinguished between four "elements" of interpretation: A grammatical, a logical, a historical and a systematic element. The logical element corresponds to a systematic interpretation, rather than to a "teleological", i.e. pragmatic interpretation. A teleological interpretation is only allowed, according to Savigny, when

• 9 BVerfGE133, 59 ff, recital 51.
• 10 BVerfGE133, 59 ff, recital 54.
• 11 BVerfGE133, 59 ff, recital 55.
• 12 BVerfGE133, 59 ff, recital 55 and 56.
• 13 BVerfGE133, 59 ff, recital 61.
• 14 A great German legal scholar and founder of the HistorischeRechtsschule(1779-1861).
• 15 System des heutigen rцmischenRechts(1840) 206 ff.
• 16 Rьthers/Fischer/BirkRechtstheoriemitjuristischerMethodenlehre(2011) recital 698 ff.

Grцpl, Marriage, parents and family 5 the law is faulty.17 This Savignian canon of interpretation is disregarded today. The Federal Constitutional Court has taken the liberty of using much "freer" methods of interpretation: "Only the objective intent of the legislature, as it is derived from the words and logical context, in which it is put, is decisive for the interpretation of a law. The subjective ideas of the bodies involved in the legislation however […] are not supposed to be decisive. The history of the origin of a provision is only important for the interpretation as long as it confirms the correctness of an interpretation that has been made according to the above mentioned rules, or eliminates doubts, which could not be eliminated in the above mentioned way."18 These four criteria are underscored by the majority of views on legal methodology. The main interpretation today is the teleological way as inspired by the German scholar and legal philosopher Radbruch,19 who says that "the law may be smarter than the legislature". But his views have reasonably been criticised for it is not the law which is smarter, it is the interpreter involved who thinks he is smarter than the legislature and who wants to detach the meaning he proposes from the historic provisions of the legislature.

20 The teleological interpretation therefore contains the danger that the interpreter may read his own political pre-understanding and political goals into a legal norm; interpretation may become reading something into the law.

4.2 Limits to the broadest possible historical interpretation Experience shows that due to the presence of a high measure of subjective pre-understanding, the teleological interpretation particularly leads rarely to uncontested results. The grammatical and historical ways are much less prone to errors. Through those two criteria of interpretation, we can best see where the limit is before we start to replace a term that has to be interpreted with another one. This is especially recognised regarding to the limiting effect of the wording: "The possible literal meaning of a law marks the extreme limits of legal interpretation."21 A similar meaning should be assigned to the historical interpretation. This follows from the principles of democracy and rule of law, expressed in the separation of powers, explicitly from the primary function of the legislature to create law, as well as the obligation by executive and judicial branch to adhere to this positive law.

4.3 The view of the Federal Constitutional Court in the decision of 25 January 2011 The Federal Constitutional Court shares the view that the historical criteria of interpretation

play an important role. In its decision of 25 January 2011, it says: "The judge must not put his own material conception of justice in the place of the legislature. […] The judge may not evade the meaning and purpose of the law as defined by the legislature. He has to respect the basic legal decision of the legislature as truthfully as possible under changed circumstances.

[…] Any interpretation, which neglects the wording of the law as judicial legal development, finds no support in the law and is not explicitly or - in case of obviously unplanned legal gaps - tacitly accepted, by the legislature, encroaches unlawfully on the competences of a democratically legitimated legislature."22

17 N 15, 222.

18 This has been the consistent approach of the Federal Constitutional Court since the very first volume

of its reports: BVerfGE1, 299 (312).

19 1878-1949.

20 Rцhl and Rцhl AllgemeineRechtslehre(2008) 629.

21 BVerfGE 92, 1 (12).

22 BVerfGE 128, 193 (209 ff).

Grцpl, Marriage, parents and family 6 For a number of reasons this must be applied even more strictly to the interpretation of the constitution by the Federal Constitutional Court:

• Firstly, the constitution is a legal product like other Acts.
• Secondly - and this is much more relevant - amendments to the constitution canno simply be made by a simple parliamentary majority, but in terms of article 79(2) ofthe Basic Law,23 only by two-thirds of the members of the Federal Parliament (Bundestagand two thirds of the votes of the Federal Council (Bundesrat). Additionally, the amendment in content - according to article 79(1) of the Basic Law - must be effected by a modification of the wording.24 Such exclusive legislative power cannot be exercised by any other constitutional body (organ), especially not by the Federal Constitutional Court.
• − Thirdly, the function and position of the Federal Constitutional Court imply the existence of limits on its function to interpret because it is constituted as a body with limited jurisdiction. The constitution does not exempt it from the horizontal division of powers. The Federal Constitutional Court is not a legislative body; its task is to interpret the constitution and to apply it, not to create or amend it.
• − Lastly, the judges of the Federal Constitutional Court are elected half by the Bundesta (Federal Parliament) and half by the Bundesrat (Federal Council).25 They therefore do not enjoy direct democratic legitimacy in the way members of parliament do.
• Parliaments represent a much broader and diverse picture of the social diversity than the few judges in the court. In this democracy and in this constitutional state most decisions are to be made by a majority in a democratic directly legitimated legislature.

