Interview with Johann Braun: Marriage and the Family at the Crossroads

Benedict Trost

Professor Braun, can you explain briefly to our readers what the new “Life Partnership Act” passed by the German parliament is all about?

Braun: The Life Partnership Act creates, for the first time, a legal framework for the cohabitation of same-sex partners. One reason, in particular, why it has come under so much criticism is that it is modelled very closely on marriage law. Basically, a "Registered Life Partnership" is a legal institution which one might call "same-sex marriage".

Does it mean that marriage and a socalled "same-sex marriage" are now on the same legal footing, or are there still differences?

Braun: There are some differences, though they don't alter the fact that a registered life partnership is an image of marriage. Many regulations were taken over from marriage law without any substantial changes, except for the terminology. At the same time, a conscious attempt was made to include a number of factual differences; however, it is obvious that they are merely intended to give the impression of a "distinction" from marriage, even though this distinction doesn't really exist. One concept that was taken over, for instance, was the equalization of accrued property gains, though without providing for pensions equalization if the partnership is dissolved, even though both are based on the same fundamental concept and are therefore logically connected. In other words, the new law is closely modelled on marriage law, while at the same time trying to cover up the full extent to which it is modelled.

Could you give a few examples of the provisions governing this new "partnership"?

Braun: Under the new act, same-sex partners are entitled to adopt a joint surname, like married partners. The partner's relatives legally become "related by marriage". Also, in the same way as for spouses in marriage, each same-sex partner is given "statutory authorization to purchase necessaries". Moreover, both partners come under the same "restraints of disposal" that are applicable to a "statutory marital property regime of the spouses' accrued gain". Divorce - or rather "dissolution" - closely follows the divorce regulations for spouses. Same-sex partners are also treated like spouses in matters of inheritance. It even goes so far as to provide for a "right to a compulsory portion", which is the same between husband and wife.

One particular example which you've hightlighted in your book as a defect of the Act is an area you've called, quite provocatively, a "harem" provision. What do you mean?

Braun: Under present-day law, marriage is monogamous in character, and the Life Partnership Act is modelled on this concept. This means that a person can have no more than one same-sex partner, and anyone who is already married is not permitted to enter into an additional life partnership. On the other hand, if someone lives in a life partnership, the wording of the law does not prevent him or her from getting married as well. They cannot be prevented for constitutional reasons. If a person were barred from marrying, it would be an evident violation of the basic constitutional freedom to enter into matrimony. This means that anyone living in a life partnership can still get married. This could lead to a ménage à trois. As both partners in a life partnership have this freedom, the Act legally even allows a cohabiting community of four.

For this reason - though also for other reasons - the Life Partnership Act is a legal step towards a "pluralism of lifestyles" which, - taken to its logical conclusion, will necessarily lead to further steps.

So far, there has been insufficient awareness in public debate. But if a special set of regulations is created to enable homosexuals to "live out" their "orientation" in a new form of institution "under family law", then, to put it bluntly, you can't easily refuse a similar institution to those with a bisexual orientation. Unlike homosexuals, however, bisexuals cannot "live out" their particular orientation in a monogamous relationship. They need at least two partners. In this way, the Life Partnership Act inadvertently opens the door to polygamy. The fact that this is contrary to our Western Christian tradition is hardly likely to be an obstacle, because a same-sex partnership is even more strongly opposed to this tradition.

The general public is hardly aware that only part of the original draft has become law now. What is the other part about, and what were the reasons for splitting the act at all?

Braun: For some acts in Germany, it is not enough to be passed by the lower chamber of the German parliament, the Bundestag. They also require the approval of the upper chamber, the Bundesrat. The original draft Life Partnership Act clearly required approval from the upper chamber. When it became obvious that such approval was impossible to obtain, the draft was split into two parts: one that was not believed to be subject to approval, and the rest which was believed to require approval. The first part was passed separately. The rest - the so-called Life Partnership Amendment Act - has since then been in the upper chamber, but without being passed there.

Is the second part "no more" than rules for implementation, for instance, where such "marriages" are to be concluded? Surely, this is a point which the various federal states would have to specify at an administrative level.

Braun: It's also about other things, not just the implementation of the new act. It is mainly about regulations concerning finance: tax benefits and other privileges as well as public benefits for a variety of purposes. All this will of course lead to more costs than the regulations contained in the Life Partnership Act itself.

Afew years ago "same-sex marriages" would have been unthinkable. How could there be such a fast change in people's minds in society? There is a theory whereby we are continually subject to "media brainwashing". To what extent, do you think this form of brainwashing plays a part?

