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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