5 Application of guidelines of the Federal Constitutional Court to the interpretation of article 6 of the constitution

5.1 Application of the binding guidelines for ordinary courts to the Federal Constitutional Court It seems to be necessary to apply the interpretation guidelines set up by the Federal

Constitutional Court for the ordinary courts to its own interpretation of the constitution. The Federal Constitutional Court should not evade the meaning and purpose of the constitution

as determined by the constitutional convention.

5.2 Origin of article 6 of the Basic Law - the debates in the parliamentary council ("Parlamentarischer Rat")

We have to examine voices from the parliamentary council that drafted the Basic Law in 1948/1949. In its debates the following wording was proposed: "Marriage is the legal

partnership of man and woman. It is the foundation of the family."26 The main committee of the parliamentary council would later decide on the much shorter present version. Any explicit reference to man and woman was not regarded as necessary because it was implicated by the term "marriage". From this historical context it should be clear that the term "man and woman" does not just stand for the term marriage, but can be applied to the family as well.

23 "Any such law [viza law amending the constitution] shall be carried by two thirds of the members of the Bundestag and two thirds of the votes of the Bundesrat."

24 "This constitution may be amended only by a law expressly amending or supplementing its text."

25 CfArticle 94(1)2 of the constitution: Half the members of the Bundesverfassungsgerichtshall be

elected by the Bundestag and half by the Bundesrat.

26 Matz "Entstehungsgeschichte der Artikel des Grundgesetzes" 1951 Jahrbuch des цffentlichenRechts

(2nd ed 2010) a 6, 93.

Grцpl, Marriage, parents and family 7 Regarding the parenting law in article 6(2) of the Basic Law, the parliamentary council discussed a formulation that would have stated that the authority of the parents is exercised by the man and the woman equally.27 This fell victim to editorial concerns. There can be no doubt however that the parliamentary council assumed the heterosexuality of the partners both in respect of the term family as well as in respect of the term parents. This was even acknowledged by the first senate of the Federal Constitutional Court in his decision on successive adoption in February 2013, when it stated that the "recognition of same-sex-parents was simply outside of the limits of what had been imagined back then."28

5.3 "The horizon of imagination" of the constituents and the "deliberate contraposition" - constitutional change in respect of the terms parents and family? The first senate nevertheless did not draw the consequence that an interpretation beyond the limits of imagination should be out of reach, more precisely, out of the reach of the Federal Constitutional Court itself. Does this in return, as an argumentum e contrario, imply that any interpretation outside of the "horizon of imagination" of the creator of the norm is permissible?

Such a reasoning might have sinister consequences; examples like the "ethnic" reinterpretation of the legal system by the Nazi lawyers, don't need to be invoked. It may

therefore be assumed that the first senate did in fact not intend to have this argumentum econtrario generalised or twisted in this way. Interestingly, the senate adds another aspect: The wording of article 6(2) of the Basic Law which implies the exclusive idea of heterosexual parents does not permit the conclusion that a "deliberate contraposition" to same-sex parents was intended.29 This way

of reasoning would however permit any kind of interpretation, as long as it was not deliberately contraposed to the imagination of the legislature.

Furthermore, as I see it, the Federal Constitutional Court committed a logical fault here: You can not be in "deliberate contraposition" to what is not within your "horizon

of imagination" and therefore outside of your awareness. Such a reasoning leads to begging the question.

But let's not be too harsh on the Federal Constitutional Court. Perhaps its first senate meant something different when it referred to the imagination horizon of the fathers and mothers of the constitution. Perhaps it simply meant that the judge is supposed to assert the will of the legislature under changed circumstances. Thus the question arises: is constitutional change by interpretation ("Verfassungswandel") permissible, that is, a "change in the content of a constitutional norm, without amending the wording? Can such a constitutional change justify overstepping the border between interpreting and changing the constitution? The following has to be distinguished:

i. Terms that have been deliberately left open by the constitutional convention, which are contingent, may be changed through interpretation. An example is the criterion "moral law" ("Sittengesetz"), in terms of which the right to free development of personality under article 2(1) of the Basic Law may be limited. For example, today a kiss between unmarried people in public may be permissible in terms of moral law, an interpretation that was probably unthinkable in 1948/1949.

27 Matz (n 26), a 6, 100.

28 BVerfGE133, 59 ff, recital 55.

29 BVerfGE133, 59 ff, recital 55.

Grцpl, Marriage, parents and family 8 ii. The position is the same in respect of terms which represent only a framework. An example would be the term "property" ("Eigentum"), which has been vastly expanded in the decades past. iii. Constitutive elements that the constitutional convention has assigned to a certain term are something different. They cannot be replaced by appealing to constitutional

change. This is a consequence of the thoughts expressed above about democracy and the division of powers. I submit that this includes the heterosexuality not just in the

term "marriage" ("Ehe"), but also in the terms "parents" ("Eltern") and "family ("Familie"). For it was outside the "horizon of imagination" of the historical constitutional

convention, as the Federal Constitutional Court conceded itself, to see samesex couples as parents or family. This made the heterosexuality not a contingent feature,

but a constitutive element. Here the constitutional change should have found its limits.

