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Differencing Same-Sex Marriage

–Russell Miller, Washington & Lee University School of Law, Co-Author, The Constitutional Jurisprudence of the Federal Republic of Germany (2012), Co-Editor-in-Chief, German Law Journal

As a comparative lawyer it is tempting to see a once-in-a-generation convergence of American and German constitutional law on what many regard as the era’s foremost civil rights issue:  same-sex marriage.  The American Supreme Court and the German Federal Constitutional Court, two of the world’s most respected constitutional tribunals, have recently been preoccupied with the issue.

On this side of the pond, the Supreme Court recently concluded two days of arguments in cases challenging California’s “Proposition 8” ban on same-sex marriage and the federal Defense of Marriage Act’s exclusion of same-sex married couples from a broad range of federal benefits, including tax advantages enjoyed by heterosexual married couples.

In February, over in old Europe, the German Federal Constitutional Court struck provisions of German family law that prevented one partner in a legally sanctioned same-sex “lifetime civil partnership” from adopting the other partner’s previously adopted children.  The Constitutional Court’s reasoning in this case would seem to apply with equal force in a still-pending case involving a challenge to the different tax treatment heterosexual married couples and same-sex lifetime partners receive in Germany.

This functionalist’s fantasy might be further fueled by the fact that authors of the two leading comparative constitutional law casebooks (both more-or-less preferring the functionalist approach to comparative law) have played key roles in the proceedings.  On one hand, Harvard Law Professor Vicki Jackson (co-author with Mark Tushnet of the Foundation Press book Comparative Constitutional Law) contributed to the Supreme Court argument concerned with the Defense of Marriage Act.  On the other hand, Humboldt Law Professor Susanne Baer (co-author with Michel Rosenfeld, Andras Sajo and Norman Dorsen of the West Publishing book Comparative Constitutionalism: Cases and Materials) now serves as a justice of the German Constitutional Court’s First Senate, which decided the adoption case in February.

Always desperate to justify our endeavor in practical terms, especially if our efforts lend the discipline credibility in judicial practice, it shouldn’t be surprising if comparative constitutional lawyers seize on these developments to once again urge the discipline’s potential to “assist in resolving problems that appear to be shared” by providing answers that might have “universal or at least transnational application.”  As Konrad Zweigert and Heinz Kötz—the most prominent advocates for the functionalist approach to comparative law—would have seen it:  the constitutional processes in the United States and Germany concerned with same-sex marriage involve “essentially the same problem” and are bound to answer that problem “in the same or in a very similar way.”  Let the comparison begin!

One amicus curiae advocate in the Defense of Marriage Act case reminded the Supreme Court that “in numerous countries—including those whose constitutions implicitly or explicitly define marriage as a relationship between one man and one woman—family, children and parenting are all linked in the constitutional text.”  German constitutional law drew particular attention, with the amicus brief noting that “the German Constitutional Court has held that these provisions ‘guarantee the essential structure of marriage.’”  In her coverage of the American cases, NPR’s Nina Totenberg casually referred to “thirteen other countries, from Canada to Argentina, [that] have legalized same-sex marriage.”  The German Federal Constitutional Court has already taken the bait.  In its February decision on adoption the Court noted that “laws in the other European states, especially in the Member States of the European Union, incline towards the equal treatment of hetero- and homosexual couples.”

This moment of comparative law Zen should not be seen as an invitation to—and by no means as a vindication of—the functionalist approach.  Instead, it is a cautionary tale reinforcing contextualist commitments in comparative constitutional law.  Anything more than the most superficial engagement with the two series of cases reveals the dramatic differences at play.  There are fundamentally different constitutional frameworks involved.  The courts adjudicating the cases have profoundly dissimilar traditions and characters.  And both of these legal dynamics operate in wholly distinct social and political landscapes.  Insisting on functional similarity in a comparison of these cases neglects a thicker, more authentic understanding of the applicable constitutional law and its relationship to these very different societies.

These are just some of the crucial differences between these series of cases that tear at any functionalist comparative law claims.

Different Law

First, Germany’s Basic Law provides a textual protection of marriage in Article 6 that is more concrete than the protection extended to marriage as a privacy right under the less tangible and still-disputed substantive due process right that has been derived from the 5th and 14th amendments to the U.S. Constitution.  Article 6(1) of the Basic Law provides that “marriage and the family shall enjoy the special protection of the state.”  The German constitution’s textual clarity regarding marriage matters because the German Constitutional Court was obliged to define, early in the post-war period, the constitutional meaning of the concept “marriage.”

The Court’s well-settled view, dating from at least 1959, is that marriage involves “the union of one man and one woman in a life-long community that is, in principle, indissoluble.” This definition carries forward the legal and social understanding of marriage that prevailed under the Weimar Constitution of 1919.  The exclusively heterosexual character of “marriage” has not been altered—it hasn’t even been challenged—throughout the German Court’s recent consideration of constitutional questions surrounding the institution of legally sanctioned, same-sex lifetime civil partnerships.

