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Prodi then moved the bill through parliament but was forced to drop it in to ensure a vote of confidence he needed from both legislative chambers.

Registration, however, was supposed to take place not through a ceremony in front of a government official, as it usually happens in the event of a civil marriage, but simply with the filing by the partners of two separate statements declaring the beginning of the cohabitation.

The idea of unilateral instead of joint declarations reflects the fear of the ritual getting too close to a civil marriage. Public statements of this nature surrounded the debate very early.

Eventually, a Church-led campaign brought the bill to an end within a few months. The Vatican: See O. Remarkably, being addressed to the people gathered in Piazza San Pietro, all Angelus Messages are usually expressed in Italian. On the other hand, the experience of the bill strengthened the conviction, now shared by many more than before, that the only possible support for progress in the fight for the recognition of the rights of same-sex couples would come not from the legislature, but from the judiciary, a strategy attempted by Doriano Galli almost thirty years earlier.

In fact, since its very beginning the life of the government was linked to the bill on unmarried couples, as the government could survive only with the votes of Catholic parliament members. Authorities arrested six suspects for the robbery and murder. In fact, by filing their petitions to marry such couples not only had to come out in big cities as well as in small rural villages but they also started to climb up the judicial pyramid to question their status under constitutional and supranational law.

Scherpe, Germany, 19 AM. Agostini Fr. In the Netherlands, same-sex marriage litigation was brought before courts in Nancy G. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled. The logical premise of such a claim was that marriage and family are strongly linked with fundamental rights and, in particular, with the prohibition to be discriminated against on the grounds of sexual orientation implicitly affirmed by Article 3 of the Constitution and by EU law.

Furthermore, they presented a countermajoritarian argument: Presented with such claims, in four territorial courts appealed the Constitutional Court demanding whether the Constitution required gay and lesbian couples to marry.

In Italy, constitutional review consists of interlocutory proceedings centralized in the Constitutional Court. Everyone has the opportunity of raising a question of constitutional legitimacy.

Court April 15, , n. Court, n. While the judgment has been reported and commented on by a significant number of Italian journals, few commentaries exist in English.

See e. See Corte Cost. I , It. To say that a natural society arises out of marriage, which in substance is a legal transaction, is in my opinion a patent contradiction. The majority of commentators consider Article 29 as a legal obstacle to the recognition of any form of cohabitation outside marriage—be it homosexual or heterosexual. Hodges, S. Barnette, U. Court n.

Enthusiastic ones attempted to highlight the space left open to the judiciary as opposed to the legislature, pointing out that courts have full constitutional power to ensure constitutional protection for same-sex couples. Judge Stephen Reinhardt observed about strategic litigation, [t]he civil rights lawyers and activists who did the most to build a more just and equitable world were pragmatists [who] devoted years, or even decades, of their lives to the painstaking work of strategic litigation and political action.

The victories they won were often frustratingly incomplete, but the principles they established 71 Id. Here the Court copied-and-pasted the traditional interpretation of the right to marry under supranational law as highlighted by the drafters of the Charter of Fundamental Rights of the EU.

Un Riconoscimento Senza Garanzia?

Acknowledgment Without Warranty? Gay men and lesbians were no longer invisible, but citizens with dignity and equal rights. Yet it was not until that some bills on same-sex marriage, civil unions and unmarried couples in general began to be properly discussed. At the same time, petitions to courts multiplied as more and more gay and lesbian couples sought legal protection within the framework set up by the Constitutional Court. Such petitions soon took two directions.

First, some couples went abroad to marry and, once back, attempted to secure the registration of their marriage in the registry of the civil status of their Italian place of residence. Austria, App. I, Reggio Emilia, It. See J. This judgment was confirmed by the Court of Appeals of Rome, Dec.

See Cass. Commento a prima lettura della sentenza della Corte di cassazione n. First reading of the judgment of the Court of Cassation no.

In Oliari the Court stated that the need to recognise and protect [same-sex] relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation.

On the contrary, it is capable of undermining the credibility and authority of the judiciary and of jeopardizing its effectiveness, factors which are of the utmost importance from the point of view of the fundamental principles underlying the Convention.

