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Gay marriage: Still over the rainbow

France and England have taken breakthrough steps to legalise gay marriage, but is Germany being left in the proverbial dust with its antiquated Lebenspartnerschaft? We get under what's going on.

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Photo by Tania Castellví

With both France and England legalising gay marriage last month, Germany and its once-progressive Lebenspartnerschaft seem to be lagging behind. Nele Obermüller finds out what’s going on.

Exberliner will be hosting a discussion panel on this topic on Wednesday, March 27 at Kaffee Burger at 8pm. Be sure to join us and RSVP for the event here.

A four-year-old boy sits on the floor playing with Legos. To his left, a dark blue curtain with printed stars is drawn across a large cupboard crowded with toys and games. “Welcome to my room. I’m Max,” says the skinny boy, clambering to his feet and pointing to the letters that spell out his name on the bedroom door. “See? M-A-X.”

Three years ago, Max didn’t yet have a room of his own. He’d been brought to a children’s home after his mother was found to be psychologically unstable. For Grzegorz and Martin Kujawa, Max’s hardship turned out to be a blessing. As a same-sex couple, they were barred from adopting: becoming foster parents was the next best thing.

Family Minister Kristina Schröder praised homosexual life partners for living according to conservative values.

“Max was unwell when he first came to us,” says Grzegorz, sitting next to his foster son on the floor. “He was undernourished; he needed heart surgery. Overall it was a very stressful first year, but it was also wonderful.” Grzegorz moved to Berlin from Poland 11 years ago after meeting Martin in Warsaw. In 2005 the couple entered into an eingetragene Lebenspartnerschaft: the legal status that, for same-sex couples in Germany, is the closest thing to marriage. “Soon afterwards Martin and I began thinking about children. Just like other married couples do.”

In many ways, the Kujawas live according to conservative values. After Max came to them, Grzegorz took one year off work to be a full-time father (both partners now work part-time). The family goes to an Anglican church every Sunday and they lead a quiet life.

Legally speaking, however, they lack many rights that heterosexual married couples take for granted.

Back in 2001, Germany was a gay rights pioneer with its progressive civil union. Since then, progress has been slow. Despite small steps elevating the status of same-sex unions – in 2011, for instance, life partners were granted the same inheritance rights as spouses – a Lebenspartnerschaft between two men or two women brings only the same obligations, not the same rights, as a marriage between a man and a woman.

Partners are financially responsible for each other (e.g., in case of unemployment) and must support one another in sickness and old age. Same-sex life partners do not, however, qualify for Ehegattensplitting, the German tax benefit associated with marriage. Nor can they adopt children together.

So far, 2013 has been the year for same-sex marriage. US President Barack Obama said he wanted to expand his “gay brothers’ and sisters’ rights” in his second inaugural address, England and Wales passed a law legalising gay marriage in early February and France’s lower house of parliament approved a similar measure one week later – joining countries like Spain, Argentina and South Africa.

But don’t look for Germany to catch up anytime soon when the government can’t even agree on whether gay unions should have the same tax privileges as straight ones.

In February the Bundestag was still stuck debating the tax issue. While same-sex partners are taxed like single persons, Ehegattensplitting allows married couples to be taxed according to their combined earnings. This particularly benefits households in which spouses have very different incomes or only one bread-winner, facilitating family structures where one parent stays at home to raise children or only works part-time.

In August 2011, when Germany’s Minister of Justice Sabine Leutheusser- Schnarrenberger (FDP) submitted a proposal to reform laws containing the word ‘spouse’ to also include the phrase ‘or registered life partner’, a debate erupted in parliament, not just on finances but over society’s definition of marriage and family itself.

The FDP, SPD, Green Party and a dissenting group within the CDU called the “wild 13” have all expressed support for the proposition that gay couples should receive the same tax benefits as straight couples – and, according to a TNS Emnid survey in Focus magazine, 80 percent of Germans would back this move.

Yet key leaders in the CDU-led government, like Chancellor Angela Merkel and Finance Minister Wolfgang Schäuble, oppose the change. Finance Ministry spokesperson Silke Bruns underscored that “90 percent of the splitting-effect goes to married couples with children” – the intended beneficiaries.

The principle argument for not including same-sex couples in this tax benefit is that, in their eyes, only the classical family unit warrants protection for the role it plays in maintaining the German population. Unfortunately, the key promoters of this view – CDU members Katherina Reiche and Hedwig von Beverfoerde from the conservative initiative Familienschutz – both declined to comment.

Because of the political coalition between the FDP and Merkel’s conservative CDU, Leutheusser-Schnarrenberger did not include adoption rights in her reform. Instead, the Bundesverfassungsgericht – Germany’s highest court – often a step ahead of the CDU on gay issues, is currently examining whether the tax system is discriminatory.

Until it arrives at a decision (scheduled for 2013) the German finance court in Cologne has granted same-sex couples a temporary right to Ehegattensplitting.

Ultimately, the ongoing tax debate is also a debate about what type of family constellations the state wants to encourage. The question is, at what point does the promotion of traditional family structures become discrimination? Meanwhile, Germany’s queer community is going through its own debate…

Straight people are living what was formerly seen as a stereotypical gay life – loving free and large – while the gay movement is trying to paint a picture of themselves as if they were straight people from the 1950s.

