The protection of marriage and family: a constitutional responsibility to enable all-embracing interaction as a means without an (objective) end

Abstract

The constitutional duty to protect marriage and family is a rather recent task for public authorities. While these particularly personal forms of social interaction have always been of political interest to some extent, the attempt to provide them with basic rights protection against and by the state is a development from the last 100 years. Nowadays, such obligations are anchored not only in the constitutions or in the constitutional practice of virtually all European nation states, but also within the European fundamental rights protection systems as well as on the global level of public international law. Apart from this success story, however, the social phenomena that are being addressed as well as their context have changed considerably in European societies. The historically controversial questions of why and how marriage and family are to be protected by basic rights, therefore have still not been solved completely. This article addresses the history of this young fundamental right as well as different approaches to its interpretation in using the example of the protection clause of the German Basic Law.