REPLAY: When bride and groom are same-sex: overview of an Italian dilemma

By | 06/08/2015


A personal foreword

The intent of examining, even though in its broad terms, the subject of the regulation of same-sex marriages (or, better, of the liaisons among homosexual persons in general) in our country brings with it at least two risks.

The first of them consists in running into a moralistic approach to the topic. And in fact, every time you come across a subject – such as the one at issue – the examination of which presupposes the resolution of ethical dilemmas, there is always the risk of proceeding in the light of the baggage of more or less unsaid personal prejudice: an attitude which could prove to be highly misleading from a juridical point of view.

The second risk derives directly from the effort of avoiding the first one and consists in approaching the topic in a too technical manner. Paradoxically speaking, this approach could drastically simplify the entire issue, since the answer to the question «which set of rules governs the field of same-sex relationships in Italy?» is quite easy: «none».

In this second perspective, that is, it should be well kept in mind that the matter under consideration has much more to do with a de jure condendo vision of the reality than with a system of enacted laws. But such a feature involves, by its nature, the preliminary examination and resolution of crucial ethical dilemmas, and thus brings the whole issue again in the area of the first risk discussed above.

Then?

In an attempt to turn this vicious circle into a virtuous one, both of the above described features should be enhanced, but none of them should prevail. The ethical credentials of the commentator should be clearly stated and the analysis, even though brief and recapitulatory, ought to be conducted in the light of strictly technical principles: that is to say, in the absence of positive domestic regulations, in the light of the historical evolution of Italian family law, as well as in the light of domestic and European Court’s jurisprudence.

Which should lead to a fairly neutral approach, as much as an approach to a topic like the one under consideration may be neutral.

At least this is the auspicious, in the light of which I must preliminarily state that I personally do not see any obstacle to a full recognition of the right of homosexual persons to conduce a normal and lawful family life.

Love has no gender and any person, at least in his/her own intimate life, owns a precise right to self-realization, whose full and peaceful enjoyment must be granted to anyone, regardless of his/her sexual orientation.

It is clear that the previous statements, as any personal ethical belief, are highly questionable, but according to the method assumed above they were supposed to be clearly made explicit.

The traditional approach

The traditional approach to the matter of sentimental relationships among same-sex persons is quite easy to summarize: according to it, in fact, even the mere abstract conceivability of homosexual unions – and, a fortiori, their recognition in terms of “families” – are purely and simply denied. A couple of the kind, then, doesn’t constitute an union in a natural/social sense, nor it is recognizable as “family” in a juridical meaning.

The first conclusion derives by a notion of family which is assumed to presuppose traditionally the difference in sex of its basic members: a man and a woman. So, for example, Tar Venezia, Sez. I, 27/08/2007, n. 2786 clearly states that, despite of the social and cultural evolution, it must be well reaffirmed the «assumption that bases the constitution of what, so far, even the present jus gentium commonly and generally means for “family”» intended as «viri et mulieris coniunctio» or as «coniunctio mari et feminae».

As to the access of homosexual people to the institute of marriage, that opportunity is barred by resorting to several provisions, both of the Civil Code and of special legislation, which verbatim appear to postulate the different sex of the spouses. Such is the opinion expressed, for instance, by C. Cost. 15/04/2010, n. 138, according to which:

«since art. 29 Cost., stating that “the Republic recognizes the rights of the family as natural society based on marriage” (…) refers to the notion of marriage defined by the civil code entered into force on 1942, which provided (and provides so far) that the spouses must have been persons of different sex (…) homosexual unions cannot be considered consistent with marriage».

In the light of this premise, therefore, the peculiar kind of relationship under discussion does not seem to be able to access the world of the legal phenomena and remains a de facto institution basically in contrast with public order principles, confined in a limbo in which the enjoyment of the whole set of rights that is normally recognized to families based on marriage (e.g., the right to mutual moral and financial support; the right to regulate the joint properties and protect them from claims of others; the right to mutual inheritance; the right to have access to social or fiscal benefits; the right to intervene in the decision-making process concerning life’s end choices of one’s own companion etc.) is completely denied.

It is worth adding that the argument often advanced at this point of the discussion – according to which the above depicted situation should be considered compatible with general principles, given that it is exactly the same which involves the de facto heterosexual family since not based on marriage – is totally misleading.

The two situations, in fact, are deeply different, given that the de facto different-sex partners can at least choose to get married and, therefore, to have access to a status lawfully recognized, while homosexual couples are conversely prevented from that choice even in abstract terms.

The evolution

Obviously, the framework drafted above was destined to face the social and cultural evolution of thought which concerned the concept itself of family as natural union and as juridical institution. An evolution which, since the late ’60 until the late ’80 and more, led the whole Italian family system to a real Copernican revolution.

The family, thus, from an indissoluble tie governed by a plenipotentiary husband, head of it and holder of the marital power over his wife and the offspring, became a place radically different. The introduction of the principle of parity of rights and duties, both moral and material, of the spouses, the enactment of the divorce act, the recognition of the right to a conscious motherhood through the introduction of abortion, the reform of the filiation – which at the present time recognizes an identical treatment to all children, whether they are born in or out of wedlock – are only a few examples of acts and regulations which have implied a total overturning of the traditional attitude towards the organization of the family and the regime of the relationships among its members.

