Ehegattensplitting – A small but significant step for gay rights

Anne Will

Unless you’re living in the German-speaking world or watching closely the slow but certain progress of civil rights for gay people around the developed world, the decision on June 6^th by the German Constitutional Court, their Supreme Court, to extend the right to income average (Ehegattensplitting, in German) to gay and lesbian couples will probably not have caught your attention.  Tax issues make most people’s eyes glaze over.   Tax policy in another country cannot seriously be expected to register on most people’s radar.

From a distance, this is small potatoes stuff.  But the fact that one more difference between straight married couples and couples in registered partnerships has been eliminated is no small thing.  It has to do with critical mass.  A straw that breaks the camel’s back of resistance to full and equal rights for gay people.  It has unleashed a flood of demands that the Bundestag, controlled largely by Angela Merkel’s conservative union parties, follow through and eliminate the rest of the barriers to full equality.  Specifically, gay couples cannot adopt as a couple.  Only one partner’s name goes on the adoption papers.  If that partner dies, the child belongs to nobody.   Next stop, full adoption rights for both members of a gay partnership.

This trajectory was played out this month on two of Germany’s most popular talk shows, one of which is hosted by Anne Will.  (I’ll get to the other later, if I can.)  Far more earnest than Oprah or Ellen on a number of occasions, she has the intelligence of Bill Maher without the sharp tongue.  She takes on the kinds of topics you might find on Charlie Rose, but keeps a panel discussion format which invites lively, sometimes angry, debate, the kind of discussions you can really sink your teeth into.   When she gets a group of panelists together, she knows how to pick them.

Her latest program, on June 12, addressed the Constitutional (Supreme) Court decision on income averaging and went beyond.  The program’s title, “Same sex rights for Gays – is marriage no longer sacred?” was clearly designed to bring in the broadest possible audience. The actual debate was more serious and more substantial than the popular press title might suggest.  It laid bare where the lines are not between the conservatives and the liberals, but the way in which changes of attitude and policy are taking place within the conservative camp.  Unlike in America, where moderate Republicans have almost disappeared and “conservative” refers to right-wing politics and a party in thrall to extremists, German so-called Conservatives – the CDU/CSU and the FDP, the Free Democratic Party – are themselves split.  FDP leader and Vice Chancellor, Philip Rösler, speaking for the FDP, threw his full support behind the decision along with Justice Minister Sabine Leutheusser-Schnarrenberger (all ten syllables of her) in urging full adoption rights for gays and lesbians. And so did “the Wild Thirteen” – a group of progressive members of the CDU.

Couples in registered partnerships can now average their incomes, a right held until now only by married couples.  And there’s icing on the cake.  The law will be retroactive back to August 1, 2001.   For couples where one partner works and earns an income which puts him/her in a high income tax bracket, and the other partner earns little or nothing, this can turn out to be a considerable savings.  Single people might argue that this support for marriage is unfair, but in reality there is consensus that marriage as an institution should be supported, so there’s no chance of eliminating this marriage advantage.  The only question is who gets it.  Extending it to gays and lesbians in registered partnerships makes sense if you consider their relationships worth supporting.  If you don’t, you see only the loss to the national treasury, even though it involves only one-tenth of one percent of all German couples.

The amazing thing is that there’s so much more going on in conservative circles.  For example, a “Rainbow Family Center” opened recently in Schöneberg, in Berlin, to “serve gay, bisexual, trans and intersex people with family planning and with educational opportunities.”  The local representative in the Bundestag for Schöneberg, Jan-Marco Luczak,  is a member of the “Wild 13” faction, thirteen representatives of the CDU who have come out in favor of extending full rights to lgbt people. 

Anne Will’s guests included two prominent gay men speaking in favor of full civil rights for lgbt people, David Berger and Michael Kauch.   I wrote a review of David Berger’s book, Holy Illusion, a couple years ago.  The book established him as a major critic of church hypocrisy and gave him a prominent place among gay rights activists.     Michael Kauch is the FDP (Free Democratic Party)’s coordinator for gay and lesbian policy.

On the other side of the debate are one of the CDU politicians still holding out against extending full rights to gays and lesbians, Erika Steinbach, and Hedwig Freifrau von Beverfoerde, a woman arguing from a Catholic perspective that gay people are inherently disordered.   We’ll let the “nobiliary particles” in her name pass without further comment.

The program is still available here, as of this writing, on the ARD (Germany’s public television) website and after it is taken down it may still be available on YouTube here. 

