¹ Eur. Court H.R., Oliari and others v. Italy, judgment of July 21, 2015, paragraph 185 [hereinafter the judgment].Google Scholar

² See, among the others, the commentaries by Francesco Alicino, Le coppie dello stesso sesso. L'arte dello Stato e lo stato della giurisprudenza, FORUM DI QUADERNI COSTITUZIONALI, August 22, 2015; Paul Johnson, Groundbreaking judgment of the European Court of Human Rights in Oliari and Others v. Italy: same-sex couples in Italy must have access to civil unions/registered partnerships, in ECHR Sexual Orientation Blog, July 21, 2015 available at: http://echrso.blogspot.de/2015/07/ground-breaking-judgment-of-european.html; Lorella Ponzetta, La sentenza Oliari e altri Vs. Italia: una pronuncia dai dubbi effetti, FORUM DI QUADERNI COSTITUZIONALI, November 15, 2015; Giuseppe Zago, A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on Oliari v Italy, ARTICOLO 29, August 21, 2015, available at: http://www.articolo29.it/2015/victory-for-italian-same-sex-couples-victory-for-european-homosexuals-commentary-on-oliari-v-italy.Google Scholar

³ Paragraph 185 of the judgment.Google Scholar

⁴ Italian Constitutional Court, judgment 138/2010, April 14, 2010. The referring courts were the Tribunal of Venice and the Court of Appeal of Trento. Afterwards, the Court of Appeal of Florence and the Tribunal of Ferrara raised similar questions; see decisions 276/2010 and 4/2010 of the Italian Constitutional Court.Google Scholar

⁵ This is the transcript of the arguments made in the facts of the judgment, which was translated into English and is available at www.cortecostituzionale.it. For a clear reconstruction of the Italian context, also in a comparative perspective, see OMOSESSUALITÀ, EGUAGLIANZA, DIRITTI (Angelo Schillaci ed., 2014) and Francesco Alicino, The Road to Equality. Same-Sex Relationships within the European Context: The Case of Italy, SOG Working Papers 25 (2015).Google Scholar

⁶ See paragraph 1 of judgment 138/2010. It was not possible for them to apply the so-called “interpretazione conforme” (interpretation consistent with the constitution) to automatically interpret the regulation of marriage by opening it to gay couples in light of the constitution. On the importance of the role of constitutional interpretation, see Roberto Romboli, Il diritto “consentito” al matrimonio ed il diritto “garantito” alla vita familiare per le coppie omosessuali in una pronuncia in cui la Corte dice “troppo” e “troppo poco”, GIURISPRUDENZA COSTITUZIONALE 1629, 1634 (2010).Google Scholar

⁷ See paragraph 7 of judgment 138/2010. For a wider perspective on the relationship between parliaments and courts in this sensitive field, see Sabrina Ragone, El matrimonio homosexual en Europa entre Derecho Político y Derecho Jurisprudencial. Reflexiones a raíz de la reciente Jurisprudencia comparada, 16 FORO. REVISTA DE CIENCIAS JURÍDICAS Y SOCIALES, Nueva Época 241 (2013). A similar approach is adopted in Tiago Fidalgo de Freitas, Diletta Tega, Judicial Restraint and Political Responsibility: A Review of the Jurisprudence of the Italian, Spanish and Portuguese High Courts on Same-Sex Couples, in SAME-SEX COUPLES BEFORE NATIONAL, SUPRANATIONAL AND INTERNATIONAL JURISDICTIONS, 287 (Daniele Gallo, Luca Paladini and Pietro Pustorino eds., 2014).Google Scholar

⁸ See especially paragraph 5 of judgment 138/2010 (“The question raised by the two referral orders in relation to Article 2 of the constitution must be ruled inadmissible because it seeks to obtain a substantive judgment that is not mandated under constitutional law”) and paragraph 9 (“This meaning of the constitutional rule cannot be set aside through interpretation, because to do so would not involve a simple re-reading of the system or the abandonment of a mere interpretative practice, but rather the implementation of a creative interpretation”).Google Scholar

⁹ The Court dismissed the question with regard to Article 3 and Article 29, and declared it not admissible as it concerns Articles 2 and 117. See Piero Alberto Capotosti, Matrimonio tra persone dello stesso sesso: infondatezza versus inammissibilità nella sentenza n. 138 del 2010, QUADERNI COSTITUZIONALI, 361 (2010); Andrea Pugiotto, Una lettura non reticente della sent. n. 138/2010: il monopolio eterosessuale del matrimonio, in SCRITTI IN ONORE DI FRANCO MODUGNO 269 (2011); Fabrizio Mastromartino, IL MATRIMONIO CONTESO. LE UNIONI OMOSESSUALI DAVANTI AI GIUDICI DELLE LEGGI (2013).Google Scholar

¹⁰ See paragraph 8 of judgment 138/2010.Google Scholar

¹¹ For more about the overruling of this specific criterium in the European case law, see infra. Google Scholar

¹² On the different perspective of the two sources as it concerns marriage, see Paolo Veronesi, Matrimonio omosessuale, ovvero: “È sorprendente per quanto tempo si può negare l'evidenza, di fronte a certe cose”, in LA “SOCIETÀ NATURALE” E I SUOI “NEMICI”. SUL PARADIGMA ETEROSESSUALE DEL MATRIMONIO, 378 (Roberto Bin et al. eds., 2010).Google Scholar

¹³ On the paradox of interpreting the constitution in light of the civil code and not the opposite, see Andrea Pugiotto, Una lettura non reticente della sent. n. 138/2010: il monopolio eterosessuale del matrimonio, supra note 9. On the excessive importance given to the historical argument, see Francesco Dal Canto, Le coppie omosessuali davanti alla Corte costituzionale: dalla “aspirazione” al matrimonio al “diritto” alla convivenza, in SCRITTI IN ONORE DI FRANCO MODUGNO, supra note 9.Google Scholar

