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Emil Lehmann’s Petition to Improve the Legal Rights of Jews in Saxony (November 25, 1869)

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“That according to the Civil Code, marriage between Christians and Jews is void ipso jure, even without, as a rule, the requirement of judicial explanation, is beyond doubt. The case under review, however, involves a union sealed before the promulgation of the Civil Code. How such a relationship should be assessed is doubtful, however; for even though Canon Law already contains strict regulations against such marriages, it has been impossible to develop an unambiguous and consistent practice, not least because of the rarity of these cases. What is certain, however, is the fact that one desisted from proceeding with the kind of full force perhaps justified by canon law, feeling prompted instead to refrain from an explicit annulment, without, however, elaborating on the possible legal consequences, whose evaluation does not belong to the jurisdiction of the undersigned ministry. After repeated consideration, the ministry has now come to the conclusion that the case at issue ought to be treated in the same way.”

This process proves that with § 1617 the Civil Code has undergone a step backwards, one that certainly cannot be wished for even by an unbiased supporter of the status quo.

With this regulation and its justification, our Civil Code has in fact regressed even further back than the almost 100-year-old Prussian Common Law, which, in its version: “A Christian cannot enter marriage with persons who are prevented by the principles of their religion from submitting to the Christian laws of marriage,” [II. Part I. Heading § 36] intended to loosen prohibitions on marriages between Christians and Jews, as the following statement by Suarez, one of the authors of the Prussian Civil Code, proves: “Why would one wish to practically prohibit marriages between Jews and Christians? There is nothing in the Christian marriage laws that a Jewess could not submit to completely. Therefore, if she does not take issue with the wedding liturgy, she may marry a Christian at any time. After all, Paul allows Christians to get married to heathens.” [Linde, Zeitschrift für Civilrecht und Prozeß, new edition IV. 13.]

Most recently, as Grolman already emphasized in the aforementioned publication, in the form of civil marriage, one has found the most suitable way to eliminate all the obstacles that clergymen could possibly erect.

[ . . . ]

What has been seen in states with civil marriage seems to indicate that this institution would not deprive God of what is God’s, that spouses married by civil ceremony, whatever their denomination, not only seek and find the inner agreement of souls but also outer consecration of the house of God.

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