What India can learn from Germany legalising same-sex marriage

It's time we came out of our dark cave of criminalisation and persecution.

 |  6-minute read |   02-07-2017
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On June 30, 2017, the lower house of the German parliament passed a bill legalising same-sex marriages throughout Germany. A long pending move in Germany that has been in the docks for quite some time. However, a complete understanding of the relevance and significance of Germany legalising same-sex marriage will be incomplete unless a historical picture of same-sex legislation in Germany is grappled with.

History, and understanding history, is an important tool in challenging and comprehending the contemporary. Let us embark on a journey of German history with regard to same-sex legislation to truly understand the ramifications of the bill its parliament passed recently.

Even before the Nazi regime, Germany had witnessed the persecution of same-sex, especially gay, individuals. It only became inexplicably filled with terror and horror with the advent and progress of the Nazi Party.

The first known legislation in Germany apropos same-sex couples was enshrined in Paragraph 175 of the German Criminal Code. Known as Strafgesetzbuch, it was adopted in 1871 shortly after Germany was unified, drawing largely from the criminal code of the North German Confederation.

The statute also drew from various sources, including (but not limited to) the laws of the Holy Roman Empire and the laws of the Prussian states. Paragraph 175 was enshrined in the code since its inception in 1871. The function of Paragraph 175 was to criminalise same-sex/ homosexual acts throughout unified Germany.

In 1907, a Reichstag Committee proposed to expand the law under Paragraph 175 to lesbians as well. However, the exact definition of female sexuality and lesbianism led to a great amount of debate in Germany and the proposed expansion languished.

leg_070217075308.jpgVolker Beck of Germany's environmental party Die Gruenen (The Greens) celebrates after a session of Bundestag voted on legalising same-sex marriage, in Berlin, Germany. Photo: Reuters/Fabrizio Bensch

In 1929, another Reichstag committee proposed to repeal Paragraph 175 from the German Criminal Code. This was only possible because there was a great deal of support for the move from the then leading political parties consisting of the Social Democrats (SD), the Communist votes and the German Democratic Party ( GDP).

However, this was the same time the Nazi Party gained aggressive predominance. It vociferously protested the repeal of Paragraph 175 and garnered enough support against the proposal.

In 1935, two years after Adolf Hitler and the Nazi Party gained power, Paragraph 175 was insidiously expanded. The worst phase of torture, persecution and detention of homosexual men began then under the Nazi occupation. Hitler expanded Paragraph 175 to include the phrase "any lewd act", such that even if there was to be no physical contact, suspects could be tried and convicted by German courts. By 1937, the convictions had increased to more than 8,000 a year. However that was not all.

Hitler's official secret police, the Gestapo, was emboldened with a great amount of power. One of the powers the Gestapo was entrusted with was to transfer men suspected to be homosexual to concentration camps.

This included individuals who may have served their sentence as per court rulings, or even those that had been acquitted by the courts. More than 10,000 men were transferred to concentration camps.

They were made to wear a Pink Triangle badge that would identify them as homosexual deviants. Rape, torture, humiliation, and death followed.

While the Nazi torture of gay men is widely known, what happened after, including their continued persecution in a post-war Germany is far-less talked about.

It is strange that humanity forgets sustained evil, juxtaposed with greater intensity of evil.

Two Germanys, two laws

In 1949, at the peak of the Cold War, Germany was administratively divided into West Germany, which soon became the Federal Republic of Germany, and East Germany, governed by the Soviet Forces.

In West Germany, Paragraph 175 was retained. On May 23, 1949, the German Constitution came into force, also known as the Basic Law or Grundgesetz. Paragraph 175 was constitutionally approved by the Federal Constitutional Court and remained in the law books in the newly formed Federal Republic of Germany.

About 1,00,000 men faced legal challenges according to Paragraph 175 between 1945 and 1969, and about 50,000 were convicted . In 1969, Paragraph 175 was eased by the Federal Republic of Germany and an age of consent of 21 years was added.

Paragraph 175 was still in the law books governing sexual intercourse/ exploitation involving minors (then less than 21 years). In 1973, the age of consent was lowered to 18.

In East Germany, on the other hand, the legal intervention for homosexual acts was relatively lenient. In 1950, East Germany abolished the Nazi expansions to Paragraph 175 whilst its Western counterpart had not.

The law was consistently reformed to make it more lenient, and the law was finally repealed in East Germany in 1988. East Germany was merged with the Federal Republic in 1990 following the dramatic fall of the Berlin Wall. The Bundestag was faced with a difficult legal dilemma at this point.

Should Paragraph 175 be extended to the newly added eastern part of the Federal Republic, or should Paragraph 175 be abolished? The reconciliation of laws took a great amount of time.

Finally, in 1994, towards the fag end of the reconciliation of laws, Paragraph 175 was abolished and the age of consent was made 14 for both homosexual and heterosexual intercourse - the law followed till date in Germany.

In 2001, The Act on Registered Life Partnerships passed by Germany was a conciliation of sorts achieved between liberals and conservatives on same-sex couples, and registered life partnerships were allowed, although civil marriage was disallowed. The Act extended to same-sex couples various rights accorded to heterosexual married couples.

In 2005, the Act was amended to revise adoption and divorce rules for same-sex couples. Ever since, Germany has been seeing a greater push towards according same-sex couples the benefits it extends to heterosexual couples.

The Federal Constitutional Court has been of great support to this effect by increasing tax benefit and adoption rights for same-sex couples. It is the constant void-filler for all the lacunae that the Gerhard Schröder and Angela Merkel governments have missed.

Today, same-sex couples are almost on par with heterosexual couples in Germany, barring a few exceptions and the recently approved bill aims to bridge any existing inequity.

Cleared by the Bundersrat, the lower house of the German parliament, the bill awaits a nod from the Bunderstag, the upper house, which is set to vote on the legislation on July 7, following which it will be ratified by the president.

If passed, the bill - for which there is much optimism going by polls in the country - would make Germany the 23rd country to legalise same-sex marriage.

Although marriage as an institution is of no particular importance, with ceremonial approval and state benefits it goes a long way in portraying equality in and before the law for same-sex couples.

At a time and age when rapid progress is being witnessed around the world when it comes to acknowledging same-sex unions, close to home, India is yet to come out of its dark cave of criminalisation and persecution.

Also read: BJP is lucky Gau Mata can't say Not In My Name


Sabarish Suresh Sabarish Suresh

The author is a Masters student of Legal Philosophy at the Benjamin N Cardozo School of Law, New York

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