In the 2002 decision upholding the law that created the same-sex lifetime civil partnerships, the Constitutional Court acknowledged that “marriage is only possible for opposite-sex partners … it is inherently heterosexual.”  With the battle over nomenclature resolved in favor of a heterosexual understanding of “marriage,” in Germany the debate has shifted to claims that the Basic Law requires the total legal correspondence of heterosexual marriage and same-sex lifetime civil partnerships.  As noted earlier, the Constitutional Court’s February ruling on adoption seems to signal the eventual legal equivalence of marriage and same-sex partnerships.

But in the United States the issue is still about the significance—legal and symbolic—of same-sex marriage.  The challenges to Proposition 8 and DOMA are demanding homosexuals’ equal right to participate in—and to enjoy the social benefits of—the institution of marriage.  If marriage is a fundamental right under the U.S. constitution, the argument goes, then denying homosexuals the opportunity to enjoy that right is a form of unjustifiable discrimination of homosexuals as a class.

As Theodore Olson, one of the lawyers pleading for the unconstitutionality of Proposition 8, has explained it:  “how can you be against a relationship in which people who love one another want to publicly state their vows … and engage in a household in which they are committed to one another and become part of the community and accepted like other people?”  The answer would have to be base, discriminatory animus—the kind of spite that troubled Justice Kennedy in the Romer v. Evans case.

The social, political and religious implications of the term “marriage” are still in play in the American cases in ways that they simply are not in Germany.  From this perspective—perhaps the only perspective on constitutional law that matters at all—the cases in the two countries are simply not about the same question.

Different Courts

Second, the German Federal Constitutional Court is a very different constitutional law forum.  To begin, from its home in the quiet southwestern city Karlsruhe, the Constitutional Court exercises a jurisdictional mandate that is so sweeping that it can make the U.S. Supreme Court’s occasional forays into American political affairs look like coquettish Victorian flirtations.

The German Constitutional Court is involved in every major issue (and most minor issues) of German public and private life because it lacks discretionary review authority over the more than 6,000 cases it receives each year by way of individual constitutional complaints, requests for concrete judicial review from lower courts, and disgruntled legislative minorities’ demands for abstract judicial review of newly-enacted laws.  The Court has aggrandized its already expansive jurisdiction by characterizing the constitution’s basic rights as an “objective order of values.”

This means, on one hand, that all institutions of public authority have both a negative obligation to refrain from infringing on citizens’ rights as well as a positive constitutional duty to facilitae and reinforce those rights.  That is, the state can run afoul of constitutional rights with its action and its inaction.  On the other hand, the judicially-declared “objective order of values” undermines the traditional public-private distinction in constitutional law, giving the constitution’s basic rights indirect “horizontal” effect in some private relations governed by private and commercial law.  For these reasons the Constitutional Court freely meddles where the Supreme Court, cowering behind its discretionary review or justiciability considerations (such as the political question doctrine), won’t dare to tread.  This is the reason why the phrase wir sehen uns in Karlsruhe (we’ll see each other in Karlsruhe) has become a tradition of German political life.

Another significant difference between these high courts is the Constitutional Court’s unique tradition of consensus and unanimity, a constitutional law praxis that couldn’t be more different than the Supreme Court’s habit of publishing several individual opinions, including dissents, in cases often decided by a mere one-vote majority.  The Constitutional Court’s tradition of consensus is, no doubt, facilitated by the fact that its justices are selected by the Federal Parliament and Federal Council of State Governments by a super (two-thirds) majority.  If this serves to whittle away the ideological flair of the jurists who eventually find their way onto the Constitutional Court, then their relative political and jurisprudential homogeneity are further fostered by the Court’s practice of issuing unsigned and unanimous opinions.

While a decision’s Rapporteur may be widely known, there is no way to be sure of any single justice’s specific contributions to the Court’s holding or reasoning.  Typically, the Court’s decisions end with an accounting of the respective senate’s eight justices who participated in the case.  In the extremely rare case that the result is not unanimous, the Court might indicate the voting constellation (explaining, for example, that the decision was taken by a 5-3 majority) without identifying who the majority and minority justices are.  This might become clear only in the three or four cases each year that involve a separately written dissenting opinion.  The Constitutional Court’s 2002 decision upholding the law providing for same-sex lifetime civil partnerships was one of those rare cases, drawing dissenting opinions from Justices Papier and Haas.  Since then—including the recent decision on adoption—these cases haven’t involved dissenting opinions.

The German court’s history, structure, processes, practices, and public profile are discussed at length in the new edition of the book The Constitutional Jurisprudence of the Federal Republic of Germany (Kommers/Miller, Duke University Press 2012).

