“Men and women have equal rights"
How equality came to be enshrined in the Basic Law for the Federal Republic of Germany
A virtual exhibition of
An (almost) forgotten revolution
The Basic Law states under fundamental rights in Article 3, paragraph 2: “Men and women are equal. The state shall promote the actual implementation of equal rights for women and men and take the steps that are necessary to eliminate existing disadvantages.”
This article stipulates that men and women as well as people who do not identify themselves with either of these two genders are equal. At the time when the Basic Law was being drafted and amended, these [simple] sentences represented/indicated a revolution; A revolution that has been forgotten today. That is why the story behind these two sentences should be told here.
Are those sentences still needed today?
The Basic Law was established in 1949 – is it still relevant today?
Aren’t all humans “equal” today?
Why is it still important/necessary to know these sentences today?
What are we talking about?
We believe that it’s still important to know these two sentences and their development. In the following, we will explore how equality became a part of the Basic Law.
Our retelling intentionally focuses on the history of the Federal Republic of Germany. This is due to the fact that the development of the East Germany as well as its own stipulation of equality can only be retold/portrayed in a separate exhibition. In order to so, an extension of already existing research would be necessary.
The content of the four chapters included in this exhibition will focus on period between 1948 and 1994; we intend to show the quite complicated democratic process that was necessary in order to restructure the German gender relation.
Describing the complexity of the process is also important to us because a simplified narrative of history is increasingly gaining traction. This narrative leads to the idea that the achievement of equality was a “battle between women and men.”
How do we know what we know?
This virtual exhibition is only possible because the estate of one of the most important advocates for equality in the Basic Law has been preserved. This was the lawyer and SPD politician Elisabeth Selbert from Kassel. Her estate has been housed in the Archive of the German Women's Movement (AddF) since 2000, where it has been catalogued. Thanks to this, the history of Article 3(2) of the Basic Law can be told in detail and original sources can also be displayed.
Sources from other AddF collections and other institutions complete the exhibition.
The exhibition is accompanied by interviews with experts.
01
Preserving
Experts on an island
Between August 10 and 23, 1948, eleven delegates from the federal states and around 19 experts met at the Old Palace on the island of Herrenchiemsee to draft a new constitution for the Federal Republic of Germany. They had been given this task by the state premiers. The location, in the middle of Lake Chiemsee, had been chosen at the suggestion of Bavarian Premier Hans Ehard. The reason was its remoteness, which was intended to enable concentration on the work. The experts from academia and politics presented a draft constitution as the result.
A new constitution had become necessary because a new western state was to be formed from the three western occupation zones. After the Nazi dictatorship, a new foundation was needed for this—a new constitution.
Role models?
During the negotiations at Herrenchiemsee, the experts drew on the first democratic constitution of 1849, the constitution of the Weimar Republic of 1919, and, above all, the state constitutions that emerged after 1945. The Weimar Constitution had formulated the following with regard to gender equality: “Men and women have fundamentally the same civil rights and duties.”
In this context, “fundamentally” meant an intentional restriction: the intention was to treat women formally as equal citizens with voting rights, but not to grant them equal rights in all other areas, such as working life and family.
More than the Weimar Republic?
After only 13 days, the experts presented a report containing a first draft of the Basic Law. Interestingly, the draft was silent on the issue of equal rights. Unlike at the beginning of the Weimar Republic, when women's suffrage had been introduced and the state had to consider equality, a change now seemed unnecessary. Thus, the wording of the Weimar Constitution was once again on the table as a proposal. This meant that no change in gender relations was planned.
Think about it!
What if...
...women had also been present as experts at Herrenchiemsee?
02
Reform
The work in Bonn begins
In order to develop a constitution for the later Federal Republic of Germany, the assembly had to be called in. This assembly was subsequently called “Parliamentary Council” and the to-be-developed constitution was referred to as “Basic Law”.
Eight committees worked within the Council, and their findings were discussed in the Main Committee. Equality was discussed in the Committee on Fundamental Issues.
Only “Fathers of the Constitution”?
The Parliamentary Council consisted of 61 male politicians and four female politicians with voting rights. They were not directly elected, but appointed by the existing state parliaments. Twenty-seven came from the CDU/CSU and the SPD, five from the FDP, and two each from the KPD, the German Party, and the Center Party.
