Article 6 of the Basic Law for the Federal Republic of Germany

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Article 6 of the Basic Law for the Federal Republic of Germany (GG) belongs to the first section of the Basic Law, which deals with fundamental rights . The legal norm contains various guarantees that are related to marriage and family . Article 6 paragraph 1 of the Basic Law guarantees the legal existence of the marriage and grants it and the family special protection . Article 6 (2) of the Basic Law gives parents the right to look after their children under the supervision of the state. Article 6 (3) of the Basic Law regulates the conditions under which the state may separate children from their parents. Art. 6 paragraph 4, 5 GG grant mothers the right to protection and demand the equal treatment of legitimate and illegitimate children.

Normalization

Article 6 of the Basic Law - a work by Dani Karavan on the glass panes on the Spree side at the Jakob-Kaiser-Haus of the Bundestag in Berlin

Since the Basic Law came into force on May 24, 1949, Art. 6 GG has read as follows:

(1) Marriage and the family are under the special protection of the state order.

(2) Care and upbringing of children are the natural right of parents and their primary duty. The state community watches over their activities.

(3) Against the will of the legal guardian, children may only be separated from the family on the basis of a law if the legal guardian fails or if the children threaten to neglect for other reasons.

(4) Every mother has the right to the protection and care of the community.

(5) Legislation shall ensure that illegitimate children have the same conditions for their physical and emotional development and their position in society as legitimate children.

Art. 6 GG fulfills numerous functions. In part, it establishes state protection obligations, in part subjective defense rights against sovereign interference . After all, it represents an institutional guarantee in favor of the legal institution of marriage.

History of origin

Herrenchiemsee old castle

The protection of the family and marriage was guaranteed for the first time in German constitutional history in the Weimar Constitution of 1919 by Articles 119–122. According to this, both goods were under the special protection of the constitution. During the creation of the Basic Law, the constitutional convention on Herrenchiemsee initially planned not to mention marriage and family in the constitution. The prospects for workable compromises were considered too small, as the political parties involved had extremely different positions. However, under the influence of the churches and the efforts of the CDU , the Parliamentary Council decided to put marriage and family under protection by the constitution.

Protection of marriage and family, Art. 6 Paragraph 1 GG

According to Article 6, Paragraph 1 of the Basic Law, marriage and the family are protected by the state. On the one hand, this provision represents an institutional guarantee which obliges the state to create and maintain marriage as a legal institution. Furthermore, it is a matter of a right to freedom that enables the defense against sovereign interference in the sphere of freedom protected by the fundamental right.

Protection area

The sphere of freedom guaranteed by a fundamental right is referred to as the area of ​​protection in jurisprudence . If a sovereign intervenes in this and this is not constitutionally justified, he thereby violates Art. 6 Paragraph 1 GG.

Jurisprudence differentiates between the personal and factual areas of protection. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

Art. 6 GG does not restrict the group of fundamental rights holders , so that the fundamental right protects everyone. Associations of persons , in particular legal persons under private law, are not bearers of the basic right according to Art. 19 Paragraph 3 GG, since it protects freedoms that can only be exercised by humans.

Factual

In factual terms, Art. 6 Paragraph 1 GG protects marriage and the family.

A family is a community of living and upbringing that consists of parents and their children. Communities that only exist between one child and one parent are also protected by Article 6 (1) of the Basic Law. The fundamental right protects the right to form a family according to one's own ideas and to live together in a family community. Government officials should also support families as far as possible.

According to the law on the introduction of the right to marry for persons of the same sex passed in 2017, a marriage is a voluntary union "of two persons of the same or different sex for life". It comes about with the participation of the state. A marriage that is only concluded in church is therefore not covered by Article 6, Paragraph 1 of the Basic Law. The same applies to unmarried partnerships . It is controversial in jurisprudence whether multiple marriages that were permissibly concluded under foreign law are protected by Article 6, Paragraph 1 of the Basic Law. In any case, inadmissible multiple marriages are not protected.

