C. COMPLETE TEXT OF THE JUDGEMENT OF THE CONSTITUTIONAL LAW ON MARRIAGE BETWEEN THE PEOPLE OF THE SAME SEX YOU WANT IT President AMIRANTE - Editor Criscuolo
public hearing Decision 23/03/2010 14/04/2010 15/04/2010
Deposit of Publication in OJ
contested provisions: Articles 93
, 96, 98, 107, 108, 143, 143 bis and 156 bis of the Civil Code.
decided Instruments: ord. 177 and
Judgement No. 248/2009 138
YEAR 2010
ITALIAN REPUBLIC
ITALIAN PEOPLE IN THE NAME OF THE CONSTITUTIONAL COURT
composed of: Chairman: Francesco Amirante; Judges: Ugo De Siervo, Paolo MADDALENA, Alfio Finocchiaro, Alfonso Quaranta, Franco GALLO, Luigi Mazzella, Gaetano SILVESTRI, Sabino Cassese, Maria Rita Saul, Giuseppe Tesauro, Paolo Maria NAPOLITANO, Joseph fridge, Alessandro Criscuolo, Paul Grossi,
gives the following Judgement
in the judgments of constitutional legitimacy of Art. 93, 96, 98, 107, 108, 143, 143-bis and 156 bis of the Civil Code, sponsored by the Court of Venice by order of April 3, 2009 and the Court of Appeal of Trent, by order of July 29, 2009, listed in nos. Register of Orders 177 and 248 of 2009 and published in the Official Gazette nos. 26 and 41, before special series 2009.
Visas acts of creation of the GM and others, as well as EO and other acts of intervention by the President of the Council of Ministers of the Radical certain rights, and CM and others (outside term)
heard in ' public hearing of March 23, 2010 the Judge Rapporteur Alessandro Criscuolo;
heard lawyers for the Association Alessandro Giadrossi radical Certain Rights and other MG and Ileana Alesso Clara and Massimo for the radical Association of certain rights, and for GM and other for CM and others, Vittorio Angiolini, Vincenzo Zeno-Zencovich Marilisa D'Amico and the radical Association of certain rights, and more for GM and other EO and Gabriella Palmieri State Advocate for the President of the Council of Ministers.
The facts
1 .- The Court of Venice in a panel, with the order mentioned in the inscription, raised, with reference to Articles 2, 3, 29 and 117, first paragraph of the Constitution, the question of Constitutional Articles 93, 96, 98, 107, 108, 143, 143-bis, 156-bis of the Civil Code, "in so far as consistently interpreted, not permit the people of homosexual orientation may marry persons of the same sex. "
The court pressed to be called to pronounce in a case brought by Mr GM and SG, both males, in contrast, pursuant to art. 98 of the Code, against the act of July 3, 2008, by which the registrar of the Venice City Council has refused to proceed with the publication of marriage by the same request.
The official, in fact, considered unlawful the publication, because it is inconsistent with existing legislation, constitutional or ordinary, as the institution of marriage in the Italian legal "is clearly focused on diversity sex of the spouses, "as it should be inferred by the provisions governing the institution itself, namely that such diversity" is a prerequisite, a fundamental requirement, so that the opposite hypothesis concerning same-sex, legally non-existent and certainly alien to the definition of marriage, at least according to all the regulations still in force, whether the second line of decisions. The act which the opposition also cites an opinion of the Ministry of the Interior, dated July 28, 2004, which states that "about the possibility to write a marriage contracted abroad same-sex, it is stated that this act is not in Italy and record in our system because there is no marriage between persons of the same sex as contrary to public policy ', this idea is reiterated in Circular of the Ministry on 18 October 2007.
The Venetian Court recalls the arguments of the appellants, who noted that in our legal system does not exist a concept of marriage, nor an express prohibition of marriage between persons of the same sex. In addition, the aforementioned acts of the Ministry of the Interior would relate to public policy and not to the international and domestic public, however, would be contrary to the Constitution and the Nice Charter, so that should be precluded. In any case, the literal interpretation of the rules of the Civil Code as a basis for the refusal of the publications, it would conflict with the Italian Constitution and in particular with Articles. 2, 3, 10, second paragraph, 13 and 29 of this. The referring
goes on to observe that, on the basis of these arguments, the moments have asked the Court, primarily, to order the registrar of the City of Venice to proceed with the publication of marriage in the alternative, to raise question of the constitutionality of Articles. 107, 108, 143, 143-bis and 156-bis. Civ., in reference to Arts. 2, 3, 10, second paragraph, 13 and 29 of the Constitution
the above, the Court of Venice states that, under current legislation, same-sex marriage is neither intended nor expressly prohibited. It is certain, however, that the legislature of 1942, both the reform of 1975 did not put the issue of gay marriage, then still not addressed, at least in Italy.
Moreover, "although there was no provision expressly defining the institution of marriage, as provided in the current Italian law, unquestionably refers only to marriage between persons of different sexes. While the Civil Code does not expressly identify the difference sex between the requirements for marriage, several of its rules, including those mentioned in the application and suspected of unconstitutionality, they relate as husband and wife as "actors" of the celebration (Articles 107 and 108), protagonists of the marital relationship (Articles 143 et seq.) and generation of authors (articles 231 et seq.). "
In the opinion of the Court, because of the clear wording of the rules set out not possible, the status of existing provisions, make an extension of the institution of marriage to people of the same sex. This would be a stretch is not allowed on the courts (other than the Constitution), "compared with a consolidated and ultramillenarian notion of marriage as the union of a man and a woman. "
On the other hand, continues the court, "one can not ignore the rapid changes in society and customs in recent decades, during which there has to overcome the monopoly held by the model of normal family, and traditional contextual arise spontaneously in different shapes, albeit minority, living together, seeking protection, are inspired by the traditional model and, like, are intended to be considered and regulated. New needs, also linked to the evolution of culture and civilization, they ask protection, requiring a careful meditation on the continued compatibility of the interpretation traditional constitutional principles. "
According to the court of Venice, the first parameter is what art. 2 of the Constitution, to the extent that it recognizes the inviolable rights of man, not only in his individual sphere, but also and perhaps especially, in the social sphere, namely 'social groups in which he expresses his personality, "of which the family must be considered the first and fundamental expression.
fact, the family is the primary social formation in which he expressed the personality of the individual and are therefore protected by the inviolable rights, giving it a status (that of married person), which rises to sign characteristic within the company and which designates a set of rights and duties of all unique and not replaceable by the exercise of autonomy negotiations.