Helene Weber represented the CDU, Helene Wessel represented the “Central Party”, which still existed at the time, and Frieda Nadig and Elisabeth Selbert were sent by the SPD.
A media event
The “Neue Zeitung” newspaper sent Elisabeth Selbert a telegram with an urgent request to send a portrait. It was to be used to introduce all members of the Parliamentary Council to the press. The telegram demonstrates the media's interest in the drafting of the constitution. To do this, they needed information and pictures of the women and men involved.
Equality at last?
The Parliamentary Council began its work on September 1, 1948, and adopted the Basic Law on May 8, 1949.
Article 3, paragraph 2 now stated: “Men and women have equal rights.”
How did this wording come about?
We need a new phrasing!
This wording was mainly due to the female politicians within the SPD. They saw the drafting of a new constitution as an opportunity to fundamentally reform the patriarchal Civil Code of 1900. Experience with this law had shown that wives had been severely disadvantaged by the legislations of family law.
In order to discuss the demand for full equality for women in relation to the new constitution, SPD Women's Secretary Herta Gotthelf invited participants to a women's conference in Wuppertal. Lawyer Elisabeth Selbert gave the keynote speech and highlighted the problems that existed.
How do you phrase equality?
But what exactly should the wording be? At the conference in Wuppertal, this had not yet been decided. Comrades from Berlin drew Herta Gotthelf's attention to the need for clear wording in the Basic Law. Gotthelf passed the task on to Elisabeth Selbert. At the SPD parliamentary group meeting, Selbert finally proposed the sentence: “Men and women are equal” and managed to get the party to include her proposal in the negotiations on the Basic Law. This exemplary wording was found in the SED's draft constitution for the GDR. It stated: “Men and women are equal.” This sentence was likely formulated by SED politician Käthe Kern.
Wording found!
The proposal stated: “Men and women are equal.” With this simple sentence, the SPD parliamentary group joined the negotiations with the Committee on Fundamental Issues. It was Frieda Nadig in particular who championed this wording and explained why gender equality should be enshrined in the constitution. After a heated debate, the SPD parliamentary group's motion was rejected. The other parties feared legal chaos, as patriarchal family law would have to be completely revised because of the new formulation of equality.
Don’t give up!
However, the SPD, and Elisabeth Selbert in particular, did not give up. They put the same wording to the vote again in the main committee. Selbert defended the motion, arguing that a new era had dawned after the Second World War in which women had to be treated as equals, as they had long since ceased to be merely wives and mothers. SPD parliamentary group leader Carlo Schmid reinforced the motion in a subsequent speech.
Out of concern that the foundations of civil marriage could be jeopardized by equal rights, the other parties, except for the KPD, rejected the wording a second time.
What now?
In her letter to Willi Eichler, comrade and editor-in-chief of the Rheinische Zeitung, Selbert requested immediate reporting on the failed vote in the council. She had already announced resistance in the event of rejection, which she now organized with the active support and logistical assistance of SPD women's secretary Herta Gotthelf and Frieda Nadig. They launched a very cleverly orchestrated campaign and attempted to provoke a public outcry. Time was short, as the rejection had taken place on December 3 and a further reading of the article was scheduled for January 18. In these six short weeks, Selbert and Gotthelf wrote countless letters, gave interviews to newspapers, and asked women's associations and individuals for support.
And what is the CDU up to?
The public debate surrounding the wording of gender equality led to a partial rethinking within the CDU/CSU parliamentary group. Helene Weber attempted to dispel the impression in newspaper articles that conservatives, and she herself, were opposed to women's equality. She repeatedly emphasized that there had been no differences of opinion on the content, but that it was a question of wording. To clarify her own position, she proposed the wording “men and women have the same rights and obligations.”
The crucial debate
When the main committee met again on January 18, 1949, everyone present was still reeling from the public debate. At this meeting, it became abundantly clear that the CDU/CSU parliamentary group did not want to leave gender equality solely up to the SPD and was therefore arguing for its own wording. However, Elisabeth Selbert was able to assert herself and her chosen wording.
Selbert used a list of submissions (from men and women) on the topic of equality as a template for her speech. Based on these submissions, she succeeded in convincing the council. This time, the main committee voted unanimously in favor of the wording: “Men and women are equal.”
We are all for it!