Since August 1, 2001, the possibility of registering life partners has existed in Germany under the Life Partnership Act. Registered life partners , regardless of their sexual orientation and gender, are now more or less equal to spouses. If children are adopted by life partners, they are considered their legal parents. “If registered life partners live with the biological or adopted child of a life partner in a social-family community, they form a protected family with this [...] within the meaning of the Basic Law.” “Nevertheless, same-sex couples are [currently] still in a number of areas of law always disadvantaged vis-à-vis married couples ”, which is why the Greens have been submitting draft laws since 2014 that are supposed to abolish all (legal) discrimination. On June 30, 2017, the Bundestag decided to allow same-sex couples to marry. Implementation of this law is expected in autumn 2017.

Freedom of marriage protects the right to marry and to live together in conjugal union. Furthermore, according to the prevailing view in jurisprudence, it protects against discrimination against the marital community. According to a contrary view, this function is reserved for the general principle of equality from Art. 3 Paragraph 1 GG, since Art. 6 GG is not formulated as a right of equality. Finally, Article 6 (1) of the Basic Law obliges the legislature to take appropriate account of marriage in its actions and to promote it.

Intervention

An encroachment occurs when the guarantee content of a basic right is shortened by sovereign action. This applies to impairments of marriage. This also includes failure to protect marriage and the family as an encroachment on fundamental rights. If the legislature regulates the legal framework of marriage through the enactment of norms, this does not, however, represent an encroachment, but merely an embodiment of the fundamental right.

justification

If there is a sovereign interference, it is lawful if it is constitutionally justified. Article 6 (1) of the Basic Law does not contain any stipulations on the question of the conditions under which the fundamental right can be restricted. This is an unconditionally guaranteed fundamental right. However, the Federal Constitutional Court also recognizes the possibility of legal restrictions for such fundamental rights. This can result from constitutional law, which conflicts with the fundamental right. This possibility of restriction is based on the fact that constitutional provisions, as rights of equal rank, do not displace one another, but are brought into a relationship of practical concordance in the event of a collision .

Parental custody, Art. 6 Paragraph 2, 3 GG

According to Article 6, Paragraph 2 of the Basic Law, parents are entitled and obliged to look after their children. This is both a parent's right to freedom and a restriction of freedom in favor of the child.

Protection area

The birth parents and the adoptive parents have parental rights . However , it is not available to foster parents . Children cannot refer to Article 6, Paragraph 2 of the Basic Law either. However, in connection with the guarantee of general freedom of action, you are entitled to the state guarantee of parental care and upbringing.

Parental rights entitle the parents of a child to take care of their upbringing and care. The former denotes the mental and spiritual development, the latter the care for well-being. This includes, for example, the right to determine the child's educational path. Parents are also allowed to raise their child religiously and ideologically in their own way. Therefore, for example, they are allowed to keep a child away from religions that they consider wrong. The extent to which the right to care and the obligation to care are based on the age and needs of the child. Parental rights expire when the child reaches the age of majority.

Parental rights must be exercised in the interests of the child. What is in the child's interest is generally judged by the parents' opinion, who have a prerogative in making decisions in this regard. In principle, the view of the parents takes priority, which is why they must be respected by sovereigns.

Intervention

Interventions in parental rights represent, in particular, shortening of the right to independent care. Article 6, Paragraph 3, Clause 1 of the Basic Law names the forced separation of children and their families as a particularly serious interference. The exclusion of parents from juvenile criminal proceedings against their child is also an encroachment. A spelling reform also has intervening quality. The structuring of custody does not constitute an encroachment on fundamental rights.

justification

An encroachment on the right of upbringing can be constitutionally justified.

Guardianship of the state

Parents' right of upbringing is limited according to Article 6, Paragraph 2, Clause 2 of the Basic Law by the guardianship of the state. According to this, the state ensures that parental rights are exercised in the interests of the child. Parents therefore exercise their custody as trustees of their child. Sovereigns are therefore allowed to restrict parental rights through or on the basis of a law. In doing so, however, they must take due account of the parents' wishes. Restricting parental rights therefore requires that they be exercised in a way that endangers the best interests of the child. Art. 6, Paragraph 2 of the Basic Law thus corresponds to a qualified legal reservation .

