Same-sex marriage, Italian style


Cardozo Journal of Law & Gender

2016, vol. 23, n°1, pp.101-137

Départements : Droit et fiscalité, GREGHEC (CNRS)

This article addresses the recognition and protection of same-sex couples’ rights under Italian law. Italy is currently the only country that has not yet enacted any specific law on the subject, in sharp contrast with all her European neighbors which, since 1989, have progressively passed appropriate laws either on same-sex marriage or on civil unions/partnerships. While a bill is currently being discussed in the Senate, the Italian anomaly in the comparative landscape remains striking even when looked outwards. This article explains that, compared to the experience made by other countries presenting legal and cultural similarities with Italy, Italy’s reticence in the field of same-sex couples’ rights is due, among other factors, to a specific attitude of the Italian Constitutional Court whose clearest expression is reflected in the Bernaroli case. In Bernaroli, a couple whose husband had undergo a sex-reassignment (male-to-female) procedure litigated their right to remain married notwithstanding the marriage dissolution established by the law in the event of the sex reassignment of one of the spouses. Against this claim, the Constitutional Court enforced the “heteronormative paradigm” under the Italian Constitution and found that the couple cannot remain married. In a subsequent judgment, however, the Supreme Court contradicted this statement by refusing to interpret the Constitution as providing for a heteronormative paradigm. As a conclusion of the case, the petitioners can remain married until the legislature enacts a specific law on civil partnership. The existence of such a same-sex marriage in the Italian legal system, nevertheless, reflects a striking contradiction that marks the Italian anomaly in the European context: same-sex marriage is neither provided by the law nor prohibited, and nonetheless does exist as a legal reality. The article is divided in two parts, preceded by an articulated introduction and followed by a brief conclusion. The first part analyzes in depth the Bernaroli case, while the second discusses it by focusing on the Constitutional Court’s enforcement of the heteronormative paradigm. This part develops a comparative analysis by showing how the Constitutional Court distanced itself from the realm of other national courts and even of supranational court like the European Court of Human Rights. The Italian isolationism, in fact, led Italy to be declared by the same European Court in breach of her international law obligations