Headnotes

to the judgment of the First Senate of 19 February 2013

– 1 BvL 1/11 –

– 1 BvR 3247/09 –

1. Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 of the Basic Law (Grundgesetz – GG) grants the child a right that the State does guarantee parental care and education. This does not imply an obligation of the legislature to allow one registered civil partner to adopt the adopted child of the other registered civil partner (successive adoption).

2. Two persons of the same sex whom the law recognises as parents of a child are also parents in the constitutional sense (Art. 6 sec. 2 sentence 1 GG).

1. A person who, so far, is neither the biological nor the legal parent of a child is not a parent in the constitutional sense according to Art. 6 sec. 2 sentence 1 GG simply because he or she lives in a socio-familial unit with the child.

3. If one registered civil partner lives with the biological or adopted child of the other civil partner in a socio-familial unit, they constitute a family within the meaning of the Basic Law that is protected by Art. 6 sec. 1 GG.

2. When drafting family-law provisions, the Constitution does not confer an obligation on the legislature to automatically grant a right of adoption to those persons who assume the social role of a parent solely because they assumed this role.

4. The rights to equal treatment of the children and the civil partners concerned (Art. 3 sec. 1 GG) are violated by the fact that § 9 sec. 7 of the Civil Partnership Act (Lebenspartnerschaftsgesetz – LPartG) denies one civil partner the right to adopt the adopted child of the other civil partner (successive adoption) while it permits the adoption of an adopted child of a spouse and the adoption of a biological child of a civil partner (stepchild adoption).

FEDERAL CONSTITUTIONAL COURT

– 1 BvL 1/11 –

– 1 BvR 3247/09 –

IN THE NAME OF THE PEOPLE

In the proceedings

I. for constitutional review of

– 1 BvL 1/11 –,

II. on the constitutional complaint brought by

– 1 BvR 3247/09 –

the Federal Constitutional Court – First Senate –

sitting with the Justices

Vice-President Kirchhof,

Gaier,

Eichberger,

Schluckebier,

Masing,

Paulus,

Baer, and

Britz

held on the basis of the oral hearing of 18 December 2012 as follows:

Judgment:

1. § 9 sec. 7 LPartG is not compatible with Art. 3 sec. 1 GG to the extent that it is impossible for one civil partner to adopt the other civil partner’s adopted child.

2. The legislature has to enact a provision that is in accordance with the Constitution until 30 June 2014. Until the law is amended, § 9 sec. 7 LPartG is to be applied so that a civil partner may adopt the other civil partner’s adopted child.

3. The order of the Hamm Higher Regional Court of 1 December 2009 – I-15 Wx 236/09 –, the order of the Muenster Regional Court of 16 March 2009 – 05 T 775/08 – and the order of the Muenster Local Court of 30 September 2008 – 105 XVI 5/08 – violate the complainant’s fundamental right under Art. 3 sec. 1 GG. The orders are reversed. The matter is remitted to the Muenster Local Court.

4. The Federal Republic of Germany must reimburse the complainant for her necessary expenses.

Reasons:

A.

[The facts as summarised in the press release of the Court for the oral hearing:]

The proceedings underlying this decision regard individuals who entered into a registered civil partnership and who live in the same household as their partners and their partners’ adopted child. They now intend to adopt the respective child.

The complainant in the proceedings 1 BvR 3247/09 entered into a civil partnership in 2005. Prior to this, her partner had adopted a child who was born in Bulgaria. In 2008, the complainant filed an application to adopt her partner’s child. The ordinary courts rejected this application (last ruling: OLG Hamm, order of 1 December 2009 – I-15 Wx 236/09 –, juris). With her constitutional complaint, the complainant contests all decisions of the ordinary courts and indirectly challenges § 9 sec. 7 LPartG. She claims a violation of her fundamental rights under Art. 3 sec. 1 (right to equal treatment) and Art. 6 sec. 1 (protection of the family) of the Basic Law.

The concrete judicial review proceedings no. 1 BvL 1/11 are based on an order for referral by the Hamburg Hanseatic Higher Regional Court of 22 December 2010. The parties to the main proceedings there entered into a civil partnership in December 2002. Shortly before this, one of the partners adopted a child who was born in Romania. The other partner intends to adopt the child as well. Both the Local and the Regional Courts rejected the application for adoption. The Hanseatic Higher Regional Court stayed the proceedings and asked the Federal Constitutional Court to decide whether the denied successive adoption by the adoptive parent’s partner under § 9 sec. 7 LPartG is compatible with the Basic Law (order of 22 December 2010 – 2 Wx 23/09 –, juris).

The Hanseatic Higher Regional Court stated, inter alia , that denying the partner of the adoptive parent to successively adopt, which followed from § 9 sec. 7 LPartG and § 1742 of the Civil Code (Bürgerliches Gesetzbuch – BGB), violated Art. 3 sec. 1 GG because the unequal treatment of marriage and registered civil partnerships was not justified in this case. It was incomprehensible, the court claimed, that the biological child of a partner could be adopted by the other partner, while the child that a partner had adopted on his or her own could not, even though it could be assumed that a child adopted by only one person had a far greater need for further protection than a biological child.

[…]

B.

The exclusion of successive adoption of children by registered civil partners is unconstitutional. Although neither the child’s right that the State does guarantee parental care and education (I.) – nor the fundamental right of parents (II.) nor the fundamental right of the family (III.) are violated, if taken on their own. § 9 sec. 7 LPartG is nonetheless incompatible with Art. 3 sec. 1 GG to the extent that it is impossible to adopt a registered civil partner’s adopted child while it is possible to adopt a spouse’s adopted child and a registered civil partner’s biological child (IV. to VII.).