To marry or not to marry is a personal issue – but if someone wishes to tie the knot, he or she should be able to, believes Thorsten. Ten months ago, the Munich resident created the Facebook page “Ja zur gleichgeschlechtlichen Ehe” (Yes to Same-Sex Marriage), with the intent of building a platform to expose what he sees as discriminatory governmental practices towards civil unions.

So far, his page has received over 1200 likes. “I’m not going to sign up to being treated like a second-class citizen,” says the handsome 34-year-old, who knows numerous homosexual couples who would like to marry – just not under present conditions.

Tax benefits are the least of his friends’ concerns. “It’s more the symbolism of the affair. Why should your marriage be second-class when you’ve found a first-class partner?” In Berlin, same-sex couples go to the civil registry to enter into a union, but in Munich, they only get a trip to a notary. Thorsten feels that celebrating homosexual unions and granting them some form of legal parity would increase their acceptance in society.

Radical queer rights activist Mads Ananda Lodahl, however, strongly opposes marriage in any form: to him, it is a strange act of conformism to a straight-laced mainstream. “At the moment there’s an odd crossover between the late 1960s and now,” says the Berlin-based Danish writer. “Straight people are living what was formerly seen as a stereotypical gay life – loving free and large – while the gay movement is trying to paint a picture of themselves as if they were straight people from the 1950s.”

Indeed, Family Minister Kristina Schröder praised homosexual life partners for living according to conservative values, saying that despite the views of others in the CDU, such lifelong commitments deserve to be rewarded by being included in Ehegattensplitting.

Lodahl believes that as LGBT individuals actively construct and think about their partnerships and sex lives, they are more likely to favour non-traditional lifestyles than heterosexuals. He pushes for greater recognition of those lifestyles: “By focusing on obtaining more rights for queers who already fit in with mainstream society, we risk ostracising those already excluded even further. We should be starting with, say, transgender immigrants living in communes. If you can include those people most different to normality, then everyone else in between will automatically also be included.”

Not only fringe queers face exclusion, says Thorsten. When he came out 15 years ago in a small town in the Catholic region of Upper Bavaria, people turned not only against him, but against his entire family. “It wasn’t just about being gay. Any break with tradition there was earth-shattering.” For Thorsten, the same-sex marriage debate reveals a lot of discrimination, particularly when it comes to adoption.

Gay adoption is still highly contentious in Germany, as it is elsewhere in Europe. The passionate debates preceding the successful legalisation of gay marriage in both France and England last month have lifted the veil off the crux of the gay debate. It is not so much the equal right to marriage that enrages opponents, but the law’s consequences for adoption and other form of parenting: should kids be raised by same-sex parents? Across much of Europe the answer seems to be a resounding ‘no’.

Until last month, homosexuals in Germany could adopt only their partner’s biological children, but on February 19, the Bundesverfassungsgericht ruled that homosexuals could not be prevented from adopting the adopted children of their partners. The case had been brought to the court by a lesbian who had been denied the right to adopt a Bulgarian-born child that her partner had herself previously adopted. In his statement, the chief justice Ferdinand Kirchhof declared that a same-sex partner was perfectly capable of caring for a child.

The decision was celebrated as one more step in the direction of full legal parity, yet the majority of Germans still seem to have problems with gay adoption.

On the popular talkshow Hart aber fair, host Frank Plasberg cited a 2012 Justice Ministry study that found no significant difference in well-being between children of same-sex couples and heterosexual ones. Yet when Plasberg later polled the audience on whether homosexual couples should be allowed to adopt, 70 percent voted against the motion. Most members of the CDU take this line – with support from the Catholic Church, still influential in the more conservative parts of the country.

In its statement to Exberliner, the Bischofskonferenz (association of German Catholic bishops), expressed tried and tested sentiments: “Marriage is a partnership of life and love between a man and a woman, designed to give life to children and to provide the necessary conditions for their well-being. Which is why it requires special protection.”

Happy fathers of one child, the Kujawas discard doubts about their parenting skills, even though a youth office employee once rejected them as foster parents because of their sexual orientation.

“Honestly, these doubts are absurd,” Grzegorz says, sighing. “Same-sex couples do well as foster parents after all, even though foster children are often more difficult because of the trauma they’ve suffered.”

Around 100 out of Berlin’s 1300 foster parent couples are same-sex, almost 10 percent. Considering that only 0.06 percent of the German population live in a civil union (according to the Lesbian and Gay Federation of Germany), that proportion is significant.

Though gay couples may prefer to adopt, Grzegorz feels more would also make use of the foster system if they knew about it (currently, 700 children in Berlin need new homes). As Martin’s own brother was once a foster child, the Kujawas were well acquainted with the system’s possibilities. “Max’s kindergarten teacher is also gay with three foster kids, so it’s a recurring topic.”

Meanwhile at the Bundestag, MPs are still arguing about taxes – and no real movement on the issue can be expected until after the general election in September and a possible new government that might include left-wing parties that support gay marriage, like the Greens and SPD.

“I don’t think Leutheusser-Schnarrenberger’s proposal [to grant tax benefits to civil unions] is going to be accepted,” says Manfred Donack, head of the FDP-affiliated German queer rights group Liberale Schwule und Lesben. Donack has been with his partner for six years. “I think there will be too many like Merkel and Schäuble who block it,” he continues. “Ultimately, the CDU doesn’t have ‘Christian’ in its name for nothing. Ours remains a conservative government.”