5.4 Ancillary arguments of the Federal Constitutional Court The First Senate referred to another argument for the constitutional change namely the

repeal of the criminal culpability of male homosexuality in (§§ 175 and 175a of the German Criminal Code (the Strafgesetzbuch - StGB)30 and the federal Civil Partnership Acts in 2001 and 2004. This however raises concerns about the lex-superior rule,31 according to which the constitution may not be dominated by the ordinary law. The ordinary law is subordinate to the constitution, not the other way round. This is the only way the authority and function of the constitution as a benchmark to invalidate unconstitutional law can be maintained.

Apart from this, the first senate referred to legislative developments in Europe. Joint adoption and successive adoption are currently legal for same-sex couples in eight

states. Stepchild adoption of the biological child of one of the partners is legal in eleven states, individual adoptions by homosexual persons in twenty states.32 Quantitatively

this only means that from the 46 European nations, these possibilities are not given in 38, 35 and 26 nations.

However, the Federal Constitutional Court could have referred to the qualitative aspect: It could have intended to illustrate that the mentioned eight, eleven or twenty nations are more progressive, more humanistic or simply more equitable and fair. The senate did not say so explicitly. Any intention to convey such a thought implicitly calls for a reply: Except for highlighting aspects of legal politics concerning the issue, this contributes nothing in terms of interpreting and applying the constitution. Legal policy is the responsibility of the directly legitimised constitutional bodies, not of the Federal

Constitutional Court.

5.5 Legitimation to decide basic questions in a democratic, constitutional state The protection of permanent partnerships with mutual responsibilities of all sexual preferences may be convincing, may be even desirable. But is the Federal Constitutional Court competent to decide so? The legitimacy of accelerating social development through progressive action by the courts may cause problems: Who decides upon the Zeitgeist? When and under which conditions is such a spirit "good"? Where are the limits?

Can there be any limits?

30 § 175 StGBwas repealed in 1994, § 175a StGBwas repealed in 1969.

31 Lex superior derogatlegiinferiori.

32 BVerfGE133, 59 ff, recital 56.

Grцpl, Marriage, parents and family 9

If yes: Where and under which conditions may socially familial communities of mutual responsibility be given protection (against discrimination)? Are "parents" to be protected even if a woman wants to found a family with two or three men - or, vice versa, a man with two or more women - or a brother and a sister? Does this constitute a family, even if a father and his stepdaughter or even his biological daughter want to have babies and raise them?

This does not mean that homosexual relationships, in the light of social development, have to be excluded from the right to be (step)parents or to have a family at any rate.

But the decision about this seems to be too complex and too controversial in current societyto be taken by a senate of the Federal Constitutional Court without a broad public discussion and a more extensive consideration by specialists, especially psychological and socio-scientific experts. The democratic competence to decide these questions belongs to the directly legitimised bodies, in Germany primarily to the Federal Parliament. When time has come to change the constitutional terms "family" and "parents", this has to happen by an explicit amendment of the Basic Law in terms of its article 79. Below this bar, the ordinary legislature might progress in these areas with a simple majority, taking into consideration article 6 of the Basic Law and without being put under pressure

by the Federal Constitutional Court to conform to its jurisdiction according to § 31(1) of the German Federal Constitutional Court Act.33

6 Summary It has not been my intention to take a stance, politically or legally, against homosexual civil partnerships. What worries me is how the first senate of the Federal Constitutional

Court, through teleological interpretation and neglect of the wording and genetics of constitutional norms, makes its own policy and - according to its own views - wants to

shape the social circumstances conducive towards the more progressive, the more humanistic, and the more equitable and fair. If the decision on successive adoption of past

February had been a judgement of an ordinary court, the passages concerning the interpretation of articles 6(1) and (2) of the constitution would have most probably been

overruled by the Federal Constitutional Court. Let me submit five theses:

• i. The border between the interpretation and revision of the constitution has to be set where an interpretation contradicts the constitutive, non-contingent elements. Even aconstitutional change cannot overrule such features.
• ii. The parliamentary council in 1948/1949 understood the feature "heterosexuality" as a necessary ingredient of the terms "marriage", "parents", and "family".
• iii. By considering homosexual couples to be protected by the terms "parents" and "family"in articles 6(1) and (2) of the Basic Law, the Federal Constitutional Court oversteps the border between the interpretation and the amendment of the constitution.
• iv. It is at least very dubious whether the requirement of consistency is complied with the Federal Constitutional Court's equalisation of civil partnerships and marriage.
• The Federal Constitutional Court should show more respect to the changed political circumstances since 2005.
• v. It is up to the directly legitimised constitutional legislature to decide in terms of a constitutional amendment whether same-sex-partnerships should be under the protection of article 6 of the Basic Law.

33 Pursuant to § 31(1) of this act, the decisions of the federal constitutional court shall be binding upon the constitutional bodies as well as the courts and authorities of the federation ("Bund") and the federal states ("Lдnder").