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German Parliament agrees to legalize same sex marriage!


Käpt'n
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Today the Bundestag (our parliament) voted on a draft to change the law and make same sex marriage legal.

The whole thing was rushed through parliament remarably quickly. It took less than a week!
Chancellor Angela Merkel said in an interview that her view on marriage equality changed and that to her it had become a matter of conscience rather than a political agenda.
Her party though, the CDU (Christian Democratic Union) and their partner, the CSU (Christian Social Union) are, as the name implies, our two conservative party poopers (they are like the GOP but so watered down that they are pretty tolerable).
They are the ones who have been blocking drafts to legalize same sex marriage for years.

However, after that interview the SPD (Social Democratic Party of Germany) immediately demanded that Merkel actually follows what she said, open the Bundestag for debate on the matter and actually make it a "matter of conscience".
Declaring a matter to be a "matter of conscience" is actually pretty significant in our political system. It frees the representatives inside the Bundestag from the responsibility to vote in favor of what their party stands for.
So a member of the CDU would otherwise have to vote against marriage equality but because it was declared to be a matter of conscience 75 CDU members voted in favor of it.
The vote was a little too tight for my liking.


623 votes were counted. 393 voted in favor of the new law, 226 voted against it, 4 chose not to vote.
It's a clear majority in favor of marriage equality but still, 226 of our elected representatives chose to vote against something that roughly 70% of our population are in favor of... That is kind of sickening. Especially because these votes came from a christian party and you know what I think about religion in politics......

Either way, the christian conservatives are outraged. The SPD is their coalition partner (it's like the American Democrats and the Republicans forming a coalition but it kind of worked out...) so the CDU and CSU feel completely betrayed by them.
They are actually checking if they want to bring the matter to the Federal Constitutional Court.
Their reason is that our constitution needs to be changed, otherwise the the new law can't go into effect. No change to the constitution, no marriage equality. That is their reasoning.

HOWEVER! And this is where all this gets very, very interesting.
This is article 6 of our constitution, it protects marriage, children and families:

"Article 6
[Marriage – Family – Children]

(1) Marriage and the family shall enjoy the special protection of the state.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.

(3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect.

(4) Every mother shall be entitled to the protection and care of the community.

(5) Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage."

Please, do tell me where it says that marriage is defined as the bond between man and woman.

What they are referring to is actually a decision by our Federal Constitutional Court. They just interpreted article 6 to be about man and woman because "that's how things were back then and that is probably how the lawmakers decided it to be back then".

 

So right now four things can happen:

1. Our president signs the new law in a few weeks, then after a period of three months for the communes to prepare the first gay couples can get married. The first same sex marriages will then probably happen around November.
2. Our president refuses to sign the new law.
3. He signs it but the Federal Constitutional Court shoots it down and demands a change to the constitution which will take MONTHS and will happen after the next election which brings the majority for it in danger.
4. He signs it, the Federal Constitutional Court won't shoot it down and the conservatives will be even more pissed.

 

Anyway! Very exciting day today.
If you actually want to see the draft for the new law, it's available here: http://dip21.bundestag.de/dip21/btd/18/066/1806665.pdf

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In the US we needed the Supreme Court to step in despite three-quarters of the public being for marriage equality because our Congress is so disproportionately right-wing from a bass-ackwards electoral system and rampant gerrymandering. Consider yourselves lucky that you had only two-fifths in opposition. That sliver of our country has the rest of us in a fucking stranglehold.

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30 minutes ago, Mandragoras said:

In the US we needed the Supreme Court to step in despite three-quarters of the public being for marriage equality because our Congress is so disproportionately right-wing from a bass-ackwards electoral system and rampant gerrymandering. Consider yourselves lucky that you had only two-fifths in opposition. That sliver of our country has the rest of us in a fucking stranglehold.

Don't forget that even though the Supreme Court had to step in, they barely passed the vote in favor of it at 5/4 :P

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Good for Germany :)

 

Since there is some sniping, for those unaware of the situation in the US, before Obergefell v. Hodges gay marriage was already legal in 43 of the 50 states, and of the four dissenting arguments, three were that it wasn't a federal matter. (And that the majority opinion was dangerously vague, which is correct.)

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It's fantastic that this law is [attempting] to be passed, I find it a little fucked up though that it goes through all of a sudden because of a change of stance of 1 person. Like, if she'd never had that experience, the law wouldn't be touched?