¹⁴ See paragraph 9 of judgment 138/2010. On different interpretations of Article 29, see Carlo Fusaro, Non è la Costituzione a presupporre il paradigma eterosessuale, in LA “SOCIETÀ NATURALE” E I SUOI “NEMICI”, SUL PARADIGMA ETEROSESSUALE DEL MATRIMONIO, 151, supra note 12.Google Scholar

¹⁵ On this point, see Ilenia Massa Pinto and Chiara Tripodina, “Le unioni omosessuali non possono essere ritenute omogenee al matrimonio”. Tecniche argomentative impiegate dalla Corte costituzionale per motivare la sentenza n. 138 del 2010, 1-2 DIRITTO PUBBLICO 16, 471 (2010).Google Scholar

¹⁶ In favor of the existence of a European obligation for Italy, see Anna Maria Lecis Cocco Ortu, Same-sex unions in Italy: a European obligation?, in CURRENT SOCIAL AND LEGAL CHALLENGES FOR A CHANGING EUROPE, 38 (Cristina Benlloch Domènech, Pedro Jesús Pérez Zafrilla and Joaquín Sarrión Esteve eds., 2013).Google Scholar

¹⁷ On the techniques used by the Court, see Forms and Methods of Judicial Reasoning, in ITALIAN CONSTITUTIONAL JUSTICE IN GLOBAL CONTEXT 67 (Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia and Andrea Simoncini, eds., 2015).Google Scholar

¹⁸ On the possibility of adopting this kind of judgment, see Roberto Pinardi, La Corte, il matrimonio omosessuale ed il fascino (eterno?) della tradizione, NUOVA GIURISPRUDENZA CIVILE COMMENTATA, 527 (2010) and Antonio D'Aloia, Omosessualità e Costituzione, La tormentata ipotesi del matrimonio tra persone dello stesso sesso davanti alla Corte costituzionale, in LA “SOCIETÀ NATURALE” E I SUOI “NEMICI”. SUL PARADIGMA ETEROSESSUALE DEL MATRIMONIO, 104, supra note 12.Google Scholar

¹⁹ See Simone Scagliarini, Un'opportuna sollevazione di questioni infondate, in LA “SOCIETÀ NATURALE” E I SUOI “NEMICI”. SUL PARADIGMA ETEROSESSUALE DEL MATRIMONIO, 345, supra note 12.Google Scholar

²⁰ Romboli, Roberto, Per la Corte costituzionale le coppie omosessuali sono formazioni sociali, ma non possono accedere al matrimonio, FORO ITALIANO, 167(2010).Google Scholar

²¹ On the potential developments after the judgment, see UNIONI E MATRIMONI SAME-SEX DOPO LA SENTENZA 138/2010: QUALI PROSPETTIVE (Barbara Pezzini and Anna Lorenzetti eds., 2011).Google Scholar

²² See paragraph 8 of judgment 138/2010 (“However, the Court finds that the aspiration to this recognition— which necessarily postulates legislation of a general nature, aimed at regulating the rights and duties of the members of the couple—cannot solely be achieved by rendering homosexual unions equivalent to marriage. It is sufficient in this regard to examine—even on a non-exhaustive basis—the legislation of the Countries that have to date recognized the aforementioned unions in order to ascertain the diversity within the choices made”). The clerks of the Court had also published a comparative dossier on the issue: see IL MATRIMONIO TRA PERSONE DELLO STESSO SESSO IN ALCUNI STATI EUROPEI (Paolo Passaglia ed., 2010) available on the website of the Court. In the same sense, see also Italian Court of Cassation, judgment 2400/2015, February 9, 2015, about another case of denial of publication of marriage banns.Google Scholar

²³ According to paragraph 8 of judgment 138/2010, the Court would be exclusively allowed to protect specific situations, especially “within a review of a provision's reasonableness”. Also in the judgment 170/2014 by the Italian Constitution Court, concerning the case of a married couple in which one of the spouses was transsexual, the Court asked for a legislative measure—in those cases, after the sex change, the marriage is no longer valid independent from the will of the subjects affected. For criticisms on this judgment, see the comment by Giuditta Brunelli, Quando la Corte costituzionale smarrisce la funzione di giudice dei diritti: la sentenza n. 170 del 2014 sul c.d. “divorzio imposto”, FORUM DI QUADERNI COSTITUZIONALI, October 6, 2014.Google Scholar

²⁴ In the same sense, see Francesco Dal Canto, La Corte costituzionale e il matrimonio omosessuale (nota a Corte cost., 15 aprile 2010, n. 138), FORO ITALIANO, 1369 (2010) and Paolo Bianchi, La corte chiude le porte al matrimonio tra persone dello stesso sesso, GIURISPRUDENZA ITALIANA, 537 (2010). Clearly supporting the constitutional obligation of the heterosexual paradigm, Antonino Spadaro, Matrimonio “fra gay”: mero problema di ermeneutica costituzionale—come tale risolubile dal legislatore ordinario e dalla Corte, re melius perpensa—o serve una legge di revisione costituzionale?, FORUM DI QUADERNI COSTITUZIONALI, September 9, 2013.Google Scholar

²⁵ In favor of this option, see Barbara Pezzini, Il matrimonio same-sex si potrà fare. La qualificazione della discrezionalità del legislatore nella sent. n. 138 del 2010 della Corte costituzionale, GIURISPRUDENZA ITALIANA, 2715 (2010).Google Scholar

