"Non-Germans" Under the Third Reich (90 page)

The principle of inequality before the law according to ethnic or political criteria even went to the extreme that the state of mind of the claimant made a difference.

An article by E. Wendt in the
Juristische Wochenschrift
, 1934, entitled “It Can Also Be of Significance for the Civil Judge Whether Someone Seeking the Protection of the Law Is a Marxist or Communist” (page 18), illustrates the concerns of the literature of the time. The discussion revolved around whether the suspension of a threatened compulsory sale on account of financial difficulties through no fault of the applicant should be accorded equally to a National Socialist innkeeper (whose turnover had diminished since 1933 because his establishment had until then been mainly patronized by socialists) and a Communist innkeeper (whose turnover had also diminished). A distinction was made as follows: whoever was a member of parties that laid stress on the national community was a “good innkeeper,” whereas anyone who followed the “shady ways” of parties that “destroyed the
Volksgemeinschaft
” did so at his own risk. In the opinion of the court, therefore, the Nazi innkeeper should be allowed his claim, but not the Communist.

2. The Main Areas of Discriminatory Practices

The main areas in which discriminatory legislation was applied were family law, inheritance law, tenancy law, and labor law, all of which dealt with situations involving close legal and personal relationships and so lent themselves particularly well to the principle of the separation of Jews and non-Jews.

a. Family Law

Within the ambit of family law, the application of special law was naturally concentrated on laws relating to marriage and divorce. The so-called Blood Protection Law of September 15, 1935,
²⁴
had outlawed marriages between Jews and people of “German or related blood,” declaring any such existing marriages null and void and “other racially unrelated blood mixtures” an obstacle to matrimony.
²⁵
Even a valid engagement between a “citizen of German blood and a Jew” was not permissible.
²⁶
The Marriage Law of July 6, 1938,
²⁷
brought with it a revision of the grounds for divorce, and consequently these were now to be interpreted in terms of the racial principle.
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This applied above all to existing German-Jewish “mixed marriages,” which were deemed highly “undesirable.”
²⁹
Though it was not possible to oblige anybody to divorce, since the ban on marriage in the Blood Protection Law was not retroactive,
³⁰
the judiciary and especially the Reich Supreme Court did everything in its power to dissolves such marriages by encouraging a broad interpretation of the divorce laws.
³¹
The principal legal basis for this was provided by the provisions of sections 1333 and 1337 of the Civil Code, which were later taken up in an expanded, “objectivized” form in section 37 of the Marriage Law.
³²
The reason for this broad interpretation, according to the official preamble, was “to prevent an overly narrow interpretation of the concept of personal characteristics” and to introduce an “objective standard derived exclusively from the concept of marriage as understood by the state of today.”
³³
This can be illustrated by the following examples.

1. The error of judgment regarding the Jewishness of a marriage partner was generally recognized as an error of judgment pertaining to a personal characteristic under the terms of section 1333 of the Civil Code, old version,
³⁴
in spite of the fact that under the law, the term
personal characteristic
referred only to characteristics of the person himself and not to his objective circumstances (nationality, membership in a particular religious community, ill repute, etc.). At first the court rulings had been uncertain and in some cases had allowed a marriage to be contested only when the factual aspect of the spouse’s race was in question, since only facts were contestable.
³⁵
But as early as 1934 it became the predominant practice to include errors about the significance of this fact among errors of judgment justifying dissolution of the marriage under the terms of section 1333 of the Civil Code, since according to the Reich Supreme Court, “as a natural way of looking at it,” the error pertained to an “essential feature of the personality.”
³⁶
But even the most sophisticated art of legal interpretation was not capable of explaining why such questions of appraisal (“significance of the different races”) should be put on the same footing as contestable facts.

This was either stated in so many words
³⁷
or it was claimed that the significance of the race question was “common knowledge.”
³⁸
If a justification was ever sought, it was found in “ethnic considerations,” held to be of prime importance in marriage law. Under the jurisdiction of the Reich Supreme Court, “moral appraisal of a marriage” should no longer take account of the concerns of the couple involved but should give priority to ethnic considerations.
³⁹
Only “purerace” marriages could satisfy these considerations, however. It was thus “often justified to sacrifice a long-standing marriage in order thereby to open the way to the institution of a marriage valuable to the nation.”
⁴⁰

2. The original time limit for contesting a marriage on the basis of section 1333 of the Civil Code, which was one year from the acquisition of the knowledge of the grounds for contestation (sec. 1333, Civil Code) was a short one, that is to say it was interpreted in the spirit of maintaining existing German-Jewish marriages.
⁴¹
But from mid-1934 on, at the latest, the time limit was no longer taken so seriously. A particular difficulty was determining the beginning of the period. Some courts took the stand that in the case of an error of judgment regarding the non-Aryan descent of a marriage partner, the time period was set into motion only by the legislation of 1933,
⁴²
and especially by the implementation of the so-called Law for the Restoration of the Professional Civil Service of April 7,1933.
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Later annulment of the marriage was sometimes permitted even without consideration of the time limit, given that the beginning of the period could no longer be ascertained.
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In addition, a number of courts attempted to circumvent forfeiture of the right of rescission (continuation of the marriage with knowledge of the grounds for annulment) in order to achieve the highest possible divorce rate among so-called mixed marriages.
⁴⁵