Especially as you said that 70% of the population wished for a change.

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13 hours ago, Sidewalk Surfboard said:

"Gay marriage is legal in Germany"

"REEEEEE AMERICA DUMB REEEEEEE"

Anyways, it's nice that it's legal in Germany now.

That's the thing, it's not. At least not yet. It could still fail!
However, given the very positive reactions from most people here it would be stupid to shoot it down now.
If the conservative Union does decide to kill it by bringing it to the  Federal Constitutional Court all they do is prove what conservative biggots they really are. It really wouldn't be in their favor.

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Good. I guess it is obviously one of the better laws to have happened anywhere recently.

Also;

kosten.PNG.b0e04a12c8361be8696d80267844037a.PNG

I love this for how abrupt it is and for how stereotypically German-bureaucracy it is.

Too bad there isn't a wonderful and resounding quote about marriage to go with the law like there is with Kennedy's opinion in the U.S.. Nothing for newly married gay and lesbian German couples to hang up in their homes like a Facebook mom.

1 hour ago, Wolflich said:

I was surprised to find that it wasn't already.

Honestly though.

More tribal jurisdictions in the U.S. have recognized same-sex marriages than have fully-recognized countries around the world, and that's not counting ones that just do anyway because their laws never specified it couldn't happen and nobody cared to stop it, and that's quite a display of how slow this is going around the world.

On 6/30/2017 at 10:53 PM, Jtrekkie said:

Good for Germany :)

 

Since there is some sniping, for those unaware of the situation in the US, before Obergefell v. Hodges gay marriage was already legal in 43 of the 50 states, and of the four dissenting arguments, three were that it wasn't a federal matter. (And that the majority opinion was dangerously vague, which is correct.)

The dissenters said something different; they said it wasn't a judicial matter, and only Scalia made a big huff about it not being a judicial matter at the federal level. They said the law didn't exist for them to judge, and the majority said that, if marriage is granted special privileges by the states and federal government and must not be restricted without reason under due process - as the court has decided several times in the past - then restricting that right based on gender without valid reason in any state violates quite a number of decisions under the Fourteenth Amendment's incorporation of equal protection and due process against the states. They were even specific enough to point out that, because the Fourteenth Amendment only incorporated those rights against the states and federal government, their ruling didn't apply to tribal jurisdictions and many territories.

The majority weren't vague about it at all. The dissenters were just unhappy the Fourteenth Amendment incorporated one's rights against the federal government against the states, too. Conservatives in and outside of the Supreme Court have been outraged about it since it really started to get used against them to fight for all things civil rights in the '50s and '60s.

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On 2.7.2017 at 0:45 PM, Wolflich said:

I was surprised to find that it wasn't already.

Hah! With conservative christians in power? And they still mostly voted against it. It only passed because all other parties combined had a slight majority.

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6 hours ago, Käpt'n said:

Hah! With conservative christians in power? And they still mostly voted against it. It only passed because all other parties combined had a slight majority.

That is sad, I always viewed Germany as a country of common sense liberalism. It seems most of the world these days leans away from that.

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On 06/30/2017 at 10:53 PM, Jtrekkie said:

Good for Germany :)

 

Since there is some sniping, for those unaware of the situation in the US, before Obergefell v. Hodges gay marriage was already legal in 43 of the 50 states, and of the four dissenting arguments, three were that it wasn't a federal matter. (And that the majority opinion was dangerously vague, which is correct.)

Actually, the dissents were pretty explicit in the assertion that marriage is "only between a man and a woman," but even if we ignore that part, the "states' rights" argument which appeared in the dissent of which you speak falls perfectly in line with the hard right position that the federal government is only limited in its power when it threatens to prevent states from oppressing or discriminating against undesirable groups or to interfere in the interests of big business.

Furthermore, it wasn't so much "legal" in 43 states as legal in most of them but "not illegal" in several due to explicit bans being overturned but not quite settled or, in a handful of cases, stayed indefinitely, mostly in the wake of the Windsor case. And lest we forget, sodomy laws were totally a thing in much of the US until the early 2000s and are something that elements on the right have campaigned to bring back.

As for the "dangerously vague" thing, I assume you mean Roberts' criticism of the invocation of the Due Process Clause, in which case I think you're wrong, as it's a much stronger foundation for the right to marry than the much-abused and oft-challenged right to privacy. But even if I were to accept this as overly broad, speaking as a libertarian in the original sense of the word (i.e. not a right-wing doofus), I personally welcome the expansion of perception as regards fundamental rights, and indeed believe that the way in which our government operates is far meaner in terms of liberties than the Constitution truly provides.