But it must be added that the just drafted cultural, civil and legal evolutionary process concerned essentially the “traditional” family. The environment, that is, of the “legitimate” family, founded on marriage between a man and a woman who normally had never been entered into marriage before.

Conversely, a similar evolution did not occur (or occurred with a minor degree of intensity) with regard to the other genres of family, which, during the course of the years, have appeared on the social and cultural scene of our country.

The “recomposed” family, for example, in which both members came from previous marriages and subsequent divorces. The de facto family, whose members had decided from the beginning not to enter into marriage. Up to the family unions whose partners belonged to the same sex.

But while the unions between two different-sex persons have been considered in a progressively conscious and problematic manner over time (which, if nothing else, has led to the draft and discussion of a number of bills concerning the regulation of the de facto relationships), with regard to homosexual unions nothing similar happened, occurring a deadlock with unavoidable ideological hints, which opened the door to the possibility of manifest discrimination, especially in consideration of the international context in which the matter is placed.

The European approach

Speaking of international contexts, a hint has to be done to the role played by the European Union, which over the years has repeatedly covered the topic of gay relationships, addressing to Member States several important recommendations in the aim of removing the obstacles to a full recognition of the homosexual relationships and of fighting homophobia (see, for examples, docs A3-0028/1994, A5-0050/2000; A5-0223/2001; A5-0281/2003; P6_TA 2006 0018; P7_TA(2014)0062 ,available at the site of European Parliament).

A constant effort, done on the assumption that «European citizens continue to suffer discrimination and disadvantages in their personal and professional life as a result of their sexual orientation» (Annual Report on respect for human rights in the European Union A5-0050/2000) and essentially based both on the non-discrimination principle (art. 2, par. 1, Universal Declaration of Human Rights, art. 14 European Convention on Human Rights, art. 21 Charter of Fundamental Rights of the European Union), as well as on the right to marry (art. 16, par. 1, Universal Declaration of Human Rights, art. 12 European Convention on Human Rights), and that has inspired many EU Member States to provide changes of their respective legislation, guaranteeing to homosexual couples the same rights recognized to heterosexual ones (lastly in the UK and in France).

But, despite all the just reminded efforts and the remarkable progress gained thanks to them, a number of differences still remains among the regulations of the matter inside and outside the EU area.

So, in the current international scenario can be found, e.g., countries which do not recognize the unions among same-sex persons (like Italy), countries that fully recognize them, allowing marriage and adoption on the part of homosexual couples and countries that recognize such a liaison only to a certain extent (e.g. providing a right to marry, but not to adopt children, or granting the right to get married only to same-sex spouses that do not belong to certain nationality, or recognizing the homosexual couples only as civil unions, to some legal extents etc.).

So, what happens, for instance, if a couple of men or a couple of women, lawfully married and legitimate parents of an adopted child in a country that provides this opportunity, decide to move their residency in another state in which that chance is not recognized and/or not even socially conceived?

In our legal domestic system the answer to the just worded question should probably be negative, since Italy does not recognize legal significance to relationships of the aforesaid kind.

But, paradoxically, the apparently insoluble problem just hinted has had the effect of opening a considerable fissure over the wall of the traditional position, as we are about to see in the following paragraphs dedicated to the examination of the European and domestic jurisprudence about the matter.

The case of S. and K. v. Austria

In 2010 the European Court of Human Rights (ECHR) decided a case (ECHR,  I, S. and K v. Austria, n. 30141/04, 24/06/2010) of an Austrian homosexual couple which had requested to the relevant registrar of allowing them to contract marriage, obtaining the rejection of it essentially on the assumption that the same sex of the spouses constituted an impediment to marriage.

In deciding the case, the Court first of all recognized that the stable unions between two same-sex persons own the same dignity of the different-sex family units:

«the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently, the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would».

The statement is surely worth noting, since it rejects the main argument used, in the above-mentioned traditional perspective, to deny the juridical relevance of same-sex relations (the necessity that the spouses belong to a different sex).

What does impede to same-sex partners to enter into a valid marriage then?The ECHR gives to that question the following answer:

«regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex»,

establishing, nevertheless, at the same time that the delicate political decision concerning the “systemic” effects of the new opinion must be left to the discretionary power of each state:

«however, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State».

Therefore, the outlines of the matter remain blurred: if it can be legitimately affirmed the existence of a “real family” even between two same-sex partners, this does not automatically implies the juridical recognition of the latter.

The Italian dilemma: the case of Cass. Civ., Sez. I, 15/03/2012, n. 4184

Under the influence of the just cited ECHR opinion, also our domestic jurisprudence has finally recognized that the different sex of the spouses cannot be considered anymore a (pre)requisite of the recognition of a family union.

The case is the following one. The Italian registrar, asked by a Dutch married homosexual couple moved to Italy to recognize their marriage entered into in the Netherlands, refuses the registration.

