How Constitutional Restraints and Judicial Intervention Shape Policy Shifts – Shedding Light on Recent Legal Reforms in Germany Using the Multiple Streams Framework

Although the Multiple Streams Framework has increasingly been applied during the last years, there are still some ‘blind spots’. In our paper we will focus on institutional factors in terms of constitutional restraints and the role of courts. We do so by analyzing two recent societal reforms in Germany – the „No means No!“ and „Marriage for All“ acts in 2016 and 2017 – applying the MSF. These reforms each mark the end of a long and controversial discussion including previous failed attempts of policy change. In both cases, judicial decisions played a significant role in preparing the ground for the future shape of law: While the reform of sexual crime law was highly impacted by a judgement of the European Court of Human Rights and the practical application of the law by the Bundesgerichtshof (Federal Court of Justice), the probability of the introduction of same-sex marriages increased due to a modified interpretation of the constitution by the Bundesverfassungsgericht (Federal Constitutional Court). Using the method of process tracing we reconstruct the stages of the policy cycle analyzing multiple parliamentary documents as well as the media reporting. Our paper seeks to contribute to the literature in two ways: Empirically, we examine two important recent reforms in Germany. We do this in the field of legal reforms which is still an under-researched policy regarding the MSF. Theoretically, we test the Framework in a comparative way with a special focus on the institutional role of courts in the policy process.