Have you ever heard heroic stories about early feminists fighting for equal rights against oppresive men during the days when the German Constitution was worked out? This is what really happened.
On 30 November, 1948, the Committee on Fundamental Issues decided that Article 3, paragraph 1 of the German Constitution should read as follows: All men are equal before the law. The law must treat the same things equally, but it can treat different things according to their own nature. However, fundamental rights must not be infringed. "Different things according to their own nature“ – because, for example, "the protection of motherhood cannot be introduced for men" and because various duties such as the obligation to serve the water brigade, the fire brigade and police services "should not also be imposed on women".
Article 3, paragraph 2 of the German Constitution (originally Article 19) should read: Men and women have equal citizenship rights and obligations. This sentence had been taken from the Weimar Constitution (Article 109) and the qualifying words "in general" from that article had already been deleted. Paragraph 3 followed: No one may be disadvantaged or favoured because of their sex.
On 1 December, 1948, the SPD (Social Democrats) introduced the phrase Men and women have equal rights to the committee. In the board on 3 December, 1948 (1st reading), Elisabeth Selbert (SPD) justified the motion by pointing out that the words "citizenship rights" do not necessarily include civil rights like marriage and family law.
This problem could easily have been solved by simply omitting the critical words: Men and women have equal rights and obligations. Especially since it followed: No one may be disadvantaged or favoured because of their sex.
Alternatively, on 18 January, 1949 (2nd reading), the CDU (Christian Democrats) also put forward a reasonable proposal: Men and women have equal rights and obligations. Legislation must achieve this in all areas of law.
In the end, however, the SPD's proposal was adopted – unanimously – which gave women equal rights but did not demand the same obligations from them. That was no oversight. The committee was aware that, although women were disadvantaged in some places, they were given preferential treatment in others.
Hermann von Mangoldt (CDU), for example, admitted at the meeting on 1 December, 1948, "that women basically have working conditions that are partially eased in accordance with our trade protection regulations and enjoy a certain degree of protection". But nobody wanted to shake it: "It seems obvious to me that the phrase 'men and women have equal rights' could not, for example, affect protective regulations of labour law or social law that have been created in favour of women." (Carlo Schmid, SPD, 3 December, 1948).
Theophil Kaufmann (CDU) at the same meeting: "Conversely, there are a whole number of regulations that cannot possibly be applied to men, which are rather special protection regulations in the interest of women, because of their special features and their special tasks.“ Heinz Renner (KPD – Communist party), also in this meeting: "No one can assume that it should be said to touch the few special rights of social nature (...) granted to women by their physical constitution."
And Helene Weber (CDU) on 18 January, 1949: "We are also thinking of the intrinsic value and dignity of women and are not thinking of schematic equality and equal rights, as was pointed out to me recently when I was asked whether this means that women should perhaps serve in the army. No, I said, they shouldn't do it any more than we expect something from a man that corresponds to the intrinsic value of a woman alone." And: "We even believe that women must have privileges in certain areas, such as maternity protection and various areas of social policy."
Finally, Theodor Heuss (FDP – Free Democratic Party, classical liberal) in the same meeting: "We are of the opinion that the coming legislator will have a very difficult task, so that this equality cannot somehow be interpreted to the detriment of women, that we must be quite clear in the moral and factual motivation of the course of thought, but that we must not finally fall into formalism regarding the obligation to pay maintenance, and I do not know what else plays a part in it, at which the woman afterwards has the disadvantage.“
At one point the debate even turned into subservience of women. Walter Strauß (CDU): "Especially the past few years have shown every man, including bachelors, that the tasks of women are almost even harder – also physically harder – than those of men.“
To summarise the mood in the committees, there was a general awareness that women should have equal rights in all areas of life, but at the same time neither men nor women wanted to give up the idea that women are something special, worthy of special protection and reverence.
It goes without saying that the committee did not come up with the idea of thinking about possible disadvantages of men; it was always only about women: "What we want is rather that women should not be disadvantaged, as has been the case for a long time.“ (Ludwig Bergsträsser, SPD, 30 November, 1948) This attitude ran through all parliamentary parties, which is why the attempts of today's feminists to denounce the committees as patriarchal representation of male privileges is absurd.
At least Helene Weber made it clear in the 2nd reading: "So we want equal rights for women, including the duties associated with them.“ Elisabeth Selbert objected that she was against the explicit mention of the duties. Firstly, she referred to a possible involvement in the event of war: "We have seen in the past that life and fate have not stopped at women even when the greatest demands have been made on their physical constitution, whether behind the flak headlight or behind the gun or in a hail of bombs or elsewhere." Furthermore, she feared that women could also be called upon to pay maintenance in the family. The work of the housewife and mother should be regarded equal to the professional activity, and that a woman in employment should contribute to the maintenance from her income "goes without saying".
SPD 1919: Equal rigts, equal obligations
SPD 1990: You / men have to go through. Women can do more
SPD 1990: You / men have to go through. Women can do more
How did Elisabeth Selbert, who wanted to set all the levers in motion "to get it through the way I want it to", manage to impose a wording on the committee that gave women all their rights and freed them from their duties at the same time?
At the 1st reading in the Main Committee, she made a threat which, in view of the men killed in World War II, could hardly be more cynical: "If the article in this version is rejected again today, I can tell you that the relevant women will probably make their views known to the public, and in such a way that the adoption of the constitution may be jeopardised. (...) All 'but' should be excluded here, since the votes of women must be reckoned with as those factors which are decisive for the adoption of the constitution, after we have a surplus of seven million women in Germany and one hundred and seventy female voters for every one hundred male voters."
She subsequently implemented this threat by exerting appropriate pressure on the committee with the help of her comrades-in-arms, a mobilized public and the press.
In the 2nd reading, she then seriously claimed: "We did not cause the storm that was triggered out there in public by the vote at the 1st reading of this article in the Main Committee.“ At this point it should perhaps be mentioned that the meetings of the board were open to the press.
Deutscher Bundestag & Bundesarchiv: Der Parlamentarische Rat 1948-1949 [German Bundestag & Federal Archive: The Parliamentary Council 1948-1949. Files and Minutes, Volume 5 (2 volumes): Committee on Fundamental Issues (Munich 1993, pages 643, 738-754, 779) and Volume 14 (2 volumes): Board (Munich 2009, page XXI, 510-517, 1309-1323)]
Marianne Feuersenger: Die garantierte Gleichberechtigung [Guaranteed equality (Freiburg / Breisgau 1980, pp. 20-48)]