Di Marco Gattuso (Judge at the Court of Reggio Emilia, interview published on "Politeia, a magazine of ethics and public choices")
The Constitutional Court, despite lights and shadows, represent a historic turning point in several respects. With the exception of the proposition is unconstitutional is produced, first, a true reversal of the current debate: there is no question over whether the Italian Constitution prohibits the recognition of the rights of homosexual couples, but whether and under what circumstances the Constitution imposes such rights. Second, the decision is clear from reading the statement of the constitutional significance of homosexual unions, which in itself constitutes a crucial step for our system [1]. From today it will make more sense to discuss the meaning of "sexual orientation" as unexpectedly made by our Parliament only a few months ago, [2], nor will it be possible to question the need to legislate on the subject, since, as evidenced by Look, the right to recognition of homosexual unions is enshrined in Article. 2 of our Constitution [3]. Moreover, the Court stated that legal recognition "necessarily requires a framework of a general nature, aimed at regulating rights and duties of members of the couple and, therefore, after the ruling will not be sufficient for limited reforms aimed at protecting the rights of individual members of the couple without the legal recognition homosexual union [4].
The claim of constitutional right to free development of individuals even within the same-sex couples also can not fail to have an impact in the evolution of our jurisprudence, for example in returning to those countries preventing that persecute homosexuals openly show affection between two persons of the same sex [5]. The constitutional significance of the homosexual couple also opens up even before any legislative action, new perspectives on the cd. courts for the rights of gay couples, if account is taken of an additional step: waiting for Parliament to adopt an organic framework, the Constitutional Court is committed to ensuring its control from the start every time "in specific situations are identified, need for uniform treatment of the condition of the married couple and that of same-sex couples. " Since, as noted, a judge may bring an issue of unconstitutionality only if the matter can not be resolved through an appropriate interpretation of the rule, the court, first to a couple who ask for protection and that it believes need for a uniform treatment to that of a married couple, will have to directly apply the rules prescribed for the married couple, through a interpretation by analogy, evolutionary, constitutionally normal, and only if that interpretation is not possible to have recourse to the Constitutional Court because it verifies whether the difference in treatment is legitimate. We must determine, firstly whether the same-sex couples exist, and if you have a permanent character similar to a married couple. From this point of view take on renewed importance of the Subscriptions to the same-sex couples as registered family and entered in the records of de facto couples who were already in place in many Italian towns. Verified that a homosexual couple is unmarried and stable, the judge will deny the need for consistent treatment between homosexual unions and married couples on the mere ground that the former is not married, because the Court expressly stated the need to verify that their homogeneity between gay marriage and married couples. Ruling out such a comparison based on the mere absence of marriage would be like denying the root of the assessment required by the Constitutional Court. It will therefore be of great interest to see how the Italian case law will develop in the coming period and develop criteria to establish that of "need for uniform treatment," as in the cases, increasing numbers of gay couples who have children, that in all those situations in which the presence or absence of children does not assume particular importance [ 6].
It should be added in the near-term path toward equality between homosexual couples and heterosexual married couples will be manned not only by our Constitutional Court judges but also by the Luxembourg and Strasbourg. The European framework, in fact, it's definitely changed in recent years until the recent verdict by which the European Court of Human Rights in Strasbourg, would also address for the first time the issue of gay marriage [7], has finally recognized that same-sex couples are families, with a statement that in Italy is even clamorous [8]. This is not surprising, since in Europe the issue of the rights of homosexual unions is seen as a typical topic of civil rights and liberty is traditional, so much so that their public recognition there is now the consensus of the major political forces, both the right and left [9], and that the issue was not addressed by organic law only in Greece and Turkey, as well as in some former communist countries [10], still behind in the path of adjustment to the democratic standards of mold West.
Asked if the interpretation of the Italian Constitution should go so far as to impose even the opening of the institution of marriage to gays, the Court answered - for now - no. This answer is not a surprise, it was probably largely account for those who brought the legal action.
In saying no, the Court suggests that the different modes of protection of homosexual unions shall be referred to the discretion of the Parliament [11]. In Europe the effects are found in different disciplines that can be linked to four different options [12]: 1) marriage between couples of opposite or same gender (Seven countries [13]), 2) registered same-sex unions covered by the rules of marriage (currently the two countries [14]) 3) same-sex unions registered with a specific law (seven countries [15]) 4) Registration both straight and gay couples with rights guaranteed by specific rules (four countries [16]). The Court told us that the Parliament can choose from several options, but after the verdict should be regarded not recognize anything unlawful, and, as mentioned, there will be limited to ensure individual rights to the couple without a legal recognition of 'union.