²⁶ Information on bill n. 2081 is available on the website of the Senate: http://www.senato.it/leg/17/BGT/Schede/Ddliter/46051.htm.Google Scholar

²⁷ See in English the New York Times, Italian Lawmakers' Vote on Same-Sex Civil Unions Stalls, February 16, 2016, available at: http://www.nytimes.com/2016/02/17/world/europe/italy-same-sex-civil-unions.html?_r=0.Google Scholar

²⁸ Quoting the abovementioned judgment 170/2014 of the Italian Constitutional Court.Google Scholar

²⁹ Judgment 2400/2015 was issued in February 2015, quoting the previous jurisprudence by the ECtHR, in particular Schalk & Kopf v. Austria (2010), see infra; Gas and Dubois v. France, judgment of March 15, 2012 and Hämäläinen v. Finland, see infra. Google Scholar

³⁰ See Italian Court of Cassation, judgment 4184/2012, March 15, 2012.Google Scholar

³¹ More precisely, the Chamber decided to join the two original applications: 18766/11 and 36030/11.Google Scholar

³² Paragraph 3 of the judgment.Google Scholar

³³ ECHR, Article 8: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”Google Scholar

³⁴ ECHR, Article 12: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”Google Scholar

³⁵ ECHR, Article 14: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”Google Scholar

³⁶ Paragraph 159 of the judgment. In a very early judgment of 1968 the Court affirmed that the object of Article 8 “is essentially that of protecting the individual against arbitrary interference by the public authorities in his private family life.” Eur. Court H.R., Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, July 23, 1968, paragraph I.B.7.Google Scholar

³⁷ Since early judgments, the ECtHR case law has constantly emphasized the double-sided content of Article 8, encompassing both negative and positive obligations for Member States. See Eur. Court H.R., Marckx v. Belgium, June 13, 1979, paragraph 31; Eur. Court H.R., X and Y v. the Netherlands, March 26, 1985, paragraph 23; Eur. Court H.R., Johnston and others v. Ireland, December 18, 1986, paragraph 55. c). On the articulated content of Article 8 see Cesare Pitea and Laura Tomasi, Art. 8 – Diritto al rispetto della vita privata e familiare, in COMMENTARIO BREVE ALLA CEDU - CONVENZIONE EUROPEA PER LA SALVAGUARDIA DEI DIRITTI DELL'UOMO E DELLE LIBERTÀ FONDAMENTALI, 297 (Sergio Bartole, Pasquale De Sena and Vladimiro Zagrebelsky eds., 2012).Google Scholar

³⁸ Paragraph 159 of the judgment.Google Scholar

³⁹ Paragraph 164 of the judgment.Google Scholar

⁴⁰ Paragraph 165 of the judgment.Google Scholar

⁴¹ Ibidem. The Court recalls here that there is a need for legal recognition and protection as it has been underlined in relevant documents of the Council of Europe. Two such relevant documents are the Parliamentary Assembly Recommendation 1474 (2000), which already fifteen years ago called upon Member States “to adopt legislation making provision for registered partnerships”, Recommendation 1474 (2000), Situation of Lesbians and Gays in Council of Europe Member States, June 30, 2000; and the Committee of Ministers Recommendation of 2010, which invited member States “to consider the possibility of providing … same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” Recommendation CM/Rec(2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, March 31, 2010, paragraph 25.Google Scholar

⁴² Paragraph 169 of the judgment. The ECtHR first affirmed the principle in Eur. Court H.R., Vallianatos and others v. Greece, November 7, 2013: “the fact of not cohabiting does not deprive the couples concerned of the stability which brings them within the scope of family life within the meaning of Article 8”. Paragraph 73.Google Scholar

⁴³ Paragraph 170 of the judgment.Google Scholar

⁴⁴ Paragraph 171 of the judgment.Google Scholar

⁴⁵ Paragraph 173 of the judgment.Google Scholar

⁴⁶ Paragraph 181 of the judgment. The Associazione Radicale Certi Diritti (ARCD) submitted a survey carried out in 2011 by the ISTAT (Italian Institute for Statistics), which found that the statement “it is just and fair for a homosexual couple living as though they were married to have before the law the same rights as a married heterosexual couple” was supported by 62.8% of those responding. Paragraph 144.Google Scholar

⁴⁷ Paragraph 174 of the judgment.Google Scholar

⁴⁸ Ibidem. Google Scholar

⁴⁹ Paragraph 173 of the judgment.Google Scholar

⁵⁰ Included, in principle, among the grounds able to limit the right to respect for private and family life according to Article 8.2, ECHR.Google Scholar

⁵¹ Paragraph 123 of the judgment.Google Scholar

⁵² Paragraph 178 of the judgment. See also infra. Google Scholar

⁵³ Ibidem. Google Scholar

⁵⁴ Paragraph 65 of the judgment.Google Scholar

⁵⁵ Paragraph 185 of the judgment.Google Scholar

⁵⁶ Paragraph 179 of the judgment.Google Scholar

⁵⁷ See Paolo Passaglia, Matrimonio ed unioni omosessuali in Europa: una panoramica, FORO ITALIANO, 272 (2010).Google Scholar

⁵⁸ Portuguese Constitutional Court, judgment 359/2009, July 9, 2009.Google Scholar

