How are laws made in Switzerland?53 On 13 June 1996, the National Council decided that the possibility of legalising same sex marriage should be examined by the Federal Council. In June 1999, the Federal Council published a report on the legal situation of same sex couples in Switzerland in which different solutions were outlined which ranged from private contracts or officially registered partnerships to a fully-fledged marriage for same sex partners. The proposals were submitted to a first national consultation procedure (Vernehmlassung). A consultation procedure has the aim of allowing the cantons, political parties, and interested groups to participate in the shaping of opinion and the decision-making process of the confederation.54 Anyone may participate in a consultation procedure and submit an opinion. Some important entities or organisations, such as the cantonal governments and the political parties, are formally invited to participate.55 The participants have at least three months to submit their opinion.56
The majority of participants that submitted opinions in the 1999 consultation procedure favoured the introduction of some form of registered partnership for same sex couples. Therefore, in November 2001 the Federal Council published a preliminary draft and an explanatory report on a federal act on registered partnerships for same sex couples. It is important to note that preliminary draft (Vorentwurf) and explanatory report (erläuternder Bericht) are technical terms used for the draft legislation at this stage of the legislative procedure.
From 14 November 2001 to 28 February 2002 the preliminary draft and the explanatory report were submitted to a second national consultation procedure – a very rarely occurring practice.57 All 26 cantons, 10 political parties, and 38 organisations took part in the consultation. The preliminary draft, proposing a specially protected legal status for same sex couples, met wide spread approval. However, some groups continued to advocate for a fully-fledged marriage model, often also demanding that gay and lesbian couples be allowed to adopt children.
Based on the results of the consultation procedure, the Federal Council had the department of justice issue a draft for a federal act on registered partnerships. On 29 November 2002, the Federal Council published this draft and handed it to the Federal Assembly. Together with the draft the Federal Council also passed the so called dispatch (message, Botschaft) to the Federal Assembly. Dispatch is the technical term used for the explanatory report handed to parliament on a specific proposal. It contains the proposal’s legislative history, remarks on its constitutionality, and a commentary on the provisions of the draft. As a standard procedure, both the draft and the dispatch are published in the Federal Gazette, the official journal of the confederation.58
Once the draft has reached the Federal Assembly, the presidents of the two chambers jointly decide which chamber – the National Council or the Council of States – first gets to examine the proposed legislation. If they cannot agree, lots are drawn. In our case the draft on registered partnership was first assigned to the National Council for review. Then the dossier was handed down to a special commission of the National Council. This commission first debated on whether or not to approve the introduction of the bill at all. After deciding to approve the introduction, they engaged in an in-depth discussion of the proposed bill. On 2 December 2003, the draft with the amendments proposed by the commission was submitted to the full chamber of the National Council. For two days, the National Council debated and decided on each of the Articles individually and then handed the amended draft over to the Council of States. This chamber also had its commission examine the draft first. On 3 June 2004, the full chamber of the Council of States debated and amended the code. One week later, the last remaining disagreements between the two chambers were eliminated. On 18 June 2004, the final vote was taken, resulting in the passing of the new Federal Act on Registered Partnerships for Same Sex Couples.59 Two issues were fiercely contested during the course of the parliamentarian debate. Firstly, whether to allow same sex couples to adopt children and secondly, whether to grant them access to in-vitro fertilisation. Both questions were answered in the negative (Article 28 Partnership Act).
Following the Federal Assembly’s decision, the act had to be published in the Federal Gazette.60 Within the act’s official publication, a 100-day period was set for any 50’000 Swiss citizens to demand an optional popular “referendum” (Article 141 Constitution). Thereafter, the Evangelical People’s Party of Switzerland led the opposition against this new act, securing the signature of over 67’000 citizens. The opponents argued that the act weakened the position of the traditional family, would ultimately open the path for same sex couples to adoption, and would create enormous administrative costs for the benefit of only a very minor percentage of citizens. Those supporting the act argued that the existing laws on matters like inheritance and social security benefits discriminated against same sex couples.
On 5 June 2005, the national poll was held. 1’559’848 (58 %) Swiss citizens voted in favour of the new act on registered partnership and 1’127’520 (42 %) against it.61 The voter turnout was at 56.5 %. As can be seen in the chart below, in the seven mostly catholic or rural cantons of Jura, Wallis, Tessin, Appenzell Innerrhoden, Uri, Schwyz, and Thurgau (marked in red) the act was rejected by the majority of the voters. On the other hand, in the metropolitan areas of Geneva, Lausanne, Basel, and Zurich (marked in dark green) the registered partnership was approved by over 60 % of the electorate.
Figure 9: Results of the National Poll on the Federal Act on Registered Partnership for Same Sex Couples62
The Federal Council set the act’s date of entry into force as 1 January 2007.
53For an excellent description of this process see: The Swiss Confederation – A Brief Guide, 2018 (https://perma.cc/YM59-ZMFK), pp. 36.
54Article 2 I of the Federal Act on the Consultation Procedure (Consultation Procedure Act, CPA) of 18 March 2005 (SR 172.061); see for an English version of the Consultation Procedure Act www.admin.ch (https://perma.cc/HS8B-2PVT).
55Article 4 Consultation Procedure Act.
56Article 7 III Consultation Procedure Act.
57Normally – for example when existing acts are to be amended – only this preliminary draft and the explanatory reports are put up for consultation. Two rounds of consultation procedures (as occurred in this example) are only held in exceptional circumstances, e.g. when other applicable legal provisions have changed in the meantime (like the adoption of the Schengen Association Agreement [Schengen/Dublin] after the first round of consultation procedure on the introduction of biometric passports made a second round of consultation procedure necessary).
58Federal Gazette No 7 of 25 February 2003, p. 1288 (dispatch), p. 1378 (draft).
59Federal Act on Registered Partnerships for Same Sex Couples of 18 June 2004 (Partnership Act), SR 211.231.
60Federal Gazette No 25 of 29 June 2004, p. 3137.
61Federal Gazette No 34 of 30 August 2005, p. 5183.
62Source: Wikipedia (https://perma.cc/P8UD-388D); originator: Jedi Friend.