Art. 6, Paragraph 3 of the Basic Law defines special justification requirements for the separation of a child from its parents as a particularly serious interference with the right of upbringing. The separation presupposes that the legal guardians fail or the child threatens to neglect for other reasons.

In order for an interference to be justified, it must respect the principle of proportionality . This constitutional principle, which applies to all fundamental rights, is intended to prevent fundamental rights from being impaired more than is necessary. According to the principle of proportionality, an encroachment on fundamental rights is only lawful if it pursues a legitimate purpose, is suitable for promoting it and is necessary and appropriate for this purpose.

State school inspectorate

Another practically significant barrier to parental upbringing can be found in the educational mandate of public schools . According to Article 7 (1) of the Basic Law, the state is entitled to regulate the school system comprehensively. This includes, for example, the definition of educational goals . If this right collides with the parental right of upbringing, this can be resolved by a sovereign intervention in the latter, while maintaining the principle of proportionality.

According to jurisprudence, the right of the school is fundamentally equal to the right of the parents. In the area of ​​knowledge transfer, however, the law of the school regularly predominates, in the area of ​​upbringing, however, the right of the parents.

Maternity protection, Art. 6 Paragraph 4 GG

According to Article 6, Paragraph 4 of the Basic Law, every mother has the right to state welfare. It is a concretization of the welfare state principle from Art. 20 Paragraph 1 of the Basic Law, which in particular binds the legislature. From this, for example, there are protective provisions under labor law , in particular those of the Maternity Protection Act . For example, mothers are protected against dismissal in a special way .

Article 6 (4) of the Basic Law intervenes if the level of protection required is not met. Discrimination against mothers, for example because of pregnancy , is also an encroachment on fundamental rights.

The requirement of maternity protection is not subject to any legal reservation. Therefore, a restriction is only possible through conflicting constitutional law.

Equal treatment of legitimate and illegitimate children, Art. 6 Paragraph 5 GG

According to Article 6 (5) of the Basic Law, illegitimate children are equal to those who are married. This is a special equality law that supersedes Art. 3 Paragraph 1 GG. On the one hand, the legislature gives the mandate to place both groups as equal as possible. On the other hand, it serves to ward off disadvantages. It is a special form of the welfare state principle. The duty of equality in Article 6 (5) of the Basic Law has now been largely fulfilled.

Article 6 (5) of the Basic Law encroaches on unequal treatment of legitimate and illegitimate children. This can only be justified by conflicting constitutional law.

literature

  • Peter Badura: Art. 6. In: Theodor Maunz, Günter Dürig (Ed.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  • Rolf Gröschner: Art. 6. In: Horst Dreier (Ed.): Basic Law Comment: GG . 3. Edition. Volume I: Preamble, Articles 1-19. Tübingen, Mohr Siebeck 2013, ISBN 978-3-16-150493-8 .
  • Hans Jarass: Art. 6. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  • Markus Kotzur: Art. 6. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  • Gerhard Robbers: Art. 6. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 1 . Preamble, Articles 1 to 19. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  • Christian von Coelln: Art. 6. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  • Kay Windthorst: Art. 6. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (Hrsg.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .

