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After the Constitutional Court of silence policy

Comment Att. prof. Marilisa D'Amico

Professor of Constitutional Law, University of Milan

Sentence no 138 of 2010 the Italian Constitutional Court is a crucial step, although not definitive in terms of recognizing the rights of gay couples and, also, the fundamental "right to marry."

of this decision is circulating a simplistic interpretation would argue that, in my opinion wrongly, that the Court "marriage" between same-sex couples could be achieved only by the revision of Art. 29 of the Constitution which does not lend itself to a reading of "evolutionary".

This interpretation of the sentence no 138 of 2010 is not acceptable, for three reasons:

1. level at the decision, the reading of Articles. 3:29 Constitution prediction based on the assumption that the original article. 29 of the Constitution, while knowing the phenomenon of homosexuality, he wished to deal only marriage between heterosexuals, is a very weak argument. It looks like what the Court held, in Case No. 421 of 1995, rejecting the so-called shares rose; wrong on that principle, the Court is back in Case No. 49 of 2003, which is a real overruling . Similarly, nothing would prevent the Court in the future to recognize the weakness of his performance only "historical" art. 29 Constitution By this yardstick, then, could have been held constitutionally unlawful even the anticipation of divorce.

2. The Constitutional Court, relying on. 2 of the Constitution, and Article. 117 of the Constitution (made stronger by the recent ruling by the Austrian Constitutional Court), has recognized not only the constitutional value of the "homosexual couple" but defined as necessary legal measures for the organic framework and has reserved the right to intervene in specific correction of all violations of specific rights. This decision is a warning the legislature very strong: no mention of faculty, but need of assistance.

3. The signal by the Court, is clear: in front of the legal vacuum, which places Italy in a situation quite unique compared to other European countries (Portugal, Austria, ... but to get out of Europe, including Argentina ), the Court should be extended to the role of the legislature and, therefore, adopt a policy on the organic framework. It will, however, the legislature, in its discretion, to decide to order a full equality, even in the name "marriage" of same-sex unions than heterosexuals.

The land, however, is the subject of profound change, as evidenced also the recent decision of the European Court (Schalk and Kopf v. Austria, 24 June 2010). The Court does not simply refer generically to politics, but carves out a space before the intervention to specific situations: this makes the warning, in my opinion, even more compelling.

In conclusion, those looking for today, even in good faith, and many more readings of the sentence, does nothing but waste valuable time and ignores the clear and unambiguous indication of the Constitutional Court: the need, without delay is a law.

The "legal proceedings" in the recognition and protection of rights, can not and should not replace the "street politics", but only to offer support and help when it is proved slow, insufficient or inadequate, as more often happens in Italy.

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ARRIBA ARGENTINA! STEFANO

ARGENTINA, THE GAY MARRIAGE AND 'LAW.
INSTITUTIONS HAVE LAY IT RESOLVED, the unprecedented
DESPITE PRESSURE clerical.

Enzo Cucco, Giuseppina La Delfa and Maurizio Cecconi, spokesman for the Committee,
on a law approved last night by the Senate of Argentina.


"Argentina, a country where 91% of the population is Catholic, has run converted dawn today in the first state in South America - the tenth in the world - that recognizes gay people the right to civil marriage and In parallel, the adoptions. The final debate in the Senate of the Republic, which lasted over 15 hours, was transmitted entirely by television, representing a model of democratic discussion and decision-secular. In fact, despite the unprecedented pressure from the hierarchy of the Catholic Church, going so far to organize street protests that have created tension and incidents, the highest institutions of Argentina have decided bearing in mind the common principle of equality before the law ", so Enzo Cucco, spokesman for the Committee" Yes, I do. " For Josephine

The Delphi spokesman of the Committee "Yes, I want it!", "The decision of Argentina is a historic step forward. As noted by María Rachid, representative of the Argentine Federation of Lesbians, Gay, Bisexual and Trans (FALGBT), access to marriage also implies the recognition of all those rights which are tied to marriage. In particular, the adoptions. Equality before the law is the prerequisite for achieving social equality. "

"One day after the anniversary of the French Revolution, which marked the end of the power of the aristocracy and clergy, Argentina gives us a civilized, obtained with an exemplary effort, through the efforts of LGBT Argentine and the positions of the majority of secular political forces, "as well Maurizio Cecconi, spokesman for the Committee" Yes, I do, "which concludes:" While in Argentina open to gay marriage, in Italy we are stuck with the utterances of beam-clerical Giovanardi and the Berlusconi government. It 's time, also for our country, a new era of freedom and profound and radical change. "


COMMITTEE "YES, I WANT IT!"

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Press Thursday, July 15, 2010

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RODOTA ON GAY MARRIAGES

gay marriage and the duties of Parliament
Stefano Rodota
Republic, July 15, 2010

Around the world 's rights agenda is composed and decomposed. It discusses the freedom of expression on the Internet. The migrants' rights are central to an important speech of Obama, while in Europe produce manifestations of xenophobia and racism that affect national elections. The economic crisis affect the rights of workers, impose conditions which violate the principle of "decent work", the dignity of work. The latest news from 'Island Add another country to those who already have recognized same-sex marriage, while in Italy the gay community is experiencing an unprecedented controversy. These react an authoritative exponent of this world, Aurelio Mancuso, saying that "the quarrels of these communities do not want to hear about the rights community wants," adding that this is a request to all political forces, without distinction. A move "political nature" or a just institutional stress? The Italian Parliament is in default, and I think that would be brought to his duties. In a recent ruling, in fact, The Constitutional Court confirmed the constitutional importance of homosexual unions, because we are a source of "social groups" mentioned in the 'Article 2 of the Constitution. From this conclusion the Court draws an important conclusion: the same-sex couples joined by a stable coexistence "has the fundamental right to live freely in a state of torque, getting - on time, in the manner and within the limits prescribed by law - legal recognition with the associated rights and duties. " These words are difficult: a "fundamental right" is waiting for its full approval.

