The Introduction of Same-Sex Marriage in Germany—A Question of Conscience and/or Faith? A Case Study

Abstract

On 30 June 2017, the German Bundestag voted in favor of the introduction of marriage for same-sex couples—a historic moment. Only a few days earlier, the then Federal Chancellor Angela Merkel had released the vote as a decision of conscience and thus dissolved the usual underlying factional compulsion—does this mean that rights for homosexual people are a question of personal conscience and values? Such a localization arouses the interest of religious studies to investigate how the discourse actors from the fields of politics, church and society formulate the decision of conscience as a discursive strategy in the negotiation process of same-sex marriage in Germany argumentatively and which positionings as well as descriptions of others and themselves are derived from this. The starting point is a modernity in which the actors move, understand and articulate themselves. This understanding of modernity is based on the process of a vertical transfer (Gladigow) of sociological theories of religion, among others, whereby narratives of secularization, overcoming religion (as a necessary precondition of modernity) and narratives of an opposition of religious vs. secular or religious vs. homosexual reappear as positions and arguments in the discourse. Using the approach of discursive religious studies (von Stuckrad) in conjunction with sociological discourse analysis (Keller), these processes of positioning, demarcation and negotiation based on the premises of modernity will be analyzed for the period from 2013 to 2017 on the basis of the public debate on religious, political, and social actors in Germany.

1. Introduction

Monday, 26 June 2017—the former German chancellor Angela Merkel gave an interview to the female magazine Brigitte, live on stage. She responded to a question from the audience on the position of her party (Christian Democratic Union, CDU) against the opening of marriage for homosexual partnerships: ‘I know many people in the CDU, including myself, who are very concerned about this issue. They’ve been saying for a long time that the same values are being lived and yet somewhere …. Perhaps they grew up with the feeling that husband and wife are like marriage as we know it and the partnership is just as valuable and, of course, for those who are bound to the church, it certainly still matters. […] That is why I would like to lead the discussion towards a decision of conscience rather than pushing it through a majority decision. And I hope that, despite the election campaigns, the discussion will be conducted with great respect and also with great consideration for those who find such a decision difficult. And then at some point the decision will have to be made. And now we’ve been in a coalition with the SPD [Social Democractic Party] for four years and we’ve never talked about the issue, and now suddenly during the election campaign (…), I also find that a bit—yes, strange.’ (phoenix 2017).

This statement, in which the chancellor opened up the possibility of understanding the question of same-sex marriage as a decision of conscience, was marked as a turning point by supporters of same-sex marriage. Moreover, it represented new possibilities in terms of voting practice in the positioning on same-sex marriage. How was this the case? Because the possibility of declaring a question, an issue or a vote to be a matter of conscience means that, in a parliamentary context, members of the Federal Parliament are no longer bound by their parliamentary group’s obligations or the constraints of the parliamentary group, but can decide according to their personal conscience and ethical beliefs. This option has so far been used in Germany primarily for bioethical issues, such as stem cell research, living wills, abortion or forms of assisted suicide (Heichel et al. 2015).

The LSVD+ Federation Queer Diversity (LSVD) stated in its press release: ‘Equal rights are a demand of the Basic Law (…) In order to get out of this unworthy blockade in a face-saving manner, the Federal Chancellor is proposing the release of the vote in parliament as a matter of conscience for members of parliament. In doing so, she is taking up a long-standing demand. The majorities in parliament for opening up marriage are there. Equal rights for all people are a requirement of our Basic Law. They will not tolerate any further postponement and require no further discussion. All the arguments have been exchanged many times over the last 30 years. The LSVD therefore calls on the Federal Government and the parties supporting it to put the opening of marriage to a vote in the German Bundestag before the Bundestag elections. We want to live in a country in which lesbians and gays are no longer discriminated! Especially when conscience speaks out, we should no longer hesitate. Following the Chancellor’s U-turn, it is now in the hands of the members of the coalition to vote freely according to their conscience for an end of discrimination in the Legal Affairs Committee tomorrow.’ (LSVD 2017c, author’s translation)

The CDU/CSU initially planned to delay the vote until the Bundestag elections in the fall of 2017. The government partners, the Social Democratic Party (SPD), on the other hand, advocated a quick implementation of the vote during the current legislative period. On Tuesday, 27 June, the parliamentary group constraint was lifted in the Union parties CDU/CSU parliamentary group meeting for the upcoming vote in the Bundestag. The vote was based on a motion by the federal state of Rheinland-Pfalz from the Bundesrat. On Friday morning, 30 June 2017, the vote took place after another debate as the first subject on the agenda. The bill received 393 votes in favor, 226 against, and 4 abstentions, and 7 votes were not cast. The bill thus achieved the required majority. In addition to all members of the SPD, Alliance 90/The Greens and The Left Party, 75 members of the CDU/CSU also voted in favor of the bill. After 16 years of civil partnership as the legal institution for same-sex partnership, it was replaced by marriage as the legal institution, with the exception of family and parentage law regulations.

The quotations show that the actors in the discourse use different ideas that are formulated in opposition to each other. In doing so, they use different frames of reference as the basis for a decision of conscience and for their plausibility and legitimization in order to demonstrate their particular position, support or rejection of same-sex marriage. Two aspects make the process of negotiating same-sex marriage in Germany interesting from a religious studies perspective: the quotations refer to religiously based and legally based decisions of conscience and they are formulated in opposition to each other. In addition, a religious studies perspective offers the opportunity to expand the current state of research on this topic, which is primarily political science; the works of Hennig (2012) and Preidel (2015) both locate this debate in the field of moral politics, because of the clash of different fundamental convictions. According to the authors, the line of conflict runs between religious and socially liberal forces. The emotional and moral arguments of conservative Union parties and the strategy of depoliticization by handing over to the judicial level are also classified as further characteristics of moral policy conflicts (Preidel 2015, pp. 147–49). With the category of depoliticization of the problem definition through re-framing it as a decision of conscience (Heichel et al. 2015, pp. 42–45), the moral politics approach provides useful analytical categories for elaborating the strategies and positioning of political parties in the negotiation process surrounding the introduction of same-sex marriage. At the same time, from a religious studies perspective, it is important to critically question Hennig’s and Preidel’s drawing of the lines of conflict. They use a rather narrow concept of religion and understand religion as a source of conflict, as it defends traditional values and is therefore opposed to liberal developments. Instead, an approach based on religious studies and discourse analysis can be used to shed light on the conditions under which such strategies for deciding on conscience arise, as well as the complex social, political and cultural dimensions that religion and homosexuality assume as polarizing constructs which are used by actors.

2. Focus: Approaches of Discourse Analysis in the Sociology of Knowledge and Religious Studies

The focus of this particular article is on the manner in which weddings mediate values that are often highly normative. Norms in this context are understood as guidelines to act by, which express specific values and justify normative acts. Also in this context, mediatization is looked at as the interaction between culture (including religion) and the media in a broad sense and the interaction of these two areas, how they adapt to and transform one another. This approach of interaction, mutual adaptation and transformation can be connected with a discourse analysis in the sociology of knowledge (WDA) according to Reiner Keller (2011) and an epistemological interest in religious studies according to Kocku von Stuckrad (2015). With WDA, discourses are reconstructed as ‘processes of social construction, objectification, communication, and legitimation of structures of meaning, i.e., interpretation and action, at the level of institutions, organizations, or social (collective) actors (…) and the social effects of these processes (…) are analyzed.’ (Keller 2011, p. 59). Collective actors can thus be understood as producers of statements on an institutional level. They stabilize, transform and (re-)produce the content-related structures and materiality of a discourse in the form of discursive practices together with the dispositives, i.e., the material infrastructure such as draft laws, reports or protest actions (ibid., pp. 137–39). Definitions of religion or patterns of interpretation of religion are thus the subject of discourse analysis and are not prefixed as a tool (von Stuckrad 2015, p. 435; Koch 2007, p. 46f.).

