By Dr. K. Louise-Davidson-Schmich
On Friday June 30th, in its last meeting before the summer holiday and the fall 2017 election, the German parliament suddenly voted to allow gays and lesbians to marry. This legislation was proposed by leftist parties in Germany’s upper house (the Bundesrat) and placed on the agenda of the lower house (the Bundestag) at the last minute. It expanded upon the rights granted to same-sex couples in a 2001 Life Partnership Law, which created legally-recognized civil unions but fell short of marriage in many regards. (See here for details.) This quick move toward a major policy change is unusual in German politics where policies are usually slowly and incrementally adjusted.
Much of the commentary surrounding this historic and unanticipated Bundestag vote has focused on Angela Merkel’s surprise decision to allow members of the Christian Democratic CDU/CSU to vote their conscience on the bill, rather than requiring them to toe their party’s official line opposing marriage equality. As a result, a quarter of the CDU/CSU Members of the Bundestag broke ranks with the Chancellor and joined the opposition parties in supporting marriage equality. But what drove Merkel’s decision to permit a conscience vote? What changed in Germany last month, leading to the sudden approval of “marriage for everyone” (Ehe für Alle) after almost two decades of only incremental amendments to the Life Partnership Law?
Merkel claims her decision was made after a “life changing” meeting in her constituency with a lesbian couple who had fostered eight children together. But it is hard to imagine that the most powerful woman in the world would shift her position due to a single personal encounter. Indeed, she held fast to her policies on immigration during a previous emotionally-charged meeting with a refugee girl in 2015. Moreover, Merkel herself voted against the marriage bill in the Bundestag.
Perhaps the impetus for her changed stance came from outside of Germany. International influences have certainly played a role in shaping Germany’s policy toward civil unions in the past. For example, the Life Partnership Law was amended after the European Court of Justice ruled in 2008 that German Registered Life Partners must be granted the same employment benefits as married couples. Similarly, in 2013, the German Constitutional Court ruled in keeping with the Council of Europe’s Convention on Adoption that a Life Partner must be allowed to adopt his or her Partner’s previously adopted child, forcing Merkel’s government to again amend the Life Partnership Law. In these and other instances, Merkel’s Christian Democrats made only minimal, court-mandated technical changes to the Life Partnership Law rather than opening the institution of marriage to same-sex couples. This June, however, no new international developments occurred requiring Merkel to quickly change her position on marriage equality. Her motivations must lie in the domestic arena.
The sudden decision to allow a conscience vote seems unlikely to have been directly caused by the actions of Germany’s largest LGBT advocacy group, the Lesben- und Schwulenverband in Deutschland (LSVD). This group has been tirelessly working for marriage equality since its formation following German unification in 1990. Its earliest public effort to achieve marriage rights, Aktion Standesamt, occurred in 1992.
Indirectly, of course, the LSVD’s efforts to shape public opinion, in conjunction with actions of other international organizations such as ILGA, indeed contributed to last week’s change of policy in Germany by convincing the public to support marriage equality. A June 23rd poll found that a majority of voters in all German parties, including Merkel’s, favored extending marriage rights to gay and lesbian couples. However, a 2015 poll also found Germans – even those in the CDU — in favor of marriage equality, so a recent shift in public opinion cannot explain Merkel’s current turnabout.
Nor did any opposing parties suddenly come to support marriage equality per se. All parties in the Bundestag, except the CDU/CSU, have favored marriage equality since at least 2013; the same is true of the CDU/CSU’s former coalition partner, the Free Democratic Party not currently in the Bundestag but poised to return after the upcoming election.
The Left Party has consistently supported marriage equality rather than mere civil unions since the passage of the Life Partnership Law in 2001. When the vote on that law was taken (see Chapter 5 here), members of what was then the PDS abstained from the Bundestag vote, arguing that second-class partnerships for gays and lesbians were not enough. As early as 2007 the Left Party began submitting a series of bills to the Bundestag calling for marriage and adoption rights. As the party has consistently been in the opposition, however, all of these proposals failed.