Individual evidence

  1. ↑ Markus Kotzur: Art. 6. Rn. 6. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  2. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 437-438.
  3. ↑ Markus Kotzur: Art. 6. Rn. 4. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  4. ↑ Markus Kotzur: Art. 6. Rn. 5. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  5. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 439.
  6. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 504
  7. ↑ Hans Jarass: Preparation before Art. 1. Rn. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  8. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  9. ↑ Hans Jarass: Preparation before Art. 1. Rn. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  10. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  11. ↑ BVerfGE 13, 290 (297) : Spouse's employment relationships.
  12. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 506.
  13. ↑ BVerfGE 45, 104 (123) .
  14. ↑ BVerfGE 76, 1 (42) : Family reunification.
  15. ↑ BVerfGE 82, 60 (82) : Tax-free subsistence level.
  16. ↑ BVerfGE 103, 242 (259) : Long-term care insurance III.
  17. ↑ §1353 BGB
  18. ↑ BVerfGE 105, 313 (345) : Life Partnership Act.
  19. ↑ Kay Windthorst: Art. 6. Rn. 11. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  20. ↑ Kay Windthorst: Art. 6. Rn. 13. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  21. ↑ Gerhard Robbers: Art. 6. Rn. 42. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 1 . Preamble, Articles 1 to 19. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  22. ↑ BVerfGE 62, 323 (330) .
  23. ↑ BVerfGE 133, 59 : Successive adoption.
  24. ↑ Bundestag: Printed matter 18/4862 (PDF, 305 kB) from May 8, 2015; Answer of the federal government to the minor question of the MPs Volker Beck (Cologne), Ulle Schauws, Luise Amtsberg, other MPs and the parliamentary group BÜNDNIS 90 / DIE GRÜNEN: "Implementation of the case law of the Federal Constitutional Court on the unconstitutional discrimination of registered civil partnerships against marriages", p. 2 .
  25. ↑ Felicitas Wilke: Ehe für alle - That changes for homosexual couples on sueddeutsche.de, June 30, 2017.
  26. ↑ BVerfGE 31, 58 (67) : Spanier decision.
  27. ↑ BVerfGE 76, 1 (72) : Family reunification.
  28. ↑ BVerfGE 99, 216 (232) : Family burden equalization .
  29. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 511
  30. ↑ BVerfGE 105, 313 (344) : Life Partnership Act.
  31. ↑ BVerfGE 97, 332 (349) : Kindergarten contributions.
  32. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 8, Rn. 1.
  33. ↑ Kay Windthorst: Art. 6. Rn. 24. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  34. ↑ BVerfGE 6, 55 (76) : Tax splitting.
  35. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 452-454.
  36. ↑ Tristan Kalenborn: The practical concordance in case processing. In: Legal worksheets. 2016, p. 6.
  37. ↑ Hans Jarass: Art. 6. Rn. 28. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  38. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 517.
  39. ↑ BVerfGE 79, 51 (60) : custody process.
  40. ↑ BVerfGE 133, 59 : Successive adoption.
  41. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 519
  42. ↑ BVerfGE 34, 165 (184) : Funding level.
  43. ↑ BVerfGE 108, 282 (301) : headscarf.
  44. ↑ BVerfGE 93, 1 (17) : Crucifix.
  45. ↑ BVerfGE 59, 360 (382) : School advisor.
  46. ^ Christian von Coelln: Art. 6. Rn. 49-51. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  47. ↑ BVerfGE 107, 104 : Presence in JGG proceedings.
  48. ↑ BVerfGE 98, 218 (244) : Spelling reform.
  49. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 524.
  50. ↑ BVerfGE 99, 145 (156) : Opposing child return applications.
  51. ↑ BVerfGE 59, 360 (376) : School advisor.
  52. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 526.
  53. ↑ Matthias Klatt, Moritz Meister: The principle of proportionality. In: Legal Training. 2014, p. 193.
  54. ↑ BVerfGE 34, 165 (181) : funding level.
  55. ↑ BVerfGE 98, 218 (244) : Spelling reform.
  56. ↑ BVerfGE 47, 46 (72) : Sex education classes.
  57. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 532.
  58. ↑ BVerfGE 32, 273 (279) : Maternity protection I.
  59. ↑ Kay Windthorst: Art. 6. Rn. 84. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  60. ↑ BVerfGE 32, 273 (277) : Maternity protection I.
  61. ↑ BVerfGE 54, 124 (130) .
  62. ↑ BVerfGE 44, 211 (215) .
  63. ↑ Kay Windthorst: Art. 6. Rn. 96. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  64. ↑ BVerfGE 25, 167 : illegitimacy.
  65. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 534.
  66. ↑ BVerfGE 118, 45 (62) : care maintenance.