Supreme Court Decision on the Nuremberg Race Laws
December 9, 1936
For the Nazis, the principle of the inequality of the races -- and its legislative enactment in the form of the Nuremberg Race Laws and the decrees based upon them -- applied to all areas of civil and criminal law. At the same time, they left it to the courts to provide practical guidelines for their implementation. It thus became the province of the Supreme Court to render final judgment on the interpretation of the law, since, as the highest appellate court in Germany, its decisions superseded those made by the lower courts. Indeed, the court eased the difficulties inherent in implementing anti-Jewish policies across a broad spectrum of cases from divorce to criminal race defilement. The court's acceptance and application of the race laws served an important propaganda purpose as well by explicitly conferring legitimacy on racial discrimination and persecution.
In November 1936, Erwin Bumke, president of the Supreme Court, indicated at a meeting of justice officials called to discuss the Nuremberg Race Laws that the court could accept the broadest interpretation of those laws put forth by Ministry of Justice State Secretary Dr. Roland Freisler. As Freisler put the matter, “The law…is a regulation that establishes the very foundation of the German people, which we do not seek to narrow but to broaden for the protection of our race.”
On December 9, 1936, the Supreme Court was given the opportunity to interpret the Nuremberg Race Laws when the Reich prosecutor requested that the court clarify precisely what was meant by “sexual relations” as it appeared in the law. While the court had previously interpreted the term to mean sexual intercourse or related acts, its landmark ruling broadened the meaning of “sexual intercourse” to include any natural or unnatural sexual act between members of the opposite sex in which sexual urges are in any way gratified. The court justified its ruling on the grounds that there would otherwise be almost insurmountable barriers to prosecution since sexual intercourse as such tended to take place among consenting adults and in private. Further, the court stated that since the law was intended to protect not only German blood but also German honor, an expansion of the definition of “sexual relations” was required. As a result, the court found that any act that satisfied a sexual urge violated the law; that the crime was established even if the sexual act occurred outside Germany; that intent was irrelevant in determining penalties; that a verbal proposition for sex violated the law; and, finally, that the crime did not require bodily contact.
In this ruling and in many that followed, the Supreme Court infused its decisions with Nazi ideology and expanded already outrageous laws that extended rather than limited the reach of Nazi authority. In so doing, the court bolstered the legal framework upon which the Nazi persecution of Jews was based and played a pivotal role in allowing the Holocaust to happen.