⁵⁹ See paragraphs 10 and 11 of judgment 359/2009. Concerning the evolution of families in Portugal, see for example Anna Ciammariconi, Le dinamiche evolutive della tutela giuridica della famiglia e del matrimonio nell'ordinamento portoghese, DIRITTO PUBBLICO COMPARATO ED EUROPEO, 676 (2010). On the domestic debate, see the book, published before the judgment, by Luís Duarte d'Almeida, Carlos Pamplona Côrte-Real and Isabel Moreira, O CASAMENTO ENTRE PESSOAS DO MESMO SEXO (2008). For a political and sociological approach, see Anna Maria Simões Azevedo Brandaõ and Tânia Cristina Machado, How equal is equality? Discussions about same-sex marriage in Portugal, 15 SEXUALITIES, 662 (2012).Google Scholar

⁶⁰ See paragraph 13 of judgment 359/2009.Google Scholar

⁶¹ See paragraph 14 of judgment 359/2009.Google Scholar

⁶² See paragraph 7 of judgment 359/2009.Google Scholar

⁶³ See in particular the decision 05-16627 of the First civil section of the French Court of Cassation, March 13, 2007.Google Scholar

⁶⁴ See paragraphs 5, 6 and 7 of judgment 2010-92. In this respect, see also the analysis by Daniele Ferrari, La Corte costituzionale e il Conseil Constitutionnel davanti ai matrimoni omosessuali, 2-3 POLITICA DEL DIRITTO, 495 (2012).Google Scholar

⁶⁵ See paragraph 9 of judgment 2010-92.Google Scholar

⁶⁶ On the previous debate and evolution, see Rosa Martins, Same-sex partnerships in Portugal. From de facto to de jure?, 4 n. 2 UTRECHT LAW REVIEW, 194 (2008).Google Scholar

⁶⁷ Portuguese Constitutional Court, judgment 121/2010, April 8, 2010. On the evolution of the Portuguese case law, see Elisabetta Crivelli, Il matrimonio omosessuale e la ripartizione di competenze tra legislatore e organo di giustizia costituzionale: spunti da una recente decisione del Tribunale costituzionale portoghese, RIVISTA DELL'ASSOCIAZIONE ITALIANA DEI COSTITUZIONALISTI (2010); Elena Sorda, Same-sex marriage: il caso portoghese, 4 IANUS, 173 (2011) and again Paolo Passaglia, Matrimonio ed unioni omosessuali in Europa: una panoramica, supra note 57.Google Scholar

⁶⁸ See paragraph 18 of judgment 121/2010. On the evolution of the concept, see Duarte Santos, MUDAM-SE OS TEMPOS, MUDAM-SE OS CASAMENTOS? O CASAMENTO ENTRE PESSOAS DO MESMO SEXO E O DIREITO PORTUGUÊS (2009).Google Scholar

⁶⁹ See paragraph 22 of judgment 121/2010. For a comparison with the Spanish case law in this respect, see Miguel Ángel Presno Linera, El matrimonio: ¿garantía institucional o esfera vital? A propósito de la STC 198/2012, de 6 de noviembre, sobre el matrimonio entre personas del mismo sexo y la jurisprudencia comparada, 19 REVISTA DE DERECHO CONSTITUCIONAL EUROPEO, 403 (2013).Google Scholar

⁷⁰ Spanish Constitutional Court, judgment 198/2012, November 6, 2012. Among the many studies published between the appeal and the judgment, see María Martín Sánchez, MATRIMONIO HOMOSEXUAL Y CONSTITUCIÓN (2008) and Francisco Javier Matia Portilla, Matrimonio entre personas del mismo sexo y Tribunal Constitucional: un ensayo sobre la constitucionalidad del primero y los límites en la actuación del segundo, 15 REVISTA GENERAL DE DERECHO CONSTITUCIONAL, 2 (2012).Google Scholar

⁷¹ On this point, see for instance Fabrizio Mastromartino, IL MATRIMONIO CONTESO. LE UNIONI OMOSESSUALI DAVANTI AI GIUDICI DELLE LEGGI, 41 (2013).Google Scholar

⁷² On the need for a conjunct interpretation of Article 32 of the Spanish constitution with Article 9 and Article 14 (equality and non-discrimination), see Blanca Rodríguez Ruiz, Matrimonio, género y familia en la Constitución Española: trascendiendo la familia nuclear, 91 REVISTA ESPAÑOLA DE DERECHO CONSTITUCIONAL, 80 (2011).Google Scholar

⁷³ See paragraph 9 of judgment 198/2012.Google Scholar

⁷⁴ See paragraph 5 of judgment 198/2012. On the contents of the judgment, in this perspective, see Francisco Javier Matia Portilla, Interpretación evolutiva de la Constitución y legitimidad del matrimonio formado por personas del mismo sexo, 31 TEORÍA Y REALIDAD CONSTITUCIONAL, 541 (2013). For a critical approach, see Abraham Barrero Ortega, El matrimonio entre ciudadanos del mismo sexo: ¿Derecho fundamental u opción legislativa?, 163 REVISTA DE ESTUDIOS POLÍTICOS, 41 (2014).Google Scholar

⁷⁵ See paragraph 14 of judgment 2013-669.Google Scholar

⁷⁶ See paragraph 22 of judgment 2013-669.Google Scholar

⁷⁷ Eur. Court H.R., Schalk and Kopf v. Austria, June 24, 2010. See also Loveday Hodson, A Marriage by Any Other Name? Schalk and Kopf v Austria, 11 HUMAN RIGHTS LAW REVIEW, 170 (2011); Sarah Lucy Cooper, Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights, 12 GERMAN LAW JOURNAL, 1746 (2011).Google Scholar

⁷⁸ Eur. Court H. R., Vallianatos and others v. Greece, November 7, 2013; See also Ilias Trispiotis, Discrimination and Civil Partnerships: Taking ‘Legal’ out of Legal Recognition, 14 HUMAN RIGHTS LAW REVIEW, 343 (2014); Delia Rudan, Unioni civili registrate e discriminazione fondata sull'orientamento sessuale: il caso Vallianatos, 8 DIRITTI UMANI E DIRITTO INTERNAZIONALE 232 (2014).Google Scholar