In this way, the discursive strategies of the actors involved in the discourse can be analyzed, how they produce patterns of interpretation as well as self-positionings and external positionings in the negotiations about same-sex marriage, and how they in turn use these to legitimize or make plausible their position. These patterns of interpretation can in turn contain certain norms or values, refer to them or reproduce them. This is because they are available to the actors from the social stock of knowledge and are used by them in a discourse-specific way. Thus, in the interpretive pattern, discourse actors combine different elements of meaning into a coherent and not necessarily consistent interpretive figure, which can appear in different manifest forms, such as texts, images, practices, etc. (Keller 2011, p. 108). Thus, from a religious studies and discourse analysis perspective, the following questions can be raised: how do the discourse actors from the fields of politics, church and society formulate the decision of conscience as a discursive strategy in the negotiation process on same-sex marriage in Germany argumentatively and which positionings as well as descriptions of others and themselves are derived from this?

A second aspect concerns the structure of the discourse and the view of the conditions of the contemporary negotiation process. The actors see themselves as modern and use a certain understanding of modernity in their arguments and strategies. With Gladigow’s (Gladigow 1995) approach of vertical transfer, it can be assumed that in the course of differentiation processes, concepts, knowledge and practices between subsystems have been and are shifted and changed. In addition to the WDA approach, Giddens’ concept of recursive structuring (Giddens [1984] 1997) and von Stuckrad’s ‘double-bind’ (von Stuckrad 2015, p. 435), a mutual constitution of objects in the subsystems can be assumed. This means that scientific definitions of religion, secularization and modernity narratives circulate in the empirical field and in the subsystems and that the discourse actors use them accordingly in their patterns of interpretation and argumentative strategies.

This refers in particular to the premise applied in contemporary discourses of the distinctiveness of a religious and secular sphere, the narrative of overcoming religion and the opposition of religious vs. secular. This is based on the sociological theory concepts of a secularization paradigm as a historical process since the beginning of the 19th century. Modernity is created as a social topos and, as a diagnosis of the times, is provided with temporal, sociological and normative settings. Oppositions such as religion vs. modernity or religion vs. rationality were created, based on the Enlightenment critique of religion, which emphasized reason and rationality as the highest principles. The overcoming of religion was set as a marker of modernity (Baumann and Neubert 2010, pp. 9–12; Seiwert 1995, p. 93). Through this narrative of overcoming religion as a precondition, modernity and secularization are linked as mutually dependent. This forms the argumentative starting conditions and sources of reference for the discourse actors in contemporary fields of discourse. In addition to the modernity narrative, Habermas’ post-secular model of society and Rawls’ political liberalism are two further theories on the idea of secularism that shape the general understanding of religion in the public sphere. Based on the principle of vertical transfer (Gladigow 1995), it will also be shown how the discourse actors implicitly and explicitly draw on these theories in their discursive argumentation strategies. For Habermas, secularization does not represent the disappearance of religion, but the possibility of its participation through the translation by and into secular reason. He links the place of religion in the public sphere to the following condition: religious convictions can only appear with a general claim to validity if they are expressed in arguments in such a way that all citizens can understand them based on reason. Habermas sees religion as a potential resource that could be translated into the language of public reason by secular reason. According to Habermas’ principle, secular reason forms and creates the conditions in which religion can appear in the political public sphere, among other things. If religion accepts these conditions, it can, according to Habermas, form a coalition with secularity and oppose scientific rationality and an over-rationalized modernity (Habermas 2016; Schmidt 2014, pp. 30–32). Rawls, a representative of political liberalism, also ties this in with the principle of justice. Unlike Habermas, Rawls distinguishes between reason in public use and private truth. However, no translation process is required to agree to the principles of justice; instead, this should be based simply on political and universally reasonable considerations. The justifications, in turn, might be based on ethical and religious convictions and could vary considerably. The key here is the representation of a liberal stance in public (Rawls 1993).

Another aspect concerns the connection between religion and homosexuality. In the historically based narrative, the Christian churches or the Christian religion is mainly described as an opponent of homosexuality and, accordingly, of same-sex relationships. At the same time, secular voices are linked to its support. Joan W. Scott attributes this dichotomy of religious vs. homosexual to the introduction of liberal secularism. Here, the distinction was made between a public and private area of the political order and its gender and sexual coding. Religion and sexuality were attributed to the private sphere, and these in turn were classified as problematic by both religious and secular sides and regulated as distinct from one another (Scott 2009, pp. 3–5; Jakobsen and Pellegrini 2004). Accordingly, the first question can be clarified: how the opposition of religious vs. homosexual/religious vs. secular, which is derived from an understanding of modernity, has a structuring effect and is implicitly or explicitly used by the discourse authors as a starting point for interpretation, argumentation and positioning as support or rejection.

The questions are answered in three steps. Firstly, the field of discourse examined for this case study is presented with the corresponding discourse actors and the data material used. Secondly, a historical look is taken at how the contemporary field of discourse has been shaped and structured by the two discourse strands of marriage and homosexuality. It was only with the decriminalization and depathologization of homosexuality from the 1960s onwards that a process began in which the linking of these two strands of discourse was made possible within the framework of legislation. Thirdly, it is shown how the discourse actors of the discourse formations of politics (Union, SPD, The Left Party, Alliance 90/The Greens), religion (German Bishop Conference/DBK, Protestant Church Germany/EKD) and social movements (LSVD+ Federation Queer Diversity/LSVD and Homosexuals and Church/HuK) in the negotiation of same-sex marriage in the 18th legislative period (2013–2017) use the decision of conscience as a discursive argumentation strategy to support or reject the introduction of same-sex marriage. In the end, it will be discussed how the oppositions of religious vs. secular and religious vs. homosexual, which are derived from an understanding of modernity, have a structuring effect and are implicitly or explicitly used by the discourse authors for their discursive strategies.

3. Discourse Actors and Data

Based on the WDA approach, actors do not act in a vacuum. As discourse actors, they assume a certain spokesperson position in which they represent, for example, an organization, a position or a social movement and can form explicit or implicit discourse coalitions or oppositions. They have various resources at their disposal and are bound by (institutional) rules in their particular fields. They (re-)produce a discourse through and with their statements as well as with and through so called dispositives. Dispositives are practices, i.e., non-linguistic instructions for action (so-called non-discursive practices), material objects and textual elements, such as, e.g., legal decisions, press releases, and official statements. As instruments of intervention, they have a power effect and thus produce a real discourse in society (Keller 2011, pp. 61–66, 73).

Actors and dispositives can be divided into so-called discourse formations. These are structured by certain rules and resources, contain certain knowledge and in turn shape these aspects. Discourse-analytically speaking, categories such as religion, politics and society can form such a definable context (ibid., p. 68). This means that categories such as religion, religious, politics, political, society or social are understood as discursively made attributions, categorizations or classifications of organizations, actors or actions. Accordingly, religious, political or social institutions and actors are analyzed as discourse carriers and producers at the meso and micro level, as collective and individual actors. The following discourse actors from the three discourse formations of politics, religion and social movements are used for the research period of the 18th legislative period of the German Bundestag in the years 2013–2017:

Politics: The political system of a parliamentary party democracy, the Basic Law and the parties as public bodies structure the discourse formation of politics. Therefore, the parties and their individual actors were used as collective actors for the political discourse formation. As elected members of parliament for a legislative period, they have the right to speak in the plenary sessions of the Bundestag and assume a spokesperson position for their party or parliamentary group for certain topics. In the 18th legislative period, the federal government was formed by the Union parties/Union (Christian Democratic Union of Germany, CDU and the Christian Social Union in Bavaria, CSU) and the Social Democratic Party of Germany (SPD). The Left Party formed the opposition with Alliance 90/The Greens.

Religion: The cooperative relationship between state and churches, the organizational forms DBK and EKD as well as the distribution of dominance of the religious communities within society are the structuring principles in the discourse formation of religion. For example, only representatives from the Catholic Church, and here in particular from the Catholic Church, and in particular from the German Bishops’ Conference (DBK) and the Evangelical Church in Germany (EKD) were chosen. They were invited by political representatives to take part in negotiation processes in the Legal Affairs Committee as experts or wrote public statements in the form of press releases. This means that the discourse itself shows a focus on the Roman Catholic Church and the Protestant Church in terms of spokesperson positions. Accordingly, the Catholic Church and the Protestant Church in Germany in their institutionalized organizational form as DBK and EKD are examined as collective discourse actors.