By that time, however, the litigation was no longer strategic in nature. Avvocatura, in fact, no longer had to search for gay and lesbian couples available to present their petitions to courts, as such couples now came out independently, seeking to finally obtain the rights that that had been denied to them until then. The government, on their end, could find no excuse to deny them such rights.

Poland, App. The Deliberative Process and Drafting Implications Oliari caused an immediate awakening of the dormant parliamentary debate. The bills under examination at the time were unified into a common draft No. Then the bill had to pass through the Caudine Forks of the Senate, where the government was endowed with a narrow majority.

Here four groups got involved.

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The first one created a civil union for same-sex couples only; the second addressed simple partners regardless of their sex, entitling them of a few rights especially in guardianship and tort law. For civil unions, the law provided the same rights currently granted to married couples reciprocal support, inheritance, alimony, health services etc. See S. Veltri eds. All these groups contributed to the text of the Law as it is today. To begin with, the dialogue between the two components of the Democratic Party had, since the very beginning, excluded the option of same-sex marriage, favoring instead the idea of a law on civil union as the one in force in Germany.

The solution they proposed, and that the government was willing to accept, was for the civil union to be regulated not by a piece of legislation drawing a general reference to marriage, which would have rendered the two institutions too close, but by multiple references to single provisions of the Civil Code. Once this common platform was agreed upon, M5S, which had campaigned in favor of gay rights and gay marriage , was expected to support the bill with no need to draw votes from NCD.

The vote was scheduled to take place on February, The bill soon gained popular support. Lo Giudice, Norms against marriage discrimination [Norme contro la discriminazione matrimoniale], filed on March 15, , which extended civil marriage to same-sex couples, and Bill No.

Manconi and Corsini, Regulation of civil unions [Disciplina delle unioni civili], filed on March 15, , which provided for a civil union accessible to both same-sex and opposite-sex couples, were merged with Bill No. Put under pressure, the government finally assured that the bill would be approved quickly. And yet, at the very last moment M5S retracted from the established plan.

Its speakers declared, surprisingly, that the debate inside the movement was not yet ripe and called for a poll on its website. Hence, it filed a new bill that incorporated more conservative stances aimed at further differentiating civil unions from marriage, and sought a vote of confidence in both chambers.

Accordingly, certain important elements that the sponsors had repetitively claimed as necessary to ensure same-sex couples the full recognition and protection of the law were fundamentally compromised.

The Chamber followed suit on May 11, Law No. First, the civil union should have been expressly characterized as a family relationship under Italian law. Second, the substantial regime of the civil union should have been inserted in the Civil Code, the natural place for all family law provisions.

Finally, such a regime should have been determined by a general reference to marriage, as occurred in the domestic partnership laws in Scandinavian countries. Thus upon registering their partnerships, gay and lesbian couples become subject to the hundreds of laws that refer to married couples.

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After Norway, all the other countries of the region followed suit Sweden in , Iceland in , Denmark in and Finland in The government fulfilled such a duty on January 19, with the enactment of three decrees.

See Decreto Legge 19 gennaio , n.

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Such a clause has been inserted under Article 1 20 of the Law, that so reads: This provision does not apply to the norms of the Civil Code that are not expressly referred to in this Law, and to the provisions of the Law No. Without prejudice of what is currently provided and allowed in respect of adoptions by existing laws. Its rationale, however, is very clear, as such an insistence on keeping same-sex civil unions outside the Civil Code represents a bright sign of the interference of the Catholic component in the drafting process.

Substantially speaking, the civil union borrows many aspects from civil marriage. Similarly, the civil union law in force in Vermont from to stated that: See also C AL. Significantly, all these laws have been replaced by laws on same-sex marriage. See D. On the contrary, minors can marry if the court so authorizes. Decree No. At this point, the officer of the civil status register the civil union in the appropriate registry, reads the deed to the partners and seek their respective signatures.

Time for divorce is six months or one year depending on whether the separation, which in Italy requires as appropriate procedure before a court of law, was consensual separazione consensuale or litigious separazione giudiziale. See Legge 6 maggio , n. However, even if not all differences are necessarily discriminatory, some of them still are.

One main example concerns adoption. Furthermore, they presented a countermajoritarian argument: Presented with such claims, in four territorial courts appealed the Constitutional Court demanding whether the Constitution required gay and lesbian couples to marry.