The campaign by Selbert and Gotthelf is considered to have played an important role in the acceptance of equal rights. However, closer examination reveals that not all submissions were in line with Selbert's views, even though they were written to support her. For example, the Munich Association for Women's Interests and Women's Work did not endorse Selbert's wording, but called for a sentence that was strongly based on the wording of the Weimar Constitution.
The Myth of the “Laundry Baskets”
And were there really “laundry baskets” full of submissions arriving at the Parliamentary Council? This narrative is very often accepted without question and this narrative is still being propagated on radio and television today. However, research has shown that there were far fewer. Probably around 50 in total.
Selbert used these submissions very skillfully to position herself and her party for the first federal election. The SPD was to be seen as the party of equality and consequently be voted for by many women.
Think about it!
What if......
no one in the Parliamentary Council had advocated for equal rights?...
the SPD had not received support from society?
03
Negotiate
Changing family law!
After the end of the Parliamentary Council, one thing was clear: equality was enshrined in the Basic Law. However, to implement it, the first federal government had to amend family law. The deadline set for this in the Basic Law was March 31, 1953.
Before the first federal election in 1949, all parties campaigned for women's votes, as more women than men were eligible to vote. The issue of “equality” was addressed more or less explicitly. Ultimately, the CDU/CSU won the election. Together with the FDP and DP (German Party), it formed the first West German coalition government under Chancellor Konrad Adenauer.
And what is the Federal Government up to?
Minister of Justice Thomas Dehler (FDP) was responsible for the issue of equal rights and new family law in the new Bundestag. But while the KPD and SPD pushed to initiate the amendment process as quickly as possible, the governing coalition took its time.
First, Dehler commissioned Maria Hagemeyer to write a memorandum in early 1950. In the document, published in 1951, she compiled the provisions that would need to be amended in family law in order to bring it into line with the principle of equal rights. Hagemeyer had been the first female judge in the Weimar Republic and was now head of the “Equal Rights for Men and Women” department at the Ministry of Justice.
What is stated in the memorandum?
Hagemeyer first addressed general issues concerning the relationship between spouses, then matrimonial property law, and finally the legal relationship between parents and children. According to her recommendations, both spouses should have equal rights of co-determination when it comes to decisions concerning marriage and child-rearing. In the event of conflict, spouses should turn to counseling centers outside the family. Nevertheless, her draft still provided for restrictions on wives working outside the home. Regarding matrimonial property law, she agreed with the reform efforts that the women's movement had already expressed during the Weimar Republic.
A first draft – and lots of criticism
Three years after the federal elections, on October 23, 1952, the federal government finally presented its first draft bill. The opposition, especially the SPD, sharply criticized it. Herta Gotthelf coordinated her position on this issue with Elisabeth Selbert. Although Selbert herself was not a member of the Bundestag, she remained an expert on family law within the SPD.
After the first reading in the Bundestag, the bill was to be further processed by a committee. It became clear that this approach would prevent the federal government from meeting the March 31, 1953 deadline.
Casting votes are crucial!
Another major problem was the so-called “tie-breaking decisions.” These concerned the right of the father and husband to make decisions alone, without the wife and mother, in cases of conflict. In her statement on the first draft of a new family law, for example, SPD politician and lawyer Charlotte Walner-von Deuten highlighted the “core problems” of the discussion.
The parties' opinions on whether these should be deleted or maintained varied widely.
Time is running out
In view of the expiring deadline, the federal government proposed an extension. Since this involved an amendment to the Basic Law (Art. 117, para. 1), it needed a two-thirds majority in the Bundestag. The federal government rejected a proposal by the SPD to speed up the process to meet the deadline. The SPD then opposed the extension. It accused the government of deliberate delay and feared that the deadline would be postponed further.
As a result of the inaction, the deadline expired.
The second attempt
In 1953, new elections were held for the Bundestag. The re-elected Chancellor Konrad Adenauer now led a coalition consisting of the CDU/CSU, FDP, DP, and the Alliance of Expellees and Disenfranchised Persons (BHE). The election also brought about changes in the distribution of responsibilities within the federal government. Minister of Justice Fritz Neumayer (FDP) formally continued Dehler's work, but showed little interest in the subject of family law. The Ministry for Family Affairs was newly created under Franz-Josef Wuermeling. He actively participated in the debate, representing a conservative point of view.