The Court, however, avoided any reference to the concept of natural law, as had been requested instead of multiple parts and, indeed, used the occasion to say that the concept of family acknowledged and protected by the Constitution, far from being carved once and for all, is constantly evolving. The Court also declined to evoke ontological differences between homosexual and heterosexual couples, merely stating that "homosexual unions can not be considered homogeneous at the wedding" would thus put in a social relationship (same-sex couples) with a legal ( marriage) and not with heterosexual unions, so as to emphasize only the lack of access to the institution of marriage. Can not be considered, in particular, that the Court intended to indicate a difference ontological between homosexual and heterosexual couples where one makes a fleeting reference to "the procreative purpose of marriage since that argument seems only invoked by the Court in order to reconstruct the original intention of the Constituent Assembly [17]. The Court has not touched on the need to defend the traditional family has supported the opening of the gay marriage threatens heterosexual families, thereby avoiding any reference to the many arguments used in the argument against gay rights. The Court is simply to say that the concept of marriage as a union between a man and a woman and not between persons of the same sex was assumed to date in 1948 when the Constitution was written, and can not be changed by hermeneutics. This is an argument that impresses with its weakness and can not be doubted that much will be discussed. The writer believes that a study showing the same frankly wrong and that over time will be exceeded [18]. From this point of view, the sentence - which, it is worth remembering, is the first on the subject - only marks the beginning of a path.
Some say the Court intended to say that even the Legislature could change the code by opening civil marriage to gays [19]. It is an ongoing debate on that point. For guidance, the Court would be appended to the opinion that sees the word "marriage" a concept unchangeable, even to the popular will. Parliament, therefore, could not redefine the legal institution of civil marriage and the competence of the legislator should be excluded in the future, despite the evolution of social morality and the notion of family, changes in scientific knowledge [20] same evolution of the concept of family in the language of [21] and also in the legal language in the international context [22], the changes have taken place in the law of other countries similar to us [23] and in the same European law [24]. This position seems based on one argument: it must be assumed that the material is removed from the Legislature because the Court notes that the question with respect Articles. 3:29, is unfounded [25]. However, the Court declares in another passage from that article. 2 and art. 117 the issue is unacceptable - that the language used by the Court means that the matter is the responsibility of Parliament - and said expressly that the matter is reserved to the Legislature (as the question whether Article 2. Imposes the "right to marry" for gays is "seeking a ruling additive not constitutionally required"). There is no doubt that the Court was ambiguous. In one passage, considers the question in another unfounded and unacceptable. However, there is a lot more evidence to suggest that the court gave liberty to the Parliament [26]. Throughout the grounds, Indeed, the Court does not introduce any evidence specifically directed at influencing the discretion of the legislator, nor would it be consistent with its previous case law to coerce family, in one way or another, the will of Parliament - the more so by virtue of a purely " originality "of the Constitution. From the reading of the sentence does not appear to support any argument that the opening of marriage violates the rights or interests of third parties and the heterosexual family and therefore is opposed to the spirit of Article warranty. 29. Anchoring the Court suggests the subjective intention of the constituents seems closely related to the interpretations need to prevent "creative" of avoiding that leaps forward in the case law to safeguard the principle of tripartite division of powers, as may already be inferred by the indication that "this meaning of the constitutional precept can not be overcome by hermeneutics." The Court, however, was asked whether Article. 29 requires the recognition of homosexual marriage, but was not asked whether Article. 29 would enable the port. It would be certainly ironic that the refusal to recognize the Court's interpretations of "creative" the court achieves a limitation on the legislature, set ... own through the courts! It should be noted, moreover, as the reading of our Constitution in the sense of a prohibition of the Legislator would be quite unique on the European scene where "no national parliament in order to broaden the content of this institution, has decided to amend the Constitution of duty" [27]. We must consider, again, that the Constitutional Court did not base its decision on the term "natural society", which does not take into account, but only the word "marriage" in our paper makes no reference to man and Women, unlike the European Convention on Human Rights (which says "starting from the minimum age for marriage, man and woman have the right to marry", cf. art. 12) the wording of which has not however, prevented the Strasbourg court to consider newly that this rule refers to the persons entitled to the right to marry (the law, ie, it must be recognized in every man and woman), without necessarily limiting the right to choose its partner [28]. It must be said, finally, that the judges of the Strasbourg Court in their reasoning shows that it can not impose on member countries of the opening of marriage to same-sex couples on the point because the state lacks a "common basis in the laws of the member countries" as is to be understood that such cases could not be excluded for the future. It follows that an unnatural reading of our Constitution, probably against the intention of those performers who today advocate, in the future to expose, risky as baseless, the same conflict with European Bill of Rights.