Society/social movements: The LSVD Federation Queer Diversity in Germany (LSVD) and the Homosexuals and Church Association (HuK) were identified as further collective actors. As socio-political associations, they represent the interests of cross-sectional areas of society. They were therefore classified as social movements in the discourse formation of society.

As already mentioned, the discourse actors (re-)produce a discourse through and with their statements as well as with and through so called dispositives. Thus, statement practices were used as data material in form of press releases, position papers, statements as well as parliamentary speeches of the actors involved.

After developing the discourse actors and data used, the next section takes a historical look at the structuring and shaping of the contemporary negotiation process surrounding same-sex marriage.

4. The Discourse Field: The Historical Discursive Structure and Conditions of the Contemporary Discourse about Same-Sex Marriage in Germany

The field of discourse in which political, civil society and church actors operate is structured by the historical strands on marriage and homosexuality. The two historical strands form the basis and structure of the contemporary debate on same-sex marriage. The history of marriage and homosexuality should be understood as a process of negotiation in which the Catholic and Protestant Churches, the state and society in particular fought over the interpretation of the content of marriage and the sovereignty of interpretation. This always included attempts to regulate sexuality between men and women and to draw the boundaries between permitted and forbidden sexuality, which included both certain sexual practices and, later, certain sexual orientations. Furthermore, these struggles over interpretation also involved power struggles over the position and relationship between churches and the state. The patterns of interpretation used were then enshrined in state or church laws and ordinances, such as marriage law or the prohibition of homosexuality as a sin or criminal offense. These discourse-analytically spoken dispositives in turn established certain sexual moral and social narratives and were thus elevated to the law and norm of society. These could then in turn be used by the actors as the starting point for new negotiation processes and possibly reinterpreted in order to justify new positioning around the power of interpretation and content (Exner-Krikorian 2022). For the history of the legal institution of marriage in Germany, four discursive events that have shaped and structured today’s discourse can be mentioned in the context of this essay: the introduction of mandatory civil marriage and the associated separation between the clerical and state sectors, the introduction of marriage as an institution and its protection under constitutional law, as well as the patterns of interpretation of marriage as a community of responsibility and procreation. The fourth discursive event to be mentioned is the drastic change in the patterns of interpretation, legal regulation of homosexuality and the resulting political demands since the 1960s.

(a)

Civil marriage as legal institution and the fundamental transformation process in the so-called long 1960s

The legal institution of compulsory civil marriage was introduced in 1875 and marriage was finally removed from the regulatory monopoly of the churches. In contrast to the form of facultative marriage, obligatory civil marriage means that only civil marriage has legal validity. A clerical marriage is only valid within the respective church community and can only be legally performed on the condition of a preceded civil marriage. The state thus drew a clear distinction between the clerical and state sectors as part of the so-called ‘Culture War’ (Fuhrmann 1998). With the introduction of the German Civil Code on 1 January 1900, marriage law was codified together with family law for the entire German Empire. In 1919, a corresponding paragraph on marriage, family and filiation was included in the Weimar Constitution. The majority of the National Assembly rejected the idea of accepting and guaranteeing marriage and family as a given. Instead, the parties agreed on the compromise of placing marriage and the family under the special protection of the constitution, while at the same time retaining the openness to add further structural principles. This arrangement was confirmed in the 1998 marriage law reform (Schwab 2013, pp. 297–99).

The so-called long 1960s represent a significant discursive event in this historical process, as fundamental transformation processes took place during this period (Großbölting 2013; Bräunlein 2015). The post-war government under CDU Chancellor Konrad Adenauer adopted a conservative and restorative style of leadership. This was accompanied by an attempt to distance itself from the Nazi government and seek new roots. However, as Herzog was able to show, this attempt by the Christian Democratic parties and the churches to distance themselves from the Nazi regime was ambivalent. On the one hand, they marked their own sexual policy as a demarcation of the Nazi past and at the same time appropriated the same sexual policy of the previous government through the strict regulation of sexuality (Herzog 2018, pp. 9–17). The churches were also appointed by the Allied Control Council at the time to guarantee the return of morality and to advise politicians. The churches themselves referred to this process as re-Christianization (Lepp 2016, 288f.). This mixed situation changed slowly and over time led to fundamental changes in the legal structure of marriage and divorce, the perception of sexuality(ies), the roles of men and women as well as the influence and role of the church and state. (Maschwitz 2014, pp. 82–84; Schwab 1999, p. 811f.) From a discursive perspective, these processes of change can be described as waves and counter-movements of alternating and mutually dependent conservative and liberal positions. At the same time, stereotypes from the 19th century were reactivated; accordingly, the Catholic Church was portrayed as backward-looking, politically conservative and hostile to modernization, in contrast to the Protestant Church, which was described as open to dialogue and adaptable (Bräunlein 2015, pp. 46–49). Another reactivated narrative of this period is that of the crisis of family and marriage. The starting point here is the ideal of a Christian middle-class nuclear family, which is threatened by the social upheavals (Neumaier 2019, pp. 84–88; Gerhard 2005, p. 449). Due to the social changes and despite internal reformatory approaches, both churches continued to advocate marriage as a monogamous and permanent union between a man and a woman and as the ideal and center of Christian sexual ethics. While the Protestant Church primarily problematized premarital sex, the Catholic Church re-evaluated the relationship between marriage and sexuality. In the pastoral constitution Gaudium et spes (1965) of the Second Vatican Council, personal love was recognized for the first time as the legitimate purpose of marriage and sexual intercourse as an expression of this love. In the follow-up document Humanae vitae, the Catholic Church reaffirmed its understanding of sexuality as being directed solely towards procreation. In its orientation guide Questions of Sexual Ethics (1971), the Protestant Church emphasized the individual’s freedom of choice, but continued to advocate marriage as a partnership between a man and a woman as the ideal relationship. However, the generative function of sexuality, i.e., the procreation of offspring, was no longer to be the starting point for its assessment, which is why the Protestant Church, in contrast to the Catholic Church, also permitted contraceptives in family planning (Lepp 2016, pp. 293–97).

(b)

Decriminalization and depathologization of homosexuality as the central changes in the discourse on homosexuality in the 1960s

In addition to the historical discourse on marriage, the discourse on homosexuality also shaped and structured the contemporary debate on same-sex marriage. From a historical perspective, the so-called long 1960s were also a decisive discursive event here. With regard to homosexuality, the women’s and emancipation movement of lesbians and gays in Germany changed the legal and social conditions, evaluations and legitimate reference systems. Until the second criminal law reform at the end of the 1960s, the history of homosexuality was characterized by a narrative of homosexuality as a sin, crime or illness that had grown over centuries and was based on theology, medicine and psychology, anchored in church and criminal law and realized in society (Brinkschröder 2006; Eder 2014, pp. 17–40). A visible process of decriminalization and depathologization of homosexuality only began in the context of the above-mentioned criminal law reform. This also changed the sources of argumentation used by those involved in the discourse as convincing and plausible. While the criminalization of homosexuality had previously been justified with the biblical Sodom story, the protection of marriage, family and youth as well as the violation of general morality and social order, all these justifications were invalidated and instead justified with medical and psychological findings as well as jurisprudential expert opinions and statements. For the first time, the reform permitted homosexual acts between adult men with restrictions. However, homosexual events, occupational bans and discrimination in employment law as well as legal disadvantages for same-sex couples persisted (Kramer 2017, pp. 140–44; Ebner 2018, pp. 95–142). Both the Protestant and Catholic Churches can be categorized as negative voices during this period. In their social roles as ethical and moral authorities, they were attempting to preserve the moral order. They ignored or explicitly rejected new findings on homosexuality from the sexual sciences from the mid-19th century onwards. In both churches, the attitude pre of labeling homosexuality as an illness and disorder and thus assigning it to pastoral care and spiritual guidance prevailed. Homosexuality continued to be classified as a sexual aberration, but was no longer to be morally condemned (Ebner 2018, pp. 111–13). The same can be said of the Catholic Church in its declaration of the Congregation for the Doctrine of the Faith Persona humana (1975). The moral–theological classification of homosexuality as sodomy, which had been held for centuries, was replaced by a dogmatic tradition. This is based on a behavioral–psychological pattern of interpretation that distinguishes between illness (homosexual tendency as an innate drive) and behavior (homosexual tendency through influence) and is accordingly located in the responsibility of pastoral care (Goertz 2015, p. 206; Brinkschröder 2006, p. 28f.).

