III.
Strictly speaking, the prohibition stated in § 1617 of the Civil Code: “Christians cannot enter into marriage with persons not professing a belief in the Christian religion –“ does not contain a restriction specifically for non-Christians, since it affects Christian citizens evenly as well. Nevertheless, with proper appreciation for the underlying motive, scholarship has understood this regulation to be imposed specifically on the Jews. [Schmidt, Vorlesungen über Sächs. Privatrecht I, p. 66.]
If, however, this work also states that § 1617 “has upheld” the prohibition on marriage, one must contradict this for the same reasons that have already been emphasized in the aforementioned petition of 1861, whose validity has recently been acknowledged by the authorities. The Civil Code has not upheld but newly established this prohibition on marriage.
The author begs leave to repeat the relevant passages from that older petition:
“Whereas the special motives of the draft in question do not take the stated principle into consideration at all, treating it as natural, the following was given as grounds for a similarly formulated original draft (1418):
‘The difference in religion has been transferred from existing law as an impediment to marriage, because no domestic bliss can be expected from marriages between Christians and non-Christians. The fundamentals of Christian religion diverge so substantially from the dogmas of other religions, their confessors are so dissimilar, that lasting love in marriage and good and uniform child rearing cannot be expected unless an indifference regarding religion by both spouses already exists at the time of the wedding or develops during the marriage. In its legislation, however, the state must not assume such a prerequisite.’”
To begin with, the question is whether, according to existing laws, marriages between Jews and Christians are absolutely prohibited.
This question would be answered affirmatively according to ancient Roman law, but this is not the case according to Saxon, or even Old Saxon, law.
Roman law stipulated an unconditional prohibition in 1. 6 cod. de Judaeis I. 9.
In this passage, marriage between Jews and Christians is threatened with nothing less than the penalties for adultery.
Yet this section of the codex has never been applied unconditionally, and at all times, in either Germany as a whole or Saxony in particular.
[ . . . ]
print version
return to list
previous document