⁷⁹ “[A]s matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State; … marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society”. Schalk and Kopf v. Austria, paragraphs 61-62.Google Scholar

⁸⁰ Schalk and Kopf v. Austria, paragraph 99.Google Scholar

⁸¹ Ibidem. Google Scholar

⁸² Vallianatos and others v. Greece, paragraph 81.Google Scholar

⁸³ Ibidem. Google Scholar

⁸⁴ Paragraph 185 of the judgment.Google Scholar

⁸⁵ “The relationship of a homosexual couple falls within the scope of the right to respect for private life, but not that of family life.” Eur. Comm. H.R., X. and Y. v. the United Kingdom, May 3, 1983. For a long time, the Strasbourg judges affirmed that “a stable homosexual relationship … does not fall within the scope of the right to respect for family life ensured by Article 8 of the Convention”. See Eur. Comm. H. R., S. v. the United Kingdom, May 14, 1986, paragraph 2; Eur. Court H.R., Dudgeon v. the United Kingdom, October 22, 1981; Eur. Comm. H. R., Kerkhoven and Hinke v. the Netherlands, May 19, 1992, paragraph 1. “A person's sexual life is undoubtedly part of his private life”, Eur. Comm. H.R., X. v Federal Republic of Germany, September 30, 1975; See also Paul Johnson, ‘An Essentially Private Manifestation of Human Personality’: Constructions of Homosexuality in the European Court of Human Rights, 10 HUMAN RIGHTS LAW REVIEW 67, 97 (2010).Google Scholar

⁸⁶ Schalk and Kopf v. Austria, paragraph 94.Google Scholar

⁸⁷ Ibidem. Google Scholar

⁸⁸ Vallianatos and others v. Greece, paragraph 73.Google Scholar

⁸⁹ Paragraph 103 of the judgment.Google Scholar

⁹⁰ Eur. Court H.R., P.B. and J.S. v. Austria, July 22, 2010, paragraph 28.Google Scholar

⁹¹ Dudgeon v. the United Kingdom, paragraph 52.Google Scholar

⁹² Johnson, Paul, HOMOSEXUALITY AND THE EUROPEAN COURT OF HUMAN RIGHTS, 120 (2013).Google Scholar

⁹³ “Whatever else the word ”family“ may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage.” Eur. Court H.R., Abdulaziz, Cabales and Balkandali v. the United Kingdom, May 28, 1985, paragraph 62.Google Scholar

⁹⁴ “By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family.” It applies when children rights are at stake “to the ‘family life’ of the ‘illegitimate’ family as it does to that of the ‘legitimate’ family.” Eur. Court H.R., Marckx v. Belgium, paragraph 31. See also Eur. Court H.R., Elsholz v. Germany, July 13, 2000, paragraph 43; Eur. Court. H.R., Keegan v. Ireland, May 26, 1994, paragraph 44; Johnston and others v. Ireland, paragraph 55; 72.Google Scholar

⁹⁵ Marckx v. Belgium, paragraph 31; see also Johnston and others v. Ireland, paragraph 55.a).Google Scholar

⁹⁶ Puppinck, Grégor, The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life,” EJIL: TALK!, March 25, 2014, available at: http://www.ejiltalk.org/the-dilution-of-the-family-in-human-rights-comments-on-vallianatos-and-other-echr-cases-on-family-life/.Google Scholar

⁹⁷ Johnson, Paul, HOMOSEXUALITY AND THE EUROPEAN COURT OF HUMAN RIGHTS, supra note 92, 77-83.Google Scholar

⁹⁸ Dzehtsiarou, Kanstantsin, EUROPEAN CONSENSUS AND THE LEGITIMACY OF THE EUROPEAN COURT OF HUMAN RIGHTS, 2 (2015).Google Scholar

⁹⁹ Schalk and Kopf v. Austria, paragraph 58. The ECtHR also meaningfully affirmed that “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 … 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.” Paragraph 61.Google Scholar

¹⁰⁰ Schalk and Kopf v. Austria, paragraph 58.Google Scholar

¹⁰¹ Schalk and Kopf v. Austria, paragraph 105.Google Scholar

¹⁰² Vallianatos and others v. Greece, paragraph 91.Google Scholar

¹⁰³ Ibidem. Google Scholar

¹⁰⁴ Paragraph 191 of the judgment. The reference is to Schalk & Kopf v. Austria, paragraph 62.Google Scholar

¹⁰⁵ Concerning the Italian discussion on the adoption of a legal framework for homosexual couples see supra section B of this Article. The Greek parliament–in compliance with the Vallianatos judgment–passed a law allowing civil partnerships for same-sex couples on December 23, 2015. See The Guardian, December 23, 2015, available at: http://www.theguardian.com/world/2015/dec/23/greece-passes-bill-allowing-same-sex-civil-partnerships.Google Scholar

¹⁰⁶ “ECtHR judgments increase the likelihood that all European nations–even countries whose laws and policies the court has not explicitly found to violate the European Convention–will adopt pro-LGBT reforms. The effect is strongest in countries where public support for homosexuals is lowest.” Laurence R. Helfer and Erik Voeten, International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe, 68 INTERNATIONAL ORGANIZATION, 77, 105 (2014).Google Scholar

¹⁰⁷ Paragraph 178 of the judgment. In this sense also Francesco Alicino, Le coppie dello stesso sesso. L'arte dello Stato e lo stato della giurisprudenza, supra note 2.Google Scholar

