"Non-Germans" Under the Third Reich (27 page)

Such proof had to be furnished not only by any foreigner intending marriage;
³⁸
henceforth,
anyone
harboring plans to marry, even a person “of German blood,” was obliged to prove his or her fitness to marry by means of a “certificate of fitness for marriage” that was to be issued by “counseling bureaus for racial and marital hygiene”
³⁹
that were set up under the offices of public health (sec. 2). Although this provision was never put into general effect, probably owing to the administrative expenditures it would have entailed,
⁴⁰
and was later supplanted by the obligation to produce a “certificate of nonobjection to marriage,”
⁴¹
this example once again shows with particular clarity the true character of National Socialist (special) law. It was not the authorities who had to prove that legal restraints (marriage prohibitions) were applicable in any given case; rather, the individual had to prove that he did
not
fall under the prohibitions, that the general rules of civil liberty were valid for him. In principle, everything was forbidden unless it was expressly permitted, confirmed, or certified.

As for the scope of the Marital Hygiene Law, there were of course no specific provisions for “non-Germans,” any more than had been the case in the Law for the Prevention of Progeny with Hereditary Diseases. There was simply no need for them, since the principle of racial discrimination affected every legal norm as a kind of generalized, universal legal proviso. What is more, following tried-and-true practice, the law was defined so broadly that anything could be subsumed under it. It is therefore obvious that “non-Germans” were the very first to be affected by the law. According to the general clause of section 1, it was first and foremost marriages between Germans and members of “inferior” races that could be obstructed, under the pretext of preventing the birth of undesirable offspring. Yet there was much more to it, namely the monstrous though (from a National Socialist point of view) logical idea of disallowing marriages between Germans and foreigners altogether. This concept may well have been taken from Italy, where the resolution of the Great Fascist Council (
Gran Consiglio del Fascismo
) dated October 7, 1938, prohibited not only marriages between Italian citizens and members of “Semitic” and “non-Aryan” races but also any marriages between members of the public service and foreign women, regardless of racial origin. Marriages between Italian citizens and foreigners in general depended upon permission from the Italian Ministry of the Interior.
⁴²
It is possible that this idea was already haunting the minds of the Nazi leaders at the time the Marital Hygiene Law took effect; in any case the Reich administration began giving it serious consideration in 1938.
⁴³

Even though this plan for a general ban on marriages between German citizens and foreigners never came to fruition, a beginning was made in the form of regulations governing marriage by members of the SS, the Wehrmacht, and the Party as well as pressures brought to bear upon members of the public service.
⁴⁴
Beginning in 1931, members of the SS needed to obtain permission to marry from the
Reichführer
-SS.
⁴⁵
From 1936 on the Reich Security Main Office (RSHA), which had of course already excluded Jews from active military service,
⁴⁶
required soldiers intending to marry to obtain authorization, which was granted only if the fiancée was “of German or racially related blood” and if both partners were “fit to be married” under the provisions of the Marital Hygiene Law of October 18, 1935.
⁴⁷
The result was a complete halt to marriages between members of the armed services and “non-Germans” of any kind (and particularly Jews and Jewish
Mischlinge
).
⁴⁸
These regulations were further stiffened during the war. According to a secret decree of the chief of the Armed Forces High Command dated January 26, 1942, members of the armed services were permitted to marry citizens of the Nordic states (Holland, Norway, Denmark, and Sweden), to which group Finland and Belgium were later added,
⁴⁹
only with permission (obtained under degrading conditions) of the Führer.
⁵⁰
To “preserve the purity … [of their] own racial and ethnic foundations,” farmers who were members of the NSDAP were subject to a ban on marriages with Poles and Czechs, in order to “prevent … [the latter from] marrying into German farmsteads.” Otherwise, all NSDAP members, as well as all members of its various organizations (the SA, the SS, the National Socialist Motor Corps, the Hitler Youth, the German Lecturers’ Association, the National Socialist Student League, the Nazi Women’s League) required permission from the local Gauleiter if they desired to marry “members of the Czech, Polish, or Magyar ethnic groups.”
⁵¹
Although marrying without the required permission did not nullify the union (sec. 13 of the Marriage Law and sec. 14 of the First Implementing Decree), it did have disciplinary consequences. Members of the public service may not have been subject to any requirements for permission; but for a civil servant to marry a “non-German” person constituted malfeasance in office.
⁵²
Furthermore, Party offices were instructed “unconditionally to prevent” “mixed marriages” on the part of members of the public service, political leaders of the NSDAP, officers, and persons active in the “instruction of the
Volk
.”
⁵³

4. The Marriage Law, July 6, 1938

One important complement to the racial provisions under special law was the law of divorce, discussed in the second part of this book, which deals with judicial matters. However, in regard to its racially motivated provisions and its evolution, a brief summary is pertinent at this juncture, since, as previously observed, the Reich Ministry of the Interior had to be consulted in all regulations involving race law, even when the matters in question did not belong to the field of interior administration.