I.

The child’s right that, according to Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG, the State does guarantee parental care and education is not in and of itself violated by the denial of a civil partner’s right to successive adoption.

1. Art. 2 sec. 1 in conjunction with Art. 6 sec. 2, sentence 1 of the Basic Law (Grundgesetz – GG) grants the child a right that the State does guarantee parental care and education.

[…]

The mandate to guarantee parental care imposed by Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG on the State obliges it to secure whether and, if so, how parental duties shall be performed in the best interest of the child. This obligation has been specified in particular in the guardian function allocated to the polity by Art. 6 sec. 2 sentence 2 GG. Furthermore, this responsibility that is left to the State obliges it to facilitate and safeguard (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 57, 361 <382 and 383>; 121, 69 <95>) the specific parental care of children that the Constitution presupposes (cf. BVerfGE 101, 361 <385 and 386>. This includes the State’s obligation to provide a legal framework so that other persons can assume parental responsibility for children in cases where the biological parents are not willing or able to fulfil their parental functions (cf. BVerfGE 24, 119 <148 and 149>). Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG creates, in this respect, a subjective right on the part of the child to a guarantee of the State that to ensure the actual performance of parental duties.

2. The right of a child that the State does guarantee parental care and education is affected; without the option of successive adoption, a civil partner cannot assume the legal position of a parent and is thus unable to assume parental responsibility, in a legal sense, for the benefit and protection of the child. In practice, the exclusion of successive adoption means that the children concerned usually have only one legal parent. A desire for successive adoption usually arises in cases in which a child had no parents or in which its biological parents were not willing to assume parental responsibility. It was only through the single adoption by the other civil partner that the child gained a parent willing to assume the duties inextricably connected with parental rights (cf. BVerfGE 24, 119 <150>). This adoption completely ended the child’s legal relationship with its biological parents (§ 1755 sec. 1 BGB) so that the child – unlike in the case presupposed in Art. 6 sec. 2 sentence 1 GG – does not have several “parents”, but rather has one parent as a result of the single adoption. If this parent lives in a registered civil partnership, the child is unable to acquire a second parent through adoption (§ 1742 BGB) as long as successive adoption by a registered civil partner is barred.

3. However, the legislature has nonetheless not violated its responsibility to the child under Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG. The State’s obligation to ensure that parents fulfil their responsibility to care for and bring up children has its roots in the fundamental right that calls for the protection of children. How the State fulfils its obligation to provide effective protection of this fundamental right is first and foremost for the legislature to decide. First of all, the legislature must decide on the protective measures it considers appropriate and expedient for ensuring effective protection (cf. BVerfGE 39, 1 <44>; 46, 160 <164>; 121, 317 <356>; 125, 39 <78>; established case-law). The subjective defensive rights against State interference that emanate from fundamental rights, and the protective obligations that flow from the objective meaning of fundamental rights, are fundamentally different from one another, because the defensive right’s purpose and content call for a certain conduct of the State, while the protective obligation is basically unspecific. It is the organs of the State themselves that are responsible for the decision on how to fulfil this protective obligation. For this reason, the Federal Constitutional Court emphasises in its established case-law that design and legal implementation of a protective concept are the legislature’s responsibility, and that it enjoys a margin of appreciation in the assessment, evaluation and design of such concept, although it is obliged to take measures to protect a legal interest (cf. BVerfGE 96, 56 <64>; established case-law).

In the present case, the legislature did not overstep the boundaries of this margin of appreciation. The children concerned are not without parents, but have one parent in the legal sense. Furthermore, the legislature has in other ways taken care so that the adoptive parent’s civil partner can, to a certain degree, exercise parental tasks, by granting the partner typical parental rights that are of practical importance. § 9 sec. 1 LPartG authorises the partner to participate in decisions regarding the everyday life of the child. According to § 1687 sec. 1 sentence 3 BGB, these are decisions that must be made frequently and which do not have any effects on the development of the child that are difficult to reverse. They include, inter alia, matters related to the child’s daily care and supervision as well as everyday issues that arise at school or during its vocational training. Similarly, decisions relating to the child’s regular medical treatment are also included (cf. Bundestag document, Drucksache des Deutschen Bundestages – BTDrucks 14/3751, p. 39, with reference to BTDrucks 13/4899, p. 107). Moreover, where the child faces an imminent threat, § 9 sec. 2 LPartG grants the civil partner the right to take any action necessary for its well-being. The disparity between the scope of quasi-parental responsibility that the civil partner can exercise in the best interest of the child and the legal responsibility that would be attached to parental rights is covered by the legislature’s constitutional margin of appreciation.

II.

That a registered civil partner cannot adopt the child adopted by his or her partner does not violate the parental right protected by Art. 6 sec. 2 sentence 1 GG. Although the material scope of protection of the fundamental right is affected if ordinary law denies parental status to a person who is, in the constitutional sense, the parent of a child. However, the registered civil partner of an adoptive parent is not by implication the holder of a fundamental parental right. In this context, the homosexuality of two persons does not in and of itself exclude the possibility of their both being regarded as parents within the meaning of Art. 6 sec. 2 sentence 1 GG (1.). However, regardless of their sex, persons who are neither the biological nor the legal parents of a child are not considered parents in the constitutional sense simply because they live in a socio-familial unit with the child (2.).