Notes
[1] It must be recognized that this is an obvious success of the promoters, in particular the campaign designed to promote civil rights lawyer and researcher at the University Private Udine, Francesco Bilotta, and pursued with great determination from the same together with the Association of Advocates Network Lenford radical association and certain rights. For an overview of the legal debate before the decision under review, cf. fundamentals: Love civil law tradition the law of reason, edited by B. De Filippis and F. Bilotta, Udine, Milan, 2010; unions between same sex - Profiles of civil law, common and comparative edited by F. Bilotta Milan-Udine, 2008; M. Bonini Baraldi, New partnerships between foreign and domestic law rules, Milan 2005; M. Bonini Baraldi, the family of gender-sex marriage and constitution, Udine-Milano 2010, the "natural society" and its "enemies." On the paradigm of heterosexual marriage, Turin 2010, Proceedings of the conference held in Ferrara in the imminence of its decision, where are found numerous occasions of great interest; M. Sexual Orientation and deconstructed Montalti constitution. Comparative History of a fundamental right, Bologna 2007; PM Callari same-sex marriage in the United States of America, Padova 2006.
[2] See the preliminary decision of the constitutional question passed by the House October 13, 2009 against the legislation against homophobia where it is argued that sexual orientation "includes any orientation, including incest, pedophilia, bestiality, sadism, necrophilia, masochism and so "incredibly ignorant of the legal concept of sexual orientation already implemented art. 21 of the Charter of Fundamental Rights and universally understood as orientation towards persons of the opposite or of their gender.
[3] The Constitutional Court states that in strength of our Constitution in this community, "it is legal recognition" and therefore identifies a gap in our legislation calling on Parliament to fill it, although "on time, in the manner and within the limits established by law." The reference to "time" is not to suggest that the protection is also in its availability, as well as the discretion is defined as "full" only in order to specify the quomodo ("forms of security and recognition").
[4] In this way they moved, however, the various bills succeeded in recent years (so-called DICO, DIDORE, CUS, etc. ...).
[5] The SC had considered that there would be no danger of persecutory treatment - and therefore could not expel the ban introduced in art. 19 of the Bossi-Fini ("In no case may disporsi expulsion or refoulement to a state in which the alien may be subject to persecution for reasons of race, sex, language, nationality, religion, political opinion of personal or social conditions ") - if the law of that country is not provided as a crime," the fact itself "of homosexuality, but only" the display of such practices in a manner inconsistent with the public sentiment of that country "( Supreme Court Sec. 1, Decision No. 16417 of 07/25/2007). As if to say that in Italy is protected only if the alien in his country of origin is forbidden to belong to an ethnic minority or jew, or be certain to have political opinions, but not if his country has been prosecuted openly practice the Jewish religion or expression ("show off"?) their thoughts ... The constitutional importance of the relationship of homosexual couples, in which a phenomenon is therefore not necessarily relevant in the inner sphere of the person only has relevance but outside, no doubt implies a guarantee of protection, constitutionally imposed, even for the outward manifestations of affection homosexual.
[6] took over the lease, management of the crisis of the couple, the role of the partner in health care and post-mortem decisions, damages in the event of death ... but the list is endless and the investigation may be of interest to all institutions now reserved for married couples.
[7] Schalk and Kopf v. Austria, June 24, 2010. The ECHR held that the Austrian Civil Code, in so far as no provision for same-sex marriage does not violate the Convention Articles. 8, 12 and 14 because the matter is the responsibility of national parliaments.
[8] Examples are only a few years ago, in 2007, the Italian government (center-left!) Denied to homosexual organizations to participate in the Conference national family on the grounds that gay relationships are not family.
[9] An examination of the political parties' official positions of the four other major European countries (France, Germany, United Kingdom and Spain), it is noted that all parliamentary political forces of both right and left, for sole exception of the French National Front, are in favor of public recognition of homosexual unions today urged by our Court.
[10] But not everyone have a law, Hungary, Czech Republic, Slovenia and Croatia.
[11] The Court considered the question "inadmissible" as "seeking a decision is not constitutionally required augmentation. "The eventual opening of the marriage in fact implies choices left to the discretion of the legislature, not only because same-sex unions could be protected with other institutions related to marriage, but also because, even in the event of opening marriage, may well be excluded on the operation of certain rules, as has happened in other jurisdictions such as on parent-child relationship, the presumption of paternity and adoption.
[12] Many countries provide more institutions contemplating legislation on partnership recorded together with the protection of marriage and cohabitation. A very detailed reconnaissance in M. Bonini Baraldi, New partnerships cit ..
[13] Spain, Portugal, Belgium, Holland, Iceland, Norway and Sweden. In Luxembourg, Andorra, Finland and Slovenia, the law was announced by the government or is in the process of being approved in Parliament.
[14] Denmark and Finland, whose laws provide for only a few exceptions to parental rights and adoptions. The other countries that are Parties to this option are passed in the last few years of marriage.