The couple files a claim, that is rejected, as the following appeal is, in both cases recalling the traditional opinion according to which same-sex relationships do not own the essential requisite peculiar to the marriage, that is the diversity of sex between the spouses.

The couple, then, goes to Supreme Court, which reverses the just hinted line of reasoning (see: Cass.Civ, Sez. I, 15/03/2012, n. 4184):

«the jurisprudence of this Court – according to which the difference in sex of persons preparing for marriage is (…) the minimum requisite for the “existence” itself of a civil marriage as a lawful act – proves not to be appropriate anymore to the current legal reality, having been radically overcome the idea that the difference in sex of persons preparing for marriage is a prerequisite, so to say “natural,” of the “existence” itself of marriage».

Which opens a new chapter that could be synthesized as follows:

  1. given that art. 29 Cost. states that «the Republic recognizes the rights of the family as natural society based on marriage» ;
  2. given that ECHR has irrevocably established that a same-sex family is a «natural society» exactly as a family in which the partners belong to different-sex;
  3. given the principle of equality provided by art. 3 Cost.;

should not the logical conclusion be that in our legal system does not exist any legal obstacle able to prevent same-sex marriages?

But this is not, on the contrary, the conclusion drawn in the case under discussion. In fact the Court, despite the abandonment of the “traditional” reason adopted to exclude the legitimacy of same-sex marriages, confirms nevertheless that:

«the impossibility of homosexual unions to be registered is no more the result of their “non-existence” (…) nor of their “nullity”, but of their inability to produce, as acts of marriage, any juridical effect in the Italian legal system».

In other words, although the above-mentioned decision acknowledged the existence of a new cultural, social and natural concept of “family”, at the same time it did not draw from that premise any kind of significant conclusion from a legal point of view: according to Supreme Court, in fact, our legal system still does not provide same-sex marriages.

First conclusions

At any rate, the above-mentioned Supreme Court’s decision allows us to draw some first conclusions of this brief overview. It can, in fact, be said that:

  • the difference of sex among persons involved in a sentimental union cannot be considered anymore as a naturalistic prerequisite, whose lack is able to prevent the full recognition of the liaison in terms of authentic “family”;
  • a relationship between two same-sex persons, therefore, cannot be anymore deemed a mere accident or a phenomenon in contrast with public order, but, on the contrary, such an union should be considered in terms of «social group» lawfully significant under art. 2 Cost. and in terms of «natural society» in the sense provided by art. 29 Cost;
  • despite the picture sketched above, in our country a same-sex couple still cannot enter into marriage due to a basically formal reason: such an union is not provided by any law or regulation in our legal system.

Further developments

The decisions which followed the Supreme Court’s judgment 4184/2012 dealt with in the preceding paragraphs, highlighted still further the lack of actual differences between same-sex couples and different-sex ones.

For example, in a case that concerned the problem of entitlement, on the part of a same-sex partner of an employee, to certain social security benefits, C. App. Milano, Sez. Lav., 31/08/2012, n. 7176 recognized such a right, stating that

«in today’s social-political reality the “more uxorio” partnership, considered as a communion of life characterized by stability and by the absence of wedlock, a household group, with its values of solidarity and mutual support, is not only the one characterized by the union of persons of the opposite sex, but it is also the one typical of the homosexual union to which the widespread social sentiment recognizes the right to a proper family life».

Which means, in other words, that between same-sex and different-sex families there is no difference at all capable of justifying a different treatment under the law.

The last steps: Trib. Grosseto, ord. 09/04/2014 and the recent “Fano case”

In conclusion of this overview two, recent and important, further passages have to be reminded.

The first one concerns the Court of first instance of Grosseto (Trib Grosseto, ord. 09/04/2014), which has explicitly ordered to register a marriage entered into in New York between two men, thereby conferring fully legal effect also in our country to the aforesaid union.

The Court, having considered that same-sex relationships are neither in contrast with public order, nor non-existent, nor null, according to the ECHR and Supreme Court judgments examined above, has also added that there is not any law or any regulation in our legal system which authorizes to consider the sex of the spouses as a condition requested to enter into marriage. Therefore marriages between two persons belonging to the same-sex are perfectly conceivable and lawful, as the ones between same-sex spouses are.

But the Mayor of Fano (PU) went even further, having decided on May, 30th 2014, to register directly (that is without the need of any Court’s previous orders) a marriage between two men celebrated in the Netherlands.

A courageous act, the first of its kind in Italy, which certainly will arouse controversy and reactions, but that represents a further development – perhaps decisive – for the recognition of the rights of homosexual couples in our country.

Documents & materials

download Tar Venezia, Sez. I, 27/08/2007, n. 2786
download C. Cost. 15/04/2010, n. 138
download ECHR, I, S. and K v. Austria, n. 30141/04, 24/06/2010
download Cass.Civ, Sez. I, 15/03/2012, n. 4184
download C. App. Milano, Sez. Lav., 31/08/2012, n. 7176
download Trib Grosseto, ord. 09/04/2014

“Replay” notice

This entry was posted on 20/11/2013 and it is in the top ten of our blog. It does not constitute an update and is re-published in its original version for the “Replay ” series in August 2015.

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