I’ve put a summary in English of the 70-minute discussion at the end, for those of you who don’t know German or don’t want to sit through the entire thing live.

The reason I think it is worth calling attention to is this:

It’s hard to be gay or lesbian and listen to discussions such as these without extreme annoyance and frustration.  It was immensely satisfying to me to watch the two gay men register that frustration.  And to see the battle being fought so capably in Germany.  There was more civility in this exchange than in many American exchanges, where the religious nuts are so totally clueless.  But the prejudices and misconceptions were the same.

The women on the right kept insisting there was no reason for supporting gay rights because gays and straights are simply different.  “I know,” said Frau Steinbach.  “I look at things scientifically.  I can tell when things are the same and when things are different.”  And she takes the obvious differences between gays and straights to what she thinks is a logical conclusion.  There is no reason to grant gays rights.

Frau von Beverfoerde is a party-line Catholic.  Gays should not have rights because homosexuality is just plain wrong.

In the end, this is not an argument in which “intelligent people will reach different conclusions and simply have to agree to disagree.”  It is an argument in which one side continues to find something wanting in the other side, something inferior, sick or dangerous or sinful or abnormal or second-best.  And the other side refuses to be so labeled. 

As we wait for the Supreme Court decisions on Prop. 8 and DOMA, we can at least take comfort in the fact that in other countries – Germany being only one example – that the “disparagers” seem to be on the run.  National legislators are helping their countries become  “more perfect unions” in terms of rights previously denied to lgbt people.  The debates go on, and there will be missteps and steps backwards.  But there is progress to be celebrated.

SUMMARY

Here are some of the highlights of the exchanges.  What I have put in quotation marks is, I believe, an accurate summary but not necessarily a word-for-word translation:

Steinbach establishes her position with the “Some of my best friends” argument.  She has nothing against gays, and by the way isn’t it a scandal how badly they are treated in Russia and Poland, but their partnerships should not be financially supported by the state.  The state has a special responsibility to support marriages as the foundation of society.  It has no such obligation with gays and lesbians.

“What the state supports must be in the interest of the future, and the future lies in the family.  Everything else has my respect, but where the state puts its money must be in ways that “transport the future.”

Michael Kauch then establishes his position.  The court made the right decision.  Where there are responsibilities there must also be rights.  Gay people pay the same taxes, and they should have the same benefits.

Steinbach: Gay people who live together and take care of each other are no different from any other people – a sister and her mother, or two brothers, for example.  That’s not the same thing as somebody living in a marriage.

Kauch: Why do you insist on seeing gay people’s partnerships, which for all intents and purposes are indistinguishable from marriages, as lesser than a marriage?  Why must they be compared to brothers living together and not a married couple?

The conversation switches to the fact that on the following Friday new legislation will be introduced into the Bundestag for a first reading extending rights to gays.  von Beversfoerde enters the conversation with the observation that she finds the speed with which gay issues are taken up unfair when there are so many other people in greater need of the legislators’ attentions – people raising children, for example.

Why do you suppose this is, Will asks her.

von Beverfoerde: That’s obvious.  They have a very effective lobby.  (sounds of protest from the audience)

von Beverfoerde continues, insisting the difference between gay relationships and married couples are patently obvious, and there is no reason for them to be treated as if they were alike.

Kauch steps in.  The court has established that there is no reason, he says, why they must be treated differently.  And that leads to first von Beverfoerde and then Steinbach both insisting that this is a case of judicial activism (I’m putting the American English word on it – von Beverfoerde claims, “it appears we are now being governed by the court” and Steinbach backs her up, saying, the whole basis of the argument is false, and judges should stay out of the way and let legislators do their job.

David Berger comes in at this point.  When Will asks him if he, as a Catholic, can understand the position von Beverfoerde is taking, he brings out the big guns.  “When I place where she stands in the church, yes.”  Hers is a reactionary position, he says, and the sparks start to fly.  She protests.  What is that organization you represent, the Familienschutzbund (Family Protection Union) or whatever, one of those organizations run by the Vatican. 

            “We don’t live in Catholistan; we live in the Federal Republic.”

He then turns to Steinbach and her talk of financial support only of families and in terms of the future.

When you say “family” you need to consider what the family is today and what the family of the future will be and not talk in terms of the family of the 1950s.

Steinbach comes back with the argument, “When you look around the world, that view that you are propagating (sic) is a minority view,” and repeats her insistence that the state must support only that which assures a future.

“So you don’t accept David Berger’s view?” 