1. If ordinary law establishes two same-sex partners as legal parents, then they must also be regarded as parents in the constitutional sense. Art. 6 sec. 2 sentence 1 GG not only protects parents of a different sex, but also same-sex parents.

a) This already follows from the fact that the fundamental right of parents is directed at the child’s best interest. The best interest of the child is the constituent component of Art. 6 sec. 2 GG (cf. BVerfGE 108, 82 <102>). The constitutional guarantee of the parental right serves primarily to protect the child. It is based on the idea that, as a rule, parents are more interested in the well-being of their child than any other person or institution. For the sake of the child, the parental right is protected against interference by the State (cf. BVerfGE 59, 360 <376 and 377>; 61, 358 <371 and 372>). The need for protection of this parental right against the State, which is granted in the best interest of the child, is independent of whether the parents are of the same or of a different sex.

b) The exact wording of the fundamental right of parents does not preclude its application to two people of the same sex.

aa) Art. 6 sec. 2 sentence 1 GG does not refer to the child’s mother and father, but it refers to parents without specifying their sex. In doing so, the Basic Law does indeed contemplate more than one parent. However, it cannot be inferred from this that parents have to be of a different sex. Those who hod a parental right guaranteed in Art. 6 sec. 2 sentence 1 GG are not parents as a (different-sex) unit, but rather – irrespective of gender – are each an individual parent in their own right (cf. BVerfGE 47, 46 <76>; 99, 145 <164>).

[…]

bb) Nor does the fact that Art. 6 sec. 2 sentence 1 GG refers to the natural right of parents contradict a constitutional recognition of same-sex parents. Although one may conclude from this that the term “parents” is meant to, first of all, refer to all persons who conceived a child (cf. BVerfGE 24, 119 <150>). However, one cannot assume that this automatically eliminates all other persons to ever hold fundamental parental rights. Under ordinary law, it is possible for the biological father to differ from the legal father due to the Civil Code’s presumption of paternity in the case of the birth of a legitimate child (§ 1592 No. 1 BGB) and due to an acknowledgment of paternity (§ 1592 no. 2 BGB); then, parenthood in the constitutional sense is also granted to the man who is “only the legal father” (cf. BVerfGE 108, 82 <100 and 101>). Also, adoptive parenthood in accordance with § 1754 BGB – which is not based on descent either – enjoys the constitutional protection of Art. 6 sec. 2 sentence 1 GG (cf. BVerfGE 24, 119 <150>).

c) Nor does the existence of a different historical concept of the meaning of “parent” under Art. 6 sec. 2 sentence 1 GG prevent its application to registered civil partners today.

In view of the fact that homosexuality was a criminal offence and socially unacceptable at the time that the Basic Law was drafted, one must assume that the lawmakers had only parents of a different sex in mind when formulating Art. 6 sec. 2 GG. However, this does not mean that the provision is intentionally set against a recognition of same-sex parents; instead, the idea of same-sex parents was completely beyond imagination at the time. Accordingly, unlike today, there were no circumstances under which two persons of the same sex could become parents according to statutory law. Meanwhile, with the changes in the legal status of homosexuals, the limitations of what could be imagined at that time and the underlying historical understanding of the term “parent” have gradually disappeared. Since the Basic Law entered into effect, it is not only the law in respect of same-sex couples that has changed considerably but also society’s attitude to homosexuality and the life of same-sex couples. Today, viewing two persons of the same sex as joint parents is no longer frustrated by denial of the legitimacy and recognition of a homosexual couple’s enduring civil partnership.

[…] Furthermore, the legislation in other European countries, in particular in the European Union Member States, leans towards equal treatment of different-sex and same-sex couples, which in a number of countries includes the possibility of adoption. Joint adoption by same-sex couples is currently allowed in Belgium, Denmark, the Netherlands, Sweden, Spain, the United Kingdom, Iceland and Norway. The same countries allow for successive adoption for same-sex couples. In addition to Germany and the eight countries named, Finland and Slovenia also permit one civil partner to adopt the other civil partner’s biological child (stepchild adoption). Apart from in Germany, single adoptions by homosexuals are also possible in Finland, France, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Austria, Poland, Romania, Slovakia, Slovenia, Hungary, England and Wales, Croatia, Monaco, and Turkey. A corresponding development is apparent in both the case-law of the Federal Constitutional Court (cf. on the one hand BVerfGE 6, 389 and on the other hand BVerfGE 105, 313; 124, 199) and of the European courts (regarding the equal treatment of registered civil partners in general cf. ECJ, judgment of 1 April 2008 – C-267/06 – Tadao Maruko/Versorgungsanstalt der Deutschen Bühnen , Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2008, pp. 314 et seq.; regarding single-parent adoption by a homosexual person cf. on the one hand ECHR, judgment of 26 February 2002 – 35615/97 – Fretté/France , Zeitschrift für das gesamte Familienrech t – FamRZ 2003, pp. 149 et seq.; on the other hand now ECHR, judgment of 22 January 2008 – 43546/02 – E.B./France , Neue Juristische Wochenschrift – NJW 2009, pp. 3637 et seq.).

2. Although persons of the same sex can thus be parents of a child in the constitutional sense, the registered civil partner of an adoptive parent can nonetheless not derive a right from Art. 6 sec. 2 sentence 1 GG to adopt the child. Prior to the adoption, the partner him- or herself is not the holder of the fundamental right, even if he or she lives with a civil partner and the partner’s adopted child in a socio-familial unit, because simply having a social parental relationship with the child of the civil partner does not establish parenthood in the constitutional sense. […] Instead, the constitutional need to protect familial ties between a child and the person who, although not the child’s legal parent, has assumed the social parental role is taken into account via the protection of the family provided by Art. 6 sec. 1 GG, which does not depend on formal parental status (cf. III. below).

[…]

III.