¹⁰⁸ Paragraph 43 of the judgment, quoting Franco Gallo, Relazione del Presidente della Corte Costituzionale, April 12, 2013, paragraph 4. On the role of courts in the global legal arena see Sabino Cassese, I TRIBUNALI DI BABELE. I GIUDICI ALLA RICERCA DI UN NUOVO ORDINE GLOBALE (2009); Elisa D'Alterio, LA FUNZIONE DI REGOLAZIONE DELLE CORTI NELLO SPAZIO AMMINISTRATIVO GLOBALE (2010).Google Scholar

¹⁰⁹ Volpe, Valentina, La Corte Europea dei diritti dell'uomo e l'indipendenza del potere giudiziario, 1 GIORNALE DI DIRITTO AMMINISTRATIVO, 43, 47 (2015).Google Scholar

¹¹⁰ Paragraph 184 of the judgment, referring to Eur. Court H.R., Broniowski v. Poland, June 22, 2004, paragraph 175.Google Scholar

¹¹¹ Judge Mahoney joined by Judges Tsotsoria and Vehabović, concurring opinion of the judgment.Google Scholar

¹¹² Council of the European Union, Directive 2003/86/EC on the right to family reunification, September 22, 2003; European Parliament and Council of the European Union, Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, April 29, 2004. Schalk and Kopf v. Austria paragraph 26. The point is critically highlighted in the joint Dissenting Opinion by Judges Rozakis, Spielmann and Jebens, paragraph 2.Google Scholar

¹¹³ Schalk and Kopf v. Austria, paragraph 93.Google Scholar

¹¹⁴ In particular, see Parliamentary Assembly, Resolution 1728 (2010), Discrimination on the basis of sexual orientation and gender identity, April 29, 2010, calling on Member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition,” paragraph 16.9. See Recommendation CM/Rec(2010)5, supra note 41, asking, inter alia, that “[w]here national legislation recognizes registered samesex partnerships, Member States should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation”; paragraph 24.Google Scholar

¹¹⁵ In particular Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union and the Commentary of the Charter of Fundamental Rights of the European Union, along with the EU Directives 2003/86/EC and 2004/38/EC, supra note 112.Google Scholar

¹¹⁶ Vallianatos and others v. Greece, paragraph 91.Google Scholar

¹¹⁷ 576 U. S. ___ (2015).Google Scholar

¹¹⁸ Eskridge, William N. Jr., United States: Lawrence v. Texas and the imperative of comparative constitutionalism, 2 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 555 (2004).Google Scholar

¹¹⁹ 539 U.S. 558 (2003).Google Scholar

¹²⁰ 478 U.S. 186 (1986).Google Scholar

¹²¹ “[F]oreign practice only reinforces the impropriety of tinkering with the democratic process in this setting. The great majority of countries across the world … still adhere to the traditional definition of marriage. Even more telling, the European Court of Human Rights ruled only a few years ago that European human rights laws do not guarantee a right to same-sex marriage. Schalk & Kopf v. Austria … ‘The area in question,’ it explained in words that work just as well on this side of the Atlantic, remains ‘one of evolving rights with no established consensus,’ which means that States must ‘enjoy [discretion] in the timing of the introduction of legislative changes'. … Our Supreme Court relied on the European Court's gay-rights decisions in Lawrence. … What neutral principle of constitutional interpretation allows us to ignore the European Court's same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.” Deboer v. Snyder, 722 F.3d 388,417 (6th. Cir. 2014).Google Scholar

¹²² Dudgeon v. the United Kingdom, paragraph 60.Google Scholar

¹²³ Eur. Court H.R., Mata Estevez v. Spain, May 10, 2001.Google Scholar

¹²⁴ Remarkably, the notion of “European” consensus has not always been determinant in the past. In several cases, the Court relied on the notion of “international” consensus regarding, for example, transsexual people's rights. “The Court … attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.” Eur. Court H.R., I. v. the United Kingdom, July 11, 2002, paragraph 65 and Eur. Court H.R., Christine Goodwin v. United Kingdom, July 11, 2002, paragraph 85.Google Scholar

¹²⁵ CoE Member States are moreover–at least theoretically–all full democracies.Google Scholar

¹²⁶ Paragraph 113 of the judgment.Google Scholar

¹²⁷ Ibidem. Google Scholar

¹²⁸ Gay rights recognition is a good example of divisions crossing Europe. Even within the restricted EU club, at the beginning of 2016, with the sole Italian exception, only Eastern European countries (Bulgaria, Latvia, Lithuania, Poland, Romania, Slovakia) did not provide for registered partnerships (or gay marriage). See Registered Partnerships, European Union official website, February 3, 2016, available at: http://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm. Moreover, Eastern European States often have much stricter legislation regarding gay rights, such as “Russia's gay propaganda law”. See Human Dignity Trust, Russia: The Anti-Propaganda Law, April 24, 2014, available at: http://www.humandignitytrust.org/uploaded/Library/Other_Material/Briefing_on_Russias_federal_anti-propaganda_law.pdf. See also Eur. Court H.R., Alekseyev v. Russia, October 21, 2010, in which the Court unanimously found that the prohibition to hold gay pride marches in Moscow was a violation of Articles 11, 13, and 14 of the Convention.Google Scholar

¹²⁹ See Dudgeon v. the United Kingdom, paragraph 61; Eur. Court H.R., Norris v. Ireland, October 26, 1988, paragraph 46.Google Scholar

¹³⁰ Schalk & Kopf v. Austria, paragraph 63; Eur. Court H.R., Hämäläinen v. Finland, July 16, 2014, in which the Court reaffirmed: “[I]t cannot be said that there exists any European consensus on allowing same-sex marriages”, paragraph 74.Google Scholar