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3 hours ago, Mandragoras said:

Actually, the dissents were pretty explicit in the assertion that marriage is "only between a man and a woman," but even if we ignore that part, the "states' rights" argument which appeared in the dissent of which you speak falls perfectly in line with the hard right position that the federal government is only limited in its power when it threatens to prevent states from oppressing or discriminating against undesirable groups or to interfere in the interests of big business.

Furthermore, it wasn't so much "legal" in 43 states as legal in most of them but "not illegal" in several due to explicit bans being overturned but not quite settled or, in a handful of cases, stayed indefinitely, mostly in the wake of the Windsor case. And lest we forget, sodomy laws were totally a thing in much of the US until the early 2000s and are something that elements on the right have campaigned to bring back.

As for the "dangerously vague" thing, I assume you mean Roberts' criticism of the invocation of the Due Process Clause, in which case I think you're wrong, as it's a much stronger foundation for the right to marry than the much-abused and oft-challenged right to privacy. But even if I were to accept this as overly broad, speaking as a libertarian in the original sense of the word (i.e. not a right-wing doofus), I personally welcome the expansion of perception as regards fundamental rights, and indeed believe that the way in which our government operates is far meaner in terms of liberties than the Constitution truly provides.

 


One of the dissents argued that which I mentioned, but it was not the substance of his argument. The others didn't argue that way either. There were five states that had reversed a ban, but also had the decision stayed. For the sodomy laws, their removal is the reason that bestiality is legal in my state, and that forcible penetration of a male is legal or has reduced punishment compared to rape in the states that haven't replaced or redefined them.

For the vague thing, I was referring to the argument itself. The majority opinion makes unfounded claims and cites "new understanding" several times. The fourteenth amendment is a weak argument because the plaintiffs weren't petitioning for rights, but liberties. The majority and the dissents recognized this, but the majority did not address it. Because we employ the doctrine of precedence, equating liberties and rights is dangerous, and the Supreme Court there potentially delivered civil law, which is mostly the realm of the states, to the Federal government without circumscribing powers. Contrast with Loving v. Virginia. The libertarian solution would be to appeal to the Ninth amendment that marriage is a right, not a liberty, and remove government interference completely between adults. Full text of Obergefell v. Hodges here:
https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Also has nothing to do with Germany. On topic, I find the division really disappointing.
 

tldr: obergefell v hodges is a hastily assembled authoritarian mess. 4/10

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10 hours ago, Jtrekkie said:


One of the dissents argued that which I mentioned, but it was not the substance of his argument. The others didn't argue that way either. There were five states that had reversed a ban, but also had the decision stayed. For the sodomy laws, their removal is the reason that bestiality is legal in my state, and that forcible penetration of a male is legal or has reduced punishment compared to rape in the states that haven't replaced or redefined them.

For the vague thing, I was referring to the argument itself. The majority opinion makes unfounded claims and cites "new understanding" several times. The fourteenth amendment is a weak argument because the plaintiffs weren't petitioning for rights, but liberties. The majority and the dissents recognized this, but the majority did not address it. Because we employ the doctrine of precedence, equating liberties and rights is dangerous, and the Supreme Court there potentially delivered civil law, which is mostly the realm of the states, to the Federal government without circumscribing powers. Contrast with Loving v. Virginia. The libertarian solution would be to appeal to the Ninth amendment that marriage is a right, not a liberty, and remove government interference completely between adults. Full text of Obergefell v. Hodges here:
https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Also has nothing to do with Germany. On topic, I find the division really disappointing.
 

tldr: obergefell v hodges is a hastily assembled authoritarian mess. 4/10

I'll address the specifics of the decisions themselves later when I am not on a dodgy cellphone, but I would like to address two things here. Firstly, the fact that homosexual activity of a consensual nature was classed as equivalent to the rape of men and animals says a great deal to me about the utterly mediaeval mindset much of the world subscribed to and continues to subscribe to, and the fact that new laws have not remedied the gap left is in itself an indictment of a weak legislative body, not a testament to the benefits of sodomy laws. Secondly, I would argue that both the Ninth and Fourteenth Amendments are applicable here, but that equal protection under the law is more salient in this instance given that marriage itself is not implicitly under challenge as a right so much as that who is permitted access to that right is in question.