The socio-familial unit, consisting of registered civil partners and one partner’s biological or adopted child, constitutes a family that is protected by Art. 6 sec. 1 GG; each member of the family is entitled to, individually, rely on the protection of the fundamental right of the family. The exclusion of successive adoption for civil partners affects the fundamental right to family life without, however, violating it per se (2.).

1. The fundamental right to family life also protects family units consisting of same-sex civil partners and a child if the arrangement is of an enduring and all-encompassing nature (cf. v. Coelln, in: Sachs, GG , 6th ed. 2011, Art. 6 , para. 16 with further references; Coester-Waltjen, in: v. Münch/Kunig, GG , Vol. 1, 6th ed. 2012, Art. 6 , para. 11); Jarass/Pieroth, GG , 12th ed. 2012, Art. 6 , para. 9; Stern, Der Schutz von Ehe, Familie und Eltern/ Kind-Beziehung , in: Stern/Sachs/Dietlein, Das Staatsrecht der Bundesrepublik Deutschland , Vol. IV/1, 2006, § 100 , pp. 402 and 403; a different opinion is advanced by Uhle, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG , 17th ed., Art. 6 , para. 18 <January 2013>).

a) Art. 6 sec. 1 GG protects actual family units of parents and children who live and raise the children together (cf. BVerfGE 79, 256 <267>; 108, 82 <112>). Family life and a parental upbringing are a significant foundation for the physical and emotional development of children who are fundamentally vulnerable (cf. BVerfGE 80, 81 <90>). Due to the fact that the fundamental right to family life is aimed at protecting the specific psychological and social functions of family ties (cf. Pirson, in: Dolzer/Vogel/Graßhof, Bonner Kommentar zum GG , Art. 6 Abs. 1 , para. 24 <June 2012>; Robbers, in: v. Mangoldt/Klein/Starck, GG , Vol. 1, 6th ed. 2010, Art. 6 , para. 90), the existence of legal kinship is not a prerequisite for the protection afforded by the fundamental right. The protection of the family pursuant to Art. 6 sec. 1 GG thus extends beyond the parental right in Art. 6 sec. 2 sentence 1 GG in that it also covers family units in a broader sense (regarding foster families cf. BVerfGE 68, 176 <187>; 79, 51 <59>; regarding stepfamilies cf. BVerfGE 18, 97 <105 and 106>; 79, 256 <267>), which as “social families” are independent of the existence of legal parenthood (cf. BVerfGE 68, 176 <187>; 79, 51 <59>; 80, 81 <90>; 99, 216 <231 and 232>; 108, 82 <107, 116>).

b) In view of the protective purpose of the fundamental right to family life, an enduring socio-familial unit, consisting of same-sex civil partners and a child, also qualifies as a family in the constitutional sense. The same applies if only one partner is the child’s legal parent. The constitutional definition of a family does not require that both partners be parents in the legal sense in the case of same-sex couples any more than it requires this in the case of different-sex couples. Two same-sex partners and the child of one of the partners living together as a family can give rise to the same family ties worthy of protection as a child living in a stepfamily with a different-sex couple. In both cases it is irrelevant for the protection under Art. 6 sec. 1 GG whether the child is the biological or adopted child of the legal parent.

c) The extension of the protection of the right to family life to same-sex couples with a child is not the least precluded in that Art. 6 sec. 1 GG were only to protect a family based on marriage. Protection of the fundamental right to family life does not depend on whether or not the parents are married to one another; family protection also includes non-married families (cf. BVerfGE 10, 59 <66>; 18, 97 <105 and 106>; 45, 104 <123>; 79, 256 <267>; 108, 82 <112>).

d) The term “family” in Art. 6 sec. 1 GG does not aim at “partnerships that are at least in principle capable of becoming a marriage”, which would exclude same-sex couples who are not allowed to marry (this opinion, however, is advanced by: Uhle, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG , 17th ed., Art. 6 , para. 18 <January 2013>). Where a same-sex couple lives together with a child long-term in what is effectively a parent-child relationship, there is no doubt as to the existence of a family (cf. Stern, loc. cit., § 100, pp. 402 and 403). To deny the couple the protection of the fundamental right to family life would contradict the purpose of this right to protect the family as a socio-familial unit.

e) The inclusion of same-sex parents in the protection of the family is in line with the case-law of the European Court of Human Rights. In the matter of Schalk and Kopf v Austria (ECHR, judgment of 24 June 2010 – 30141/04 –, NJW 2011, pp. 1421 et seq.), the Court considered the social and legal developments in the states that are parties to the Convention and expressly departed from its previous view, namely that same-sex couples had no right to respect for their “family life” within the meaning of Art. 8 ECHR.

2. However, Art. 6 sec. 1 GG has not been violated here. The fundamental right to family life, as a defensive righ, guarantees the family members’ right to live together and their freedom to decide for themselves how they wish to arrange their family life (cf. BVerfGE 61, 319 <347>; 99, 216 <231>). There is no interference with this right. The exclusion of the possibility of successive adoption does not directly affect the actual cohabitation of civil partners and the child. Although the exclusion of adoption affects family life to the extent that the adoptive parent’s civil partner is denied the right to exercise certain legal powers which parents typically exercise with respect to the adoptive parent’s child. This means that both partners are not always able to perform the tasks associated with bringing up a child on an equal footing. However, the legislature’s denial of a right to successive adoption is covered by its power, determining in this respect, to define the legal nature of the family.

[…]

By legislating the availability of adoption, the legislature defines one way to obtain parental status. Adoption is a legal process which becomes available to the individual only via legislation. Rules on the availability of adoption do not restrict family freedom (cf. Stern, loc. cit., § 100 , p. 417) but do shape it by opening up additional possibilities for legally recognised family relationships. Also, a decision by the legislature not to allow for an option to adopt is, in principle, within the fundamental right’s ambit; shaping this right does include the denial of certain opportunities for personal development.