¹³¹ Vallianatos and others v. Greece, paragraph 91.Google Scholar

¹³² Eur. Court H.R., Christine Goodwin v. the United Kingdom, paragraph 84; See also Eur. Court H.R., Sheffield and Horsham v. the United Kingdom, July 30, 1998. Although it was not a determining factor, the Court notes that there was an emerging consensus among the Contracting States of the Council of Europe on providing legal recognition following gender reassignment; paragraph 35.Google Scholar

¹³³ Eur. Court, H.R., L. and V. v. Austria, January 9, 2003, paragraph 50.Google Scholar

¹³⁴ Dzehtsiarou, Kanstantsin, EUROPEAN CONSENSUS AND THE LEGITIMACY OF THE EUROPEAN COURT OF HUMAN RIGHTS, supra note 98.Google Scholar

¹³⁵ Johnson, Paul, HOMOSEXUALITY AND THE EUROPEAN COURT OF HUMAN RIGHTS, supra note 92, 77; 80.Google Scholar

¹³⁶ Zago, See Giuseppe, A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on Oliari v Italy and Paul Johnson, Ground-breaking judgment of the European Court of Human Rights in Oliari and Others v. Italy: same-sex couples in Italy must have access to civil unions/registered partnerships, supra note 2.Google Scholar

¹³⁷ “Our colleagues are careful to limit their finding of the existence of a positive obligation to Italy and to ground their conclusion on a combination of factors not necessarily found in other Contracting States.” Concurring opinion of the judgement, paragraph 10.Google Scholar

¹³⁸ Milanovic, Marko, Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States, EJIL: TALK!, July 23, 2015, available at: http://www.ejiltalk.org/living-instruments-judicial-impotence-and-the-trajectories-of-gay-rights-in-europe-and-in-the-united-states/.Google Scholar

¹³⁹ See also Loveday Hodson, A Marriage by Any Other Name? Schalk and Kopf v Austria, supra note 77, 179; Sarah Lucy Cooper, Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights, supra note 77; Jens M. Scherpe, The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights, 10 THE EQUAL RIGHTS REVIEW 83, 91 (2013).Google Scholar

¹⁴⁰ Waaldijk, Kees, Standard Sequences in the Legal Recognition of Homosexuality–Europe's Past, Present and Future, 4 AUSTRALASIAN GAY AND LESBIAN LAW JOURNAL 50, 51-52 (1994).Google Scholar

¹⁴¹ Dudgeon v. the United Kingdom, paragraph 61 and Norris v. Ireland, paragraph 46. As early as 1982, Northern Ireland complied with the Court's requests. Few years later, in 1993, Ireland as well decriminalized homosexuality, complying with the ECtHR judgment.Google Scholar

¹⁴² Eur. Comm. H.R., Sutherland v. the United Kingdom, July 1, 1997, paragraph 60; see also L. and V. v. Austria, paragraph 52.Google Scholar

¹⁴³ Eur. Court. H.R., Kozak v. Poland, March 2, 2010, paragraph 99; Vallianatos and others v. Greece; The contributions of the European Union law and the Court of Justice of the European Union (ECJ) have been particularly meaningful regarding anti-discrimination in employment. Jeneba H. Barrie, European Union Law and Gay Rights: Assessing the Equal Treatment in Employment and Occupation Directive and Case Law on Employment Benefits for Registered Same-Sex Partnerships, 6 JOURNAL OF CIVIL LAW STUDIES, 618 (2013). See in particular the ECJ case C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, April 1, 2008, regarding the right to receive a survivor pension for homosexual registered partners. The ECJ considered that pension denial constitutes a form of direct discrimination based on sexual orientation, if surviving spouses and surviving life partners are in a comparable situation as regards that pension. See also ECJ case C-147/08, Jürgen Römer v. Freie und Hansestadt Hamburg, May 10, 2011, regarding access to the same employment benefits available to married couples for same-sex couples in civil partnerships. Council Directive 2000/78/EC, November 27, 2000, Establishing a General Framework for Equal Treatment in Employment and Occupation; Article 21 of the Charter of Fundamental Rights of the European Union explicitly forbids discrimination based on sexual orientation.Google Scholar

¹⁴⁴ See paragraph 185 of the judgment and Vallianatos and others v. Greece, paragraph 91.Google Scholar

¹⁴⁵ In E.B. v. France, the Court overturned its previous Fretté jurisprudence affirming that “in rejecting the applicant's application for authorization to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention”, Eur. Court H.R., E.B. v. France, January 22, 2008, paragraph 96; Eur. Court H.R., Fretté v. France, February 26, 2002. The ECtHR also ruled that Austria had violated Article 14 in conjunction with Article 8, because it excluded second-parent adoptions by same-sex partners, while permitting them for different-sex partners, see Eur. Court H.R., X and others v. Austria, February 19, 2013, paragraph 153. In the case Salgueiro da Silva Mouta v. Portugal, December 21, 1999, the Court found in favor of the applicant, a homosexual father, who complained that domestic authorities awarded parental responsibility to his ex-wife only because of his sexual orientation, paragraphs 35 - 36.Google Scholar

¹⁴⁶ Waaldijk, Kees, Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands, in LEGAL RECOGNITION OF SAME - SEX PARTNERSHIP. A STUDY OF NATIONAL, EUROPEAN AND INTERNATIONAL LAW, 437 (Mads Andenaes & Robert Wintemute eds., 2001).Google Scholar

¹⁴⁷ Waaldijk, Kees, Standard Sequences in the Legal Recognition of Homosexuality–Europe's Past, Present and Future, supra note 140, 65.Google Scholar

