Marriage for all?

by Dr iur. Marianne Wüthrich

The Federal Council justifies the introduction of “marriage for all” succinctly in the voting booklet: “Couples of the same sex should have the same rights as couples of different sexes. They should also be able to marry. The opening of marriage also leads to equal legal treatment in naturalisation, adoption and reproductive medicine.” (p. 28) If the referendum proposal is accepted, various provisions of marital law and parent-child relationship in the Swiss Civil Code (SCC), the Reproductive Medicine Act and other laws would have to be amended.
  Three committees with parliamentarians from the CVP/Die Mitte, EDU (Federal Democratic Union), EVP (Evangelic People’s Party) and SVP called for a referendum against these changes in the law and against the opening of the institution of marriage for same-sex couples respectively. They also succinctly counter the argument of “equal rights” for all with the argument: “The ‘privilege’ of marriage between a man and a woman is based, among other things, on biological facts. This is not discrimination. The principle of equality states that equal things must be treated equally and unequal things unequally.” (Voting booklet, p. 26)

Anyone who wants to find out what exactly is to be changed by reading the text of the referendum (pp. 30) will come across a number of newly formulated articles in various laws. The main sticking points are presented here.

Today’s Partnership Act largely corresponds to Marital Law in terms of content

Since 1 January 2007, the Federal Act on the Registered Partnership between Same-Sex Couples (Partnership Act) has been in force in Switzerland, regulating the registration, legal effects and dissolution of the partnership as well as the Parent-child Relationship. This legal form was described by the Green Liberal parliamentary group, which initiated “marriage for all” in parliament in 2013, as “second-class marriage”, as “downgrading based on biological differences”, which is “incompatible with a liberal image of society and a modern constitutional state”.1
  This assessment is contradicted by the compilation of differences and similarities between marriage and the registered partnership, which the Federal Office of Justice (FOJ) compiled in March 2018 for the attention of parliament.2 In fact, according to the FOJ, there are many more similarities than differences. For example, the most important provisions on marital union and property law also apply to partnerships, as do the provisions on the parent-child relationship, insofar as this is possible from a substantive point of view. The adoption of a partner’s children (stepchild adoption) has been permitted since 2018, analogous to marriage; only joint adoption is not permitted today according to Art. 28 of the Partnership Act.
  In the event of the death of a partner, the legal right of inheritance and the survivor’s compulsory share is identical to the regulations for married couples. Under current law, the disadvantageous treatment of widowers compared to widows with regard to survivor’s pensions also applies to married couples. The Swiss parliament will probably change this because the European Court of Human Rights has recently judged the Swiss regulation to be discriminatory. The dissolution of the partnership is regulated in the same way as a divorce, including maintenance arrangements, the splitting of AHV contributions and the equalisation of pension fund contributions.
  Simplified naturalisation for foreign partners is being drafted in analogy to the regulations for married couples, but the Council of States has temporarily suspended it until after the decision on “marriage for all”.
  If one goes through this largely equivalent legal status of the registered partnership in comparison to marriage, one wonders why there is an additional need for “marriage for all”. Why is breaking up the institution of marriage so urgent?

Adaptation to the legal order in “the” – not really all – EU-member states

The Green Liberals’ 2013 proposal was guided, among other things, by the desire to bring the Swiss legal institution of marriage into line with that in the EU area. In any case, they justified their request with the fact that many other countries, “including the European states of France, Spain, Portugal, Belgium, the Netherlands, Norway, Sweden, Denmark and Iceland, have already legalised same-sex marriage”. By 2017, Germany, Finland, the United Kingdom and Malta had joined them, and finally Austria in 2019.3 The German Bundestag approved the bill in June 2017 after prolonged opposition from the CDU/CSU. Euronews reported on 30 June 2017 under the title “With at least 70 Union votes – Bundestag approves ‘marriage for all’”. “Chancellor Angela Merkel was not one of them. For her, the protection under Article 6 of the Basic Law includes marriage between a man and a woman.”
  In contrast, EU member states from the Roman Catholic and Christian-Orthodox cultural areas such as Italy, Romania, Greece and Cyprus, but also practically all EU countries in Eastern Europe (Bulgaria, Poland, Hungary, the Czech Republic, Slovakia, Estonia, Lithuania, Latvia, Slovenia, Croatia) have introduced registered partnerships for same-sex couples, but not marriage.4 Apart from Switzerland, in no other country could the people decide on this – except in Croatia: there, on 1 December 2013, two-thirds of the voters voted in favour of writing marriage into the constitution as a union between a man and a woman.5
  Despite pressure from Brussels, a considerable number of EU member states are sticking to marriage as a union between a man and a woman. Of our neighbouring states, two (Germany and Austria) have only recently spoken out in favour of “opening up” marriage, Italy is sticking to marriage between a man and a woman, and Prince Hans-Adam II of Liechtenstein caused quite a stir in the press in February this year when he declared that “in principle, he has nothing against the demand for marriage for all, as long as it does not involve the adoption of children”. Liechtenstein does know the registered partnership, without adoption rights and without sperm donation, but not marriage for all.6