Endurance is needed
Nonetheless, everything only got going one and a half years after the election. In February 1955, the subcommittee “Family Law Act” was formed. 17 parliamentarians, including six (!) women, from five parties deliberated upon a new Family Law. These consultations/deliberations took 77 sessions which ultimately lasted longer than two years. Especially the casting votes were controversial. In close votes, the members ultimately decided against the husband's casting vote. The father's casting vote, on the other hand, remained in the committee's draft.
Now it’s time to decide!
On May 3, 1957, eight years after the enacting of the Basic Law, the Federal Parliament held another lively debate about the new Family Law. The basis for this debate was the draft legislation which was related to the results of the subcommittee “Family Law”.
The CDU tried to re-enshrine the husband’s casting vote with a motion. The CDU’s motion failed. At the same time, the SPD, FDP, and a group of CDU/CSU members of parliament proposed the abolition of the father's casting vote. Elisabeth Schwarzhaupt took the lead in the CDU, speaking out against the majority opinion of her party. This proposal also failed. The father's casting vote remained, while the husband's casting vote was abolished. The Bundestag passed the new law, which came into effect in July 1958.
It’s not over yet
One year later, on July 30, 1959, the Frankfurter Allgemeine Zeitung ran the headline: “Father and mother should decide together.” In the end, the father's casting vote had been cast. What had happened?
That took a while…
Equality in discussion
The debate on the adaptation of family law to the principle of equal rights was not limited to parliament. Even during the development of the first government draft, the Ministry of Justice sought advice from experts from churches and associations.
Throughout the entire period, there were statements made and protests voiced from political parties, churches, trade unions, women's associations, and private individuals. The topic of equality was also discussed in the media. Petitions expressing at least part of the populations’ concern regarding the topic were submitted to the Bundestag.
The male and female lawyers also discussed the issue
In the fall of 1950, male and female lawyers discussed, for example, the necessary adjustments to family law in line with the principle of equal rights at the 38th German Lawyers' Conference. In her keynote speech, Judge Erna Scheffler clearly advocated for the abolition of both casting votes.
Public Speaking
The topic was also discussed at public events. Elisabeth Selbert continued to be an expert for Family Law and the Equality Principle in the SPD.
The churches are also involved in the discussion
The Catholic and Protestant churches showed particular interest in the issue. However, their positions differed greatly.
The Catholics voted unanimously to retain both casting votes. The Protestant Church proposed abolishing the husband's casting vote while retaining the father's right of decision.
The Protestant Women's Association, led by Elisabeth Schwarzhaupt, senior church councilor and later CDU member of parliament, protested against both casting votes. Schwarzhaupt also conveyed this position to the judge and author Hildegard Krüger, who was critical of family law.
The press reports
In the debate, Family Minister Wuermeling based his views on a traditional Christian model of the family. In September 1954, Der Spiegel asked Wuermerling what he perceives as the ideal family model. The paper later published a critical analysis of the family minister's position.
Parties with their own ideas
Even beyond the governing coalition, family law was the subject of lively debates within the parties. The FDP and SPD each presented their own draft bills/legislations during the second legislative period. The SPD set up a special subcommittee for this purpose, which also included Elisabeth Selbert as an expert.
Think about it!
What if......
...the Federal Constitutional Court had ruled differently?
...both tie-breaking votes had been upheld?
...fewer people had participated in the discussion about the new family law?
04
Think ahead
In 1949, Article 3, Paragraph 2 was enacted in the new Basic Law. It remained in this form for 45 years.
In 1994, the following sentence was added: “The state shall promote the actual implementation of equal rights for women and men and ensure that the necessary steps are taken in order to eliminate existing disadvantages.”
How did this come about?
Men and women are not equal!
Although equality was enshrined in the Basic Law, it became apparent in the early 1990s that this principle was not being implemented in everyday life.
The reunification of East and West Germany (1989) offered a new opportunity: amendments to the Basic Law were discussed. Women's movement activists sought to amend Article 3; achieving this would guarantee that the state was bound to its obligation to implement equality.
Possible constitutional amendments were discussed in many places, for example at various women's congresses. One of these was the “Women for a New Constitution” congress, which took place in Frankfurt's Paulskirche in September 1990.
“Women in Top Form?”