The right to marry constitutes a fundamental human right, recognized at the supranational level (Articles 12 and 16 of the Universal Declaration of Human Rights of 1948, Art. 8 and 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by the law of 4 August 1955, n. 848 - Ratification and implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and the Additional Protocol to the Convention, signed at Paris March 20, 1952 - Articles. 7:09 of the Charter of Fundamental Rights proclaimed in Nice on 7 December 2000), as well as at national level (art. 2 of the Constitution). The freedom to marry or not marry, and to choose their own spouse, concerns the sphere of autonomy and individuality, so that it results in a range over which the State can not interfere, unless there are overriding interests are incompatible, in this case not discernible.
The single most important law in relation to which a conflict could be considered would be that, due to their children to grow up in a suitable family environment, law corresponding also to a social interest. That interest, however, could only affect the rights of same-sex married couples have adopted children. It would, however, a distinct right than to marry, so that some jurisdictions, while introducing gay marriage, have no right of adoption. In any case, the regulation of this institution in the Italian, with an emphasis on the need to assess the child's interest in adopting, call the court every decision.
The court, then, examines the art. 3 of the Constitution, noting that since the right to marry is an essential expression of human dignity, it must be guaranteed to all without discrimination based on sex or personal circumstances, such as sexual orientation, with a requirement for the state to intervene in the event of impediments to its exercise.
Therefore, if the objective pursued by Article. 3 of the Constitution is to prohibit unreasonable difference in treatment, the implicit rule that excludes homosexuals from the right to marry persons of the same sex, thus following their sexual orientation (not pathological or illegal), has no rational justification, especially when placed in comparison with the similar situation of transsexuals that obtained by the correction of the attribution of sex under the law of April 14, 1982, No 164 (Rules of rectification of attribution of sex) may marry persons of their sex of birth (the Court notes that the Constitution in accordance with those laws has been recognized by the Constitutional Court ruling No. 165 of 1985).
According to the court, the allegations contained in that decision might well be regarded as applying equally to homosexuals. However, Law No 164 of 1982 would "radically changed the characteristics of the institution of civil marriage, allowing the celebration of subjects of the same biological sex and unable to procreate, thus enhancing the person's psycho-sexual orientation. " In this context, there is no justification for discrimination between homosexuals who do not want to make any adjustment to surgery, to which marriage is precluded, and transsexuals who are allowed to marry while belonging to the same biological sex and being unable to procreate.
The opinions contrary to the recognition of the freedom of same-sex marriage on the basis of ethical reasons, tied to tradition and nature, could not be shared, both for the radical changes that took place in the family customs, and because it would be dangerous argument in the past used to defend serious unlawful discrimination then recognized as the inequalities between the spouses in the marriage law reform or the Italian front in discrimination against women.
Moreover, "for gay rights, as well as those of transsexuals, there are very strong pressures coming from the European supranational context and to overcome the discrimination of all kinds, including one that prevents formalize effective unions."
The Court of Venice, with regard to Article. 29, first paragraph of the Constitution states that the meaning of the rule is not to recognize the foundation of the family in a sort of "natural right", but to affirm the pre-existence autonomy of the family of the State, thus imposing limits to the power of the state legislature, as the documents relating to the debate within the Constituent Assembly, in memory of abuse previously made to defend a certain type of family.
However, that protection is beyond the scope of traditional art. 29 of the Constitution and that family and marriage are institutions open to change, is demonstrated by the evolution that has affected the discipline since 1948. The referring court shall conduct a survey of legislation, recalls the actions of this court to protect the moral and legal equality of spouses, as well as the reform undertaken by the Law May 19, 1975, No 151 (Reform of family law), and notes that the constitutional meaning of family, far from being anchored to a typical conformation, and unalterable, it is otherwise proved receptive to social changes, their implications on the legal family.
would have no basis, therefore, the arguments justifying the implicit prohibition of marriage between same-sex resorting to topics related to the procreative capacity of the couple and the protection of procreation. In this regard, it would be sufficient to point out that the Constitution and civil law do not provide the ability to have children as a condition for entering marriage, the absence of this capacity as a condition or disability due to dissolution of marriage, so that this institution and the subsidiary would be clearly distinct.
Once excluded that the differential treatment of homosexual couples than heterosexual may be a basis in the wording of Article. 29 of the Constitution, this rule, when constitutional protection attaches to the legitimate family, does not preclude legal recognition of same-sex marriage, but rather should rise further yardstick against which to assess the constitutionality of the ban.
Finally, referring calls art. 117, first paragraph of the Constitution, which requires the legislature to respect the constraints arising from Community law and international obligations. Recall in this regard, what rules interposed, Articles. 8, 12 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, with reference to art. 8, the European Court of Human Rights has upheld a concept of "private life" and the protection of personal identity is not limited to the individual sphere but extended to social life, coming to set a positive duty of States' intervention to remedy gaps likely to prevent the full realization. It cited the ruling Goodwin v. United Kingdom on July 17, 2002, by which the Strasbourg Court has declared its opposition to the Convention on the prohibition of marriage of transsexual sex with a person of his own original.
The Venice Court emphasizes the fact that the Nice Charter sets out the rights to respect for private and family life (art. 7), to marry and found a family (Article 9), not to be discriminated (Article 21), placing them among the fundamental rights of the European Union. Should not be neglected, then, the acts of European institutions, who have long called on States to remove obstacles to the marriage of homosexual couples, or the recognition equivalent legal arrangements, which are acts, whatever their legal status, a position in favor of recognizing the right to marry, or at least to the unification of legislation in the context of the Member States, the aforementioned rules for the legitimate family, to extend to homosexual unions (such acts are mentioned in the order).