The legislature did not exceed its discretion with the denial of successive adoption. It is precisely because the fundamental right to family life includes relationships which are tantamount to a parent-child relationship without being covered by the parental right (Art. 6 sec. 2 sentence 1 GG) (cf. above, 1.a)) that the legislature is not obliged under Art. 6 sec. 1 GG to grant full parental rights in every case of a factual parent-child relationship. The legislature has provided for such cases, in particular by granting typical parental powers in § 9 LPartG, which make it possible for the civil partner of the adoptive parent to care for the child. On the other hand, on the basis of Art. 6 sec. 1 GG the civil partner of an adoptive parent has just as little right to successive adoption as the spouse of an adoptive parent (cf. v. Coelln, loc. cit., Art. 6 , para. 16 with further references; a different opinion is advanced by Grehl, Das Adoptionsrecht gleichgeschlechtlicher Paare unter verfassungsrechtlichen Gesichtspunkten , 2008, pp. 152 et seq.; Dittberner, Lebenspartnerschaft und Kindschaftsrecht , 2004, pp. 166 and 167).

IV.

However, the refusal to allow for successive adoption of adopted children of one registered civil partner by the other civil partner violates the right to equal treatment of the children concerned (Art. 3 sec. 1 GG). It disadvantages the adopted child of a registered civil partner in a manner that is unconstitutional, both compared to the adopted children of a spouse who may be adopted by the other spouse pursuant to § 1742 BGB, as well as compared to the biological children of a registered civil partner who may be adopted by the other civil partner pursuant to § 9 sec. 7 LPartG.

1. a) The general right to equality requires the legislature to treat matters that are essentially the same in the same manner and those matters that are essentially different in a different manner (cf. BVerfGE 98, 365 <385>; established case-law). […] Depending on the subject of regulation and the characteristics used to differentiate, constraints imposed upon the legislature to justify unequal treatment vary, ranging from a relaxed standard that is limited to a prohibition of arbitrariness to a standard of strict proportionality (cf. BVerfGE 130, 240 <254>; established case-law). A stricter standard may result, in particular, from the liberty rights affected (cf. BVerfGE 130, 240 <254>; established case-law).

b) According to these principles, a standard of review that is much stricter than the mere prohibition of arbitrariness has to be applied in this case. The constitutional requirements stretch beyond a mere prohibition of arbitrariness if for no other reason than that the denial of successive adoption affects rights of the child that are vital for the development of its personality. Even if the legislature does not violate the fundamental rights of the children concerned (cf. I. and III. above), adopted children of a registered civil partner are nonetheless denied the opportunities attached to successive adoption to develop and conduct their lives that are given to the adopted child of a married parent and the biological child of a civil partner. In particular, the guarantee of parental care (Art. 2 sec. 1 in conjunction with Art. 6 sec. 2 sentence 1 GG) is affected; the denial of successive adoption excludes the child from gaining a second legal parent who could fully assume the responsibility for the development of the child which the Constitution allocates primarily to the parents (cf. I. above). The restrictions on parental powers associated with the denial of full legal parental status also make the family life of the child and its parents, which is protected by Art. 6 sec. 1 GG, more difficult because such restrictions prevent the assumption of equal parental responsibility by both civil partners. In addition, the stabilising effect of the family, which is important for the development of the child and protected by Art. 6 sec. 1 GG, is affected because the exclusion of step-parent adoption, which only applies to families in which one civil partner has an adopted child, can give the child the impression that its family relationship is less valuable than the family relationships of other step-children families where the parents are married or the child is the biological child of a registered civil partner.

2. The unequal treatment of the children concerned as compared to children adopted by spouses is not justified.

a) The unequal treatment is not justified by the general objective of placing restrictions on successive adoption. Successive adoption is – irrespective of whether the parents are of the same or different sexes – excluded as a matter of principle and only available to spouses (cf. § 1742 BGB). However, the difference between a registered civil partnership and marriage is not of a quality that could justify unequal treatment with regard to successive adoption, the general exclusion of which may serve a legitimate purpose.

aa) The restriction on successive adoption is primarily intended to prevent a child being subjected to competing parental rights, which could be exercised in a conflicting manner. It follows that a second adoption is excluded as a matter of principle if the first adoption is still in existence. The creation of competing parental rights is, however, considered unproblematic if the parents are married to each other (cf. Maurer, in: Münchener Kommentar zum BGB , Vol. 8, 6th ed. 2012, § 1742, para. 8). The permission of successive adoption for spouses is thus consistent with these considerations. The objective to avoid, for the sake of the child, a situation in which competing parental rights could be exercised in a conflicting way does not, however, justify disadvantaging the children of registered civil partners compared to the children of spouses. There is no evidence to suggest that registered civil partners are less able to agree on the exercise of their parental rights with respect to their child than spouses.

