Change of the Concept of Marriage in the German Constitution. On Meanders of the Dynamic Interpretation of Constitutional Provisions
On July 20, 2017, the Bundestag has passed a law on the introduction of the right to marry by persons of the same sex. The adopted legislative solution is controversial regarding its compliance with the German Basic Law, i.e. with its art. 6 § 1: “marriage and family are under special protection of the State.” The dispute concerns whether the necessary element of the constitutional concept of marriage was – and still is – a difference in the sex of the spouses. This paper has three basic objectives: first, the identification of the essential arguments raised in favour of amendment’s compliance with the Basic Law; secondly, to examine whether the position on the compliance of this amendment with the Basic Law requires adoption of a dynamic interpretation of constitutional provisions; thirdly, assuming an affirmative answer to the second question, to identify the process that led to the change in the meaning of the Basic Law in respect to the concept of marriage.
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