Braun: Let me give you an example. In 1989, I gave a lecture on family law, highlighting, among other things, various endeavours to create a marriage-like legal form for homosexual partnerships, when these attempts were becoming public for the first time. The students responded with utter unbelief and didn't want me to waste time on such absurdities. So they asked me to talk about material that was "relevant" to family law.
If I were to give a lecture about family law today and talked about the same things as I did at the time, then no one would get excited any longer. Instead, they would get annoyed if I just kept quiet about same-sex partnerships. What is the reason for this change? I believe it can be explained like this: the things that are unleashed on us in the media day by day are now perfectly normal for young people who have never experienced anything different. But how can they possibly be expected to have any standards for comparison? Nowadays, the formation of their awareness takes place in a world that is totally permeated by the modern media. Traditions are conveyed less and less. What matters is increasingly the things that promise immediate "enjoyment".

The most obvious victims of the resulting rethinking process are religion, the nation and the family. To handle these things responsibly, a person needs a certain understanding that your own intellect is unable to master everything you want to master, but that you're dependent on certain historic institutions as the only instances that will provide security. If this understanding is missing, then traditions and institutions are no longer felt to offer any support on the way towards an uncertain future. Rather, they are seen as ways in which the past exercises control over the future.

In your book you mentioned changes in language and in our constitutional thinking.

Braun: According to Article 6 para. 1 of the German Constitution, marriage and the family are specially protected by the state. This means that marriage is given a special position, while the state is put under a commitment to protect it. Today, however, there are endeavours to do the exact opposite and to weaken marriage. Instead, the "family" is given priority, while at the same time being redefined. The aim of this new concept is slowly but surely to force marriage out of the Constitution. This was reflected very clearly in a "Virtual State Assembly" held recently by the German Green Party in Schleswig- Holstein. The purpose was to identify the current atmosphere for a change to Article 6 para. 1 of the German Constitution. The intention is none other than to delete the concept of "marriage" in Article 6 para. 1 and to replace it with the word "children". The new wording would therefore be: "Children and the family are under the special protection of the state." It would mean that marriage is no more than one among several possible "lifestyles" to which the state is expected to be totally indifferent.

In your book you also mentioned a change in the use of language. What's behind it?

Braun: When talking about homosexual partnerships, the use of language is consciously one that only emphasizes the positive sides. The words mentioned in this context are only "responsibility", "affection" and "love", in other words, concepts that have positive associations and which are sure to meet with universal approval. In connection with marriage, on the other hand, preference is given to the negative sides: broken marriages, rising divorce statistics, marriages merely for the sake of tax benefits, the decrease in the number of children, etc. So while there are attempts to devalue marriage, homosexual relationships are given greater value through the use of language. In this way, linguistic manipulation is used in order to bring the two lifestyles closer together.

As an ordinary citizen, one tends to assume that our Constitution is based on iron principles that don't allow that sort of thing. How is it possible that carefully targeted lobbying should have brought about such an immense change of mentality in legislation, among lawyers and among broad sections of the general public?

Braun: This is because the question of the right code of law can only ever be asked in a given historical situation, even if it is about something that is available already. Naturally, this will determine the answer. The same is true for any interpretation of the law. If the underlying understanding has changed, then it also affects the resulting interpretation. After all, laws are never applied outside the context of a given time or society.

There are political groups that have purposefully exploited this phenomenon. Today's spirit of the time is largely that of the newspapers and the media, so that it no longer develops through forces which are quietly at work in the background, as we used to believe at one time, but it can be influenced and manipulated.

The protagonists of the gay movement have spent many years working on the spirit of our time and bringing it into line with their own thinking. Helped by their followers in the media, they have been amazingly successful.

On the side of marriage, however, we can find nothing that is similar to the well organized network of homosexual activists. Marriage and the family do not have a lobby in our society. Anyone wanting to defend these values must be prepared to be denigrated and marginalized in a widely accepted ritual. Those who believe that marriage is a necessary institution and in the interest of the whole of society can only put their hope in the Federal Constitutional Court at the moment.

It's a well-known fact that people won't stand for any nonsense where money is concerned. Shouldn't at least the financing of life partnerships make people think, even if they are otherwise indifferent?

