Same-sex marriage legalised in Germany: is there a catch?

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Confetti rained down on members of the Green Party in the Bundestag’s (German parliament) last session before the summer recess. On Friday, the 28th of 2017, 393 out of 630 members of parliament voted in favour of a bill to legalise marriage between same-sex partners.

With the SPD (Social Democrats) going against their coalition partner CDU (Christian Democrats), a “coalition of the willing” consisting of Social Democrats, the Green Party and the Left Party guaranteed a majority for the bill in the lower house.

Chancellor Merkel had eventually given in to the pressure from its coalition partner and allowed for a vote of conscience on the bill, free from party discipline. While some 80 conservative MPs voted in favour of the bill, the vast majority of the ruling party CDU and its Bavarian – more conservative – sister party CSU (Christian Social Union) voted against it.

Undoubtedly a legal milestone in the history of gay rights in Germany, concerns have rapidly been voiced over the constitutionality of the law vis-à-vis a potential collision with the somewhat unspecific definition of marriage in the German constitution. Conservative legal scholars and politicians have referred to the established jurisdiction of the Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe, which has thus far maintained a conservative interpretation of marriage as the union between a man and a woman.

So could the “marriage for all” law be scrapped after all? In theory, yes. In order to assess the likelihood of this event, two factors come into play: the political will to challenge the law, and the Constitutional Court’s jurisdiction in case of a challenge. As far as legal recourse goes, a law can be subjected to the court’s review either by means of an individual lawsuit, or by a motion initiated either by the federal government, a state government, or 25 percent of all MPs in the Bundestag.

Option one, a citizen’s lawsuit, would have to bring forward a case, in which a violation of individual constitutional rights is proven – a scenario considered as highly unlikely in view of the law in question. The latter option, however, a motion initiated by a state government, remains a possibility.

Politically, who could initiate such a motion? Two parties have announced their opposition to the law with the (potential) intention of challenging it: the populist right-wing party AfD (“Alternative for Germany”) and the Bavarian CSU, member of the grand coalition government. The former, albeit represented in most state governments, is in no position to do so. The CSU however, whose leader and Bavarian prime minister Horst Seehofer announced that a potential challenge of the law would be reviewed thoroughly, could take legal action and bring the case to Karlsruhe. Given Seehofer’s penchant for playing Merkel’s bad cop in the two sister parties’ currently somewhat difficult relationship, this is also politically imaginable.

Remains the question what kind of verdict could be expected from the Constitutional Court in this scenario. Since the definition of marriage in the constitution is void of any specification in terms of gender, the Court would technically be free to argue both ways. Despite its established jurisdiction to the contrary, it is however conceivable that the judges embrace an evolutive understanding of marriage, and reject a potential challenge.

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