Is it discrimination when differences are not regulated in the sense of equality?? The president of the Central Committee of German Catholics, Alois Gluck, addresses this fundamental question in his guest article for our site after.
The decision of the Federal Constitutional Court on equal tax treatment of same-sex partnerships with marriage has led to a renewed fundamental debate on the status of marriage and family in the state and society, and on the relationship between marriage and registered civil partnerships. At the heart of the matter is the question of how the state intends to fulfill the mandate of Article 6, Sentence 1 of the Basic Law "Marriage and family are under the special protection of the state order", especially against the background of calls for absolute equality of same-sex partnerships with marriage, in addition to income tax law now also in adoption law.
The public debate about the role of marriage and family in our society is often conducted in a culture war language of mutual devaluation and defamation. It very quickly develops into a polarizing and sometimes hurtful dispute about different ways of life. And this in a society that claims to be open, liberal and tolerant. This makes people feel quickly affected, devalued and forced to justify their own way of life. This is a pattern we see over and over again. This also applies in particular to the demand for absolute equality of registered civil partnerships. That's why, first and foremost, for family policy debates, we need mutual respect for different life paths, sensitivity to other people's values and their life situations.
But we also need the courage to stand up for our convictions and to name developments that worry us.
No discrimination
I would first like to state emphatically that any kind of discrimination against same-sex unions and any discrimination against people who profess their homosexuality must be strongly opposed. Same-sex unions must also apply: When people take binding responsibility for each other, it deserves respect and recognition. However, the rejection of complete legal equality must not automatically be equated with discrimination. This is one of the fundamental questions for the debate.
With regard to pension regulations, appropriate consequences have already been drawn in recent years
The change in the income tax law now heralded by the Federal Court of Arbitration follows in some consistency the anpanges previously made by the legislature. Nevertheless, there would also have been good reasons for retaining the previous spousal splitting, as the argumentation of two federal trial judges points out in a special opinion. They emphasize that there is a close connection between marriage and parenthood. It remains the rule, not the exception – in stark contrast to same-sex partnerships – that spouses' responsibility for each other is joined by joint responsibility for children. Here's what makes the case for differential tax treatment.
A universal adoption law is a new dimension of fundamental importance.
The claim for absolute equality of same-sex partnerships with marriage and family has a dimension that goes far beyond tax regulations. Those who reject or are extremely skeptical about this equality and demand a careful debate about it are, in my firm opinion, not yet pronouncing discrimination! It is rather a matter of fundamental questions of society. This is also evident in the debates in other countries and in other cultures, including those that are not shaped by Christian tradition and value orientation." It is about the certainty of a generational succession, without which man is not man, without which there would be neither the Bible nor the novel …", as Wolfgang Buscher aptly put it in "Die Welt" of 14. June of this year writes.
It is essential for the internal cohesion of society that such fundamental ies are discussed thoroughly in mutual respect. What is at stake here are positions that cannot simply be settled with superficial classifications in terms of modern or traditional, progressive or conservative.
Focus on the best interests of the child
This entire equality ie is currently evident in the particularly sensitive question of full adoption rights for registered civil partnerships. The full adoption right differs however completely fundamentally from the successive adoption in same-sex partnerships, whose prohibition the Federal Constitutional Court on 19. February of this year declared them to be unlawful.
At the heart of any adoption decision, as adoption law dictates, must be the best interests of the child. Argumentation patterns that contrast the reality of a lack of attention to children in families with a father and mother with the caring attention in same-sex partnerships are false in substance and intellectually dishonest. Of course, there are regrettable deficits in the provision of care in families, but this cannot honestly be contrasted with the fact that in same-sex partnerships there is always only the successful form of cohabitation and upbringing.
Forcing inequality into equality?
With regard to important questions and the necessary clarifications, some aspects may be mentioned here:
Basically it has to be stated that the community of man and woman is unique. It alone is the one in which new human life can arise. Marriage, as a lasting community of mother and father, is also where children find the most favorable conditions for growing up. This is also the basis for the lasting existence of a society. It is a cultural achievement that marriage exists as a long-term community of responsibility between a woman and a man, which provides a particularly stable institutional framework for the parenthood necessary for the continuation of society. Is the demand for complete equality of marriage and same-sex partnerships in all respects not forcing inequality into equality?? Wouldn't this level a central social model and pattern of order??
Who now has the burden of proof in this debate? Those who want to change – this is actually the normal situation – or those who raise objections to these changes?
Another point why I have major concerns about full adoption rights for same-sex couples is the interaction with both sexes, which is important for children growing up. For years, there have been repeated complaints that children experience fewer and fewer men in the context of their socialization and upbringing, for example in childcare or in elementary schools, and that the masculine element of human coexistence is thus not experienced enough by them. This is described as a problem with regard to the development of young personalities and justified as a deficit accordingly. If men are no longer present, the whole society suffers, states already in 1963 the psychoanalyst Alexander Mitscherlich in his study "The fatherless society", the influence of immediate role models is lost. For a long time, this thesis was the subject of many socio-political debates. What significance does the polarity of the sexes then have with regard to the development of children and what consequence does this have for the claim in the fundamental equality in the right of adoption??
Right to a child?
Particularly with regard to the best interests of the child, further questions arise which can only be touched upon in this context. What claim arises from equality in the sense of a "right to a child"? Isn't this thinking too much from the point of view of couples who would like to be parents?? What are the consequences of the further development of reproductive medicine?? Will there be, for example, a claim to access to all their opportunities also for same-sex partnerships? In connection with the legal regulation for "confidential birth" and the discussion about the future of the so-called "baby flaps", the right of a child to know its biological origin has played a major role. What does this mean for the foreseeable demand for access to reproductive medicine for same-sex partnerships?? What does this mean for the discussion about surrogacy, which is still quite unanimously rejected?
These last questions naturally also concern heterosexual couples with an unfulfilled desire to have children, which once again underlines the need for a sensitive approach to these questions.
No compatible individual case solutions
With these exemplary remarks and questions, I would like to do one thing above all: make clear that there is indeed and already today a considerable need for thorough deliberation of anthropological, ethical and legal ies.
This raises central questions for our society, questions about our image of humanity, our values and guiding principles, which move many people. In the upcoming political decisions, it is not a matter of finding the most compatible individual solutions possible, but rather of taking the whole person and the social order into consideration and making fundamental decisions about the direction to be taken.
The dynamic and explosive nature of the debate stems from the linking of the three value-laden and emotional concepts of equality – justice – discrimination. Is discrimination always present when differences are not regulated in the sense of equality??
The way in which the process of clarification takes place and political decisions are made has an essential meaning for the internal development of our society, especially also for internal peace. That is why a culture of debate and mutual respect is imperative, especially in this area.
This also requires an appropriate amount of time. Certainly, an election year is an unsuitable time to give such discussions the appropriate space and the necessary time. We expect, however, from the policy that so fundamental questions are discussed also accordingly thoroughly.
The article was published in the current ie of the ZdK magazine "Salzkorner".