Braun: You're right that people get serious in matters of money - but only when it concerns their own money. I get the impression that many people aren't really aware that whenever the state pays for something, it comes out of their own pockets. They often see the state as a golden goose which - miraculously - doesn't need to be fed. Although people can be very sensitive about tax, they tend to forget that whatever the state gives them will have to be taken from someone else, so that any distribution of money is really no more than a re-distribution.

In what way are marriage and the family important to the state?

Braun: There are broad attempts nowadays to portray marriage as one lifestyle among many others and to force it out of its special position.
From the point of view of the individual, marriage may well be a lifestyle. Where the state is concerned, however, it is the very basis of society - for two reasons:

Firstly, because it is created for the benefit of children, and it is on children that the future of society depends. As long as marriage remains a fundamental standard, we have the assurance that our society will not end with us, but that it has long-term prospects.

Furthermore, marriage is the best possible manner in which to pass on to the next generation the traditions that have formed our society. A family, consisting of a man, a woman and children conveys the role models and behavioural patterns that children will later need for their orientation in life.

Now, supporters of same-sex life partnerships would say that marriage is not being abolished, but that a new lifestyle is being added.

Braun: This is rather misleading when we think of the symbolical aspect of marriage, which is, after all, at the centre of all this. Article 6 para. 1 of the German Constitution sets up marriage as the one and only standard for a person's private lifestyle. Once a second standard is placed on the same level - as is the intention of the legislators - then the first one is correspondingly diminished and deprived of its uniqueness.

You can compare it with a medal which may be awarded for a variety of merits, one after another. As time goes on, the medal loses its meaning. Outwardly, it is still the same. You can wear it in the same way as before. However, its symbolical significance has changed, so that some people may not want to wear it any more.

Is this Life Partnership Act the end of a process, or are we at the beginning of a new one? What else can we expect?

Braun: As I said just now, the Life Partnership Act has an immense symbolical significance. In this way, legislators want to signal to everyone that the state sees homosexual and heterosexual behaviour as being of equal value. However, we must be prepared for a number of real consequences from this paradigmatic shift quite soon.

If our legal system provides different standards on an equal footing, then they must be conveyed to the new generation in a suitable manner. Some circles are already preparing to adjust the content of the relevant school subjects accordingly. Marriage will no longer be held up as the only standard, but as one option among many, all on the same level.

Is it coincidence that "same-sex marriage" has been put on the agenda at a time when society has lost its understanding for the functions of outmoded institutions?

Braun: If a person cannot relate to the inherent laws of institutions - and this is the rule nowadays - then, naturally, they won't even notice that the current erosion of the institution of marriage is necessarily accelerated by the treatment of same-sex life partnerships as being on an equal footing.

Can you explain this in more detail?

Braun: I'd like to quote from an article by Henning Bech, published in the German lawyers' magazine Aktuelle Juristische Praxis (Current Legal Practice). Looking back on eleven years of "registered partnerships" in Denmark, he says: "Certain lifestyles and characteristics have been associated with homosexuals for many decades, and were once considered to be typical of them. Many of these lifestyles are now becoming quite universal. Even people with a heterosexual orientation are experiencing their gender identity - womanhood or manhood - as a problem and as an option, rather than as something natural which they can take for granted. They, too, are aware that marriage and the nuclear family are not eternal and absolutely necessary institutions, but they can get divorced and start new relationships. They, too, are experiencing promiscuity and serial monogamy and are replacing family ties with networks of friendships. They, too, are experimenting with sexual roles and variations, either practically or by watching talkshows and porn videos. In other words, most of the characteristics that were once seen as specifically homosexual are now becoming universal and normal."

A "normal citizen" may still have problems imagining all this, and may find it even more difficult to imagine where this process will lead to one day if it is taken to its logical conclusion - a process of which the "homosexualization" of society is only one part. But if a mind that is geared towards pragmatic expediency seeks to destroy anything that is not immediately plausible or does not promise any direct benefit, then such a mind inadvertently removes the basis from a modern person's claim to freedom and selffulfilment. In the long term, this leads to the formation of structures which are the very opposite of what we once regarded as the basis and condition of freedom. To give you some idea: a civil society that consists of consumers, but with no citizens; a state with a population, but no people; a fatherland without patriotism or mother tongue; a democracy full of selfish people without any public spirit; mechanical progress without future prospects for the individual, but with legions of elderly people wanting to be maintained by the young who would no longer exist without immigration from other countries.

Thank you, Professor Braun, for this interview.

Textnachweis: Interview mit Prof. Johann Braun aus: Kirchliche Umschau; 5. Jhrg., Nr. 4, 2002, S. 2-3.