MICROMEGA ON GAY MARRIAGE Micromega
22/4/2010
gay marriage, whether the Civil Code takes precedence over the Constitution of
Persio Tincani
The issue of gay marriage in the Constitutional Court has concluded in the way that many predicted, ie a rejection of substantial questions of constitutionality remittances from the Court of Appeal of Trento and the court of Venice. The decision was, in this sense, not predictable, however, has nothing to do with the issue itself (same-sex marriage is compatible with the Constitution?) And everything to do with the fact that we should not pretend virgins, such as those convinced that there is always a court in Berlin. That the Court rejected the issues, in short, we were all more or less reasonably certain, both those in favor of gay marriage, or the vast majority of Italian jurists, as opposed to the minority of jurists.
All or almost all, in fact, considered unlikely that the Court would decide in the sense of the eligibility of same-sex marriage, since the question was (no matter now how much this has been a work of art) of an almost political significance exclusive, that has come to pass in the back that it, like every other issue placed in front of consultation on a matter of law and of law.
Beyond the arguments raised by each of the argument of the merits or constitutionality of groundlessness of particular observations in the two acts with which the courts have placed the issue before the Consulta, and even more beyond the arguments that each put forward to the eligibility or ineligibility for same-sex marriage in our legal system, nobody would have bet that a final word would be pronounced by the Court in this regard.
What wonder, then, is not that the Court has declared the foundation of the issues of constitutionality, but the way in which the did, in a ruling that the 2010 n.138 (April 15), much criticized, both in terms of legal technique, both in terms of mere consistency of argument. Steps argumentative false or questionable the decision are many. Here I simply point out one.
One of the strong opponents of same-sex marriage is the reference to "nature" this art. 29 of the Constitution where it states that "the Republic recognizes the rights of the family as a natural society founded on marriage." According to the interpretation given by them, the meaning of this article would be to sanction the constitutional level the so-called "natural family", which would be composed by a wife, a husband and, possibly, a certain number of children.
goes without saying that it is sufficient to read a minimum of attention, or honesty, the text of art. 29 to see that things are not so and that there is no "natural family". He is speaking of the family as a natural society, "which means, in legal language, a company that people form without any need for legal rules (unlike what happens, for example, in the case of corporations, that would be inconceivable without the legal rules that define and govern).
law, in short, comes after. And the Constitution, in particular, comes to determine that the rights of the family "(in reality the rights of individuals that compose it) have long recognized that this" natural society "has led to a marriage, under the rules of civil law. The Court, in fact, not even taking into account the theory of "natural family" and reaffirms the benefit of hard knocks, the obviousness that the text of the constitutional provision it makes sense to recognize, in fact, that families exist without you is a rule of law that defines them.
So far, nothing to say. The critical point, however, is a close second, when the Court writes: "In those circumstances, 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 costumes.
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 particular, given that "the issue of homosexual unions was completely extraneous to the debate in the Assembly [Constituent N. d. A.], although the homosexual condition is not some unknown [...] it must be emphasized, therefore, that the rule did not consider same-sex unions, but rather intended to refer to marriage in the traditional sense of this institution. "
Let's see what's wrong with this step, critical of the ruling. And if it is true that the concepts of "family" and "marriage" should not be construed as crystallized in the era when the art was formulated. 29, then you do not understand why the evolution of society and customs, also referred to by the text of the sentence as a factor to take into account in interpreting the rule, not here appropriate to include in the definition of "family" who has access to "marriage" that consists of two persons of the same sex. The Court clarified, however, that the role of interpretation may not go so far as to affect "the core of the rule," which would indicate the marriage "in the traditional sense."
Here, as you can see, there's something wrong. The fact that the Constituent Assembly took into consideration the traditional marriage is, in all probability, no doubt. But at the same time, this can not be understood as a constraint for the next performer, at least not if one accepts, as the Court, that constitutional principles are distinguished by their intrinsic flexibility, given by them to take into account and the transformation of the evolution "of society and morals."
This apparent inconsistency (or the rules are flexible and follows the evolution of morals or are not) is, however, corrected by an immediate clarification of the Court itself, which explains how the "flexibility" can not reach up to " affect the core of the rule. " What is this core? The heterosexuality of marriage. And why? Why the Civil Code states: "The constituents, processing the 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 several references is a foregone conclusion that they kept in mind the concept of marriage as defined by the Civil Code came into force in 1942, stated that [...] (and still provides) that the spouses should be persons of different sex. "
Now, say that the Civil Code establishes the difference in sex of the spouses that the marriage is valid because it is at least risky. The Civil Code, rather, do not ever express the necessary condition of the same sex for a valid marriage, so much so that the existing judicial decisions on this have always made a work of interpretation.
But even if you wanted to gloss over this point - in fact the center of the whole matter - the reasoning explained Court turns out to be a contradiction, because it leads to the only logical conclusion possible to subordinate the Constitution to the Civil Code. Which, to be precise, it is the opposite of what, by contrast, make a rigor of law, not interpret a constitutional article in the light of the Civil Code, but vice versa.
If not, in fact, it is not clear what is the role of a constitutional court, and what type of censorship could have on the general law, if it becomes the instrument to which the constitutional provision must look to get meaning.