(c)

Gay Marriage as demand for participation and inclusion of gays and lesbians in society

From a historical-discursive perspective, the demand for a legal institution for same-sex couples in Germany is closely linked to the institutionalization and professionalization of the so-called homoemancipation movement as a social movement and advocacy group in the 1980s and 1990s. While the focus in the 1980s was on criticizing hetero-patriarchal gender relations and formulating political demands based on this, the project of so-called gay marriage became the focus of the movement in the 1990s with the aim of promoting the participation and inclusion of lesbians and gays in society (Raab 2011). At the same time, the first associations of gay and lesbian Christians also emerged within the church as support and self-help groups, worship communities and for church political engagement. Since the 1980s at the latest, there have been isolated blessings for same-sex couples. They not only caused a stir in the media, but also led to internal discussions and personal consequences for those involved (Exner-Krikorian 2021, p. 133). Due to the increasing visibility and activity of homosexual employees and believers as well as gay–lesbian–Christian organizations like the organization Homosexuals and Church (HuK e.V.) or Lesbians and Church (LuK e.V.), a discussion about the positioning of homosexuality as a moral and pastoral issue began within the EKD church, i.e., since the 1970s at the latest. However, the blessing of same-sex couples was not approved. In its orientation guide Living with Tensions (Mit Spannungen leben) (1996), the EKD only agreed to prayer in the context of pastoral care for homosexual persons outside of a church service, but not to a public or church act of blessing. In its self-image of its social role as an ethical authority and political advisor, the EKD represented the narrative of an ethical and pathologizing rejection of the inclination towards homosexuality and the necessity of pastoral care for homosexuals derived from this (Ebner 2018, pp. 95–123, 185–205, 252–84). On the part of the Catholic Church, there was no internal exchange on the possibility of blessing same-sex couples, but homosexuality continued to be treated as a problem of natural law and morality. In its 1986 letter of recommendation, the Congregation for the Doctrine of the Faith called on the bishops and members of the Catholic Church to take a clear stand against political or social developments that would normalize or positively condone homosexuality or same-sex relationships. It warned against this kind of propaganda, which would represent a danger to the general social understanding of the nature and rights of family and marriage (Congregation for the Doctrine of the Faith 1986, No. 1, 2, 8, 9.). Both churches thus contributed, both within the church and in their role in society, to the fact that homosexuality could continue to be morally, ethically or pathologically rejected and in need of pastoral or psychological care (Ebner 2018, pp. 95–123, 185–205, 252–84).

These negative interpretation patterns on the part of the churches were countered by the depathologization of homosexuality in the field of human science, medicine and psychology by the World Health Organization. The pattern of interpretation of homosexuality as a sexual orientation, which also included heterosexuality, also emerged in the field of sexual science (Mieszkowski 2014, pp. 41–72) Legal and political developments in Germany, Europe and worldwide at the end of the 1980s can therefore be read as the results of negotiation processes, which in turn were used by the actors to make social change plausible for further changes and demands. These included the introduction of civil partnerships in Denmark in 1989, the removal of homosexuality from the World Health Organization’s (WHO) register of mental illnesses in 1990, the final decriminalization of homosexuality in German criminal law and the European Parliament’s resolution on equal rights for gays and lesbians in the EU in 1994. The latter also called on the European Commission, among others, to issue a recommendation to remove national bans on marriage and adoption for homosexual couples. These developments, as well as the campaigns Registry office campaign (Aktion Standesamt), Get married campaign (it’s a wordplay with the double meaning of “trauen” in German, which can mean dear you and get married; Aktion Traut Euch; LSVD 2019) and finally the so-called Hamburg Marriage (LSVD 1997) by gay and lesbian organizations, prompted the members of the Alliance 90/The Greens party to submit the first bill to introduce the right to marriage for same-sex couples in 1995. After the debate in the Bundestag and the Legal Affairs Committee, a majority spoke out in favor of establishing an equivalent substitute institution in the form of so-called registered civil partnership. In 1998, concrete demands from a position of political influence and decision-making reached the Bundestag for the first time in the form of a draft bill by the then governing parties SPD and Alliance 90/The Greens. Furthermore, it made a positive connection between the discourse on marriage and homosexuality and called for civil partnerships as a protective measure, as an instrument for equal treatment and for reducing discrimination against homosexual people (Exner-Krikorian 2022, p. 80).

The historical embedding shows the structuring, shaping and conditions of the field of discourse. It becomes clear how the two discourse strands of marriage and homosexuality, in their historical genesis of certain patterns of interpretation and their historicity, form theses of the negotiation process surrounding same-sex marriage. Furthermore, the historically conditioned structure of the field of discourse is revealed. This affects both the authorized speakers and participating discourse actors in the discourse formations of religion, politics and society as well as the content-related structuring of the discourse. Building on the opening quotation, the next section will show how the discourse actors in the negotiation of same-sex marriage in the 18th legislative period (2013–2017) use the decision of conscience as a discursive argumentation strategy to support or reject the introduction of same-sex marriage.

4.1. The Decision of Conscience among Political Actors: Government Parties (CDU/CSU and SPD) and Opposition Parties (Alliance 90/The Greens and The Left Party)

In the context of this study, the focus is on the 18th legislative period from 2013 to 2017 with the discursive event of the vote on the draft law as a decision of conscience in 2017. The formation of the new government in September 2013 united two parties, the Union and the SPD, which took opposing positions on the issue of opening up marriage in terms of their understanding and implementation. The Union maintained its course of gradually examining the alignment of civil partnerships with marriage and rejected the so-called opening of marriage. It also vehemently rejected these demands on constitutional grounds and adhered to its gender-binary interpretation of marriage as a community of witnesses and of opposite-sex marriage as a structural feature and as a cultural and legal–historical fact. The SPD, on the other hand, strongly supported the opening of marriage as an instrument for reducing discrimination. In the coalition negotiations, the SPD and Union agreed to end existing discrimination against same-sex civil partnerships in all areas of society and to remove legal regulations that put same-sex civil partnerships at a disadvantage. On June 30, 2017, the vote on the draft law was a conscience decision and therefore not subject to parliamentary group constraints.

(a)

The ambivalent position of the Union in the argumentation on same-sex marriage between constitution, tradition and reinterpretation of a Christian shaped tradition

The Union took an ambivalent position in this parliamentary session. On the one hand, it presented itself as a supporter of the equal value of the ethical–emotional and socially functional interpretation of marriage and civil partnership, and showed understanding for the needs and wishes of those affected for an equal designation: ‘According to our view of humanity, who or how a person loves should not play a role in their judgment, recognition and dignity. Connections between two people that are built to last and characterized by responsibility for each other give this society stability and support.’ (Ullrich 2016, pp. 15.278D–15.280C, author’s translation). On the other hand, the CDU/CSU cited the reasons for its rejection that were familiar from the debate: It sees the opening of marriage as a constitutional problem and continues to insist on the constitutionally based distinction between civil partnerships and marriage. It argues with the constitutionally prescribed protection of marriage and family and the corresponding rulings of the Federal Constitutional Court that marriage is defined as a union between a man and a woman. Precisely because marriage is not clearly defined in the constitution and the Federal Constitutional Court understands marriage as a union between a man and a woman, the Federal Government is faced with a decision on values that can only be implemented through a constitutional amendment. In the last parliamentary session for the vote, the CDU/CSU expanded its grounds for rejection: in addition to the constitutional grounds and the decision on values, the Christian faith and cultural–historical tradition of the concept of marriage were included. This addition is linked to the positioning of the vote on marriage as a decision of conscience and a problem of terminology. In this way, the Christian faith conviction and a Christian cultural understanding of tradition are once again supplemented as the basis of the Union position and thus made plausible and legitimized as reasons for rejection:

‘We see equality as a process. We are gradually making changes to the law—always where there is a need. (…) I believe that it is still appropriate to call different things different things. (…) The thesis is being put forward that only with the implementation of marriage for all can any discrimination be ruled out. (…) I have also repeatedly pointed out in recent times that this thesis can be rejected relatively quickly. (…) At the end of my speech, it is important for me to outline once again what the Federal Constitutional Court has said about this, because the impression is repeatedly created: The Federal Constitutional Court demands marriage for all.—The Federal Constitutional Court said quite literally on 7 May 2013: <Marriage is the institution reserved solely for the union between a man and a woman.>—If you read the decision, you will see that the Federal Constitutional Court differentiates very nicely by stating that civil partnerships can indeed form families and are therefore protected by Article 6 of the Basic Law, but that they do not fall under the concept of marriage. (…) Marriage is protected by constitutional law, and there is also a reason for this, namely the biological difference that marriage can in principle and purely potentially produce children. (…) Finally, I would like to support my parliamentary group, the CDU/CSU, once again. We are a people’s party. It is part of the character of a people’s party that it is a very broad-based representative of the population. It is quite natural that there are people who would like to liberalize marriage for everyone and others who, like me, have counter-arguments and see things differently. But I don’t want to be accused of this.’