¹⁴⁸ The European countries that followed the Netherlands' example in subsequent years are the following: Belgium (2003), Spain (2005), Norway (2009), Sweden (2009), Iceland (2010), Portugal (2010), Denmark (2012), France (2013), United Kingdom (2014), Luxembourg (2015), Ireland (2015), and Finland (approved by the parliament in 2014, effective 2017). At the global level, these countries followed the Netherland's example: Canada (2005), South Africa (2006), Argentina (2010), some Mexican States (starting from 2010), Brazil (2013), New Zealand (2013), Uruguay (2013), United States (2015).Google Scholar

¹⁴⁹ In judgment 170/2014, the Italian Constitutional Court recalled the Schalk & Kopf case to support the absence of a right to gay marriage and to emphasize the discretion left to the domestic legislature, in absence of a European consensus, to recognize “possible forms of protection for same-sex couples.” Paragraph 5.3. “It is for the legislature to introduce an alternative form (and different from marriage) that would allow the couple to avoid the transition from one condition of maximum legal protection to a condition, in this sense, of absolute indeterminacy.” Paragraph 5.6. The Italian Council of State, in a recent judgment (4547/2015, October 26, 2015), in order to deny legitimacy to the transcriptions of gay marriages contracted abroad, recalled precisely the Oliari jurisprudence: “the Strasbourg Court has expressly and clearly denied the existence and, therefore, a fortiori, the breach of that (alleged) right [to marry], merely requesting the State to provide legal protection to same-sex unions (but, again, recognizing a margin of appreciation, albeit more limited, in the declination of its forms and intensity).” The same judgment considered Article 29 of the Italian constitution about the right to marry an “unbreakable barrier.” Paragraph 2.5. Translated by the Authors.Google Scholar

¹⁵⁰ This reasoning has been at the basis of several domestic developments, such as in Denmark, Norway, and Sweden, which opened up marriage to homosexual couples and symmetrically abolished registered partnerships, see Jens M. Scherpe, The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights, supra note 139, 86. The restriction of marriage to heterosexual couples has been considered a violation of the equality provisions of the Canadian Charter of Rights and Freedoms by several domestic courts, paving the way to the adoption of the Civil Marriage Act by the Parliament of Canada in 2005 (Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, July 20, 2005); Deborah Gutierrez, Gay Marriage in Canada: Strategies of the Gay Liberation Movement and the Implications it will have on the United States, 10 NEW ENGLAND JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 175, 228 (2004). See also Veronica Valenti, Principle of Non-Discrimination on the Grounds of Sexual Orientation and Same-Sex Marriage. A Comparison Between United States and European Case Law, in GENERAL PRINCIPLES OF LAW – THE ROLE OF THE JUDICIARY, IUS GENTIUM: COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE 215 (Laura Pineschi ed., 2015).Google Scholar

¹⁵¹ Vallianatos and others v. Greece. Google Scholar

¹⁵² Robert Wintemute, International Trends in Legal Recognition of Same-Sex Partnerships, 23 QUINNIPIAC LAW REVIEW, 577 (2014).Google Scholar

¹⁵³ In Christine Goodwin v. the United Kingdom the Court affirmed that: “Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision”. Paragraph 98. See also I. v. the United Kingdom, paragraph 78. Note the diametrically opposite approach of the Italian Constitutional Court on the issue in the judgment 138/2010, (see supra section B in this Article) that seems isolated in comparison with other constitutional and supreme courts' case law, such as the Portuguese Constitutional Court (see supra section D) or the U.S. Supreme Court. In the case Obergefell v. Hodges, the U.S. Supreme Court affirmed clearly how “the right to marry is [not] less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.” Obergefell v. Hodges, 135 S. Ct. 2584, 2590 I2015.Google Scholar

¹⁵⁴ Waaldijk, Kees, Standard Sequences in the Legal Recognition of Homosexuality–Europe's Past, Present and Future, supra note 140, 51.Google Scholar

¹⁵⁵ Two surveys, conducted in 2013 and 2015 by Ipsos, indicate that internationally, groups of younger ages tend to have a higher support rate towards gay marriage than other social groups. The 2013 survey conducted on behalf of Reuters News indicates that among 16 countries surveyed “support for full legal marriage equality is more prevalent … among those under the age of 35 than among those aged 35-64 (58% vs. 45%, a 13-point gap).” And the 2015 survey conducted jointly with BuzzFeed News indicates that among 23 countries surveyed, the proportion of people under 35 whose opinion is that “same-sex couples should be allowed to marry legally” is 53%, statistically higher than the proportions of those aged 35-49 (44%) and those aged 50-64 (42%) who share this opinion. In the case of Italy, for the age group under 35, 52% of respondents agreed that same-sex couples should be allowed to marry legally, a number significantly higher than group of age 35-49 (45%) and group of age 50-64 (48%). The source of the 2013 survey can be found at: Strong International Support (73%) Among Developed Nations for Legal Recognition of Same-Sex Couples: Majorities in All 16 Countries Support Recognition, June 18, 2013, available at: http://www.ipsos-na.com/news-polls/pressrelease.aspx?id=6151. The authors are grateful to Nicholas Boyon, Senior Vice President, Head of Health Services Research, Ipsos Public Affairs, for providing the data conducted during the survey of April - May, 2015.Google Scholar

¹⁵⁶ “It should be expected that, in the long run, some international court or human rights body will start to apply these two principles [the right to respect for private life and prohibition of discrimination] also to claims that marriage should not be the exclusive privilege of different-sex couples.” Kees Waaldijk, Same-Sex Partnership, International Protection, MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, March 2013, paragraph 33.Google Scholar