Regarding this matter the plaintiff claims that the criminalization of simple homosexuality (§175 StGB) violates the right, granted everyone in Art. 2 Sec. 1 GG, to freely develop his personality. This right also encompasses the free sexual activity of the individual. It represents a forcible restriction of the lives of individuals who have homosexual feelings -- in most cases, an innate characteristic -- because they are not given the possibility to translate their feelings into practice. In particular there exists no need and no public interest in penalizing the voluntary exercise of homosexual intercourse between adults.
1. Sexuality belongs to those areas included in the free development of personality ensured as a fundamental right by Art. 2 Sec. 1 GG. This fundamental right is, however, restricted by the constitutionally-determined order. [ . . . ]
Homosexual activity unequivocally violates the moral law. In the area of sexual life as well, society demands from its members the observance of specific rules; violations of these are deemed amoral and are condemned. To be sure, there are difficulties involved in determining where the moral law applies. The personal moral sentiments of the judge cannot be determining in this case; no more adequate are the opinions of certain sectors of the population. It is of far more significance that the generally recognized religious groups, in particular both large Christian confessions, judge same-sex offenses to be immoral, and that their teachings provide much of the population with the standard of judgment for their moral behavior. The appellant considers the condemnation of homosexuality in the teachings of Christian theology to be of no significance: it is adopted from the Old Testament laws of the Jewish religion, which originated as a temporary emergency measure, prompted by considerations of population policy after the return from the Babylonian captivity. Whether this interpretation of the historical record is correct is irrelevant. At issue is not the particular historical experiences that led to the formulation of a moral judgment, but rather whether that judgment is generally recognized as a moral law.
One basis for claims that homosexuality is seen as immoral stems from the fact that in Germany the laws justifying the punishment of homosexual immorality have always made reference to the moral views of the people. [ . . . ]
These facts justify the statement that moral sensibility still condemns homosexuality today. By comparison, a few observations to the contrary, largely from partisan circles, are of no significance, and in any event they have been unable to effect a change in the general moral judgment.
The appellant's response to this is that a moral law can only be recognized if it is commonly shared by the occidental cultural world; this no longer applies to the condemnation of simple homosexuality now that it has been decriminalized in a number of states within the West European cultural sphere. -- We concede to the appellant that a change of moral attitudes is possible; thus new research data from medical science might lead to understanding homosexuality as an unavoidable bodily-spiritual deviation from the norm, and it would thus become meaningless to condemn it on moral grounds. By itself, the fact that a number of states have declined to prosecute [homosexuality] criminally still does not justify the assumption that moral judgments have changed in these states, because such a legal change might just as well have originated with altered conceptions of the expedience of punishing homosexuality. By no means can the suspension of criminal provisions in other states lead to the assumption that in Germany, homosexuality is no longer morally condemned.
If under these circumstances -- clear violation of morality, a tradition of punishment in the sphere of German law -- the lawgiver cannot decide to set aside or to interpret more narrowly the criminal provisions of § 175 nF StGB, then the Federal Constitutional Court cannot oppose this decision. This holds as well for the criminalization of homosexual relations between adult men, which is particularly opposed by the appellant. The criminalization of such relations can still be justified by the by the fact that the need for protection against homosexual seduction does not end at age 21 and by the fact that a much more extensive propagation of homosexuality among adults, a probable consequence of lifting criminal penalties, would increase the endangerment of youth; in particular lifting criminal penalties for such relations between adult men could also lead to a less stringent judgment of such relations between adults and youth. Thus, with regard to relations between adult men, it is not the case that there is no public interest in the maintenance of criminal provisions, nor that the lawgiver has transgressed his boundaries.