(Hofmann 2017, pp. 23.555C–23.556C, author’s translation)

Furthermore, the CDU/CSU expands its definition of discrimination in order to protect its position against the background of freedom of opinion and to protect it from insults and generalizations, especially on the part of Alliance 90/The Greens: ‘Not everyone who has a different opinion than you on this topic is homophobic (…). Someone may have legal concerns, or someone may just have a differing opinion. You might have to tolerate this view, even if you think it is’ (Grosse-Brömer 2017, p. 23561B). The Union used two different concepts of discrimination and used them strategically to position itself and other parties or as a basis for argumentation. On the one hand, there is the understanding of discrimination used by supporters of same-sex marriage, which refers to the legal discrimination of same-sex couples. The Union counters this understanding by arguing that this is merely a justified distinction between unequal persons: the non-equal treatment of unequal institutions does not constitute discrimination. On the other hand, the Union uses the concept of discrimination as a strategic concept of protection; this is intended to protect one’s own position from other positions in terms of freedom of opinion and conscience and at the same time to ensure recognition, respect and tolerance.

At the last meeting, the Union presented another position. On the one hand, this was intended to make the negative stance more plausible and, at the same time, to develop the possibility of approving same-sex marriage. Plausibility was established with a focus on marriage as a system of values and symbols. The Union also emphasized its self-image as a Christian party, as a representative of people influenced by the church and as a representative of a traditional Christian German culture. Furthermore, this position attempted to establish a more dynamic, historical–critical approach to the concept of marriage in the constitution and the rulings of the Federal Constitutional Court. The difficulties that the Union cited with the liberalization of marriage were justified on the one hand by the ecclesiastical and Christian character of the concept of marriage. On the other hand, the Union cited a social majority as a reason that would represent this understanding of marriage and, conversely, its obligation as a people’s party to include all people in this process appropriately. With regard to the speaker position, the introduction of personal experience, concern and expansion of the ethical–emotional interpretation pattern of marriage as a symbol of love and value as a Christian image of humanity took place as early as 2016: ‘It’s about love, it’s about lived responsibility and it’s about values: so it’s not just about a legal institution. That’s why we shouldn’t make the debate smaller than it is. No, it is about a symbol. It’s about marriage as a symbol of a stable bond that documents to the outside world that two people who love each other belong together and take responsibility for each other—for a lifetime—and are there for each other in good times and bad. This is commonly known as marriage’ (Kaufmann 2016, p. 15.275A, author’s translation). With this self-positioning as a Christian-based party, the Union attempts to promote understanding, but at the same time links this to an external positioning of the other parties. In this way, it attributes an easier handling of the redefinition of the concept of marriage to the other parties due to their atheistic habitus and thus their non-Christian and non-church affiliation. At the same time, the Union accuses the other parties of forgetting that no complete secularization has taken place in German society and that the Christian faith is still important in everyday life: ‘Redefining the concept of marriage is more difficult for a party that has a C in its name, as we do, than for a party that is emphatically atheist. […] And it’s not as if our state is already completely secularized. The Christian faith still plays an important role for many people, at least in everyday life, […] and therefore the guidelines of the Christian churches also play an important role (…). The representatives of a popular party cannot ignore this per se.’ (Kaufmann 2017, p. 23.553B, author’s translation).

This means, conversely, that the Union party is solely associated with Christian belonging and an awareness of people’s religious, Christian and church-related issues. At the same time, all other parties are denied this knowledge and concern, as is the Christian affiliation of party members and their voters. Instead, there is a general classification as atheists. In other words, the Union uses a strategic generalization here that leads to a polarization between the Christian Union as a people’s party and its knowledge and concern for all people on the one hand and atheist parties without a sense for, knowledge of and concern for people’s needs on the other. A religious belonging or the Christian orientation of the Union is used strategically in the form of value principles and combined with its own understanding of politics. In this case, Christian means that certain traditional values are represented, including love and responsibility. With these very unspecific, basic and comprehensive fundamental values, the Union solves both the dilemma of its Christian commitment and its commitment to a Christian-oriented voter base.

In the last session on the vote to liberalize marriage, this pattern of argumentation is used as the basis for the Union’s approval. The opening of marriage is seen as the implementation of a modern, tolerant, civic and at the same time value-conservative policy. In addition, it is integrated into the Union’s self-image as a binding force between traditional values and new developments. The central interpretation of marriage as an expression of love and responsibility is correlated with the Christian Democratic self-image and as a conservative value. The Union cites a Christian representative, namely the Protestant Church in Germany, to calm existing fears of loss and concerns about opening up: ‘If, on the other hand, it is argued that same-sex marriages are an attack on families, I would like to reply: not a single child will be born less and not a single marriage between heterosexuals will be concluded less simply because gays and lesbians will also be allowed to marry in future. Nothing will be taken away from someone just because something is made possible for others. […] This is exactly how the Protestant Church in Germany views it. They have just emphasized once again that the importance of marriage between a man and a woman is in no way reduced. On the contrary—it is once again emphasized. I think that’s right. It would be absurd to want to protect marriage by preventing people from getting married. That doesn’t fit together.’ (Luczak 2017, p. 25.112B, author’s translation)

(b)

SPD, Alliance 90/The Greens and The Left Party and its legal–ethical–emotional interpretation of same-sex marriage

The SPD and the opposition parties Alliance 90/The Greens and The Left Party called for the vote on same-sex marriage to be opened up in parliamentary sessions from 2016 onwards in order to finally give people their rights and ‘finally [end] the political poker for which they are being held hostage. This should finally mark the end of discrimination’ (Brunner 2016, p. 19.894D). In contrast to its government partner, the SPD positioned the liberalization of marriage as a question of justice and human rights. Like the opposition party Alliance 90/The Greens, the SPD used an ethical and emotional interpretation of marriage. According to this, the opening of marriage is a legal recognition of the love and mutual responsibility of two people and the realization of human rights and needs. The decision to open marriage is categorized as a question of the legal–ethical principles of justice and human dignity, as a principle of solidarity and as a rational principle of reason. In contrast, tastes and gut feelings are rejected as irrational opinion sources: ‘Now it is up to us, the legislators, to take the final step, and this is not a question of taste or gut feeling, ladies and gentlemen, but a question of justice and human dignity. That is why we are saying yes to marriage for everyone today! (Högl 2017, p. 25.100A) Love and reason are finally asserting their rights today. This is a success, a joy for the lesbians and gays in this country, but also for our democracy, for our tolerant, for our colorful Germany and not least for this House.’ (Brunner 2017, p. 25.115B).