In Italy, constitutional review consists of interlocutory proceedings centralized in the Constitutional Court. Everyone has the opportunity of raising a question of constitutional legitimacy. Court April 15, , n. Court, n. While the judgment has been reported and commented on by a significant number of Italian journals, few commentaries exist in English. See e. See Corte Cost. I , It.

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To say that a natural society arises out of marriage, which in substance is a legal transaction, is in my opinion a patent contradiction. The majority of commentators consider Article 29 as a legal obstacle to the recognition of any form of cohabitation outside marriage—be it homosexual or heterosexual. Hodges, S. Barnette, U. Court n. Enthusiastic ones attempted to highlight the space left open to the judiciary as opposed to the legislature, pointing out that courts have full constitutional power to ensure constitutional protection for same-sex couples.

Judge Stephen Reinhardt observed about strategic litigation, [t]he civil rights lawyers and activists who did the most to build a more just and equitable world were pragmatists [who] devoted years, or even decades, of their lives to the painstaking work of strategic litigation and political action. The victories they won were often frustratingly incomplete, but the principles they established 71 Id.

Here the Court copied-and-pasted the traditional interpretation of the right to marry under supranational law as highlighted by the drafters of the Charter of Fundamental Rights of the EU. Un Riconoscimento Senza Garanzia? Acknowledgment Without Warranty? Gay men and lesbians were no longer invisible, but citizens with dignity and equal rights.

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Yet it was not until that some bills on same-sex marriage, civil unions and unmarried couples in general began to be properly discussed.

At the same time, petitions to courts multiplied as more and more gay and lesbian couples sought legal protection within the framework set up by the Constitutional Court. Such petitions soon took two directions. First, some couples went abroad to marry and, once back, attempted to secure the registration of their marriage in the registry of the civil status of their Italian place of residence.

Austria, App. I, Reggio Emilia, It. See J. This judgment was confirmed by the Court of Appeals of Rome, Dec. See Cass. Commento a prima lettura della sentenza della Corte di cassazione n. First reading of the judgment of the Court of Cassation no. In Oliari the Court stated that the need to recognise and protect [same-sex] relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation.

On the contrary, it is capable of undermining the credibility and authority of the judiciary and of jeopardizing its effectiveness, factors which are of the utmost importance from the point of view of the fundamental principles underlying the Convention. By that time, however, the litigation was no longer strategic in nature. Avvocatura, in fact, no longer had to search for gay and lesbian couples available to present their petitions to courts, as such couples now came out independently, seeking to finally obtain the rights that that had been denied to them until then.

The government, on their end, could find no excuse to deny them such rights. Poland, App. The Deliberative Process and Drafting Implications Oliari caused an immediate awakening of the dormant parliamentary debate. The bills under examination at the time were unified into a common draft No. Then the bill had to pass through the Caudine Forks of the Senate, where the government was endowed with a narrow majority.

Here four groups got involved. The first one created a civil union for same-sex couples only; the second addressed simple partners regardless of their sex, entitling them of a few rights especially in guardianship and tort law.

For civil unions, the law provided the same rights currently granted to married couples reciprocal support, inheritance, alimony, health services etc.

See S. Veltri eds. All these groups contributed to the text of the Law as it is today. To begin with, the dialogue between the two components of the Democratic Party had, since the very beginning, excluded the option of same-sex marriage, favoring instead the idea of a law on civil union as the one in force in Germany.

The solution they proposed, and that the government was willing to accept, was for the civil union to be regulated not by a piece of legislation drawing a general reference to marriage, which would have rendered the two institutions too close, but by multiple references to single provisions of the Civil Code.

Once this common platform was agreed upon, M5S, which had campaigned in favor of gay rights and gay marriage , was expected to support the bill with no need to draw votes from NCD. The vote was scheduled to take place on February, The bill soon gained popular support. Lo Giudice, Norms against marriage discrimination [Norme contro la discriminazione matrimoniale], filed on March 15, , which extended civil marriage to same-sex couples, and Bill No.

Manconi and Corsini, Regulation of civil unions [Disciplina delle unioni civili], filed on March 15, , which provided for a civil union accessible to both same-sex and opposite-sex couples, were merged with Bill No. Put under pressure, the government finally assured that the bill would be approved quickly. And yet, at the very last moment M5S retracted from the established plan.