Sperm donation for lesbian couples in violation of the constitution

The most controversial point of the draft law is that lesbian couples would have legal access to sperm donation. The referendum committees focus on this point: “In this way, ‹marriage for all› violates Article 119 of the Federal Constitution. This article allows medically assisted procreation even for heterosexual couples only in case of infertility or the risk of a serious illness, indeed. To classify lesbian couples as infertile contradicts all valid definitions.” (Voting booklet, p. 26)
  On 14 June 2015, a majority of the voters approved the new Article 119 paragraph 2c of the Federal Constitution on reproductive medicine, trusting in the narrowly defined conditions for legally regulated sperm donations for the benefit of married couples (consisting of a man and a woman according to the Swiss understanding of the law). The Federal Office of Justice (FOJ) reminded parliament of the clear legal situation with regard to “marriage for all”: The exclusion of same-sex couples from reproductive procedures is based directly on the Federal Constitution, “since the constitutional concept of infertility can only be applicable to heterosexual couples”. Therefore, “access to reproductive medicine for same-sex married couples requires a constitutional amendment in any case”.7
  The National Council’s Legal Affairs Committee initially concluded to postpone “sensitive points” such as “access to reproductive medicine” until later to avoid the failure of the proposal in the referendum.8
  In the course of the parliamentary debates, however, Parliament invalidated its own “salami-slicing” by packing sperm donation for lesbian couples into the referendum proposal, contrary to the FOJ’s instruction on the law. To achieve this, the corresponding articles 16, 23 and 24 in the Reproductive Medicine Act (RMA) are to be reformulated, for example Art. 24 para. 3 introductory sentence: “Concerning the woman for whom the donated sperm cells are used and her husband or wife, the following data is to be recorded:[...].” (Voting booklet, p. 37; emphasis mw)
  In addition, the referendum committee under the title “Child welfare is neglected”: “Sperm donation is being transformed from an exceptional medical case into the legal rule – without consideration of the consequences for the children. [...] Children need role models of both sexes – but sperm donation for lesbian couples will deny them a father by law.” (Voting booklet, p. 27)

Oocyte donation already on the agenda – will surrogate motherhood be next?

Under the heading “Strictly regulated reproductive medicine”, the Federal Council asserts: “The bill does not schedule any further adjustments in reproductive medicine. Anonymous sperm donation, oocyte donation and surrogate motherhood remain prohibited for all couples.” (Voting booklet, p. 29) This is how the Federal Constitution reads:

BV Art. 119 para. 2 d. The donation of embryos and all forms of surrogate motherhood are unlawful.

But won’t this lead to male couples being put at a disadvantage compared to female couples? At least this is the argument the referendum committees fear: “By unconstitutionally reinterpreting ‘infertility’ in the bill as ‘unfulfilled desire to have children’, other groups (single people, gay couples) will also be able to refer to their unfulfilled desire to have children in the future. Calls for oocyte donation and ethically questionable surrogate motherhood are likely to follow soon.” (Voting booklet, p. 27)
  Anyone who says otherwise is lying. Because even before the vote on 26 September, a parliamentary initiative was submitted to the National Council – tactically unwise – with the heading: “Finally legalising oocyte donation in Switzerland now as well!”9 According to the arguments: “The donation of sperm cells is permitted [...]. Most recently, parliament also legalised access to sperm banks for lesbian couples as part of its approving of ‘marriage for all’.” (emphasis mw. The initiators seem to have “forgotten” that this will be finally decided by the sovereign). And there we have the “argument” that it is discriminatory to allow sperm donation while banning oocyte donation, “even though there are no valid reasons to distinguish between the two types of gametes”.10
  The next step, legalisation of surrogate motherhood – whereby a woman is used to bear a child for two men – might be a bit more difficult in the age of female supremacy. But we’d better not bet on it. Those who aim at breaking down all that is reliable and connecting between people, both on a small scale (family) and on a large scale (sovereign nation-state), may not even refrain from doing so.
  Fortunately, in Switzerland the people can decide on the law – even on 26 September 2021.

Preserve marriage and family as the foundation of society

BV Art. 14 right to marriage and family
The right to marriage and family is guaranteed.