From a very early stage, every opportunity was taken to dissolve racially mixed marriages by means of a broad interpretation of civil law.
⁵⁴
Ostensibly, this was done not for “moralistic reasons, but for the sake of racial hygiene.” For this reason only, Jews were placed under the laws governing foreigners.
⁵⁵
Accordingly, the German partner was permitted, without further ado, to contest the validity of the marriage on grounds of having made a mistake regarding a “personal characteristic” of the spouse under section 1333 of the Civil Code (old version), if at the time of the marriage he or she was unaware of the Jewish ancestry of the spouse
⁵⁶
or of the possibility of such Jewish ancestry.
⁵⁷
This was true in particular for the dissolution of marriages between German women and Jews, inasmuch as these liaisons were considered unusually offensive (as “race defilement”).
⁵⁸
Of course, the Marriage Law of July 6, 1938
⁵⁹
—which was issued in the interests of harmonizing the law and in particular to supplant the Austrian law, which in divorce cases still made distinctions according to the religious affiliation of the spouses
⁶⁰
—contained no explicit racial provisions. Rather, the racial aims of this law were veiled behind slogans (promotion of “genetic hygiene,” etc.) or else appeared only in annotations to the commentaries or in the subsequent administrative guidelines. Thus, for example, divorce became easier to obtain since marriage was now seen more and more as an institution “in the interests of the continued existence of the German people,” one in which the “individualistic interests of the spouses [were] no longer decisive.”
⁶¹
For reasons of “eugenics,” such as were seen to exist in cases of grave illness of mental or physical nature (secs. 7ff., 36 ff.), divorce or annulment of a marriage was made easier in that, for example, section 37 of the Marriage Law, as previously section 1333 of the Civil Code (old version), permitted mixed marriages to be contested on the basis of personal characteristics of one of the spouses. Similarly, divorce of German-Polish marriages was also facilitated, at least in the Annexed Eastern Territories, by means of a broad interpretation of section 4 of the Marriage Law,
⁶²
which sustained divorce petitions by the German partner on grounds of so-called ethnic policy.

For the political leadership, however, the dissolution of marriages between non-Aryans and persons “of German or racially related blood” proceeded far too slowly. Moreover, it was dependent on the will of the persons affected: state authorities could intervene only in those cases where the marriage was legally invalid.
⁶³
For this reason, means were sought by which to achieve a general dissolution or “drying-out” of all German-Jewish mixed marriages
⁶⁴
—that is, a way of making divorce in such cases into a purely administrative procedure upon which the individuals themselves would have no influence. At a meeting held on March 6, 1942, at the Reich Security Main Office (RSHA), Undersecretary Stuckart of the Reich Ministry of the Interior proposed rigorous compulsory measures such as the forced sterilization of all “
Mischlinge
of the first degree” (the so-called half Jews), in order to prevent the birth of undesirable offspring; or, alternatively, the recognition of a general legal right to divorce on the part of the German partner. Since such a legal right to divorce was rejected by the Reich minister of propaganda, agreement was finally reached on the following procedure, which actually came quite close to the previously rejected idea: legislation was to be enacted to the effect that, upon application either by the German partner or the state prosecutor, divorce had to be granted in cases of “mixed marriage”; to mitigate the “impression of compulsory divorce,” it was agreed that internal administrative guidelines would give the persons concerned a certain prescribed term during which to petition for divorce, after which the state prosecutor’s office was to be instructed to begin divorce proceedings. Grounds for the divorce were to be—as the judiciary had proposed from the outset—solely the fact that one partner was a Jew or a (legally equivalent) Jewish
Mischling
as defined by section 5, paragraph 2, of the First Decree to the Reich Citizenship Law. Of decisive importance was that the
determination
of Jewishness was no longer up to the courts, nor the Reich minister of the interior, but was now settled by the chief of the Security Police and the Security Service, whose decision was binding on the courts as well.
⁶⁵
This opened the floodgates to arbitrary rulings, since the police, as will be demonstrated, had no intention of sticking to the legal definition of who was or was not a Jew. Even though the planned regulation was never put into effect, such deliberations nevertheless show the radical manner in which the question of mixed marriages with “non-Germans” was to be settled. Once again, they plainly demonstrate the basic thrust of National Socialist race law: the pronounced way in which it was taken out of the hands of the judiciary and increasingly handed over to the political sphere and the police until, finally, it was almost completely removed from the jurisdiction of state administration.

IV. Citizenship Law

Parallel to the actual race legislation, the transformation of the law of citizenship was also undertaken. Since all domestic rights and responsibilities hinged upon citizenship, it represented a most important point of departure for the National Socialists to forsake the constitutional principle of equality and put
völkisch
inequality into effect in comprehensive form for all areas of law. It was the goal of the race fanatics in the political and administrative leadership to exclude all “non-Germans” from acquiring German citizenship or to revoke it where it had already been acquired—above all, of course, in the case of the Jews. Questions of citizenship, first and foremost among them being the closely related issue of ethnicity, thus attracted the particular attention of the authorities. Not only the interior administration but also numerous other agencies (the Party, the Reich Commissar for the Strengthening of German Nationhood [RKF], and others) were involved, so that the area became splintered into a labyrinthine jumble of competing jurisdictions.
¹
Where the area of interior administration is concerned, the “final goal” of excluding all “non-Germans” from German citizenship was not achieved by a single legislative act but incrementally. To begin with, existing regulations were taken up and revised, and existing citizenship law was demolished in bits and pieces.

1. The Law on the Revocation of Naturalization and the Deprivation of German Citizenship, July 14, 1933

From the outset, the National Socialist regime looked for ways and means to get rid of those citizens whom it deemed undesirable. As usual when laws were rewritten to fit the National Socialist program, they did not at first attack fundamental legal norms—in this case, the Reich Nationality Law of July 22, 1913 (RuStAG).
²
Instead, by means of various amending laws, its content was undermined to the point where the provisions in question became meaningless or were deemed to have been amended. They themselves remained as a facade or else their repeal appeared to be a matter of mere formality.
³