It is not acceptable, therefore, the neglect of the Parliament, because this will deprive people of rights guaranteed by the Constitution. Someone in the Senate and the House, with all due hardness will ask that you asked this at least reopen the debate on de facto unions? But the Court goes further. While reiterating that the 'current constitutional framework does not allow marriage to encompass within it the framework of homosexual unions, makes two important statements. The first is general. It is noted that the current rules, which bind to the difference in sex marriage can not be overcome through an interpretation of constitutional judges. This means that, precluded the court, the way of change 's article of the Constitution on marriage, to be compatible with same-sex unions could be covered by the legislature. It can be argued that a constitutional amendment on such a hot topic seems unlikely. And here the second statement, which shows how a proper perspective is not absolute incompatibility between the model of traditional marriage and that of 'homosexual unions. You always talks about the Court that: "It may happen that, in reports to special circumstances, is determined to need a level playing field between the condition of the married couple and that of same-sex couples." A barrier has fallen. The Parliament can not use 's argument, used in the past, of an alleged obligation not to create "contiguity" between discipline and discipline of the marriage of de facto unions. Just because the Constitutional Court judges were guided by such awareness, we could expect a greater attention to the way the issue is dealt with by the Charter of Fundamental Rights of the European Union '. Here it takes a sharp reversal.

Nell 'Article 21 shall prohibit any discrimination based on sexual orientation. And, above all, in 'Article 9 states that "the right to marry and to found a family shall be guaranteed in accordance with the national laws governing the' exercise '. The distinction between "the right to marry" and "to a family "was introduced precisely to allow the establishment of legal unions as distinct from those between people of different sex, so even those between homosexuals. And the breakthrough represented by the Charter becomes even more evident if one makes a comparison with what has the 'Article 12 of the European Convention on Human Rights' man of 1950,' Where is written that "men and women have the right to marry and found a family according to national laws governing the 'exercise of that right. " Comparing this item with that of the Charter, we capture substantial differences. In the paper disappears, the reference to "men and women." There is no mention of a single "Right to marry and to found a family" but recognize two distinct rights, the right to marry and to found a family. The conclusion is obvious. In the European constitutional framework, to which 'Italy must be based, there are now two categories of partnerships designed to regulate relations between people of life. Two groups that have similar legal significance, and therefore the same dignity you can not argue that there is a recognized principle - that of traditional heterosexual marriage - and an exception (if any) tolerated - that same-sex unions. In a country that honors the culture of debate and respects the rights of persons, these should be guidelines for the legislature. Since, however, these issues are now the subject of ideological arrogance of those who want imporrei own values, calling them non-negotiable, it may be recalled that the Catholic world is not reducible to the Vatican hierarchy and to whom it echoes. In 2008, the Jesuit magazine, social updates, published a series of writings on same-sex unions, with whom we may disagree on some points, but facing a very difficult conclusion.

the Catholic politician who says "not for the legislature to investigate how the relationship is lived in other respects than that binding of 'taking care of public and the promotion of 'other'. It is stressed that, once recognized the value of social coexistence, "would be contrary to the principle of equality guarantees to exclude certain types of partnerships, including between persons of the same sex." Since these are fundamental human rights, recognition "is the first issue of morality that constitutional guarantee." You could not say better. But I must add that no one can ignore this issue considering the affairs of others. Interviewed by The New York Times, Martha Nussbaum has said, "If I said, I am concerned that I'm enjoying a privilege denied to same-sex couples." Even the most intimate relationship between the decisions can not make us look away from living in society, from the condition and rights of every other person, near or far it is.

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STATEMENTS OF THE COMMITTEE ON GIOVANARDI

FAMILY 'pluralistic model.
UNITA 'D'ITALY THREATENED DALL'EVERSIONE
CONSTITUTION OF PDL AND NORTHERN LEAGUE

Maurizio Cecconi, spokesman for the Committee on the statements of

Secretary to the Prime Minister, Carlo Giovanardi.


"On 15 April, the Constitutional Court, with the important decision No. 138/2010, required the legal recognition of unmarried couples, heterosexual and homosexual. Very clear, In this sense, the words of the Court: "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 include homosexual unions also understood as stable coexistence between two persons of the same sex, which has the fundamental right to live freely in a state of torque, getting - on time, in the manner and within the limits prescribed by law - the recognition with the associated legal rights and duties ". The statements by the Secretary Giovanardi be considered, therefore, like nonsense words, "as well Maurizio Cecconi, spokesman for the Committee concludes that: "To threaten the unity of the Italian Republic and impunity constitutional subversion of the PDL and the Northern League. Those who, like Giovanardi, guide the institutions of our judgments without knowing the maximum Watchdog, is a dangerous drunk at the wheel of the country. "


Maurizio Cecconi
+39349808 48 99

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Press Friday, July 2, 2010