An in-depth investigation of the system of protection of LGBT minorities’ rights under Italian Law asks for a brief survey of the existing legal framework on this matter. From this perspective, the level of protection of LGBT minorities can be understood from the perspective of the evolution of the concept of family over the past decades. The implementation of fundamental rights under italian Law has generally been problematic: despite an innovative Constitution, normative responses have often been slow, difficult, in many cases, unsatisfactory. Moreover, in the most recent years, politics seems to have misplaced its role, restrained by ideological juxtapositions over rights, incapable of properlyaddressing issues arisen from the society, forced to delegate substantial decisions to the judiciary. Family has also progressively become the field which has registered the highest level of tension among institutional actors and that places Italy in an isolated position compared to other european countries. Over the concept of family, a serious dispute arises out relying on the contrast between the notion of family in the traditional sense, based on marriage, and other family forms, not marriage-based, increasingly widespread in our society. Such a dispute is likely linked to a false representation of a juxtaposition between unbalanced constitutional rights: on one hand, Article 29 of the Constitution, which protects family based on marriage, without considering others types of civil unions; on the other, Article 2 of the Constitution protecting inalienable rights of all kind of social formations, in so far including homosexual couples. With respect to the family sphere, one of the main feature of Italian Law continues to be the persistent lack of regulation of same-sex relationships. More specifically, such a legislative inactivity has not been stopped neither by a legal recognition of same-sex marriages, along with a dynamic interpretation of the right to marry, set forth in Article 29 of italian Constitution, or by providing an ad hoc instrument of protection of same-sex couples’ right to found a family, somehow comparable to the Civil Partership, enacted in most of the European Union Countries. The article aims at exploring the status of LGBT minorities’ rights in Italian Law from both a iure condito and iure condendo perspective. It seeks to potray the conflict between the legislator and the judicial system over the road to equality for LGBT minorities. After an historical reconstruction of the meaning of the right to marry set forth in Article 29 of italian Constitution (par. 1 and par. 2), the article examines the central role played by the judiciary througout an analysis of the most relevant judgments on LGBT rights (par. 4). It therefore recalls italian Constitutional Court’s judgment, no. 138 of 2010, where the Constitutional Court decided on the first case concerning the recognition of the right to marry to same-sex couples, holding that Article 29 of Italian Constitution does not guarantee a right to marry to same-sex couples as such, but that same-sex couples constitute “family”, within the meaning of Article 2 of italian Constitution (par. 4.1). Then, the article refers to the jurisprudence of the ECHR as to reveal its influence on the development of internal law on LGBT issues (par. 4.2) and analyzes italian Supreme Court of Cassation’s judgment on a civil claim regarding the request of a marriage act transcript put forward by an italian homosexual couple (par. 4.3). Finally, the last part of the article is dedicated to the initiatives promoted by several italian City Councils, in order to introduce the Civil Union Register, whose effects operates only on local level (par. 5). The approval of the Civil Union Register can certainly be understood as the first step for the purpose of the legal recognition of same-sex relationships under italian Law.
Diritti LGBT e “nuove famiglie” in Italia / M.E. D'Amico - In: Orientamento sessuale e diritti civili. Un confronto con gli Stati Uniti d'America. / [a cura di] M.E. D'Amico, C. Nardocci, M. Winkler. - [s.l] : FrancoAngeli, 2014. - ISBN 9788891705181. - pp. 23-47
Diritti LGBT e “nuove famiglie” in Italia
M.E. D'Amico
2014
Abstract
An in-depth investigation of the system of protection of LGBT minorities’ rights under Italian Law asks for a brief survey of the existing legal framework on this matter. From this perspective, the level of protection of LGBT minorities can be understood from the perspective of the evolution of the concept of family over the past decades. The implementation of fundamental rights under italian Law has generally been problematic: despite an innovative Constitution, normative responses have often been slow, difficult, in many cases, unsatisfactory. Moreover, in the most recent years, politics seems to have misplaced its role, restrained by ideological juxtapositions over rights, incapable of properlyaddressing issues arisen from the society, forced to delegate substantial decisions to the judiciary. Family has also progressively become the field which has registered the highest level of tension among institutional actors and that places Italy in an isolated position compared to other european countries. Over the concept of family, a serious dispute arises out relying on the contrast between the notion of family in the traditional sense, based on marriage, and other family forms, not marriage-based, increasingly widespread in our society. Such a dispute is likely linked to a false representation of a juxtaposition between unbalanced constitutional rights: on one hand, Article 29 of the Constitution, which protects family based on marriage, without considering others types of civil unions; on the other, Article 2 of the Constitution protecting inalienable rights of all kind of social formations, in so far including homosexual couples. With respect to the family sphere, one of the main feature of Italian Law continues to be the persistent lack of regulation of same-sex relationships. More specifically, such a legislative inactivity has not been stopped neither by a legal recognition of same-sex marriages, along with a dynamic interpretation of the right to marry, set forth in Article 29 of italian Constitution, or by providing an ad hoc instrument of protection of same-sex couples’ right to found a family, somehow comparable to the Civil Partership, enacted in most of the European Union Countries. The article aims at exploring the status of LGBT minorities’ rights in Italian Law from both a iure condito and iure condendo perspective. It seeks to potray the conflict between the legislator and the judicial system over the road to equality for LGBT minorities. After an historical reconstruction of the meaning of the right to marry set forth in Article 29 of italian Constitution (par. 1 and par. 2), the article examines the central role played by the judiciary througout an analysis of the most relevant judgments on LGBT rights (par. 4). It therefore recalls italian Constitutional Court’s judgment, no. 138 of 2010, where the Constitutional Court decided on the first case concerning the recognition of the right to marry to same-sex couples, holding that Article 29 of Italian Constitution does not guarantee a right to marry to same-sex couples as such, but that same-sex couples constitute “family”, within the meaning of Article 2 of italian Constitution (par. 4.1). Then, the article refers to the jurisprudence of the ECHR as to reveal its influence on the development of internal law on LGBT issues (par. 4.2) and analyzes italian Supreme Court of Cassation’s judgment on a civil claim regarding the request of a marriage act transcript put forward by an italian homosexual couple (par. 4.3). Finally, the last part of the article is dedicated to the initiatives promoted by several italian City Councils, in order to introduce the Civil Union Register, whose effects operates only on local level (par. 5). The approval of the Civil Union Register can certainly be understood as the first step for the purpose of the legal recognition of same-sex relationships under italian Law.Pubblicazioni consigliate
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