All of this matters because the Constitutional Court’s carefully calibrated mix of disinterested political constitutional practice ensures for its decisions on this divisive issue a significant degree of social and political acquiescence if not acceptance, none the least because they are imbued with a credible measure of neutrality and objectivity.

Already, the Court’s adoption decision in February has pushed the Catholic-traditionalist wing of Chancellor Merkel’s Christian Democratic Union into a bout of painful election-year soul searching.  The New York Times recently reported that, because of the Federal Constitutional Court’s decision, “Chancellor Angela Merkel’s conservative Christian Democrats [are] struggling to catch up to changing attitudes among voters on issues like gay marriage and adoption.”  Despite the grumbling this process of reorientation has stirred within the Union, there is nothing like the rhetoric of constitutional intransigence that shadows the Supreme Court’s most controversial decisions.

Merkel’s biographer, Gerd Langguth, has argued that the CDU’s gradual—but inevitable—realignment on this issue makes perfect sense.  “It’s not just a matter of waiting to see what the Constitutional Court says,” he explained, “but also going on the offensive to act on what the Constitutional Court wants.”  On similarly charged issues—such as abortion, the death penalty, or health care reform—the Supreme Court’s divided and divisive decisions rarely have the same kind of easy, conclusive political force.

Different Countries

A final fundamental difference between the two courts’ engagement with same-sex marriage is the yawning gulf that exists between the two societies on the question of sexual freedom.

To the degree that constitutional law is both reflective of and informs culture, then the Constitutional Court and the Supreme Court are in social discourse with profoundly different national communities.  Even the most superficial social science bears this out.  According to a recent survey, three-quarters of Germans support gay marriage.  Despite increasing support for same-sex marriage, Americans still lag behind Germany by nearly twenty percentage points.  This gap is reflected in the levels of religiosity in the two societies, which is a significant barometer of a society’s resistance to or acceptance of same-sex marriage.

According to the WIN-Gallup International “Global Index of Religiosity and Atheism—2012” nine percent more Americans than Germans are inclined to say they are religious.  And Germany ranks sixth among countries with convinced atheists, a full ten percent higher than in the United States.

Another world-wide Gallup poll suggested a connection between religiosity and perceived acceptance of gays and lesbians, namely, that citizens of more religious countries are more likely to report intolerance towards homosexuality.

Discrete elements of German culture, including politics and history, support the conclusion that the two societies have very different views on homosexuality.  For example, Germany’s Guido Westerwelle may be the first openly-gay Foreign Minister in history.  Foreign Policy Magazine reported, shortly after the federal election that elevated Westerwelle to the Chancellor Merkel’s Cabinet, that the best-selling conservative Bild-Zeitung tabloid ran a cover-story profiling his partner under the headline “His Boyfriend Makes Him Strong!”

Not surprisingly, the German Foreign Ministry has made homosexual rights one of its foreign policy priorities.  Frommer’s travel guide calls Germany “one of the ‘gayest’ countries of Europe.”  Of course, as with nearly every other issue, contemporary Germany’s tolerance for homosexuality is colored by the country’s Nazi past.  The National Socialists criminalized and then brutally persecuted homosexuality.  Thousands of homosexuals were imprisoned and sent to concentration camps.

Public opinion on issues such as same-sex marriage are relevant to my argument that there is a lack of comparative constitutional convergence because it is possible that constitutional tribunals—such as the U.S. Supreme Court and the German Constitution Court—only rarely veer widely from the strongly settled opinion of the publics they serve.  This is something like Mr. Dooley’s well-worn adage “the Supreme Court follows the election returns.”  It is still an open question.  But in their survey of the literature involving the Supreme Court, Epstein and Martin see a nexus between the court and public opinion, either because the Court is attuned to the public or because the judges themselves are part of the public.  The German constitutional law scholar Peter Häberle hinted at a similar dynamic when he concluded that the German Federal Constitutional Court has “co-responsibility and not singular responsibility for the constitutional society … alongside others, especially the democratic legislator.”

Conclusion

If the Supreme Court ends up ruling in favor of same-sex marriage, the temptation for comparative constitutional lawyers to conclude that there is an emerging constitutional convergence in favor of the rights of homosexuals will be great.  Whatever political—or even theoretical—position that functionalist comparative law conclusion serves, it would be only the most superficial comparative “reality.”

A deeper assessment of the issue in the U.S. and Germany reveals that we are, in any better approximation of the truth of the matter, dealing with different constitutional issues, decided by different constitutional tribunals, for wholly different societies.  The insights gained from the conscientious engagement with these differences do a greater service for the aspirations of comparative constitutional law than fragile, questionable claims of functional similarity, claims that are bound to crumble in the hands of the very judges we are so keen to court as a market for our insights.

Suggested Citation: Russell Miller, Differencing Same-Sex Marriage, Int’l J. Const. L. Blog, April 19, 2013, available at: http://www.iconnectblog.com/2013/04/differencing-same-sex-marriage.

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Published on April 19, 2013
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