“It’s a minority view, and irrelevant as far as the state is concerned.”

Another outburst from the audience, and both Berger and Kauch show immediate frustration and impatience.

Kauch addresses Steinbach.

Mrs. Steinbach.  The people do not exist for the state.  The state exists for the people. 

After being interrupted with cheers and applause, Kauch continues:

The time in which the state supported reproduction, those days are gone. 

Steinbach is undaunted.  We live at a time when we don’t have enough people to support the economy and have to import foreign labor.  We need to get back to supporting the future of the nation.

Kauch then says:

The reason heterosexual couples don’t have children is not because gay relationships are being set on a par with straight relationships.  The reason there are fewer children is that women are not finding men with whom they want to have children.

The discussion then circles back to the “some of my best friends” argument.  Steinbach actually uses the expression.  “We have gay friends and I have the highest respect for them.”  Will asks her, “Do they have children?”  “Of course not,” Steinbach says, “Gay people cannot produce children.  That would be a biological miracle.”

The conversation then veers off into a discussion of what a marriage is.  Steinbach says she is “scientifically oriented” and knows not to put things together that are not alike.  A marriage is something between a man and a woman.  von Beverfoerde defines it as: “a union for life between a man and a woman who commit to an exclusive spiritual and physical relationship; that is, they agree to exclude all others sexually.”  That leads to the question of how it is that one third of all marriages end in divorce.  The two women admit it doesn’t always work, but “it’s the principle that counts” (von Beverfoerde) and “the important thing is that the couple intends for it to work when they marry” (Steinbach).

To which Kauch responds, “And you think gay couples don’t marry with the same intentions?”

Kauch then addresses the point that bothers many gays when asked why they are not satisfied to have all the rights of marriage without the name.  When you have to fill out a form designating your marital status and you have to choose between “life partnered” and

“married,” and that marks you as gay or lesbian, he says.

 “We don’t all live in the middle of Berlin.  Identifying yourself as gay in some parts of the country has negative consequences.”

After some discussion about the importance of tolerance and civility, von Beverfoerde turns to Berger and says, in effect, “I’ve got a bone to pick with you.”   You have, she says, in the past tried to shut down the free expression of those who don’t share your views.

Berger rises to his defense.  You’ve got that wrong, he tells her.  What I was criticizing was hate speech.  [Germany, unlike the U.S does not permit any advocacy of Nazism or anti-Semitism and the principle of prohibition of hate speech is well established.]  It bothers me, he says, that people sometimes occupy seats on television in the role of experts, and spew invective in the guise of opinion.

Berger then turns to Steinbach and says, “You know what bothers me is all this talk of reproduction.  It’s as if you worked for the Bureau of Agriculture and were occupying yourself with raising chickens.”

See!  That’s what I’m talking about, says von Beverfoerde.  No, says Berger, I’m simply expressing the opinion that there is something wrong with reducing all talk of family to the issue of reproduction.  And the Constitutional Court did the right thing.  It addressed the family of the future, not the family of the 1950s.

The conversation then goes to whether a child should have both a father and a mother, as von Beverfoerde claims.

Kauch:  We live in an age when a third of all marriages end in divorce, where one-third of all children born in the Federal Republic are not born to married couples.  There are all manner of families and that is the modern-day reality.  What counts for a child is not whether he or she is born and raised in a mother-father family, but how much he or she is loved and cared for.  And especially how the parents get along with each other.

The discussion goes off the tracks again briefly.  Will turns to Steinbach and says, “What do you have against recognizing the family Mr. Kauch has made with his partner and the lesbians who have borne the child they have adopted.  Steinbach answers, “That’s not an adopted child; it’s a ‘self-produced’ child.

Berger: I’m shocked that a politician like you could use such language.

Steinbach defends herself by saying the distinction is important.  When it comes to adoption, she says, there are seven times more couples seeking to adopt as there are children to adopt.   “And I think,” she says, “it’s important that these children be placed in stable environments.”

Will: And by “stable” you mean man-and-wife couples?

Steinbach: No, I mean only that kids can be really mean, and can bully a child who is different.  I’m just saying, since we have so many normal families seeking to adopt, we don’t have any need to seek out alternative families.

Kauch: You’re talking only about small children.  When it comes to adolescents, there are no long lines of people waiting to adopt.  Isn’t it better they find loving homes than that they end of going from one foster family to the next?

von Beverfoerde then comes back to the question of how important it is that a child have role models.  The men insist that, in the first place, both men and women play both roles and, in the second place, if you want a man to model the male role, there are uncles and family friends and all sorts of people who provide that benefit.

