Bavaria will not go to the Federal Constitutional Court against the "marriage for all" law. The Catholic Church in the Free State regrets the decision. This was expressed by the spokesman for Munich Cardinal Reinhard Marx.
Minister of Justice Winfried Bausback and head of the state chancellery Marcel Huber (both CSU) announced on Tuesday in Munich the legal test waiver. On the same day there had been a corresponding cabinet decision.
Reason for it were the results of the legal appraisals commissioned. The state chancellery had commissioned the lawyers Ferdinand Wollenschlager of the University of Augsburg and Dagmar Coester-Waltjen of the University of Gottingen with this in September 2017.
Little chance of success
Bausback said that the decision in the Bundestag of 30 September was a matter of urgency. June 2017 had in fact been taken in a "hair-pulling procedure". But the expert opinions convincingly showed that the federal legislature had not exceeded its creative leeway. The chances of success to sue against the law are therefore to be estimated as low, he said.
It had also become clear that, due to the social changes reflected in the case law of the Federal Constitutional Court, the heterosexuality of marriage was no longer an exclusive and defining structural characteristic. This change is also evidenced by the introduction of same-sex marriages in other states and their positive evaluation by other constitutional courts.
Despite the opening for same-sex couples, marriage continues to enjoy high constitutional priority. It is under the special protection of the state, Bausback stressed. It remains connected with the fact that it is a union of two people and is intended to be permanent. According to Huber, the state government politically adheres to the model of traditional marriage as a life partnership between a woman and a man. It is the basis for families in which children grow up with their natural parents. At the same time, discrimination against same-sex partnerships is expressly rejected.
Archdiocese of Munich regrets decision
The Catholic Church regretted the decision. For legal certainty, it would have been desirable to go the Karlsruhe route, Bernhard Kellner, spokesman for Munich Cardinal Reinhard Marx, said in response to a query.
Marx, who is also chairman of the Catholic German Bishops' Conference, had repeatedly stated that he would like the Federal Constitutional Court to deal with "marriage for all". The Catholic Church would have liked to keep the old regulation. Ultimately, however, it was the task of the state, the cardinal said last year, to regulate the matter; the church had to hold back.
Wollenschlager, holder of the Chair of Public Law, advises as an expert numerous state parliaments, the Bundestag and Bundesrat, as well as the European Parliament and the European Commission. He took on the ie of the law's catch-all nature. Coester-Waltjen, an expert in international family law, was commissioned to conduct a comparative study of the international legal situation.