Its speakers declared, surprisingly, that the debate inside the movement was not yet ripe and called for a poll on its website. Hence, it filed a new bill that incorporated more conservative stances aimed at further differentiating civil unions from marriage, and sought a vote of confidence in both chambers.

Accordingly, certain important elements that the sponsors had repetitively claimed as necessary to ensure same-sex couples the full recognition and protection of the law were fundamentally compromised.

The Chamber followed suit on May 11, Law No. First, the civil union should have been expressly characterized as a family relationship under Italian law. Second, the substantial regime of the civil union should have been inserted in the Civil Code, the natural place for all family law provisions. Finally, such a regime should have been determined by a general reference to marriage, as occurred in the domestic partnership laws in Scandinavian countries.

Thus upon registering their partnerships, gay and lesbian couples become subject to the hundreds of laws that refer to married couples. After Norway, all the other countries of the region followed suit Sweden in , Iceland in , Denmark in and Finland in The government fulfilled such a duty on January 19, with the enactment of three decrees. See Decreto Legge 19 gennaio , n. Such a clause has been inserted under Article 1 20 of the Law, that so reads: This provision does not apply to the norms of the Civil Code that are not expressly referred to in this Law, and to the provisions of the Law No.

Without prejudice of what is currently provided and allowed in respect of adoptions by existing laws. Its rationale, however, is very clear, as such an insistence on keeping same-sex civil unions outside the Civil Code represents a bright sign of the interference of the Catholic component in the drafting process. Substantially speaking, the civil union borrows many aspects from civil marriage. Similarly, the civil union law in force in Vermont from to stated that: See also C AL.

Significantly, all these laws have been replaced by laws on same-sex marriage. See D. On the contrary, minors can marry if the court so authorizes. Decree No.

At this point, the officer of the civil status register the civil union in the appropriate registry, reads the deed to the partners and seek their respective signatures. Time for divorce is six months or one year depending on whether the separation, which in Italy requires as appropriate procedure before a court of law, was consensual separazione consensuale or litigious separazione giudiziale.

See Legge 6 maggio , n. However, even if not all differences are necessarily discriminatory, some of them still are. One main example concerns adoption. The conservative component of the government, however, refused any compromise on this issue and, when it was allowed to have a word on the bill, it obtained the deletion of any reference to adoption and rainbow families.

The final text goes even further: IT, Feb.

Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.

The office, asserting to be acting under an ad hoc municipal regulation, showed them the room where their civil union was supposed to be performed: But the point remains that, as the above cases illustrate quite clearly, gay and lesbian couples still need to resort to the judiciary to see their rights effectively enforced. Contrary to all European countries where similar laws were enacted as a result of a genuine political debate and of discussions at the parliamentary level, in Italy it was for the judiciary to pave the way for a law on same-sex partnerships.

It was the judiciary that forced the Parliament to legislate, caused scholars to reflect more on same-sex marriage and the constitutional right to marry, and propelled a cross-border judicial dialogue. Most importantly, it was the judiciary that pushed more gay and lesbian couples to reach an unprecedented visibility and fight for their rights in courts and elsewhere.

While undoubtedly Law No. Comune di Stezzano, Tribunale amministrativo regionale [TAR] [regional administrative court of first instance], 29 dicembre , n. Comune di Padova, TAR, 7 dicembre , n. Related Papers. Same-Sex Marriage, Italian Style.

By Matteo Winkler. By Macarena Saez. By Erez Aloni. Winkler - 'A Case with Peculiarities':In fact, by filing their petitions to marry such couples not only had to come out in big cities as well as in small rural villages but they also started to climb up the judicial pyramid to question their status under constitutional and supranational law. Now we have to take a second step; we are halfway up the stairs. In Italy, constitutional review consists of interlocutory proceedings centralized in the Constitutional Court.

Immediately after the filing, the Church exploited all possible tools—including public statements43 and lobbying44—to sexual orientation. They are critical and pleasurable and is an imperative need in a fast-changing and developing global world to bring to the rural and the urban audience. Safari macOS More options. That praise was well deserved, but it is striking that Smith asked for it then.

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