Finally, the referring court notes that, under the laws of many countries with similar legal culture to the Italian one, is emerging notion of family relationships to include same-sex couples. In fact, in some countries (Netherlands, Belgium, Spain) a ban on same-sex marriage has been removed, while Other countries provide schools with discipline reserved to homosexual unions analogous to that of marriage, sometimes to the exclusion of provisions relating to parental responsibility for children and adoption. Among the countries that have not yet introduced the marriage or some form of protection paramatrimoniale, many offer some form of public registration of de facto families, including same sex.
Based on the above considerations, the Court reaches the conviction on the Venetian is not manifestly unfounded, the question of constitutionality raised, which also considers relevant for the application of the contested provisions do not be overcome in the path logical and legal to do to reach the decision of the case.
2. - Mr. and Mrs. GM and SG, have formed the opinion of constitutionality, with wide lodged July 20, 2009.
Having set out the facts from which the story begins and he reported the contents of the order of referral, private parties, emphasized the importance of the question, note that the referring court has recognized an indisputable fact, that in the current there is no prohibition in law that prevents two people of the same sex to marry. The necessary heterosexuality of the same come from a tradition of interpretation, founded in a social context quite different from and handed down tralaticio so, even for the reflections of the canonical discipline of the institution on the statutory system.
The historical dimension of the phenomenon, however, could not be an obstacle to a review of the case, as have other foreign constitutional courts. Neither one could argue that heterosexuality is an unfailing character of the marriage institution in interpreting art. 29 of the Constitution starting with the letter of the Civil Code in force, because that article does not constitutionalises characters institution of marriage under the common law or arising from the constant reinterpretation. The civil code would not object and parameter of the proceedings and in any case, "Could not become the figure to read as constitutional. It would be begging the question to say that the code does not violate the right to marry art. 29, since that provision in the light of the code provides only the union between persons of different sexes. With reference to a priori assumption, in fact, implement a subversion of the hierarchy of sources. "
Therefore, in light of the personalistic principle that pervades the entire Constitution, should determine the meaning of the words "marriage" and "family" used in that art. 29. This tends to favor the family founded on marriage. According to the exponents, it follows that, in our society even if two people of the same sex can form a family, to exclude them from marriage not only creates discrimination devoid of any rationality, but causes thousands of people see the state denied those protections that would otherwise would be granted to them by the constitutional provision.
The case is not comparable to heterosexual de facto couples, who find coverage elsewhere Constitution (Article 2 of the Constitution), because in the marital relationship there is a clear choice by the parties not to make the draft law of life that binds the partners , while for the pairs formed by same-sex this freedom does not exist to the extent where they can not choose to marry or not.
Recall the notion of family as a "natural society", contained in the referral order, the leaders observed that the interest protected by art. 29 of the Constitution is, first, the individual's right to self-determination, free from unwarranted interference by the state, whenever a person decides to make herself into a family relationship. For gay people this right results, at present, completely repressed.
would not be possible to argue that the constituents have elected to heterosexuality unfailing characteristic of the family, whose rights are recognized and guaranteed by art. 29 of the Constitution, so as to exclude from the scope of this rule pairs formed by persons of the same sex. For the private party would be certain that the phenomenon there was also the time of the Constituent Assembly, but, as a socially relevant, it could then be taken into consideration. This would mean that you have not opted for the family at the expense of heterosexual homosexual, reserving this lower social status and legal.
This situation, however, could not prevent a re-reading system, in view of the changed social and legal conditions, given the importance in this respect, the law under Article. 117, first paragraph of the Constitution, especially the overarching principles of order, such as equality (and therefore non-discrimination) and the protection of fundamental rights.
The private parties further noted that the living law connotes a characteristic of the institution of marriage (a heterosexual), that Article. 29 of the Constitution does not suggest at all, thus preventing gay people's full enjoyment of their citizenship and the right to make themselves emotionally and socially in the context of the legitimate family.
Neither would be possible that "natural society" is understood as a place of procreation, as civil marriage does not would be more institutionally oriented to that purpose. Since 1975, the impotence is not due to invalidity of marriage, except when it is a matter of error that has incurred the other spouse (art. 122 no. Civ.). Moreover, they can also marry people who, having undergone gender reassignment, are unsuitable for generation and those who, because of age, most do not have that attitude.
Ultimately, procreation is only one element in any relationship and it demonstrates how far the concept of family to be accepted in art. 29 of the Constitution than the Judaeo-Christian tradition. Marriage is, without doubt, the union of two lives, whose aims coincide with the fundamental rights and duties which the spouses take the time to celebrate on the basis of art. 143 cod. Civ., for which the prospect is foreign, only if, the procreation, otherwise you should not consider the celebration of a marriage as often as it is impossible for the engaged naturalistically procreate. The exponents
pass, then, to treat the right to marriage as a fundamental human right, by invoking (among others) the jurisprudence of this Court, which declined the law itself or in terms of freedom to contract marriage with the person selected (Case No 445 of 2002), both the freedom not to marry and join in some other way (Case No. 166 of 1998), and noting that gay citizens can not enjoy these freedoms.
Having outlined the aspects and purposes of that law, and prospects related to the exercise even under the protection of minorities discriminated against, they put emphasis on the need for the aforementioned fundamental right is guaranteed to all without distinction even if a citizen is in that particular personal situation that is homosexuality. This is not in the abstract, according to the thesis of those who believe it would be left to the ordinary legislator the choice of admission or the marriage of couples formed by persons of the same sex. If there is a fundamental responsibility of the Constitutional Court, the trial court or by interpretation, to remove obstacles that prevent the enjoyment of everyone, especially if you consider that you are not talking about a legal prohibition but a mere practice interpretation.
In this case, "fully realized as a person means being able to live up at the bottom of their sexual orientation, choosing a partner for life, in a qualified legal relationship which is marriage, a person of their sex."
