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

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In the case of the constitutional appeal of R……
The constitutional appeal is permissible but is without foundation.

The basis for the appellant's first charge against the validity of Paragraph 175, 175a StGB is the National Socialist origins of these regulations. He asserts that the law changing the criminal code of June 28, 1935 is invalid, because it was issued by the National Socialist government of the Reich on the basis of the law for the alleviation of the national emergency and the Reich of March 24, 1933 (RGBl. I, 141), the so called enabling act, without the participation of the legislature; a criminal law issued during a period of such striking violations of democratic principles cannot remain valid in a democratic political order. There is no objective justification for the aforementioned law's increase in the criminal penalties for homosexuality, and it is only understandable as an outgrowth of National Socialist racial teaching; the new regulations are characterized by a National Socialist world-view to such a degree that they ought not to be applied in a free democracy.

This objection is without foundation.

1. On many occasions, the Federal Constitutional Court has already applied laws and statutes that were issued by the National Socialist government on the basis of the enabling act, thus acknowledging the fact that these laws are not void. [ . . . ]

2. Thus, in the case of laws and statutes issued on the basis of the enabling act, it is necessary to determine whether they are no longer applicable on the basis of their content.

[ . . . ]

We should not forget: from 1945 until the convening of the Bundestag there was virtual unanimity in the Western zones of occupation that §§ 175 and 175a StGB were not "laws shaped by National Socialism" to such a degree that they should be denied force in a free democratic state.

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As the basis for his claim that §§ 175, 175a Nr. 3 StGB and the Basic Law are incompatible, in the first instance the appellant refers to Art. 3 GG of the Basic Law. [ . . . ]

§§ 175, 175a StGB violates the explicit principle of the equal rights of men and women in Art. 3 Sec. 2 and 3 GG, because same-sex relationships between men, but not between women, are criminally punishable. In addition, § 175a Nr. 3 StGB is irreconcilable with the special principle of equality because the age up to which young men are protected from seduction for same-sex offenses is set at twenty-one, while the age up to which young women are protected from seduction for the purpose of [heterosexual] intercourse is only sixteen, according to § 182 of the StGB.

Moreover, unless particular aggravating circumstances are present, there is simply no adequate objective basis for punishing same-sex relationships, because the public interest is not violated by same-sex relationships as such. The punishment of male homosexuality is thus arbitrary and repudiates the general principle of equality of Art. 3 Sec. 1 GG.

[ . . . ]

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