3. The greater ease of obtaining divorce brought in by the Marriage Law of 1938 was employed not only against Jews but also against other “aliens,” thus proving, as we have seen, that the discriminatory legislation constituted a general principle of National Socialism, directed not only against Jews but also against all other racially undesirable persons. Thus, in 1942 in Breslau, a German-Polish “mixed marriage” was annulled at the request of the public prosecutor (sec. 607, Code of Civil Procedure) despite the absence of fault, because in 1939 the husband had played a leading role in the Polish national movement. “The previous record of the marriage” (sec. 37, par. 2, Marriage Law) was not relevant, in the view of the Breslau Court of Appeal, if considerations of the greater public good were in question. It was thus “in the public interest” to annul the marriage.
⁴⁶

4. The special-law principle was also wielded with a firm hand in the field of custody and maintenance. In this respect general law, that is to say the tenets of the Nazi state, was already evoked to justify withdrawal of the right to custody when the children were not brought up on the desired path. Thus, an education in the spirit of Jehovah’s Witnesses represented “a most serious risk to the mental health of the children,” and removal of the right to custody was therefore justified (District Court, Hamburg).
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The same was true for a Catholic (Court of First Instance, Frankfurt-Hoechst),
⁴⁸
Communist, or atheist upbringing (Court of First Instance, Berlin-Lichterfelde).
⁴⁹
The refusal of a father to send his children to the
Hitlerjugend
was an “abuse of the right to custody” that justified taking the children into a welfare institution (Court of First Instance, Wilster).
⁵⁰
However, a woman did not lose the right of custody to her children because she was a prostitute (Hamburg Court of First Instance).
⁵¹

These principles were of course applied even more rigorously to the custody rights of non-Aryan parents. The right of custody to Aryan children following the divorce of a “mixed marriage” was granted to the Aryan partner, even if he or she was the sole guilty party,
⁵²
notwithstanding section 1635 of the Civil Code, which fundamentally provided for custody by the nonguilty party. This was justified by the argument that leaving the child with the non-Aryan parent was a mental or emotional “hazard for the child” within the meaning of section 1666 of the Civil Code, which provided an exception to the rule set out in section 1635. The children were also given over to the custody of the Aryan parent, irrespective of guilt, in a case of “
Mischlinge
of the second degree” (“quarter-Jews”) even though the divorced Jewish parent, who had been raised as a Christian, promised to have the children brought up in a Christian institution.
⁵³
Similarly, the Prussian Supreme Court in Berlin refused the action of a Jewish father who had custody to recover the children from his noncustodial Aryan wife, using an alleged danger to the child as a pretext to withdraw his right of custody.
⁵⁴
A Jewish “mixed marriage” divorcée was refused access at her home to her child, who had been brought up in the father’s house on Christian principles.
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Even if the child was only a quarter Jewish, it should not be put into the hands of the Jewish parent, in order to save “German blood.”
⁵⁶
In another case a German mother who had “given herself to a Jew” was deprived of the custody and her right to represent the child.
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The right to care and custody of Jewish parents who had adopted an “Aryan child” was withdrawn illegally (although they still had to pay maintenance costs), because in this case the law was subordinate to the Party program. The commentary on the decision stated: “Now that the German ideology has been helped to victory, legal technicalities must not be allowed to stand in the way of the application of German principles…. Above all, the overriding principle of ‘the public weal before self-interest’ is also valid for German nationals of Jewish descent.” (The “self-interest” on the part of the Jewish parents was that “the father kept the child in full cognizance of the racial laws,” although according to the regulations in force, he could not have done otherwise.
⁵⁸

Thus, although everything was done to ensure that children with partly German blood should be removed from the Jewish parent and their upbringing put into the hands of the parent of German blood, the fact that a Jewish child was given a German upbringing was not sufficient to prove that the child was a member of the German nation. For example, the Prussian Supreme Court in Berlin found that “in the question of the endangerment of his [the child’s] mental well-being, it is of no legal consequence whether a Jewish child of German nationality receives a German upbringing abroad.”
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Conversely, the rights of care and custody, guardianship, and maintenance remained intact when the beneficiaries of these rights were of German and the ward or recipient of the upbringing was of Jewish ancestry. Thus a “German-blooded” father was not deprived of the right to represent his half-Jewish child before the law on the strength of the later’s racial characteristic alone.
⁶⁰

Similar principles were applied in the matter of maintenance. The Reich Supreme Court denied a claim for compensation by a non-Aryan family outside of Germany that maintained an illegitimate Aryan child against the wishes of the Aryan father, who was responsible for the child’s maintenance. The court stated that it was not “in the father’s interest” that the child should be taken care of abroad in a Jewish family.
⁶¹
A divorced Jewish mother was in principle granted a maintenance claim against the Aryan father, but “her racial identity” was taken into account in calculation of the payment, tantamount in real terms to a reduction of the claim.
⁶²

Actions concerning descent (secs. 256, 640, Code of Civil Procedure) to establish racial identity with respect to parent-child relations were permitted on the broadest possible scale in order to promote the race ideology. Thus, even after expiry of the one-year time limit (sec. 1594, Civil Code) for contesting the legitimacy of the child, the Reich Supreme Court allowed the possibility of determining the “blood-line” descent in the contrary sense.
⁶³
The apparently frequent actions for a declaratory judgment brought with the aim of certifying “uncertain” descent, which would allow actual determination of Jewish descent to be circumvented, were deemed inadmissible by the Reich Supreme Court, because the courts could “under no circumstances be misused in order to conceal even the slightest possibility of Jewish descent.”
⁶⁴
The procedure was particularly rigorous in the case of an action brought to prove the Aryan descent of a child who had been classified as a
Mischling.
An administrative directive issued by the Reich Ministry of Justice demanded more stringent requirements (blood tests, hereditary and racial appraisals, recourse to the opinion of the Gestapo) for such actions; on no account was the mother’s statement sufficient. Only when all the evidence was positive could a claim be allowed.
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