Therefore the interpretation that excludes pairs formed by same-sex marriage, according to the exponents, is an unreasonable limit the exercise of personal freedom, disregarding a person's ability to choose what is best for themselves in a relational dimension.
The private parties rely further on the argument that Article. 29 of the Constitution precludes the legal recognition of homosexual couples, even if only through an alternative institution to marriage, and claim is unfounded, noting that the said article can not be construed to violate a fundamental principle of the constitutional order, ie the principle of equality. After argued at length on this point, even with regard to economic aspects of the extension of marriage to homosexual couples, the complainants argue that in our society, no longer characterized by a homogeneity at the cultural level, the principle of equality must take a new dimension, time to promote pluralism and social inclusion. With this view runs counter to use the law to the effect of excluding a person from the enjoyment of any right or fundamental freedom by virtue of his personal condition. And this without considering the simultaneous violation of Article. 2 of the Constitution, because by doing so hindered the exercise of the right to full self-realization.
addition, private parties emphasize the Community and international law already mentioned in the referral.
They then criticize the argument that a judge, even if the Constitutional Court can not go so far as to grant the request of the applicants seeking the publication of banns on the assumption of their right to marry.
reiterated that it was in the presence of a practice of interpretation, derived by the context of ordinary legislation, dating back to well before the entry into force of the Constitution, and that this practice contrasts (as mentioned earlier) with high-level principles and rules constitutional status, the complainants contend that, in this case, it is not to create a new institution, or to affirm the existence of a new right (operations precluded the judiciary), because the right to marry and there is already clear connotations, but, despite being a fundamental right, it is granted only to the enjoyment of heterosexual people.
Finally, I recall some arguments of foreign courts that have addressed the constitutional holding in their respective systems, the prohibition of marriage between persons of the same sex.
In closing, he asks this Court to acquire adequate information on the number of base pairs formed by people of the same sex, who live on Italian territory, and the impact of the current practice of interpretation, which excludes same-sex marriage, on their psychosocial well-being.
3. - The President of the Council of Ministers, represented and defended by the state, said intervention in the present case of the constitutionality of a document lodged 21 July 2009, asking that the question be declared inadmissible, however, manifestly unfounded.
The defense of the State proceeds on the ground that the law concerning the institution of marriage, is that given by the civil law, whether that is constitutional, refers of course unions between persons of different sexes.
The requirement for diversity of sex, which is derived directly from Article. 107 cod. Civ. as well as several other provisions of the Code, is traditionally and consistently ranked by doctrine and jurisprudence of the preconditions for the existence of the marriage. In fact, according to Attorney General, the institution of marriage in our system is set up as a journalistic institution to govern certain effects, that the legislature protection as a direct result of a relationship of coexistence between people of different sex (subsidiary rights successors, the law concerning adoption).
The reference to Article. 2 of the Constitution, made by the court, would not be decisive or transferring. This
willing to constant interpretation of this court, "must be reconnected to the constitutional rules relating to individual rights and fundamental guarantees, as least in the sense that no other inviolable fundamental rights that are not necessarily those resulting from constitutionally envisaged '(Case No. . 98, 1979), among which included the claim would not be driven by the plaintiffs in the trial court.
Placing art. 2 of the Constitution among the "fundamental principles" and instead placing art. 29 in Title II of the "social ethic," constitute not only the textual argument, but also the most significant argument to exclude the validity of the assumption contained in the referral, there are of course forbidden in our legal coexistence between people of the same sex. In fact, the doctrine most recently tends to bring the protection of same-sex couples under the protection of unmarried couples.
there is no violation of the principle of equality, in art. 3 of the Constitution, because that requires equal treatment for similar situations and differential treatment to differing factual situations.
The defense notes that the doctrine of the State, in commenting on the aforementioned art. 3, considered the prohibition of discrimination based on sex "somewhat less rigid than others," both in terms of correlation of some distinction to the objective differences between the sexes, both in terms of regulation, to the extent that in the Constitution shall they come across rules justifying to some extent, distinctions based on sex, 'in particular, Articles 29, 37 and 51. "
The doctrine would also consider referring to the principle of reasonableness, expressed in that article. 3 of the Constitution, not applicable in this case, because a different regulatory treatment could be considered "reasonable" because it aimed to meet others and prevailing constitutional values.
Nor would it be pertinent to refer to case law regarding unlawful discrimination faced by trans people before, because the problem of "identity of biological sex" in that hypothesis would assume a different significance. How
art. 29 of the Constitution, that provision, stating that "The Republic recognizes the rights of the family as a natural society founded on marriage," outlines a "two-way relationship" between the concepts mentioned in it and also "bind the legislature to hold separate discipline institution of the family from those that may be devoted to any other type of social formation, albeit having similar characteristics. "
According to Advocacy, the discussions developed in the Constituent Assembly when drafting Article. 29, it would be two further reconstructions of the meaning of that provision.
pregiuridico The first emphasizes the institution of the family, identifying a single model unique and stable, and the second gives art. 29 content changing with the changing social mores. Part of the doctrine, however, has overcome this dichotomy, arguing that the rule refers to a family model that, as susceptible to developments and changes, however, is characterized by a "hard core" that is "the indispensable minimum and its content in the element of difference in sex between husband and wife" and thus maintains the original meaning set out in the Charter, without changing it in a different way, distant from the initial formulation.
Finally, there is apparent conflict with Art. 117, first paragraph of the Constitution, in relation to the constraints deriving from EU and international obligations.
The defense of the state, first, that Community law has not legislated on marriage, but it is limited in several resolutions to indicate the criteria and principles, leaving it to individual member states to adapt national laws.
The freedom for the European regulators gave rise, therefore, to multiple forms of protection for gay couples.
There would be contrary to Articles. 7, 9 and 21 of the Charter of Nice, an integral part of the Lisbon Treaty, as its art. 9, which recognizes the right to marry and to found a family, referring to national law to determine the conditions for the exercise of that right.