In addition to women's conferences and other discussion panels, initiatives drew public attention to the constitutional debate with information leaflets. One of these was the initiative “Frauen in bester Verfassung” (“Women in Top Form”).
We demand equality!
Many women's initiatives expressed demands for the inclusion of further women's rights in the constitution. These were intended to enable a truly equal society.
Particularly important was the demand to make measures for the advancement of women constitutionally permissible. In addition, the state itself should be obliged to take action: It should be tasked with actively establishing equality.
Still no parity
On January 16, 1990, the Joint Constitutional Commission convened. It discussed amendments to the Basic Law in the context of reunification. This included amending the article on equal rights.
Its members were members of the Bundestag and Bundesrat. Contrary to many demands, however, the commission was not composed of equal numbers of men and women. When the committee met, only 11 of the 64 members were women.
“This is what you can do”
Repeatedly, initiatives and organizations called on the public to support women's demands. Their commitment paid off: Many submissions on the subject of equal rights reached the Joint Constitutional Commission.
The circle closes
In the summer of 1992, around 200 women from politics, business, and women's associations met on the island of Frauenchiemsee at the invitation of the SPD. Here, in the immediate vicinity of Herrenchiemsee, they discussed the need to reform the first all-German constitution. The movement thus made a conscious reference to the work on the Basic Law in 1948. It deliberately countered the exclusion of women at that time with its presence on Frauenchiemsee.
The action in the Joint Constitutional Commission was similarly symbolic: Following the protest initiated by Elisabeth Selbert and Herta Gotthelf in the Parliamentary Council, two large (laundry) baskets containing women's petitions for equal rights were handed over to the commission.
Think about it!
What if...
...the 1994 expansion hadn't taken place?
...there had been more women on the Joint Constitutional Commission?
...Article 3, Section 2 of the Basic Law didn't exist?
05
Appendix
Recommended Reading
Our recommended reading (in German)
Herrenchiemsee
Einsichten und Perspektiven. Bayerische Zeitschrift für Politik und Geschichte. Themenheft: 75 Jahre Verfassungskonvent von Herrenchiemsee, 1/23 online unter: Bayerische Landeszentrale für Politische Bildungsarbeit
Augustiner-Chorherrenstift (Altes Schloss): Der Wille zu Freiheit und Demokratie – der Verfassungskonvent von Herrenchiemsee 1948, online unter: Herrenchimsee
Parlamentarischen Rat
Karin Gille-Linne: Verdeckte Strategien. Herta Gotthelf, Elisabeth Selbert und die Frauenarbeit der SPD 1945-1949, Bonn 2011
bpb: Grundgesetz und Parlamentarischer Rat
HdG: Bilder zum Parlamentarischen Rat
Arbeit am ersten Gleichberechtigungsgesetz
Johannes Kühle: Lächelnd gegen das Patriarchat. Bundesverfassungsrichterin Erna Scheffler (1893-1986), online unter: ForumRecht
Till van Rahden: Demokratie und väterliche Autorität. Das Karlsruher „Stichentscheid“-Urteil von 1959 in der politischen Kultur der frühen Bundesrepublik, in: Zeithistorische Forschungen (ZF) 2005, 160-179, online unter: Zeithistorische Forschungen
Erweiterung von Art. 3 Abs 2
Happy Birthday, Gleichstellungsauftrag (Art. 3 Abs. 2 Satz 2 GG)?, Policy Paper: 24-38 des Deutschen Juristinnenbundes online unter: Deutscher Juristinnenbund
Jessica Bock: In welchem Staat wollen wir leben? Feministische Verfassungsdebatten – von der historischen Chance zur Enttäuschung, in: Digitales Deutsches Frauenarchiv, online unter: Digitales Deutsches Frauenarchiv
A virtual exhibition of
Team
Christina Ramsch
Dr. Kerstin Wolff
Laura Baumgarten (Videoschnitt und -bearbeitung)
Chiara Wendt (Übersetzung)
Silke Mehrwald, Tamara Block, Barbara Günther, Michaela Wilhelm, Chiara Wendt (Digitales Sammlungsmanagement und Bildrecherche)
Imprint
Archiv der deutschen Frauenbewegung
Gottschalkstraße 57
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Silke Mehrwald, Laura Schibbe, Jacqueline Weil, Dr. Kerstin Wolff
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