GERMANY’S HIGHEST court has declared unconstitutional pension laws that differentiate between married couples and same-sex civil unions.
In a landmark ruling, the constitutional court in Karlsruhe decided that a state healthcare provider is obliged to pay the same widower’s pension to a man on the death of his same-sex partner.
Existing regulations, the court ruled, breached article 3.1 of the post-war Basic Law that “all citizens are equal before the law”.
The Karlsruhe verdict marks the end of a long legal battle for 55-year-old Wolfgang Duysen and his partner, Werner, one of the first couples to enter a same-sex civil partnership when they were introduced in Germany in 2001.
Such partnerships give same-sex couples in Germany many of the same rights as married couples, minus adoption rights and tax breaks.
Wolfgang Duysen went to court when he learned that the pension was taxed differently to that of heterosexual colleagues and that, in the case of his death, his partner was not entitled to a widower’s pension.
After losing at earlier court hearings, his case was successful on final appeal to Karlsruhe.
The constitutional court judges didn’t mince their words in criticising gaps in the civil partnership legislation which gay rights campaigners have been seeking to close for years.
The Karlsruhe judges had to weigh up in their ruling two key articles in the German constitution: article 3, guaranteeing equality before the law, and article 6.1, which gives marriage and family the “special protection of the state”.
In their final analysis, the court said it saw no reason why one rules out the other.
Though it is appropriate for lawmakers to give preferential treatment to married couples compared to those living in “less binding partnerships, this preferential treatment of married couples is not automatically downgraded, the court ruled, by giving similar privileges to couples in civil unions.
“Beyond the mere reference to article 6.1” – marriage and family enjoy state protection – “a sufficiently weighty factual reason is required here which justifies the unfavourable treatment of other ways of life”.
The court found no reason for this in the pension regulations and pushed the logic further, questioning preferential fiscal treatment for childless married couples compared to civil unions with children.
Germany’s outgoing justice minister, Social Democrat Brigitte Zypries, has welcomed the Karlsruhe court’s ruling as “trail-blazing”.
But gay rights groups have said they will wait and see how it will be interpreted by the incoming government, which brings together Germany’s first openly gay minister and arch-conservative Bavarians.
“We’re calling for (the new government) to include in its coalition agreement an undertaking to examine all federal law on the basis of this ruling,” said Renate Rampf, spokesperson for the Lesbian and Gay Association of Germany (LSVD).
The liberal Free Democrats (FDP), the junior coalition partner, has promised to eliminate inequalities in pension, healthcare and tax rights for civil servants in same-sex unions.
Another coalition partner, Bavaria’s Christian Social Union (CSU), said it found the verdict “unsettling”.