This provides Will with the opportunity to introduce a guest sitting in the audience.  Malte Czarnetzki.  Malte, his twin brother and their younger brother live in a family with two mothers.  It is impossible to convey the power of the story this eighteen-year-old tells.  He is highly articulate and a passionate defender of the right of same-sex couples to adopt and raise children.  When he is done, Will turns to von Beverfoerde and asks what she thinks.  von Beverfoerde insists she finds Malte’s story wonderful, but concludes that it’s possible one makes the best of a bad situation sometimes and there may be things that did not come out. 

This clearly annoys Kauch, who says to her,  “Now just a minute.  He’s happy with his situation.  He’s obviously well-educated, has had a good education, gives a fantastic impression.  He’s a grown young man who is certainly capable of assessing his own life.  What is wrong with the way he was raised? 

von Beverfoerde zeros in on the claim Malte made that he has no interest in knowing who his biological father was.  His case cannot be taken as standard, says von Beverfoerde.  Many people suffer, she says, from not knowing.

Will repeats the question Kauch asked, “Why is it so hard for you to admit that he was raised in a good home?”

Nobody’s arguing that, says Steinbach.   She then launches into a personal story about her mother being raised by two aunts and suffering tremendously from the fact.  But isn’t the issue, Will asks, that Malte grew up in a home where his parents loved and cared for him?

Malte then speaks up, “I’m not here to represent a heterosexual who gets along with homosexuals.  I’m here to demonstrate that I could be raised by two homosexuals and grow up to be heterosexual.  And that it would have been perfectly fine to turn out to be homosexual.  It simply doesn’t matter.”

As the discussion cycles back to the question of sex roles, Will changes the subject.  She cites a study that shows when asked to define a family, 97% of respondents come up with a man, a woman, and their children.  That was true in when the study was first done in 2000, and it was the case when the study was repeated in 2012.  “Doesn’t that suggest, and don’t the protest marches in France suggest that we may be moving too fast?” she asks Berger. 

France is a special example, Berger answers.  There groups on both sides were well-organized and the protests were well planned in advance.  There are other places one might also look – Spain, for example.  Or the Netherlands.  Ask somebody in the Netherlands if they could imagine a time before same-sex marriages were legal and it strikes most people as ridiculous.  Netherlands has not only equal marriage rights, but full adoption rights, and there are no distinctions made between straight and gay couples.

Will:  But are you not impressed by the 97% figure?

Berger: No, I’m not.  I have full respect for the traditional family.  But we’re not in competition.    Of course people think of the traditional family first.  That reflects reality.  But how does that affect non-traditional families?

What surprises me, he continues, is that the conservatives are missing the opportunity to recognize how very conservative the notion of marriage and children actually is, and the fact that gays are embracing it.  How could they miss this?  In Great Britain, for example, the conservatives are falling in behind same-sex marriage as a conservative issue. 

Near the end of the debate, Kauch returns to the question of why, if the conservatives are so concerned with children, the issue is the form of the partnership in which children are raised.  The focus needs to remain on the welfare of the children and not on how their parents chose to form their partnerships.

This leads into the story of two men who have adopted a severely mistreated child who lacked the ability to say more than two words when they took him in at the age of three.  He has prospered and the couple has since adopted a little girl, as well. 

This raises the burning question of the hour in Germany, now that the tax issue has been settled.  What happens to a child adopted by two gay or lesbian parents if the parent who signed the papers dies.  The state allows gays to foster children, and single parents to adopt children, but it does not permit double adoption.  It could happen that the child who loses a parent then automatically loses the other parent at the exact moment when he or she would be in greatest emotional need of comfort and care.  Surely this must be recognized as an injustice to the child, and changed.

Malte repeats what he said earlier.  He has not been engaged in the issue of gay adoptions in recent years, but he is glad to come on the program to demonstrate that gay people can raise children well.  What’s important for a child, he says, is that they learn to be socially responsible.  And that lesson they can learn as well from gay parents as from straight ones.  Why, after all these years, he asks at the very end, are we still having these discussions?

Will puts a positive spin on it.  With that appeal for tolerance, she says, our discussion is at an end.

photo of Anne Will is from the daserste.de (North German Broadcasting Channel One) website.

I hasten to add here that all my comments are my personal take on the program in question and the channel knows nothing, to my knowledge, of my support or interest and are in no way responsible for anything I say in regard to it.