As for international obligations and, in particular, to respect the ECHR, the law cited the Italian Civil Code does not seem to conflict with the Articles. 8 (right to respect for family life), 12 (right to marry) and 14 (prohibition of discrimination) of the ECHR, since their art. 12 not only reaffirms that the institution of marriage involves persons of different sex, but refers to national law to determine the conditions for the exercise of its right.
Ultimately, beyond the heterogeneity of recognition patterns adopted by European states, the element that unites them is the "centrality of the legislature" in the process of inclusion of gay couples under the effects of legal disciplines protection.
Moreover, intervention by the Constitutional Court of manipulative type would not be possible by executing a lexical the mere substitution of the words "husband" and "wife" with the word "spouses" because in reality it would make a new design of the regulatory fabric codicistico, in the light of a constitutional provision that just refers to it, and this task would necessarily be reserved to the legislature.
4. - The Court of Appeal of Trento, with the other order mentioned in the inscription, raised, with reference to Arts. 2, 3:29 Constitution, the question of constitutionality of Articles. 93, 96, 98, 107, 108, 143, 143-bis, 156-bis. Civ., in so far, a total assessed, do not allow individuals to marry persons of the same sex.
The Territorial Court was requested to be pressed in the complaint, pursuant to art. 739 of the Code of Civil Procedure, proposed by two pairs (each consisting of same-sex) against a decree of the Court of Trent, which had rejected the opposition made by the claimants against a decision of the Registrar of the City of Trento. By that measure, the official said had refused to proceed with the marriage banns required by the opponents, not eligible in the Italian legal marriage between persons of the same sex, and rejection was considered legitimate by the Court.
The referring court, after considered unfounded the claim is seeking the order the registrar to proceed to publication, examines the question of constitutionality, in the alternative proposed by the claimants.
After recalling the order of the Court of Venice, the referring court notes that, over time which have been enacted rules governing marriage, "there has been an inexorable transformation of society and morals, which led to overcoming the monopoly held by traditional family model and the simultaneous emergence of spontaneous seeking various forms of cohabitation (sometimes loudly) to be protected and regulated. "
In this context, in the opinion of the Court thirty is necessary to ask whether the institution of marriage, in the discipline, whether or not in conflict with the constitutional principles.
The question arises, in particular, respect the principle of equality under Article. Basically 3 of the Constitution, and the right to marry is "an essential expression of human dignity (Article constitutionally guaranteed. 2 of the Constitution and, at the supranational level, Articles. 12 and 16 of the Universal Declaration on Human Rights 'Man of 1948, Articles. 8:12 ECHR and Articles. 7 and 9 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000), one wonders whether it is legitimate to prevent homosexual or whether, instead, it should be guaranteed to all without discrimination based on sex or personal circumstances (such as sexual orientation), with a requirement of the State to intervene in the event of impediments to the exercise of it. "
would not be denied that the issue is relevant to the decision, because the declaration of unconstitutionality of the rules governing marriage, in so far do not allow gay marriage, exert a decisive influence on the outcome of the trial court.
Also, it could be argued the issue is clearly unfounded, because "as noted above can not be overcome by an interpretation that marriage can and should be allowed only to heterosexual couples because of his social function, according to some principle derived from Article. 29 of the Constitution (under which recognizes the rights of the family as a natural society founded on marriage). This principle would, in fact, we only recognize its natural role in the family, in the sense that on one hand the state can not ignore this social reality to which nature tends to the vast majority of individuals and, second, says the family based on marriage, but it certainly does not come to exclude protection of the family in fact (which is not affected by marriage) or to affirm the role of the family as the granary of the State. "
According to the court, "the legislative and judicial developments, very well remembered by the Court of Venice in the order mentioned above, returns now a concept of the family not to include that, under Article. 29 of the Constitution to give importance only to the legitimate family functionally aimed at the spouses of procreative capacity so that, if anything, is also in relation to that provision of the constitutional question must be judged worthy of attention by the court of law. "
5. - President Council of Ministers, represented and defended by the state, has intervened in proceedings concerning the constitutional document filed Nov. 3, 2009, asking that the question be declared inadmissible, however, unfounded. The State's defense held the similar arguments as those given in proceedings instituted by the order of the Court of Venice.
6. - There were also formed, by application filed November 2, 2009, the private parties in the proceedings instituted by the order of the Court of Appeal of Trento, gentlemen and ladies ZE LL and OE and OM, declaring the admission and that the question raised and obtain its acceptance.
7. - In the latter court said action, by an application filed November 3, 2009, the Association of Radical certain rights, in the person of the secretary and legal representative pro tempore, who, referring to the same statutory objectives of the Association, said were entitled to intervene as eligible and based the questions of constitutionality raised by the Appeal Court of Trento, reserving any further appropriate illustration of their argument and the filing of any documentation.
8 .- By application filed February 25, 2010 in the proceedings concerning the constitutionality promoted by the order of the Court of Appeal of Trento, explained Messrs. CM intervention and GV, PGB and CGR, and RZ RFRPC
The interveners, all male, I state that, with three acts on the same date November 5, 2009, communicated by letters sent on 11 November 2009, the Journal marital status of the City of Milan has announced the refusal to proceed with the marriage banns to their demands.
They point out that self-interest and directed to take action arose subsequent to the expiration date in the ordinary terms of constitutional review, which is why the act of intervention is filed within twenty days before the date fixed for hearing discussion. Given that this is temporal circumstance beyond the control of the applicants and confirmed by documents drawn up by the government, called as necessary by analogy with art. 153, second paragraph, no. proc. Civ. They say that the intervention should be considered timely and ask, however, are put back in terms.
Moreover, they argue that the intervention should be considered acceptable in the light of the innovations introduced by the Constitutional Court, which has expressed in recent years in favor of a gradual approach to eligibility, case by case, "especially where individual players or groups boasted a direct bearing on the question of legitimacy in a constitutional process that relates to public interest: that the decision on the constitutionality of the law. "
In this context, interest in direct, specific and concrete of the intervening decision of this Court can not be questioned, because the declaration of validity of the question would get the marriage banns already required by the officer and refused to marital status on the grounds for ineligibility, in the current law, marriages between persons of the same sex.