[15] United Kingdom, Germany, Switzerland, Slovenia, Czech Republic, Austria, Hungary.
[16] France, Luxembourg, Andorra, Ireland. Croatia has recognized rights to same-sex unmarried couples.
[17] agrees that with the mention of "procreative purposes" the Court intended "simply to rebuild, again, the will of the constituents," Singing From The Constitutional Court and same-sex marriage, in Foro It. 2010, I, 1373. Should be considered, in effect, as the connection between marriage and procreation, although this was at the center of legal debate and the same argument to the judges at issue, was not developed in any way by the Court and argument would appear very fragile when it referred the contemporary social reality and the current regulatory framework.
[18] On this point let me point to M. Gattuso, The Constitutional Court on same-sex marriage in Family Law, 2010, 656. The reasons should lead to the conclusion that the unconstitutional ban on same-sex marriage, cf. Constitution and even marriages between homosexuals, Il Mulino, 2007, 452; Notes on natural family and the principle of equality (A question about homosexual) Justice in Question, 2007, 261 (also available in www.personaedanno.it) and the dialogue between the The courts in society and its natural enemies, Torino 2010, p. 159 (also available in www.forumcostituzionale.it).
[19] in Italy would also have an outcome similar to those fifteen countries where the constitution defines marriage as a union between a man and woman by preventing the national parliaments a redefinition of marriage by ordinary law (Congo, Kenya, Rwanda, Uganda, Honduras, Belarus , Ecuador, Latvia, Lithuania, Poland, Belarus, Moldova, Montenegro, Serbia and Ukraine Source: Wikipedia, LGBT rights by country or territory).
[20] Homosexuality was removed from the DSM (Diagnostic and statistical manual of mental disorders) and has been called a "variant of human behavior" in 1973.
[21] Both Webster's and Oxford Inglese Dictionary recall the union between two persons of the same sex under the heading "marriage."
[22] It has been said of the spread of consensus among major political forces in the continent. The concept of gender-neutral marriage is supported by several Supreme Court rulings of several U.S. states (Massachusetts, California, Connecticut, Iowa) as well as by the Constitutional Court of South Africa, Canada, Belgium and Portugal. Recently, U.S. courts (District Court of Massachusetts, July 8, 2010, declaring the illegality of the Defense of Marriage Act and the District Court of Northern California v. Perry Schwarzenegger's August 4, 2010 declaring the illegality Proposition 8) came to open a real conflict, the outcome very uncertain, with the legislature (even when exercised by a popular referendum!) who defined marriage as a union specifically between men and women.
[23] The marriage was redefined inclusive way in Argentina, Belgium, Canada, Iceland, Norway, Netherlands, Portugal, South Africa, Spain, Sweden and also in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont Washington (District of Columbia) and Mexico City.
[24] by art. 9 of the Charter of Fundamental Rights of the European legislator has made a choice history since it used the words "marry" and "family" without specifying precisely in order not to exclude marriage for gay couples. The European Court in Strasbourg, for its part, has changed its interpretation of the concept of marriage by announcing that "the Court will not consider more than the right to marry under Article. 12 in all circumstances be limited to marriage between persons of opposite sex "(Schalk and Kopf v. Austria, cit.).
[25] Dal Canto The Constitutional Court and same-sex marriage, in Foro It. 2010, I, 1373. L. D'Angelo, The Look at the Legislature: the marriage nun must one do, American Lawyer Media, April 19, 2010; G. M. Salerno, the marriage bond is not susceptible to creative interpretation, in Guide to the law, family and children, in May 2010, 46; S. Spinelli, Marriage is not a review of notebooks Constitutional Forum, 2010, www.forumcostituzionale.it; PA Capotosti Marriage between same-sex versus unfounded inadmissible in Case No. 138 of 2010 in Constitutional Papers, 2010, 361.
[26] The landing of a Constitution that prohibits and does not appear to conform to guidance requires that, in historicist perspective, however, sees art. 29 a standard white refers to the legal definition of marriage, what is shown currently in the code civil, on which see. Pignatelli, Doubts of the constitutionality of the marriage, 3, Quaderni Constitutional Forum, 2010, in www.forumcostituzionale.it 14; see also A. Comparative Reflections on Article Schuster. 29 of the Constitution of the Italian unions between same-sex cit., 185.
[27] The point is N. Pignatelli, notions of marriage and the regulation of same-sex couples in Europe, in Foro It., 2005, V, 260 ff.
[28] Schalk and Kopf v. Austria, cit. . The wording of Article. 32 of the English Constitution, which contains a direct reference to men and women (Article 32: "el hombre y la mujer Tienen derecho a contraer marriage plena igualdad jurÃdica "), did not prevent the Legislature evolutionary interpretation.