As with the Alliance 90/The Greens and The Left Party, the constitution is used as a legal corpus and representation of an ethical canon of national values and principles for the self-assurance of values. In other words, it is not used via a reference to a religious tradition or, as in the case of the CDU/CSU, to a German culture and tradition shaped by Christianity. The SPD stands for a legal–ethical–emotional interpretation of marriage. The opposition parties also campaigned for the liberalization of marriage as a human right. The Left Party was the only party to use the vote to critically point out further unequal treatment of same-sex marriages. It emphasized that the marriage reform had not yet led to normalization and complete equality. Alliance 90/The Greens see the opening up of marriage as a historic sign and victory for human dignity. Like The Left Party and the SPD, it draws on the ethical–emotional, legal and legal–ethical–emotional aspects of the marriage interpretation pattern for its positioning and argumentation. By emphasizing the ethical–emotional interpretation pattern, the Alliance 90/The Greens party is primarily appealing to the feelings of the Union parties or to their conservative understanding of the value of marriage in order to gain their support:

‘Today we have a social majority that has gone so far that 68% of all Germans say: Yes, I support marriage equality. Even almost as many members of the Catholic Church say this. 67% of members of Protestant churches (…) That’s why I would like to call on the entire CDU/CSU and also the SPD: Take heart! (…) not only be proud of the old partnership law, but also take note of the fact that in the end you will have to say: Now I have the courage to raise my voice and vote accordingly. I have the courage to finally put an end to the unequal treatment of things that are the same.—Because love is equal to love. Responsibility is equal to responsibility. There is no second-class love.’

(Künast 2016, p. 15.276C)

Finally, Alliance 90/The Greens emphasize the legal–ethical–emotional interpretation of marriage in that the party sees the legal recognition of love between two people on the basis of human rights in the opening up of marriage. In addition, a national dimension is added to this pattern of interpretation. In the last Bundestag session on the opening of marriage, Alliance 90/The Greens described the vote and the opening of marriage itself as a historic event and a sign of civil society, which advocates human dignity, the free development of personality and the principle of equality for all people before the law and recognizes the values of marriage as conservative values of responsibility, commitment and trust. The rights of a minority would be recognized and thus contribute to Germany’s self-confession of unity, justice and freedom. Alliance 90/The Greens consider the legal aspect as well as the ethical–emotional aspect of marriage to be realized here. Unlike the Union, the party does not interpret this result as the protection of a traditional Christian concept of marriage, but rather as the implementation of the constitutionally based, cultural, civic and national values of human dignity, personal development and equality before the law. At the same time, it locates this event as a historical epochal event marking the beginning of the acceptance of gays and lesbians in Germany. This makes the history of gays and lesbians in Germany an integral part of German history and consequently also of German self-identification and the realization of their constitutionally based values of human dignity, personal development and equality under the law:

‘(This Day) is first of all historic for us, for our society and for its values, which we continue to strengthen today: for human dignity, for the free development of the personality, and especially for the equality of all people under the law. (…) It is historic for civil society and its political struggle for equal rights. After more than 25 years, countless CSDs, initiatives and campaigns, I am delighted that it will hopefully reach its well-deserved climax today, ladies and gentlemen. It’s about something very simple: it’s about marriage. But it is also about the way we live together in our country. Marriage is said to be conservative. That’s why I don’t quite understand why conservatives are so strongly opposed to it. No, nothing is being taken away from anyone. Trust, commitment, reliability: that’s what it’s all about, for everyone. Take your conscience in your hands and be happy.’

(Göring-Eckhardt 2017, pp. 25.108B–25.109B, author’s translation)

4.2. The Decision of Conscience by the Social Actors: LSVD and HuK

For the LSVD, human rights and the Basic Law form both a regulatory system and, with the principles of equal treatment and anti-discrimination, an ethical framework and value system for all actors in Germany. This stance of the LSVD became clear during the debates on the Civil Partnership Act and in the debates on adoption law in 2013. Legally guaranteed respect and equal rights form the basis for the LSVD’s understanding of conscience: ‘[…] You have spoken out against discrimination, now it is up to you: Don’t let the Dobrindts and other shrill minorities hold you hostage any longer. Follow your convictions and your conscience. Break down the blockades. […] Say NO to the disregard of the broad social majority, which has long stood up for equality. Simply say YES to equal rights and equal respect.’ (LSVD 2013).

Based on these sources of legitimacy and authority of the law, the LSVD has adopted a strategy of dichotomizing reason vs. irrationality; the demand to introduce same-sex marriage after the intermediate stages of the Civil Partnership Act, thus guaranteeing equality and reducing discrimination against homosexuals, is derived from the sources of legitimacy and authority of the Basic Law and human rights and marked as reasonable. Conversely, positions that reject demands such as adoption, tax equality and ultimately the opening of marriage are marked as absurd, unreasonable and irrational attitudes on the part of conservative actors (Dworek 2011, pp. 7–11). The LSVD describes the situation as a cultural struggle between reactionary-conservative opponents of same-sex marriage, including conservative parties such as the CDU/CSU and FDP as well as the Catholic Church and large parts of the Protestant Church, and proactive supporters, including the then opposition parties SPD, Alliance 90/The Greens and The Left Party. The LSVD presented its own demand as a human rights and constitutional issue and strategically used a constitutional and legal–ethical interpretation of marriage. The LSVD has thus established an argumentative position that not only exposes the unreasonableness, prejudice and illogicality of any opposing position, but above all demonstrates its legal groundlessness and contempt for humanity. According to the LSVD, the situation has changed: it is no longer the homosexual person who is crazy, but those who refuse to recognize the rights of lesbians and gays as human rights can thus be classified as irrational:

‘Let me remind you once again of Karl Heinrich Ulrichs, our pioneer from the 19th century. At the time, some doctors reviewed his writings and then and declared him insane via remote diagnosis. A Prussian textbook of forensic medicine wrote at the time: this Mr. Ulrichs could not be ‘in full possession of his mind’. His ‘utter madness’ was demonstrated by the fact that he had ‘already gone so far as to demand the marriage of two men’. […] Today, on the other hand, it is a litmus test of how civilized a society is that it recognizes that the <justification> of male and female love is based on elementary fundamental rights: human dignity, the free development of personality and equality.’

(Dworek 2011, p. 12)

At the same time, the LSVD assumed a hierarchical relationship between state and church, meaning that religious communities and churches, as social actors, had to adapt to this legal and ethical framework. The LSVD considered the special role of the churches as political advisors on moral and ethical issues to be justified and correct only as long as the churches behaved and positioned themselves in accordance with the state’s canon of law and values. The LSVD also uses the religious marking as Christian in the reason/unreason dichotomy: Christian attitudes that reject the demand for marriage are overcome by the reasonable recognition of the validity of the Basic Law. This strategy is already visible in the debate on the Civil Partnership Act:

‘Declaring the registry office a no-go area for lesbians and gays was really bad, petty harassment. It was a classic example of political shabbiness—the exact opposite of civic decency. But it was also a losing battle. […] Baden-Württemberg alone continued to proclaim this policy of disregard as the raison d’être of the state until March of this year [2011]. These Christian knights in sad shape apparently believed in all seriousness that this time they had to defend the West not in the Hindu Kush but in the Swabian Alb. Now they have been deselected. That is only right! The government in Stuttgart has already initiated the reopening of the registry offices’ (Dworek 2011, author’s translation). The LSVD likewise categorized the introduction of same-sex marriage in Ireland: ‘The LSVD congratulates Ireland on this great success for equal rights, diversity and respect. Even in a country that is as Catholic as Ireland, the majority of the population says: yes to equal rights, no to homophobia and discrimination against same-sex love.’

(LSVD 2015, author’s translation)

The LSVD had already posed the question of a decision of conscience in 2016, not as a decision of conscience associated with a Christian culture, as is the case with Union members of parliament, for example, but as a clear legal obligation of conscience, namely a decision of conscience committed to fundamental and human rights, as well as a decision of conscience with a rationalized emotionalization: ‘The opening of marriage must no longer become a victim of the Chancellor’s gut feeling and the political calculations of the CDU/CSU. The Federal Government must finally ensure that something that has long been in the hearts and minds of the population is finally translated into law by its representatives. A government that is waiting for Karlsruhe to finally end discrimination is not governing, but rather sitting out. The upcoming vote on respect, diversity and equal rights is not a question of party politics, but a question of conscience and a question of fundamental rights. Members of parliament should also be able to vote with this in mind.’ (LSVD 2016, author’s translation)

The argument for the opening of marriage is also based on a rationalizing emotionalization of marriage. The implementation of the liberalization of marriage is seen as a struggle between heart and head: marriage is understood as a knowledge of the heart and head. Love as the knowledge of the heart and mind is understood as rational knowledge and differentiated from the irrational knowledge of the gut feeling. Heart and mind knowledge and gut feeling knowledge are thus dichotomously juxtaposed and at the same time the love of two people is contrasted as an emotion to be understood rationally with the rejection of such relationships as an emotion to be understood non-rationally.

