Protection of family diversity: marriage, civil and de facto unions (cohabitation, joined families); same-sex unions and / or marriage

The constitutional complaint concerned the unequal treatment of marriage and registered civil partnership in the area of occupational survivors' benefits for public sector employees. The complainant was employed in the public sector and had supplementary insurance with the VBL (statutes of the Federal and State Government Employees' Retirement Fund). He lived in a registered civil partnership. The VBL informed the complainant of the amount of his pension entitlement up to December 31, 2001. The calculation was based on the tax class I/0 applicable to unmarried persons. It also informed the complainant that it would not pay his partner the survivor's pension provided for in § 38 of the VBL Rules. With the constitutional complaint, the complainant attacked the decisions of the lower courts, in the context of which the corresponding declaratory applications against this procedure were dismissed as unfounded. 
The FCC held that the statutes of the VBL as an institution under public law are to be measured directly against the principle of equality under Article 3.1 of the Basic Law. 
Against this background, § 38 VBLS, which only granted the married insured person an entitlement to receive a survivor's pension for the spouse, constituted unequal treatment compared to registered civil partnerships, which was not justified. The connecting factor of sexual orientation, which was relevant here, is comparable to the characteristics of Article 3.3of the Basic Law, which is why a strict standard must be applied in this respect. 
The state's constitutional duty to protect under Article 6.1 of the Basic Law basically allows marriage to be favored over other forms of life. The justifying factor here is in particular in the permanently assumed also legal responsibility for the partner. In this respect, however, there is no difference to the registered civil partnership. The mere reference to the protection requirement of marriage cannot therefore legitimize a differentiation. Rather, a sufficiently weighty factual reason is required. However, the objectives objectively pursued with the survivor's pension do not permit such unequal treatment. As a benefit under the company pension scheme, the survivor's pension is to be regarded as remuneration which is to be granted equally to married employees and employees living in a civil partnership. The same applies if such a benefit serves to reward the indirect contribution attributed to the dependant in the success of the employment relationship. Due to the additional pension function, it is permissible to link the survivor's pension to whether the relative had a claim to maintenance against the employee prior to the death. The form of cohabitation is not a suitable distinguishing criterion for the assessment of a need situation. The judgments therefore violated the complainant's fundamental rights and the constitutional complaint was well-founded.