It was quiet a quick process after years of discussions in society and political circles: two weeks ago the German Parliament decided to allow the marriage between two adults of the same-sex and with it all the rights and duties of a married couple. Obviously churches were not impressed and until the very last moment, arguments were exchanged and traded in an effort to hold the vote or to convince members of Parliament to vote either in favor or against it. It was an open vote – and a sign of mature democracy that everybody could vote openly according to his or her conscience. As a church we have to deal with realities, and obviously not only the majority of parliamentarians but also public opinion in Germany was in favor of marriage equality.
Historically the question of marriage and its value for the state has been again and again a question of fierce debate between state and church. Ulrich Sander from the FAZ (German Newspaper) summarized from his point of view this debate in Germany in a piece published on 11.07.2017 and here is a loose translation*:
“The character of marriage and the family as a legally protected community of life is no longer adequately ensured by the present reform. “
This sentence of a Catholic bishop did not aim at the Bundestag vote of 30 June 2017 on the admission of same-sex couples to the legal form of marriage. It fell during the discussions about the change of the marriage and family law four decades ago, at the end of 1977 when the state divorce law was changed from guilt principle to the breakup principle.
The church protest had been even more severe when, in 1953, when the legal entity of the male as “head of family” (Familienoberhaupt) was abolished. Until then it had been stated in the Civil Code: “The man is entitled to the decision in all matters concerning the matrimonial life; He shall in particular determine residence and dwelling “(Paragraph 1354 of the Civil Code). Article 117 of the Constitution had given the legislator a period until 31 March 1953 to abolish or amend the legal provisions being in contrast of equality between men and women. The deadline passed without the legislator having sufficiently redrawn the marriage and family law. Thus, in December 1953, the Federal Constitutional Court stated succinctly that “since the expiry of the period laid down in Article 117, men and women were equally entitled to marriages and families.”
Prevent the destruction of the family
Representatives of the Catholic Church responded by proclaiming the “hierarchical assignment of women to man as their head” grounded in sociological and legal reasons. Although in the sphere of sexuality the husband and wife were equated with the permanent exclusive right to the body of the other, it was necessary to maintain the authority of the husband and father of the family in the sphere of life, for it was vested in the nature of the conjugal communion.- And that this authority belongs to the man as the “first created” (before the woman): the first pages of the Bible contained – in its church official reading – the doctrine of the irreversible, imperative dependence of woman on the man. To abolish this is not a legitimate equality of women, but “egalitarianism” and contradicts the divine natural law.
Episcopal commentaries saw the implementation of the basic principle of equality by the abolition of the male head of family as the destruction of the “Western order of marriage and family”. Therefore, the chairman of the Fulda Bishops’ Conference, the Archbishop of Cologne, Cardinal Frings, wrote to Federal Minister of Justice Thomas Dehler that the protection of marriage and family guaranteed by Article 6 (1) of the constitution would be undermined if the concept of equality was too much aligned to an individual understanding and so unequal was compared with equal. It is only when the equality of woman is limited to treat equal with equal, but unequal differently, then the destruction of the family can be prevented.
Marriage as a self-purpose
Theologically, such an objection was very ambitious reasoned: both revelation and natural law teaches the hierarchical model, and therefore fundamentally withdrawn from any legislature’s access. Friedrich Wilhelm Bosch, since 1950 full professor for civil law at the University of Bonn, saw now “anarchy” moving into the matrimonial home instead of the natural “hierarchy”. A glance into the “textbook of natural law or the philosophy of law” of one of his predecessors would have helped: “Natural law does not recognize an exclusive paternal power, although such a right is possible by natural law through positive law,” Clemens-August Freiherr Droste zu Hülshoff proclaimed as early as 1831 , Dean of Bonn University and nephew of the great poetess.
Similar argumentation such as 1953 is now introduced in the process of the implementation of the prohibition of discrimination with regard to sexual orientation in family law. “The equality law of the Constitution requires us to treat equality equal and inequalities unequal,” we read from the episcopal press. And the fact is stated that the marriage is not protected by the Constitution “because husbands stand in for one another and accept mutual obligations, but because they are designed to produce and educate children.” Thus the classical Catholic doctrine of marriage is made secretly a constitutional principle, but without its correction by the Second Vatican Council. Klaus Lüdicke, Professor at the Institute of Canon Law at the University of Münster since three decades, summed up the core of the transformation initiated by the Second Vatican Council: “Marriage needs no other purpose than to bind the lives of two people together. Marriage is an end in itself.
He ends of in asking what do we learn out of it – and he concluded that the term “nature” is a very expandable word. I guess there is more to learn if I take this question and bring it down to a more general debate, so the following thoughts are not arguing the case of marriage equality but underlying considerations:
Church has to engage with the modern world and its diversity in a constant and serious way. Church has to acknowledge and reconcile developments in academic research and teaching and faith – bearing in mind, that it was the very church now opposing or ignoring some of its findings has been historically the inventor and guardian and the driving force behind academics.
The world has become more complicated, the questions asked and debated through social media have been more demanding and rushed and time is of essence. On the other hand traditions are important – not so much the form but the content and the rush of the time can hurt the translation and passing on of core values to the next generation. It is a question of striving a balance between action and contemplation; it is a question of unveiling the inner core of a value and the finding of appropriate means to carry it over in changing times. It’s also acknowledging that an honest debate always sees all the grey attached instead of insisting in having only black or white. There will be matters ongoing and relentlessly debated: the relation between state and religion, the question of democratic decisions and liberties of faith communities. Those discussions must be robust, but with respect – while acknowledging the past the argument that it has been so since ages can’t be an argument anymore, but at the same time we have to have an awareness where we are coming from and where we are wanting to go and develop towards. Equality, human rights are never topics to be concluded, the mystery of human life, human love and the mystery of the divine demand that we continue to engage with each other, learn from each other, accept diversity amongst each other and allow for a tolerance and a legal framework which protects and celebrates love and life as much as possible and guarantees the liberties needed to live life to the fullest (John 10.10)
* Source: Katholischer Protest mit langer Tradition
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Filed under: Politics and Society, Reflection, Religion and Ethics, Uncategorized, church, civil law, constitution, divine, Germany, history, human rights, liberty, love, marriage equality, natural law, religion, respect, tolerance, value
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