But really, I am most puzzled by the assertion that the ruling was somehow authoritarian? If you mean that it has a vaguely federalist tinge, then sure, but again, ironic as it sounds, I would argue that states' rights arguments have been far more often used to justify illiberal and repressive policies than expand or preserve the rights and liberties of individuals and groups. Am I entirely OK with it? Well, no. There is much about the nature of the Supreme Court itself which I find problematic, frankly. But I just don't buy this idea that states have the right to determine who may or may not be treated as a human being. And I'm not even sure what you're arguing with respect to this issue! I'm vexed.

I apologise for derailing this conversation into the minutiae of Constitutional law and American politics but this subject makes me very angry. The world is not being kind to queer folk right now and I'd rather be relieved that we got a few things done in the face of crushing opposition than pretend Lawrence v. Texas was a terrible decision because some states suck at lawmaking.

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40 minutes ago, Mandragoras said:

I'll address...


Recommend moving to another thread. Also, for context I'm only disagreeing with the derivation, not the content. The supreme court is above reproach for better or worse, and has the duty to act like it. You get one shot at decisions like that, and they did a poor job. There are two things going on at once here, legalizing gay marriage is one of them. The other is reinforcing marriage as a function of the state, which has not always been the case.

"Firstly, the fact that homosexual activity of a consensual nature was classed as equivalent to the rape of men and animals says a great deal to me about the utterly mediaeval mindset much of the world"...

It's not. Rape is the forcible penetration of a female. The forcible penetration of a male is called sodomy. We stole that from common law where it was the go to justification for mutiny. Modern laws just use "forcible penetration" instead, or some form of molestation. Bestiality was covered under so called "crimes against nature", which is normally lumped in with "sodomy laws". Both kinds are very old, but even if they were still existent and extended to homosexuality, they would be unenforceable. 

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2 minutes ago, Jtrekkie said:

It's not. Rape is the forcible penetration of a female. The forcible penetration of a male is called sodomy. We stole that from common law where it was the go to justification for mutiny. Modern laws just use "forcible penetration" instead, or some form of molestation. Bestiality was covered under so called "crimes against nature", which is normally lumped in with "sodomy laws". Both kinds are very old, but even if they were still existent and extended to homosexuality, they would be unenforceable. 

3

"Sodomy" has always denoted non-vaginal penetrative sex regardless of consent, though; the act itself, rather than the issue of consent or violence, was in itself the crime—hence why it was oft synonymous with other "unnatural" sexual practices in common law. "Rape," in common currency, refers to just about any sort of coerced sex act that goes past molestation or sexual battery, although in legal parlance it varies by jurisdiction and is often synonymous with "forced penetration." I was speaking in the broad sense here, but to avoid any unnecessary confusion, let's just say I called it "sexual violence" there rather than splitting hairs. I do agree, however, that laws predicated on the "unnatural" character of an act rather than consent or violence are basically unenforceable by nature.

Anyway, a quick aside about enforcing marriage as a function of the state: While I'd be inclined to agree with you that this is a problem, I feel like the purview of the case was inevitably going to cleave to that in one way or another. For all intents and purposes, marriage as a modern institution is a contract officiated by the government and as much a public matter in that respect as a private one, despite the choice itself being entirely a private, personal one. While I would love to get into how and why marriage should be reformed as an institution in a grander sense, as it stands, the Court did what it could in the fashion least likely to die beneath future reactionary salvos—which is to say the privacy argument.

Fuck, that wasn't quick at all. Still, this has been an interesting discussion, even if it probably should move elsewhere... although where to, I'm not sure.

To the thread subject: The "matter of conscience" thing interests me, because it says a lot about how differently our respective governments operate, for better and for worse.

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Actually there is rarely a legal definition of sodomy. It can mean anal and oral sex even within heterosexual couplings, as well as bestiality. It's one of those grey areas that people tend to make assumptions of based on their upbringing and morality. It is generally not specifically defined as non-consensual as far as I'm aware.

Generally it's whatever society considers 'unnatural'.

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I was thinking in the context of American law, where it does tend to have a particular legal definition, and specifically referring to those laws struck down by the Lawrence v. Texas decision which formally decriminalised homosexual activity (and non-vaginal sex in general) in all fifty states in the Union.

It's really easy to get mired in terminology with this stuff, in retrospect. I'm just glad that I can marry my significant other, and that folks in Germany have now been afforded the same rights.

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