bb) In the interests of the child, the aim is also to prevent a child from being passed from family to family by adoption (cf. Maurer, in: Münchener Kommentar zum BGB , Vol. 8, 6th ed. 2012, § 1742 , para. 4; cf. BTDrucks 7/3061, p. 30). Since the probability of complications in the parent-child relationship is considered to be higher in families with an adopted child, the risk that a child may be passed from person to person is considered significant (cf. Kemper, in: Schulz/Hauß, Familienrecht , 2nd ed. 2011, § 1742 BGB, para. 1). The risk of the child being passed from adopter to adopter does, however, not exist in cases in which the second adoption is done by the partner of the first adoptive parent. In this case, the first adoptive parent does not hand over the child to a new family; instead, the existing family tie to the first adoptive parent is strengthened by the creation of a legal parent-child relationship with the first adoptive parent’s partner. For this reason, § 1742 BGB allows adoption by spouses. This exception is consistent with the purpose of the general exclusion of successive adoption. However, even considering this purpose, there is no difference between adoption by a spouse and adoption by a registered partner. Through successive adoption by a registered civil partner, a child would become the joint child of the partners in the same way as it would through successive adoption by a spouse. There would be just as little risk in this case as in the case of spouses that the child would in such a way be passed from family to family. In particular, registered civil partnerships are intended to be just as enduring and to require just as much binding assumption of responsibility as marriages (cf. BVerfGE 124, 199 <225>; 126, 400 <426>; BVerfG, order of the Second Senate of 19 June 2012 – 2 BvR 1397/09 –, juris, paras. 66 and 67).

b) The exclusion of successive adoption by a civil partner can also not be justified on the ground that it is not in the interests of the child. The best interest of the child does not speak against the adopted child of one civil partner being adopted by the other civil partner. On the contrary, they speak in favour of allowing this.

aa) The exclusion of successive adoption cannot be justified with the argument that it is harmful for the child to grow up with same-sex parents.

(1) It must be assumed that the sheltered conditions in a registered civil partnership can be as supportive for children growing up as such conditions in a marriage (cf. BVerfG, order of the Second Senate of 19 June 2012 – 2 BvR 1397/09 –, juris, para. 76). The vast majority of the expert opinions heard in this case refute general concerns directed against children growing up in same-sex parental unions (cf. A.III.2.a) above). Also, the Legal Affairs Committee of the Bundestag had already stated in its report on the Civil Partnership Act that the exclusion of joint adoption was not intended as a negative statement regarding the ability of homosexual persons to raise children (cf. BTDrucks 14/4550, p. 6).

(2) Furthermore, the exclusion of successive adoption would be unfit to eliminate potential dangers in a child’s growing up with same-sex parents. The exclusion of successive adoption neither can, may, nor shall prevent a child from living with its adoptive parent and his or her same-sex partner. Homosexual persons are eligible for single adoption (§ 1741 sec. 2 sentence 1 BGB) and may live together with their child and their same-sex partner as a family. Pursuant to § 9 sec. 6 LPartG, single-parent adoption by a civil partner is also available where a registered civil partnership already exists. A family unit, consisting of two same-sex partners and the adopted child of one of the partners, can thus be established after a single adoption has taken place without successive adoption being necessary (cf. Dethloff, Familie, Partnerschaft, Recht – FPR 2010, p. 208 <209>). Neither single adoption by homosexual persons nor the actual cohabitation of registered civil partners and the child of one of the partners could be prevented without major violations of the Basic Law. A general exclusion of homosexual persons from single adoption would also violate the European Convention on Human Rights (cf. ECHR, judgment of 22 January 2008 – 43546/02 – E.B./France , NJW 2009, pp. 3637 et seq.). In any case, this is not what the legislature sought to achieve. The legislature has allowed single adoption by homosexual persons, and it facilitates the cohabitation of the child with its adoptive parent and his or her registered civil partner. A family unit, consisting of a same-sex couple and the child of one of the civil partners, is thus not only not prohibited, but in fact encouraged by the Civil Partnership Act. The Act supports their cohabitation as a family by providing for precisely those situations where the civil partner is not a parent in the legal sense, granting the civil partner parental powers, including the option of a joint civil partnership name (§ 9 sec. 1 to 5 LPartG; cf. I.3. above).

bb) Nor does successive adoption per se interfere with a child’s best interest but tends to be beneficial in the constellations that are at issue here.

(1) According to the psychologists who were heard as experts in this case, successive adoption has a stabilising effect on a child’s psychological development (cf. A.III.2.a) above). The children concerned are burdened in a special way by their separation from their biological parents. The child’s emotional problems to attach to others that result from being given away by its biological parents would not be exacerbated by its adoption by the registered civil partner of its adoptive parent. Instead, this subsequent adoption would have a stabilising effect and help integrate the child into its new family. The child would gain the security of knowing that if it lost one parent, it would still have the other parent. Granting both parents the same legal status within the family could also have a stabilising effect; if the parents had joint custody, this could strengthen the child’s sense of belonging and the parents’ sense of responsibility, and make it easier to raise the child together. On the other hand, the child could interpret the denial of legal recognition of its relationship with its social parent as a repudiation and rejection of it as a person and of its family.

(2) Adoption by the civil partner would improve the legal status of the child if the civil partnership was dissolved due to separation or death. According to the explanatory notes to the legislative draft (cf. BTDrucks 15/3445, p. 15), it was precisely this consideration that influenced the legislature when enacting the law permitting stepchild adoption by a civil partner (cf. A.I.3. above) although the interests of the child in this case are no different than its interests in the case of successive adoption.

(a) In particular, in the event of the dissolution of a civil partnership it would not be possible without successive adoption to regulate custody in a manner which considers the child’s best interest and its emotional attachment to the other civil partner. Under current law, the adoptive parent retains sole custody after the partners separate. There can be no exercise of joint custody because the other partner is not the child’s legal parent. Even if the partner has personally cared for the child since the adoption by the other partner and developed close ties with it, there is currently no possibility of the partner sharing in the child’s custody. In addition, pursuant to § 9 sec. 4 LPartG the typical parental powers granted under § 9 sec. 1 sentence 1 LPartG cease to apply if the partners separate. The civil partner is left with merely a right of contact pursuant to § 1685 sec. 2 BGB. If, on the other hand, the other civil partner could also adopt the child, the child would acquire the legal status of a joint child (§ 1754 sec. 1 BGB, § 9 sec. 7 sentence 2 LPartG) and the partners would be entitled to joint parental custody (§ 1754 sec. 3 alternative 1 BGB, § 9 sec. 7 sentence 2 LPartG). It would then be possible to make appropriate provisions for the allocation of custody rights, including the right to determine where the child resides, on a case-by-case basis, taking the child’s best interest into account (cf. Dethloff, in: Gedächtnisschrift für Heinze , 2005, p. 133 <143>).