Similarly, the Green party, which initiated Bundestag discussions of same-sex partnership rights back in 1988, has consistently pushed for legal recognition for gay and lesbian couples. It was at their instance that the original Life Partnership Law passed in 2001. Since 2006 they too have consistently pressed the Bundestag to grant gay and lesbian couples greater rights through a series of bills – all of which have been voted down by the CDU and their coalition partners: variously the Social Democrats (SPD) and Free Democrats (FDP). Again this June, the Greens placed marriage equality front and center of their 2017 electoral program, claiming they would refuse to enter any coalition that did not promise marriage equality.
Thus the Green and Left Parties, like the LSVD, have been consistently pressing Merkel and her party toward marriage equality for a decade. Their actions cannot account for her recent change of heart. The same cannot be said for Germany’s two other main parties, however. Merkel’s changing stance on marriage equality can be attributed to the changing actions of her previous coalition partners, the Free Democratic Party (FDP) and Social Democratic Party (SPD). Both parties have long (in theory) favored marriage equality, but in the past did nothing to act on this preference when in coalitions with the CDU/CSU. This year they promised things would be different.
In 2001 the libertarian Free Democrats supported life partnerships for LGB citizens in principal, but voted against the Life Partnership Law in practice, arguing no state regulations were needed for same-sex couples; instead, they favored private solutions akin to pre-nuptial agreements. This stance changed by 2006, when the party began proposing bills to bring civil unions in line with marriages. Despite the FDP’s proclaimed support for marriage equality, they failed to press the issue between 2009 and 2013 when in a coalition government with the CDU/CSU. The same can be said about the SPD.
Germany’s 2001 Life Partnership Law was passed under a Social Democratic / Green coalition at the initiative of the Green party. Many in the SPD, including Interior Minister Otto Shily and Minister of Justice Herta Däubler-Gmelin, argued against extending marriage rights to same-sex couples believing, as Angela Merkel argued when justifying her “no” vote on marriage equality, that it would violate Article 6 of Germany’s constitution-like Basic Law which grants “special protection” to “marriage and family.” The SPD’s stance only began to change after the Red/Green coalition ended. During the 2009 and 2013 election campaigns the SPD claimed to favor “Ehe für Alle” but did not press the issue when they entered into coalition talks with the CDU/CSU in 2013. As recently as this May the SPD agreed with the CDU/CSU to postpone (for the 25th time!) a Bundestag committee discussion of a bill for marriage equality.
What changed last month was not the issue position of Merkel’s rivals, then, but their willingness to insist on marriage rights for gays and lesbians as part of a coalition deal. The stance was likely driven by the result of coalition negotiations in the northern state of Schleswig-Holstein where a “Jamaica” coalition (CDU/FDP/Green) formed mid-June and agreed to push for marriage equality via the upper chamber of the German parliament, the Bundesrat.
On June 23rd, following on the heels of this coalition agreement, the SPD pledged at its national party congress in Dortmund that, regardless of what post-election coalition it might enter into, it would approve marriage equality within the first 100 days. The following day, the national-level FDP declared it too would demand marriage equality as a pre-condition for a post-election coalition with the Christian Democrats.
These changes suggested to Merkel that she would find herself between a rock and a hard place following this September’s election, in which her party is expected to emerge as the largest, but without a majority. The only party likely to enter the Bundestag this fall sharing the CDU/CSU’s opposition to marriage equality is the far-right Alternative für Deutschland, widely considered coalition ineligible. As a result, she would likely have been forced to either concede the marriage issue in coalition talks or watch negotiations fail over this issue. By allowing a conscience vote before the election, however, Merkel successfully took this sticking point off the table and will allow three months (of summer vacation) to pass before the conservative voters in her party go to the polls. The other three-quarters of the electorate in favor of marriage equality might even find more reason to vote for her party. The real impetus for last week’s surprise decision wasn’t Merkel, though, it was the choice by the SPD and the FPD to actually stand up for a policy they claimed to have supported for years. Now supporters of LGBTI rights in Germany can turn their attention to further improving the rights of sexual minorities in the Federal Republic.
Dr. Louise K. Davidson-Schmich, Professor of Political Science, University of Miami.