Although the Constitution does not explicitly mention that Article 14 means marriage of a man and a woman, this has always been clear from a legal point of view and from the substance. Thus, the referendum committees state: “The Federal Supreme Court and the Federal Council have always interpreted the right to marriage as a permanent union of a woman and a man (Article 14 of the Federal Constitution). Only the union of a man and a woman has in itself the capacity to pass on life, which is why it must be protected as a central cornerstone of society and the state. Introducing ‘marriage for all’ with a mere amendment to the law is clearly unconstitutional.” (Voting Booklet, p. 26)
  Contrary to the general understanding of the law, the Federal Office of Justice (FOJ) explained to parliament why an amendment to the law would do the trick. Its reasoning: The legislator was “not prevented by Article 14 of the Federal Constitution from relying on its legislative competence under civil law to open up the legal institution of marriage to persons of the same sex”. Therefore, this is possible with an amendment of the law, “a revision of the constitution is not necessary for this”.11 Do you understand that? It is not really to be understood either.
  The odd legal opinion of the FOJ was subsequently adopted by the National Council’s Committee, the Federal Council and finally the majority in the National Council and the Council of States. What they did not say, but everyone knows: a rejection in the referendum is more likely if, in addition to the people’s majority, the majority of the cantons must be reached (this is the case with constitutional amendments).
  However, there are also parliamentarians who oppose the “opening up” of the concept of marriage. A considerable number of CVP politicians in the National Council and the Council of States voted against marriage for all. At least some of them – who, despite the anaemic new name of their party (“Die Mitte” The Middle), still feel like Christian democrats – still stand by it and, according to their own statements, will put a No in the ballot box.12 In the National Council debate of 3 June 2020, Pirmin Schwander (SVP SZ), among others, voiced what should appeal to many people in the country: “We are clearly of the opinion that the current constitutional term means marriage between a man and a woman. In our opinion, we cannot simply remove and discuss this at the level of law and say: Yes, now it's just different! In our opinion, there is no public discourse today that indicates that an open concept of marriage has crystallised in Switzerland since the adoption of the Constitution.”
  The understanding of marriage as a cohabitation of a man and a woman is anchored in a large part of the population. In a recent survey by Tamedia (“Tages-Anzeiger” of 13 August 2021), more than 60 per cent of Swiss respondents said they would vote “yes” or “rather yes” to “marriage for all”. Most people have nothing against cohabitation per se: everyone can decide for him/herself how they want to live. But the fact that children are allowed to grow up with a father and a mother whenever possible – and the term “marriage” is connected with this – is something we should not move away from.  •

1 13.468 Parlamentarische Initiative Ehe für alle. (13.468 Parliamentary Initiative Marriage for All.) Submitted to the National Council by Green Liberal parliamentary group (Kathrin Bertschy) on 5 December 2013
2 Federal Office of Justice FOJ. 13.468 Parlamentarische Initiative Nationalrat (Fraktion GL) Ehe für alle. Auslegeordnung betreffend die Auswirkungen der Öffnung der Ehe in den verschiedenen Rechtsbereichen [13.468 Parliamentary initiative National Council (GL parliamentary group) Marriage for all. Analysis of the effects of opening up marriage in the various areas of law] of 27 March 2018. Appendix 1: Tabellarische Übersicht “Ehe und eingetragene Partnerschaft”: Wichtigste Gemeinsamkeiten und Unterschiede (Tabular overview “Marriage and registered partnership”: most important similarities and differences)
3 “In welchen EU-Ländern gibt es die Homo-Ehe?” (Which EU countries have gay marriage?) In: Euronews of 13 July 2017
4 Hardegger, Angelika. “Die Ehe für alle auf einen Blick”. (Marriage for all at a glance) In: Neue Zürcher Zeitung of 28 July 2021
6 Meier, Günther. “Der Fürst provoziert Schwule und Lesben” (The Prince provokes gays and lesbians). In: Neue Zürcher Zeitung of 18 February 2021
7 Federal Office of Justice FOJ. 13.468 Parliamentary Initiative National Council (GL parliamentary group) Ehe für alle. (Marriage for all) Analysis, p. 5
8 “Ein weiterer Schritt in Richtung Ehe für alle” (Another step towards marriage for all). Media release of the Committee for Legal Affairs of the National Council of 6 July 2018; in the same spirit: media release of the Federal Council of 29 January 2020.
9 Parliamentary initiative 21.421 of 17 March 2021
10 Parliamentary initiative 21.421 of 17 March 2021
11 Federal Office of Justice FOJ. 13.468 Parliamentary initiative National Council (GL parliamentary group) “Ehe für alle. Auslegeordnung betreffend die Auswirkungen der Öffnung der Ehe in den verschiedenen Rechtsbereichen” (Marriage for all. Analysis of the effects of opening up marriage in the various areas of law) of 27 March 2018, p. 7.
12 Odermatt, Marcel. “Feiglinge im Bundeshaus” (Cowards in the Federal Parliament). In: Weltwoche of 2 July 2021

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