In substance, the interveners play considerations similar to those previously mentioned in support of the merits of question.
9. - Close to a hearing to discuss the private parties in the two reviews of the constitutionality of the Presidency of the Council of Ministers radical Some Rights Association have submitted statements in support of their demands.
legal considerations
1. - The Court of Venice, with the order mentioned in the headnote, raised, with reference to Articles 2, 3, 29 and 117, first paragraph of the Constitution, the question of the constitutionality of Articles 93, 96, 98, 107, 108 , 143, 143-bis, 156-bis of the Civil Code, "in so far as consistently interpreted, do not allow that people of homosexual orientation can marry persons of the same sex. "
The court pressed to be called to pronounce in a case brought by two men, in contrast, pursuant to art. 98 of the Code, against the act by which the registrar of the Venice City Council has refused to proceed with the publication of marriage by the same request, deeming it contrary to existing legislation, constitutional or ordinary, as the institute of marriage, under Italian law, would be focused on the difference in sex between spouses.
The Venetian Court refers the arguments by the applicants, who noted that, in the current law, there is no concept of marriage, or his express prohibition of same-sex. They refer to the Constitution and the Charter of Nice, noting that a literal interpretation of the rules of the Civil Code as a basis for the refusal of the publications, it would be unconstitutional and in particular with Articles. 2, 3, 10, second paragraph, and 29 of the Constitution
the above, the referring court notes that, under Italian law, same-sex marriage is not expressly provided for nor forbidden. Moreover, even in the absence of a rule of definition, "the institution of marriage, as provided in the current Italian law, unquestionably refers only to marriage between persons of different sex. " In the opinion of the Court, the clear wording of the provisions of the Code, regulations of the institute in question, it would also extend to same-sex. This would be a stretch is not allowed on the courts (other than the Constitution), "in front of a thousand year and established the concept of marriage as a union of a man and a woman."
On the other hand, the Court can not ignore the rapid changes in society and morals, the excess of the monopoly held by traditional family model, birth spontaneous forms (albeit minority) living together, seeking protection, are inspired by the traditional model and, like, are intended to be considered and regulated. New needs, also linked to the evolution of culture and civilization, they ask protection, requiring a careful meditation on the continued compatibility with the traditional interpretation of constitutional principles.
circumstances, the Court of Venice, building on the ground that the right to marry is a fundamental human right, recognized in national and supranational (Article 2 of the Constitution), illustrates the complaints concerning the various parameters Constitutional evoked, reaching the conviction on the issue is not manifestly unfounded promoted, which also considers relevant for the application of the contested provisions do not be overcome in the path logical and legal to be done in order to reach the decision of the case.
2. - The Court of Appeal of Trento, with the other order mentioned in the inscription, raised, with reference to Arts. 2, 3:29 Constitution, the question of constitutionality of Articles. 93, 96, 98, 107, 108, 143, 143-bis, 156-bis. Civ., in so far, a total assessed, do not allow individuals to marry persons of the same sex.
The Territorial Court was requested to be pressed in the complaint, under Article 739 of the Code of Civil Procedure, proposed by two pairs (each consisting of same-sex) against the decree of the Court of Trent, which had rejected the opposition made by the claimants against a decision of the officer marital status of the Municipality of Trent. By that measure, the official said had refused to proceed with the marriage banns required by the opponents, not eligible in the Italian legal marriage between persons of the same sex, and rejection was considered legitimate by the Court.
The referring court, having found no basis for the claim is seeking the order to the officer proceed with the Registrar of publications, go examine the question of constitutionality, in the alternative proposed by the claimants, conducting in relation to the complaints could be envisaged, similar considerations to those given by the Court of Venice.
3. - The two judgments of constitutionality, the subject of the same matter, are to be met to be decided with a single sentence.
4. - At the outset, it must be confirmed by the ordinance adopted at the public hearing and is annexed hereto, with which they have been declared ineligible for assistance radical Some Rights Association and Messrs CM and GV, and PGB C . GR, and RZ RFRPC This consolidated under guidance of constitutional law, mentioned in the order, that are not eligible for assistance in proceedings concerning the constitutionality indirectly, to persons who are not parties to the trial court, nor are holding a qualified interest, inherent in a direct and immediate relationship of substance raised in the cause and not just regulated, just like any other, from the norms and standards to criticism, was also on the ground that the eligibility of the intervention by a third party holds an interest similar to that put forward only in the main proceedings, contrary to the incidental nature of that court's legitimacy.
5. - The question raised by both referral orders, with reference to Article. 2 of the Constitution, must be declared inadmissible because it seeks to obtain a preliminary additive not constitutionally required (ex plurimis: orders No. 243, 2009, No. 316, 2008, No. 185 of 2007, No. 463 of 2002).
6. - Those ordinances both move from the assumption that the institution of civil marriage as provided for in the current Italian law, refers only stable union between a man and a woman. This figure shows not only the contested provisions, but also by the discipline of legitimate filiation (art. 231 et seq. cod. Civ. and, in particular with regard to the action of disavowal, Art. 235, 244 et seq. the same code), and other laws, including, for example, you may refer to the art. 5, first and second paragraphs of the Law of 1 December 1970 No 898 (Discipline of the cases of dissolution of marriage), and the law on civil status law.
In essence, the entire discipline of the institute, which is contained in the Civil Code and special legislation, requires the same sex spouses as part of "a thousand year and established the concept of marriage," as noted by the order of the Court Venetian.
same sense is the doctrine, most inclined to the view that the identity of sex is because of absence of marriage, even if a party comes to disability. The rare case of legitimacy, which (although as obiter dicta) has addressed the question, considered the difference in sex between spouses of the minimum requirements necessary to establish the existence of the marriage (Supreme Court, Case No. 7877 of 2000, No. 1304 of 1990 and No. 1808 of 1976).