(b) In addition, the child would usually be more financially secure as a result of a successive adoption. In particular, it would profit from having two parents with regard to child support and inheritance (cf. BVerfGE 117, 202 <234>).

[…]

(3) The children concerned do not, as a result of successive adoption, lose kinship relationships or ensuing rights to child support or inheritance. Although adoption does terminate the child’s kinship relationships with its previous relatives as well as the resulting rights and duties (§ 1755 sec. 1 BGB); rights to child support, inheritance, parental custody and rights to contact are extinguished. However, in the case of successive adoption, these rights against prior parents and their relatives are already extinguished at the time of the first adoption. As a result, successive adoption leads to an increase in rights, but not to a further loss of rights.

cc) Finally, there is also no need to fear that allowing successive adoption would endanger the child’s best interest, because every adoption is preceded by a case-by-case assessment which takes into account specific disadvantages related that may eventually arise from the adoption in question. Pursuant to § 1741 sec. 1 BGB, family courts may only allow adoption if it is in the best interest of the child. […]

c) Also, the aim to ensure that the legislature’s decision to disallow joint adoption by two registered partners cannot be circumvented may not justify an exclusion from successive adoption for registered civil partners. Here, it is not necessary to decide at this point whether the exclusion of joint adoption is compatible with the Basic Law even though the law allows it for married couples. It would not be possible to completely circumvent the exclusion of joint adoption through successive adoption because the procedure differs regarding the two types of adoption, and the exclusion from joint adoption would not lose its effect if successive adoption were to be allowed.

Insofar as the concern about circumvention relates to the fact that in the case of successive adoption by a registered civil partner, as in the case of exclusion from joint adoption, the State is actively involved in placing a child in a same-sex family unit in which the complementary elements of being brought up by parents of a different sex are missing, the statutory exclusion of successive adoption is not a suitable approach for dealing with this concern. Notwithstanding the question of whether or not this objection could be sustained as a legitimate aim if subjected to constitutional review, the exclusion from successive adoption cannot prevent a child, whose adoption had been arranged by the State, from living permanently in a family with a same-sex couple. As long as an examination of the child’s best interest indicates, in the specific case, that single adoption is in the child’s best interest, a child may be adopted by a single homosexual parent (§ 1752 sec. 1 BGB) by order of the family courts (§ 1741 sec. 2 sentence 1 BGB) and then actually live – either immediately or later – with its adoptive parent and that parent’s civil partner in one family. Here, it is the availability of single adoption, which the State could not deny only to homosexual persons (cf. above, b)aa)(2)), and it is not successive adoption which renders the exclusion from joint adoption ineffective. At the time of single adoption by a homosexual person, the child is already placed in a family which, as a rule, misses a person of the opposite sex, and will continue to do so permanently. The question whether or not this single adoption is in the child’s best interest can and must be decided in an individual case on the basis of the personal circumstances of the people concerned.

d) Parental rights of third parties cannot justify the exclusion of a civil partner from successive adoption. The parental rights of third parties are not affected because in the case of successive adoption they have already been extinguished by the first adoption (§ 1755 sec. 1 BGB). The biological parents relinquished their right to influence subsequent adoption decisions by the family courts at the time they consented to the single adoption by the first civil partner (§ 1747 sec. 1 sentence 1 BGB).

e) The protection afforded to marriage by Art. 6 sec. 1 GG does not justify the exclusion from successive adoption of a registered civil partner.

aa) Allowing the possibility of successive adoption by a civil partner does not violate the defensive aspect of the fundamental right to marriage. Successive adoption by a civil partner affects neither the freedom to marry nor the freedom of married couples to determine the internal arrangements of their marriage.

bb) The institutional guarantee of marriage, which is part of the right to marriage, is not affected. The rules which give marriage a legal framework and which attach legal consequences to marriage remain unchanged.

cc) Nor does the special protection of marriage by the State order, which is guaranteed by Art. 6 sec. 1 GG (cf. BVerfGE 105, 313 <346>), justify discriminating between the adopted children of a civil partner and the adopted children of a spouse. It is true that the constitutional protection of the institution of marriage does not, as a rule, prevent the legislature from favouring it as compared to other ways of life (cf. BVerfGE 126, 400 <420>; established case-law). However, if the privileges granted to marriage are accompanied by discrimination against other ways of life although they are comparable to marriage in terms of the situations regulated and the objectives pursued by the legislation, the mere reference to the obligation to protect marriage cannot justify such discrimination (cf. BVerfGE 124, 199 <226>; 126, 400 <420>). It cannot be inferred from the special protection of marriage that other kinds of communities must be treated differently from marriage and given fewer rights (cf. BVerfGE 105, 313 <348>; 124, 199 <226>). A mere reference to Art. 6 sec. 1 GG does not suffice to justify discrimination against comparable communities; instead, it is necessary to show reasons which, in light of the subject matter and purpose of the provision, are sufficiently weighty to justify discrimination against other ways of life (cf. BVerfGE 124, 199 <226>). No such reasons exist in this case (cf. a) above).

