Data di Pubblicazione:
2014
Citazione:
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
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 loc
Tipologia IRIS:
03 - Contributo in volume
Elenco autori:
M.E. D'Amico
Link alla scheda completa:
Titolo del libro:
Orientamento sessuale e diritti civili. Un confronto con gli Stati Uniti d'America.