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The Federal Constitutional Court Rules on the Constitutionality of Paragraph 175 (1957)

In 1957, West Germany’s Federal Constitutional Court ruled on an appeals case brought by Günter R., a cook, and Oskar K., a merchant, both of whom had been found guilty of violating Paragraph 175 of the criminal code, which prohibited homosexual relations between men. Paragraph 175 dated back to the founding of the German Reich in 1871. During the Weimar Republic, however, the criminal prosecution of homosexuals had declined considerably, and in 1929 a Reichstag committee even voted to repeal Paragraph 175. But the rise of the Nazi regime prevented the implementation of the repeal and even saw the passage of an amended version of Paragraph 175, which extended the persecution of male homosexuals by broadening the definition of criminally indecent activities between men, and by stipulating harsher punishments for so-called offenders.

When the Federal Republic was founded in 1949, it adopted the Nazi revisions to Paragraph 175. In their appeals case, Günter R. and Oskar K. presented Paragraph 175 as an embodiment of National Socialist racial thought, and argued that it violated the democratic principles upon which the Federal Republic was supposedly based. Furthermore, the two argued that Paragraph 175 represented a violation of the Basic Law, particularly Article 2, which guaranteed each individual the right to the free development of his personality. Finally, because Paragraph 175 criminalized sexuality activity between men but not women, they also argued that it violated Article 3 of the Basic Law, which stipulated the equal rights of men and women.

The appeals process dragged on for six years, and by the time Federal Constitutional Court issued the following ruling in 1957, one of the appellants, Oskar K., had already died. The court ultimately ruled to reject all aspects of the appellants’ charge. According to historian Robert G. Moeller, in issuing its decision, the court “unambiguously expressed its view that the criminalization of male homosexual activity violated no part of the Basic Law nor did it undermine the foundations of a ‘free democracy.’”

Among other things, reconstructing postwar Germany meant reconstructing gender relations, which had been thoroughly disrupted by the Nazi era, the devastations of World War II, and the war’s long and difficult aftermath. As Moeller emphasizes, the court’s assessment of the constitutionality of Paragraph 175 stressed that “those relations should be only heterosexual.” [Robert G. Moeller, “The Homosexual Man is a ‘Man,’ the Homosexual Woman is a ‘Woman’”: Sex, Society, and the Law in Postwar West Germany,” Journal of the History of Sexuality, vol. 4, no. 3, pp. 395-429.]

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1. The penal regulations against male homosexuality (§§175f. StGB) do not violate the special equality clause of paragraphs 2 and 3 of Article 3 of the Basic Law because in this instance the biological difference between the sexes so decisively marks the legally relevant facts of the case that similar elements recede entirely in comparison.

2. The regulations (§§175 f. StGB) do not violate either the basic right to free development of the personality (Article 2, Paragraph 1 GG), because homosexual activity violates the moral law and it cannot be clearly determined that a public interest in its punishment is absent.

[ . . . ]

Judgment of the First Senate, May 10, 1957
- 1 BvR 550/52 -

in the case of the related constitutional appeals 1. of the cook Günther R. against the judgment of the Greater Criminal Division 6 of the District Court of Hamburg of October 14, 1953 2KLs. 86/52 -, 2). of the merchant Oskar K. who died on April 26, 1956, against the judgment of the Greater Criminal Division 4 of the District Court of Hamburg of February 2, 1952 -KLs. 254/51 -.

1. The constitutional appeal of Günter R. is rejected.
2. The constitutional appeal of Oskar K. is settled due to his death.

With this constitutional appeal the appellants fight their conviction because of sexual offense between members of the same sex; further they seek to establish the invalidity of Paragraph 175f. StGB.

[ . . . ]

Both appellants based their constitutional appeals on the fact that the criminal judgments issued against them unjustly took §§ 175 and 175a StGB as valid law. [They maintained that] § 175 StGB in the June 28, 1935 version of the law contained National Socialist ideas and therefore lost its validity with the collapse of the National Socialist dictatorship. This law rested on the so-called enabling act of March 24, 1933, which was unconstitutional; therefore, laws that were based upon it are void. Further, §§ 175 and 175a StGB violated Articles 2 and 3 of the Basic Law.

[ . . . ]

4. The Supreme Court first agreed to hear expert testimony with regard to the following questions in the case of the appellant K.

a) Are there essential differences in the drives of men and women that also have an effect on same-sex activity?

b) In what way do male homosexuality, on the one hand, and lesbian love, on the other, represent a social danger? In the family and in society, are their effects and outward manifestations different? What role do the surplus of women and the frequency of communal housekeeping arrangements among two or more women play in this relationship (e.g., the danger of malicious gossip and of blackmail)?

c) Is there a difference in the activity and lack of inhibition in same-sex relations between men on the one hand and between women on the other, so that there is a difference in the degree of the propagation of such relations and the danger of seduction, especially of youth, to such acts? Does male homosexuality appear in the public sphere more frequently than lesbian love? Is there prostitution among male homosexuals and lesbians?

In preparation of the oral hearing the Court obtained authoritative statements from the expert witnesses.

[ . . . ]

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