This marriage is not to be performed. Notes in the margin of a decision of the Italian Constitutional Court

Citing in his title the famous line from Manzoni’s The Betrothed, the author discusses the recent decision n. 138 of the Italian Constitutional Court, dated 14 April 2010, which holds that the question of the constitutional legitimacy of the laws that do not permit homosexuals to contract marriage with people of their own gender to be partly inadmissible and partly unfounded. The author is of the opinion that the buck has been passed in a manner that is anything but unusual: the substantive court passed the hot potato to the Constitutional Court, which in its turn passed it on to Parliament, which may exercise its complete discretion in identifying the most suitable forms of recognition and guarantee of same-sex unions, while the Court retains the more limited task of stepping in to safeguard specific situations (as it already did for common-law cohabitation), although there is a discernible need for the conditions applied to married couples and those applied to same-sex couples to be subjected to homogeneous treatment, which the Court can guarantee by verifying their reasonableness. It was actually inconceivable that the Court would have dared to overturn the existing legal framework and arrogate to itself the sole responsibility for extending the faculty of contracting marriage to same-sex couples, without establishing any differentiated degrees of treatment between same-sex couples and heterosexual couples, which is something that, on the other hand, the legislative is entitled to do.

Keywords: Marriage, Family, Homosexuality, Constitution

Luigi Pannarale, Questo matrimonio non s’ha da fare. Note a margine di una sentenza della corte costituzionale in "SOCIOLOGIA DEL DIRITTO " 2/2010, pp 171-176, DOI: 10.3280/SD2010-002008