7. - Without prejudice to the foregoing, it must then determine whether the constitutional principle evoked by the referring courts require to reach a declaration of illegality of the contested legislation (with possible application of Article. 27, the last part of the law March 11, 1953, No 87 - Guidelines on the establishment and functioning of the Constitutional Court), extending to homosexual unions the discipline of civil marriage, in such a way to fill the void caused by the fact that the legislature has not raised the issue of gay marriage.
8. - Article. 2 of the Constitution provides that the Republic recognizes and guarantees the inviolable rights of man, as an individual and in social groups where he expresses his personality and demands the fulfillment of the mandatory duties of political solidarity, economic and social development.
However, for training to be considered any form of social community, simple or complex, such as to allow and encourage the free development of individuals in their personal relationships, in the context of a pluralistic model of development. In this concept is to be counted even homosexual unions, seen as stable coexistence between two persons of the same sex, which has the fundamental right to live freely provided torque, obtaining - in time, in the manner and within the limits prescribed by law - legal recognition with the related rights and obligations.
should be precluded, however, that the aspiration for such recognition - which necessarily requires a framework of a general nature, aimed at regulating rights and duties of members Torque - can only be achieved through an equivalence of homosexual unions to marriage. Just as the committee, including without limitation, the laws of the countries that have so far recognized these unions to ensure the diversity of choices.
It follows therefore that, within the scope of Article. 2 of the Constitution, it is the Parliament, exercising its discretion, determine the guarantees and recognition of these unions, is reserved to the Constitutional Court the power to intervene in the interests of specific situations (as was the case for cohabitation: Case No 559 of 1989 and No 404, 1988). It may happen, in fact, that in relation to particular cases, and found the need for uniform treatment of the condition of the married couple and that of gay couples, this court can ensure that treatment with the control of reason.
9. - The issue raised with regard to the parameters identified in the Articles. 3:29 Constitution is founded.
should take as a basis for logical reasons, the latter provision. It states, in the first paragraph that "The Republic recognizes the rights of the family as a natural society founded on marriage," and in the second paragraph adds that "Marriage is ordained on moral and legal equality of spouses within the limits established by law to guarantee family unity. "
The rule, which gave rise to a lively discussion of doctrine still open, raises the legitimate family as the foundation of marriage, defined as "natural society" (with that expression, as is apparent from the drafting of the constituent assembly, we wished to emphasize covered by the rule that the family had the original rights and existing state, that this was to recognize).
That said, it is true that the concepts of family and marriage can not be considered "crystallized" with respect to the time when the Constitution came into force, because they have the flexibility of its constitutional principles and therefore should be interpreted taking into account not only of the order processing, but also the evolution of society and morals. This interpretation, however, can only go so far as to affect the core of the standard, modified so as to include it in the phenomena and issues not covered in any way when it was enacted.
In fact, as is clear from the preparatory work, the issue of homosexual unions was completely extraneous to the debate in the Assembly, although the homosexual condition is not certainly known. The constituents, developing art. 29 of the Constitution, discussed a school that had a definite shape and a comprehensive discipline in the civil order. Therefore, in the absence of other references, it is a foregone conclusion that they kept in mind the concept of marriage as defined by the Civil Code came into force in 1942, which, as we have seen above, established (and still provides) that the spouses should be persons of opposite sex. In this sense, is also guiding the second paragraph of the provision, saying the moral and legal principle of equality of the spouses had their respect to the position of women which intended to give dignity and equal rights in marriage.
This meaning of the precept Constitution can not be overcome by interpretation, because it would not be a simple reading of the system or abandon a mere practice of interpretation, but to undertake a creative interpretation.
It should be repeated, then, that the rule did not consider same-sex unions, but rather intended to refer to marriage in the traditional meaning of this institution.
It is no coincidence, moreover, that the Constitution, after having dealt with the marriage, has found it necessary to deal with the protection of children (art. 30), ensuring equal treatment, even those born out of wedlock, although consistent with members of the legitimate family. The proper and due protection, granted to illegitimate children, does not alter the constitutional significance attributed to the legitimate family and the (potential) procreative purpose of marriage is to differentiate homosexual union.
In this context, with reference to art. 3 of the Constitution, censorship rules of the Civil Code which, as mentioned above, affects only a marriage between a man and woman, can not be considered illegal at the constitutional level. This is because it is grounded in the cited art. 29 of the Constitution, and because such legislation should not give rise to an unreasonable discrimination, since homosexual unions can not be considered homogeneous at the wedding.
The reference, in the referral of the Court of Venice, Act April 14, 1982, No 164 (Rules of rectification of attribution of sex) is not relevant. The legislation cited
hours - subject to scrutiny by this Court that, in sentence no 161, 1985, declared inadmissible or unfounded issues of constitutionality at the time promoted - provides for the correction of the attribution of sex under the ruling of the court, res judicata, which gives a person a sex other than that laid down by 'birth certificate, is modified as a result of its sexual characteristics (Article 1).
As you can see, this is an entirely different condition from that homosexual and therefore unfit to serve as a tertium comparationis. The transsexual, in fact, the fundamental requirement to be met is that to coincide with the psyche and soma, this effect is essential, as a rule, surgery that, with the consequent correction registry, can usually achieve this coincidence (Case No. 161 of 1985, paragraph three of the legal considerations). The person is admitted to the marriage for the future modification to the sex, authorized by the court. The recognition of the right to marry to those who have changed sex, then, is rather an argument for confirm the status of heterosexual marriage as provided in current law.
10. - It remains to consider the parameter related art. 117, first paragraph of the Constitution (proposed only in the order of the Court of Venice).