f) Allowing a person to acquire the legal position of a parent with respect to his or her civil partner’s adopted child does also not violate the constitutional parental right. Art. 6 sec. 2 sentence 1 GG does not require parenthood to be restricted to different-sex couples. Instead it protects the fundamental parental rights of same-sex parents as long as their parenthood has been legally recognised under ordinary law (cf. II. above).

g) Constitutional protection of the family (Art. 6 sec. 1 GG) provides just as little justification for limiting the possibility of successive adoption to heterosexual couples. Art. 6 sec. 1 GG protects diverse family relationships, even if they are not based on marriage. Thus a family unit, consisting of two registered civil partners and a child, falls within the scope of protection of the fundamental right to family life (cf. III. above).

h) Notwithstanding the question of the extent to which international legal obligations can justify unequal treatment that is prohibited by the Constitution, the exclusion of a right to successive adoption cannot be based on Art. 6 para. 1 of the European Convention on the Adoption of Children, which permits the single adoption of a spouse’s adopted child. Art. 8 letter a of the revised version of the European Convention on the Adoption of Children, which was adopted by the Committee of Ministers of the Council of Europe on 7 May 2008, makes express provision for successive adoption by a registered civil partner. The Federal Republic of Germany is free to accede to the revised version of the Convention, which has already entered into force and, if necessary, to terminate the original Convention.

3. The unequal treatment of adopted children of registered civil partners as compared to the treatment of biological children of registered civil partners can also not be justified. There are no differences between the adoption of a registered civil partner’s biological child and the adoption of a registered civil partner’s adopted child which could justify different treatment. In essence, the same considerations apply in this case as apply regarding the discrimination between adopted children of registered civil partners and adopted children of spouses (cf. 2. above). It is true that German adoption law is generally more generous when it comes to the adoption of biological children than when a child which has already been adopted once is to be adopted again (cf. § 1742 BGB). The aim of this distinction is to prevent the risks to the well-being of the child that are associated with a series of adoptions. However, these risks do not exist where the child is adopted by the spouse or registered civil partner of the adoptive parent (cf. 2.a) above).

V.

It is not necessary to decide at this point whether discriminating between the adopted children of registered civil partners and the adopted children of spouses also violates the constitutional requirement of equal treatment of legitimate and illegitimate children (Art. 6 sec. 5 GG) (cf. Grehl, Das Adoptionsrecht gleichge -schlechtlicher Paare unter verfassungsrechtlichen Gesichtspunkten , 2008, pp. 176 et seq.; Dittberner, Lebenspartnerschaft und Kindschaftsrecht , 2004, pp. 167 and 168).

VI.

The provision in § 9 sec. 7 LPartG also violates Art. 3 sec. 1 GG to the extent that it discriminates between registered civil partners and spouses, who are permitted to adopt their partner’s adopted child pursuant to § 1742 BGB. The justification of the unequal treatment of married people and those who are in registered civil partnerships pursuant to § 9 sec. 7 LPartG is subject to strict constitutional requirements since the unequal treatment is related to sexual identity (cf. BVerfGE 124, 199 <220 and 221>; 126, 400 <419>; Federal Constitutional Court, order of the First Senate of 18 July 2012 – 1 BvL 16/11 –, juris, para. 40). There are no differences between marriage and registered civil partnerships which could justify applying different adoption rules to them; in particular, both are legally formalised partnerships of an enduring nature (cf. IV. 2.e)cc) above).

VII.

§ 9 sec. 7 LPartG also violates Art. 3 sec. 1 GG to the extent that it discriminates between the registered civil partner of an adoptive parent and the registered civil partner of a biological parent because only the latter is permitted by law to adopt his or her civil partner’s child. This too cannot be justified on constitutional grounds.

C.

I.

As a rule, the unconstitutionality of a statutory provision leads to its being void (§ 82 sec. 1 in conjunction with § 78 sentence 1 of the Federal Constitutional Court Act, Gesetz über das Bundesverfassungsgericht – BVerfGG). However, since the legislature has a variety of ways available to it of curing the unconstitutional state of affairs, only a declaration of incompatibility with the Basic Law is possible in this case (cf. BVerfGE 130, 240 <260 and 261>; established case-law). In addition to the obvious option of altering the adoption possibilities for registered civil partners to bring them into line with the adoption possibilities that exist for spouses, the imposition of a general restriction on the availability of adoption would be conceivable as long as it applied equally to registered civil partners and spouses.

II.

The transitional arrangement ensures that successive adoption by registered civil partners is immediately available. Since adoptions do not take effect until the adopter is served with an adoption order (§ 197 sec. 2 of the Family Court Proceedings Act, Familienverfahrensgesetz – FamFG) and do not affect the period prior to service, the Senate does not believe that, given the disadvantages that a refusal of successive adoption entails, the parties concerned can reasonably be expected to wait until the law is changed.

The transitional arrangement is based solely on the legal issues raised in these proceedings. Accordingly, it does not involve a review and assessment of the question whether other differences in the current law between adoption by a spouse and adoption by a registered civil partner are compatible with the Basic Law. It is a matter for the legislature to review these questions in the course of making the necessary amendments to the law of adoption.

III.

In the proceedings on complaint 1 BvR 3247/09, the challenged decision is reversed pursuant to § 95 sec. 2 BVerfGG and the matter is remitted to the Muenster Local Court. Pursuant to § 34a sec. 2 BVerfGG, the Federal Republic of Germany must reimburse the complainant for her necessary expenses because the decisions are based on an unconstitutional federal law.

IV.

This decision is a unanimous decision of the Court.