Free to discriminate

"All persons shall be equal before the law" is the first line of Article 3 of Germany's Basic Law. That says it all. However, the article goes on to highlight specific aspects such as gender, origin and ideology that should neither be favored nor disadvantaged. (A disabled person cannot be disadvantaged, but may be favored.)

Lawmakers have struggled for decades to amend laws that contradict these principles. Particularly prominent have been changes to family law. First, husbands lost their right to make their wives' decisions. Then, in 1970, it became illegal to discriminate against children born out of wedlock. Same-sex couples took a step toward legal equality in 2001 with the Registered Life Partnership Act.

Nevertheless, legal inequality persists. For example, the Basic Law allows for men to be conscripted, whereas women can't be.

Creating equality immoral

The General Equal Treatment Act was meant to address discrimination rather than remove discrimination from the law. This means that people are to be treated the same in the private sphere as they are under the law. Despite good intentions, setting this out in law is immoral because it complicates other fundamental legal rights, namely freedom of expression, the right of personality, freedom of belief and ownership rights.

In principle, it is permissible to outright disregard someone's job application, deny certain individuals entry into a private establishment, or freely decide who may rent a house or apartment. Without these rights, you might as well do away with the entire notion of private ownership. The Basic Law even prohibits compelling people to act against their own will. This prohibition ensures that freedom is enshrined in society's fundamental set of values.

The General Equal Treatment Act is contrary to all these principles.

To fully appreciate this concept's absurdity, one need only ask how discriminatory motives can be proved when the accused has expressed none. This was apparently clear for the lawmakers who penned the General Equal Treatment Act : They established that a plaintiff simply has to present circumstantial evidence of wrongdoing. A presumption of innocence does not exist.

Outright discrimination is outmoded, small-minded and almost always inhumane. Fortunately, this enjoys broad consensus in Germany. Those who still discriminate can be criticized, denounced and punished, but their opinions cannot be banned. People are free to think what and how they like - no matter how abhorrent those thoughts may be.

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