The referring primarily evokes such rules interposed, Articles. 8 (right to respect for private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was ratified and enforced by law August 4, 1955, No 848 (Ratification and implementation of the Convention for the Protection of Human Rights and Freedoms Fundamental Freedoms signed in Rome on 4 November 1950 and the Additional Protocol to the Convention signed in Paris March 20, 1952) focuses on a ruling by the European Court of Human Rights (C. Goodwin v. Case United Kingdom, July 11, 2002), who declared contrary to the Convention on the prohibition of marriage of transsexual (after surgery) with the original person of the same sex, arguing that the analogy with the case of gay marriage also mentions the Charter of Nice (Charter of Fundamental Rights of the European Union) and, in particular, Article. 7 (right to respect for private and family life), art. 9 (right to marry and a family), art. 21 (right not to be discriminated), mentions several resolutions of the European institutions, "which has long called on States to remove obstacles to the marriage or the recognition of same-sex couples equivalent legal arrangement", and finally, reports that in ' law of many states having similar to the Italian legal culture, is emerging notion of family relationships to include same-sex couples.
That said, it should be noted that: a) a warning to the judgment of the European Court is not relevant because it concerns a case governed by English law on the case of a transsexual who, after the operation, having acquired female characters (Case cited., paragraphs 12-13) had started a relationship with a man, with whom, however, could not get married "because the law was regarded as a man" (paragraph 95 ). Such cases, in Italian law, he would find solution within the discipline and Law 164, 1982. And, anyway, we have already noted that the positions of transsexuals and homosexuals are not homogeneous (see paragraph 9), b) and Articles. 8 and 14 of the ECHR, and Articles. 7 and 21 of the Nice Charter contains general provisions concerning the right to respect for private and family life and the prohibition of discrimination, however, largely similar. Instead of the ECHR Articles 12 and 9 of the Charter of Nice specifically involving the right to marry and to found a family. For the principle of specialty, therefore, it is those rules which reference should be made in this case.
However, Article. 12 provides that "Men and women in marital age have the right to marry and form a family according to the national laws governing the exercise of that right."
In turn the art. 9 states that "The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise." In order to
latter provision be said that the Charter of Nice has been implemented by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, which entered into force on 1 December 2009. In fact, the new text of art. 6, paragraph 1, of the Treaty on European Union, introduced by the Treaty of Lisbon provides that "1. The Union recognizes the rights, freedoms and principles enshrined in the Charter of Fundamental Rights of 7 December 2000, adjusted December 12, 2007 in Strasbourg, which has the same legal value as the Treaties ".
not necessary for the purposes of these proceedings, address the problems that the entry into force of the Treaty Union puts in order and national legal systems, especially with regard to Article. 51 of the Charter, which governs the scope. For the purposes of this decision it should be noted that Article. 9 of the Charter (as, indeed, art. 12 of the ECHR), affirming the right to marry refers to national laws governing the exercise. It should be added that the explanations relating to the Charter of Fundamental Rights prepared under the authority of the Praesidium of the Convention that had drafted (and which, while not having the status of law, are a sure means of interpretation), with reference to that art. 9 clarify (Inter alia) that "Article neither prohibits nor imposes the granting of the status of marriage to unions between persons of the same sex."
Therefore, apart from the explicit reference to the men and women, it is crucial that the survey also cited the legislation does not require full equality to same-sex unions under the rules for marriages between men and women.
Again, with reference to national laws, it is confirmed that the matter is at the discretion of Parliament.
further evidence of this is evident, as already mentioned, an examination of the choices and solutions adopted by numerous countries that have introduced, in some cases, a true extension of the scheme provided to homosexual unions to civil marriage or, more frequently, and very different forms of protection ranging from assimilation to the trend of those unions marriage, until the clear distinction, on terms of the effects compared to the same.
Based on the above, it must obtain a declaration of inadmissibility of the question by the court, with reference to art. 117, first paragraph of the Constitution for these reasons
THE CONSTITUTIONAL COURT
together the reviews:
a) declares ineligible, in relation to articles 2 and 117, first paragraph of the Constitution, the question of the constitutionality of Articles 93, 96, 98, 107, 108, 143, 143-bis, 156-bis of the Civil Code, raised by the Court of Venice and the Court of Appeal Trento with the order mentioned in the inscription;
b) declared unfounded, in relation to Articles 3 and 29 of the Constitution the question of the constitutionality of the above articles of the Civil Code raised by the Court of Venice and the Court of Appeal of Trento with the same orders.
Decided in Rome, the seat of the Constitutional Court, Palazzo della Consulta, April 14, 2010.
F.to:
AMIRANTE Francis, President
Alessandro Criscuolo, Editor
Giuseppe DI PAOLA, Registrar
Filed in Chancery 15 April 2010. The Director of Stationery
F.to: DI PAOLA
Attachment:
order read at the hearing on March 23, 2010
ORDER
Visas acts relating to the constitutionality proceedings brought by order of the Court of Appeal Trento filed July 29, 2009 (RO No. 248 of 2009);
noted that this court has intervened in the Association of Radical certain rights, in person and legal representative of the Secretary-pt, by application filed November 3, 2009;
that have occurred in the same trial, by an application filed February 25, 2010, Messrs. CM and GV, PGB and CGR, and RFRPC RZ, all male;
that neither the Radical Association, nor the gentlemen in intervention on 25 February 2010 were parties to the trial court;
that it is settled jurisprudence of this Court, are allowed to cross to the action of the constitutionality (in addition to the President of the Council of Ministers and in the case of regional law, the President of the Regional Government), the only parties to the main, while the involvement of persons outside this is only admissible for nationals holding a qualified interest, inherent in a direct and immediate relationship to the substantive obligation in question is not simply regulated, like any other, from the norms and standards to criticism (ex plurimis: order read at the hearing March 31, 2009, upheld by No 151 of 2009; Case No. 94 of 2009, No 96, 2008, No. 245, 2007, order No. 414 of 2007);
that eligibility for intervention by a third party who holds an interest similar to that put forward only in the main proceedings is contrary to the nature of the proceedings incidental to the constitutionality, as the access of parties to that trial would take place without prior review of the effects and the question is not manifestly unfounded by the court;
that, therefore, is the intervention of the Radical Certain Rights to be explained by the application received February 25, 2010 must be declared ineligible, regardless of the lateness of the latter (Ordinance No. 119 of 2008).
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the actions of the Radical Certain Rights and Messrs CM and GV, PGB and CGR, and RZ RFRPC
F.to:
AMIRANTE Francis, President