The Federal Chancellor’s decision to declare the vote on same-sex marriage as a conscience decision and to make it independent of political parties is classified by the LSVD as a political move by the Chancellor and the CDU/CSU to save face. In addition, the parties had built up such political pressure by making the introduction of same-sex marriage a coalition condition (LSVD 2017c, author’s translation). The CDU and CSU have finally agreed to put the opening of marriage to a parliamentary vote. The LSVD emphasizes the approval by a majority in the Bundestag, the self-evidence, legality and permanence of the demands for the liberalization of marriage as well as the end of an exchange of arguments: ‘Equal rights for all people are a principle of our Basic Law. They will not tolerate any further delays and do not require any further discussion. All arguments have been exchanged numerous times over the last 30 years.’ (Ibid.) The LSVD described the vote and ultimately the decision to open up marriage as rationalized and legalized emotion with its national-European-based, ethical interpretation of marriage: ‘In the end, reason and the consistent fight for the opening of marriage will win’ (LSVD 2017a) and ‘Germany has voted for love […]’ This is a historic day! Not only for lesbians and gays, but also for a more equal and democratic society. In future, it will no longer be gender that decides whether or not you can get married in Germany, but love, solidarity and the promise to be there for each other in good times and bad. (LSVD 2017b, author’s translation). The LSVD thus declares marriage for same-sex couples to be a symbol of an open, free society without discrimination and a victory for love, justice and equality between homosexual and heterosexual partnerships.

Alongside the LSVD, the HuK was the second collective discourse actor involved in the negotiation process. They criticized any instrumentalization of the needs of lesbians and gays for an election, church or religious campaign: ‘However, we consider a vote catching campaign at the expense of lesbians, gays, bisexuals and trans* people to be intolerable. […] The commitment to reduce discrimination is neither suitable for a church campaign nor for an election campaign’. […] We expect Christian politicians not to declare any ideas of a <Christian image of man> which they use to protect heterosexual marriage in particular. […] No one has a special monopoly on a ‘Christian’ view. For many people, it is precisely the Christian faith that forms the basis for advocating equality for homosexuals’ (Gutfleisch 2013, author’s translation).

Instead, since the beginning of the debates on civil partnerships, stepchild adoption and same-sex marriage, the HuK has argued in favor of the so-called opening of marriage. They justify their support by placing the debate on same-sex marriage as a theological question of Christianity. The so-called alternative narrative of Christianity of the HuK served as a justification, which attempted to dissolve the equation of Christian and discriminatory and instead established non-discrimination as a Christian value and Christianity as an LGBT-friendly religion: ‘We have long been advocating marriage for everyone because we believe it is deeply Christian. It is Christian because it defines cohabitation in lesbian and gay partnerships as equal and renders complicated, discriminatory regulations obsolete.’ (HuK 2017b, author’s translation) ‘We as the working group Homosexuals and the Church are firmly convinced that marriage for everyone is Christian, that lesbian and gay couples are a blessing for each other and for society. The Chairman of the Council of the Evangelical Church in Germany, Bedford-Strohm, and 75 CDU/CSU MPs who voted in favor of opening up marriage today share a similar view. Even CDU/CSU parliamentary group leader Kauder, who continues to oppose marriage for everyone, acknowledges that it is possible to vote for the liberalization of marriage as a Christian.’ (HuK 2017a, author’s translation).

Using ideas borrowed from gay theology and queer theology, the starting point and basic principles of their alternative Christianity (HuK 1994) were the principle of charity, a grassroots democratic understanding of community and the equal value of all people regardless of their gender or sexual orientation, as well as the state-guaranteed law of anti-discrimination. The HuK thus opened up the possibility of incorporating these principles as Christian values into religious self-understanding, political actions and argumentation and thus using them as sources of legitimacy and authority that can be coded in Christian terms. This discursive argumentation strategy was based precisely on the cooperation between the religious and secular spheres, values and laws, and enabled a conscientious decision to approve the introduction of same-sex marriage.

4.3. The Decision of Conscience for Religious Actors: DBK and EKD

With regard to the question of introducing same-sex marriage, the DBK maintains its position of protecting marriage and the family from questionable social developments. The DBK presents itself as a social actor loyal to the constitution, which, in contrast to politics, is obligated to comply with the law and the associated duties and limits of interpretation. Furthermore, based on the critical debate about the relationship between religion and the state, the DBK calls for the proven cooperative relationship between church and state not to be abandoned and accordingly calls on politicians to vote against the law of same-sex marriage if a decision is made.

With the vote in June 2017, the Commissariat of the German Bishops of the DBK addressed a broad public in the form of a press release and a letter to the members of the Bundestag asking them not to approve the draft law. In the letter, it asks the MPs to reject the draft law. Accordingly, the DBK also expresses its regrets about the Bundestag’s decision to introduce same-sex marriage. In the associated press release, the position of the DBK is clearly expressed once again. The DBK supports the differentiation of different forms of partnership and emphasizes that this differentiation should not be understood as discrimination. It classifies marriage liberalization as a ‘significant change in the content and dilution of the classic concept of marriage’ (DBK 2017b). The DBK addresses the demand for the opening of marriage as an appreciation of same-sex partnerships, but in this context refers to the ‘appreciation of same-sex cohabitation’ (ibid.) and rejects the opening of marriage. This is because, for the DBK, the essential aspect of the constitutionally established protection of marriage in its significance as a reproductive community is missing. In other words, the DBK once again clarifies its rejection of the prioritization of an ethical–emotional interpretation pattern of marriage in favor of the acceptance of same-sex partnerships, which are understood as purely ethical partnerships. Instead, it emphasizes that the generative and constitutionally rooted aspect of the interpretation of marriage should be retained as a continuing and significant distinction:

‘A fundamental characteristic of marriage, which is protected by Article 6 (1) of the Basic Law as an institutional guarantee, is that it is the union of a woman and a man. This was confirmed by the Federal Constitutional Court in its decision on the introduction of the Civil Partnership Act in 2002, in which it considered the registered civil partnership to be an aliud to marriage and stated that the same-sex nature of the partners differentiated the institution of the registered civil partnership from marriage and constituted it at the same time. (…) Irrespective of the specific legislative proposal, I would like to advocate retaining the existing concept of marriage and thus the distinction between a registered civil partnership and marriage. Church, state and society share the experience that marriage combines the aspects of a reliable couple relationship and the transmission of the life of the biological parents to their children in a special way. As a union in which the partners take on mutual responsibility and which is open for joint offspring, it is of great importance both for the individual and for the community. For this reason, Article 6 (1) of the Basic Law is not only understood as an institutional guarantee, but also as a value decision for a special form of cohabitation. In this special form, it differs from other cohabiting relationships that lack certain characteristics that characterize marriage.’

(DBK 2017a, Nr. 17/author’s translation)

Both churches advocate acceptance, with the DBK calling for acceptance on a personal level, i.e., for homosexual persons, while the EKD emphasizes the acceptance of same-sex partnerships by placing special emphasis on the ethical interpretation of marriage. After the vote of the Bundestag, the DBK stated its regrets that marriage had lost its essential meaning as a procreative community and had thus been deprived of its foundation. As ethically viewed communities, the DBK expresses its respect for same-sex partnerships, but emphasizes its view that civil partnerships and marriage are clearly distinguishable and assignable. At the same time, the DBK reserves the right to formulate its own definition of marriage in line with the principle of separation of church and state and religious freedom, and to apply this definition in its own clerical sphere:

‘(…) I regret that the legislator has abandoned key aspects of the concept of marriage in order to make it suitable for same-sex partnerships. At the same time, I regret that today’s decision has abandoned a differentiated view of various forms of partnership in order to emphasize the value of same-sex partnerships. However, differentiation is not discrimination. An appreciation of same-sex cohabitation can also be expressed through a different institutional structure. It does not have to be expressed by making the legal institution of marriage open to same-sex partnerships. (…) It is worth considering that many of those who for a long time fought against the institution of marriage as hostile to life and an outdated model have now become fervent advocates of ‘marriage for all’. It is thought-provoking to see how fundamental convictions in the understanding of marriage are being abandoned with reference to necessary flexibility, changing times and popular moods. It is sad that the legal institution of marriage has become caught up in the wheels of political tactics. Marriage does not deserve this. (…) At the same time, I would like to remind you that the sacramental character of our understanding of marriage remains unaffected by today’s decision in the German Bundestag. Especially in the current debate, it is important for me to emphasize that the German Bishops’ Conference has stressed in its statements on civil partnership law that it would be a misunderstanding to understand the emphasized legal status of marriage and its continued special protection as discrimination against homosexual men and women. As a church, we have respect for those same-sex partnerships in which mutual responsibility and care is assumed for many years.’

