The Italian Constitutional Court will rule on same-sex marriage

05/05/2009
Submitted by Alexander Schuster

Is the Italian Civil Code unconstitutional in indirectly limiting marriage to opposite sex couples? This is the question put forward to the Constitutional Court by the Tribunal of Venice. A same-sex couple lodged a complaint against the refusal of the mayor to proceed with the publication of the notice of marriage, the first step in order to enter civil marriage in Italy. The two men argued that the Civil code does not explicitly define marriage as a union between a man and a woman nor does it include sameness of sex in the list of hindrances. In any case, if such obstacle were to exist, then it would collide with the Constitution and the fundamental freedoms set forth therein.
In April 2009 the three-judge panel found that even though no explicit limit exists, a systematic approach to the Civil code rooted on provisions like those that refer to wife and husband for the exchange of vows lead inevitably to such conclusion. Nevertheless, some articles of the 1948 Constitution appear to undermine the legitimacy of these provisions of the 1942 Civil code. The judges referred to article 2, which protects «inviolable human rights» and social groups like family, to art. 3's prohibition of discrimination on grounds of personal conditions, to art. 29 on the recognition of marriage, as well as to art. 107, which binds Italy to respect international obligations (ECHR, EU law, etc.).
Ordinary judges have no power to disapply parliamentary statutes, but they can stay proceedings and refer a question of constitutionality to the Constitutional Court. In the given case, the Court may simply reject the issue of constitutionality as ill-founded. It may also reject it by saying however that there is no need to declare parts of the Civil Code unconstitutional and that a constitutionally oriented construction of the Civil Code imposes to read every provision as not posing any obstacle to same-sex marriage. The Court may also put it straight and declare that some articles of the Code violate Constitutional principles and are therefore void.
Another likely outcome is probably a so called admonishing judgment to the Parliament that there is a need to regulate and grant some recognition to same-sex couples in Italy. The Court would eventually not intervene at that stage, usually raising a sort of political question about the multiple discretionary options open to the legislature for guaranteeing such a recognition. The Court's decision is expected to be handed down in one year and a half, but any schedule is hardly predictable due to the sensitivity of the issue.
Italy has no regulation on de facto couples and grants absolutely no recognition to same-sex couples. Parliamentary bills have been discussed widely in the past legislature, yet none has succeeded in even one chamber. The Italian case may lead to the first case in Europe where a judicial authority opens up marriage to same-sex couples bypassing parliamentary inactivity.
The case in Venice is part of a national campaign run by Rete Lenford, a network of lawyers for LGBT rights (www.retelenford.it), and the Radical Party association Certi diritti (positive rights, www.certidiritti.it) bringing to court cases of refusal to publish the notice of marriage for same-sex couples.

Alexander Schuster
Lawyers for LGBT rights – Rete Lenford

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