(DBK 2017b, author’s translation)

The EKD refrained from commenting on the matter until the declaration of approval. However, it then emphasized the intended opening of marriage as a sign of marriage’s future viability and expressed its support: ‘For the Evangelical Church in Germany (EKD), trust, reliability and the assumption of responsibility in shaping human relationships are of central importance. In the view of the EKD, marriage offers the best conditions for this and is therefore a model for the future. It forms the legal framework for two people living together on the basis of lifelong fidelity. The EKD welcomes the fact that the legal space in which trust, reliability and responsibility are protected and supported by legal regulations is also fully accessible to same-sex couples who wish to enter into a lifelong partnership. The importance of marriage between a man and a woman is in no way diminished by this. On the contrary—it is emphasized once again.’ (EKD 2017, author’s translation).

The EKD did not comment on the result of the vote in a press release. However, the Protestant press service epd has collected various voices, including EKD Council Chairman Heinrich Bedford-Strohm, who took a positive and cautious view of the result. He writes that ‘neither feelings of triumph on the one hand nor bitterness on the other should now set the tone’ (epd 2017). He reiterates the opportunity to be able to perceive marriage as an awareness of lifelong fidelity and commitment (ibid.) For the EKD, this means that in order to be able to accept the opening of marriage from the Protestant side, it once again emphasizes the ethical aspect of the pattern of interpretation of marriage: marriage itself has become a model for the future, has not lost its significance and is instead a reinforcement of marriage as a long-term partnership and the mutual assumption of responsibility.

5. Summary: The Aspects of Law, Emotion and Religion as Discursive Strategies in the Discourse Coalition between Supporters and Opponents of Same-Sex Marriage

Marriage is a powerful human invention that constitutes family and kinship and culturalizes and regulates and charges the biological aspect of procreation with meaning. Marriage is used as a divisive marker between illegitimate and legitimate sexuality, or to draw boundaries between religious and secular spheres. Due to its ritualization as a life cycle ceremony (van Gennep 2019) and the values and conceptions of life associated with it, the debate on the introduction of marriage for same-sex couples challenged fundamental debates on precisely these concepts of the world, values and life. Furthermore, it also involved a renewed debate about the demarcation between the religious and secular spheres and the positioning of religious arguments and positions in a society that sees itself as modern.

The negotiation process shown in this article can be described as a reinterpretation process whereby the advocates sought to normalize same-sex love and marriage after its decriminalization and depathologization through a law and the associated practice of marriage. Central to this discourse are two structuring principles that allow certain discourse coalitions to be derived: The first structuring factor in the formation of the discursive strategy of the decision of conscience is the binarity of the principle of constitutional fidelity and constitutional protection with a tendency towards the sacralization and immutability of the Basic Law. On the other hand, there is the principle of equality and the universal validity of human rights with the tendency to legalize an emotion (love) and emotionalize a right, namely the right to same-sex marriage as a right to love. The second structuring factor in the formation of the discursive strategy of the decision of conscience is the premise of the relationship between church and state: cooperation or separation of churches or religious beliefs and the state or secular attitudes. Based on this oppositional structuring, the discourse actors can be located in a positioning field that sees support and rejection as opposing poles, between which the positions oscillate depending on the recognized sources of legitimacy and authority for the decision of conscience.

On the one hand, the actors in the discourse assumed a strict understanding of constitutional law, a Christian-influenced culture and thus also the concept of marriage. These provided the sources of legitimacy and authority for the decision of conscience to reject the introduction of marriage law for same-sex couples (DBK, Rejection within UNION). In its self-image as a consultant, the DBK did not use any theological or religious sources of legitimacy or authority. But the DBK referred to a constitutionally based pattern of interpretation of marriage, a problematization of same-sex marriage as a legal problem and the use of the Basic Law and the rulings of the Federal Constitutional Court as sources of legitimacy and authority. With Habermas, the formation of conscience in the DBK is based on the discursive strategy of translating religious content and arguments into secular and secularly recognized or marked content and arguments. In this way, the DBK linked its understanding of an order of things given by the theology of creation with the constitutionally given order of things. In addition, it attributed to the constitution and the laws an almost natural law sovereignty of interpretation and order of society. The immutability and interpretative sovereignty of the constitution were thus assigned as the core of the constitution itself and legitimized under constitutional law. This translation of a religiously marked connection between marriage and family into a constitutional guarantee marked as secular and a constitutional mandate marked as secular created two further possibilities for action for the DBK: by using this pattern of interpretation of marriage and constitutional law, religious discourse actors such as the DBK, but also other discourse actors such as the Union or EKD, who saw themselves as secular-cooperating, were able to introduce a previously religiously based opposition between natural vs. unnatural sexual action and sexual desire as a secular stance and argue for it as a reason to treat homosexual and heterosexual partnerships differently. This in turn led to a shift in the underlying opposition formation from religious vs. homosexual to secular vs. homosexual.

Furthermore, the opposite position (supporters Union, EKD, SPD, Alliance 90/The Greens) can be found. Based on the structural principle of cooperation between the religious and secular spheres, it derives an endorsement of same-sex marriage. While the legal principles had been used by the discourse actors as irreconcilable opposition in the formation of conscience, the ethicization and simultaneous desexualization of homosexual partnerships emerged as a strategy to overcome the contradictions and achieve consent. The focus on the ethicization of marriage also led to an emotionalization of marriage law, in which it was understood as a combination of mutual acceptance of responsibility and love. Only two contributors to the discourse, namely HuK and The Left Party, took positions that were decidedly in favor of overcoming the homo/hetero dichotomy. However, these did not prevail against the dominant normalization and homo-normativization strategy of Alliance 90/The Greens, the SPD, pro-gay actors from the CDU/CSU and the LSVD.

In contrast to the DBK and EKD, the HuK emphasized the religious (Christian) basis for a decision of conscience by positioning the debate as a theological question of Christianity. With the alternative narrative of Christianity, it attempted to argue from a faith tradition defined as Christian and to derive from this a certain practice of action with which same-sex partnerships and the treatment of homosexual Christians should be represented coherently both internally and externally. The alternative narrative of Christianity promoted the principle of charity, a grassroots democratic understanding of community and the equality of all people regardless of their gender or sexual orientation as well as the basic principles and starting point for a state-guaranteed law of anti-discrimination. Christianity defined in this way became the benchmark for classifying and evaluating the actions, arguments and positions of the parliamentary debates between the DBK and EKD. The HuK thus offered a solution in the reversal of Habermas’ approach: the Basic Law, human rights and anti-discrimination laws were incorporated as Christian values into one’s own religious understanding and thus used as sources of legitimacy and authority that could be coded as Christian and thus legitimately introduced into the discourse. This solution also supported the cooperative model of churches and state, which sought to establish cooperation between churches and state on the basis of human rights and anti-discrimination instead of a competitive relationship.

And finally, in the opposition logic of the discourse, the discourse actors in favor of the opening of marriage are on the opposite side. The highest legal and value principle for a decision of conscience is formed solely by human rights and the Basic Law, to which all other ethical and religious justifications would have to be subordinated (LSVD). This is an application of the Habermasian principle in the sense of the premise of reason as an ethical principle of decision-making and legitimization. Only statements and positions made in accordance with the principle of equality of the Basic Law and human rights are accepted as reasonable and therefore legitimate for the debate. Opposing positions are disqualified as unreasonable or irrational as implausible for the debate. However, this does not per se exclude emotions from the decision of conscience—love as an ethical dimension of marriage in turn forms the rationally deducible basis of argumentation for demanding equal rights for homosexual couples through the emotionalization of marriage and the legalization of their love relationship.