As known, the Italian Constitution’s Article 29 states that “The Republic recognises the rights of the family as a natural society founded on marriage”. In order to address this subject, it is essential to readdress constitutional articles and try to understand them. The Italian Constitution is in fact not only the juridical text at the heart of the system of sources of law, but must also be considered as a “an overall picture rooted in fundamental choices in history, culture and politics, set in a written text drafted during an exceptional period involving the mobilisation of collective moral energy” [1].

Firstly, in reading Article 29 of the constitution, it appears clear that the constituent wished to commit the Republic to a recognition of family rights. The choice of the word “recognises” is not a coincidence, since it presupposes the existence of rights that pre-existed the state. Family rights, therefore, existed before the constitutional charter and any other juridical instruments. In other words, according to the constituent, it is not the law that establishes rights.

The use of the description of the family as a “natural society” therefore seems almost a logical consequence. According to the constituent, stating the family’s natural characteristics amounts to stating, at a constitutional level, that since it is a natural society, the family predates states and that therefore it is the state, with its legislative power expressed through parliament, that encounters the limits of this “natural” characteristic.

It is not, therefore, a reference to a supposed type of “natural” family.
It is precisely this orientation that emerges when revisiting the Constituent Assembly’s preparatory work, essential for a better understanding of the meaning of constitutional order. “When affirming that the family is a natural society, something more than the rights of the family is intended. This does not only involve recognising the family’s natural rights, but recognising the family as a natural society, with its own laws and its rights that the state is obliged to acknowledge in its legislative work. There is of course the state’s legislative power, which also operates in the field of family law, but this power has specific limitations posed by the family’s social and natural characteristics”.

The constituent also knew that the concept of family evolves, just as society changes, and that the creation of the concept of a family is the result of a historical and social process, which has changed over the course of time. With its reference to the family seen as a natural society, the constituent stated that “there is no intention to exclude that the family has its own historical formation process”.

Hence, if at the time of the drafting of the Constitution it was unimaginable to discuss new types of families such as family reunification for polygamous families or homosexual couples’ right to a family life, it is also true that the same constituent was well aware of the evolutionary characteristics of family models. On this subject it is essential to emphasise that constitutional norms are subject to interpretation and it is precisely interpretation that is the stimulating factor for constitutional provisions allowing them to exist in an ever-changing social context. It is the interpretation of the constitution that makes constitutional laws applicable to a changing social context, as postulated by the theory of living law [2]. Without interpretations, constitutional law would in fact be a sort of empty framework.

Consequently, an interpretation of the constitution related also to the interpretation of types of families, and to all of a society’s cultural, historical and political elements makes a Constitutional Charter not just a legal text when taking into account this evolution [3]. However, faced with such changes to types of families, and the urgent need to establish which laws determine “who is a family” and their consequent rights, the national legislator has proved and continues to prove to still be absent. The most striking case, in this sense, refers to the issue of homosexual couples. And yet, the jurisprudence of Italy’s Supreme Courts, both the Constitutional Court and the Court of Cassation, has not only stated that components of homosexual couples are entitled to some rights, among them the right to a family life, which Italian law still does not acknowledge, but has also repeatedly solicited the intervention of the legislator.

Already in 2010, the Constitutional Court listed homosexual unions among the social unions protected by the Constitution’s Article 2. On this subject, one must bear in mind that Article 2 of the Constitution states that “the Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.”. In particular, in this ruling (no. 138, 2010), the Court stated that “Accordingly, social grouping must be deemed to include all forms of simple or complex communities that are capable of permitting and favouring the free development of the person through relationships, within a context that promotes a pluralist model. This concept must also include homosexual unions, understood as the stable cohabitation of two individuals of the same sex who are granted the fundamental right to live out their situation as a couple freely and to obtain legal recognition thereof along with the associated rights and duties, according to the timescales, procedures and limits specified by law.”

The Court, therefore, in addition to recognising homosexual unions as a social grouping, states not only that such a union is acknowledged the fundamental right of freely living as a couple, but also juridical recognition together with the rights and duties linked to it. On this subject, the Court excludes that the juridical recognition of homosexual couples can be achieved only by equating homosexual unions to marriage, but states that this must take place following the timing, manners and restrictions established by the law, and therefore with legislative intervention. The Court of Cassation too has expressed its opinion exhorting legislators to address the issue and stating that, although the spouses in a homosexual relationship have not been acknowledged the right to marry, those in a homosexual union “have the right to a “family life” (…), the inviolable right to freely live as a couple and the right to jurisdictional protection in specific situations, notably a right to the protection of other fundamental rights.” Thus those in a homosexual partnership “may turn to ordinary judges to ensure respect for (…) the right to be treated in a manner homogenous to that guaranteed by the law to all married couples” (sentence no. 4182 passed in 2012).

Another particularly important case is dated June 2014. The Italian Constitutional Court declared as unconstitutional Italian laws regulating the automatic dissolution of a marriage following a sex change by one of the spouses, because this denies the couple, should they wish to, the right to “keep alive a relationship as a couple juridically regulated as for other forms of registered cohabitation, adequately protecting the rights and obligations of the couple in a manner to be established by the legislator.” (sentence no.170 passed in 2014). Once again, in this case the Court exhorted legislators to intervene, stating, “It will, therefore, be the legislator’s task to introduce an alternative form (and one different to marriage) allowing the two spouses to avoid moving from a state of maximum legal protection to one, at this level, of total uncertainty. To achieve this the legislator is called upon to act with the utmost speed in order to overcome the observed state of illegitimacy affecting the issue addressed, due to the current deficit in the protection of the rights of those involved.”

One can therefore understand how the Italian legal system is experiencing a serious delay as far as this issue is concerned compared to existing jurisprudence as well as compared to other European countries, and this simply impinges the rights of homosexual couples creating juridical uncertainty and indeterminateness in the absence of regulation. It is specifically in relation to the subject of homosexual unions that the existence of a jurisprudence of the European Union’s Court of Justice and the Council of Europe’s European Court of Human Rights seems particularly important. In both cases these are binding for Italy, and are “pressing” the Italian legal system to acknowledge the rights of homosexual couples. This jurisprudence, however, does leave a degree of discretion to national states as far as modalities are concerned. European Union law, which takes “precedence” over national law (if a national law is in conflict with European law, it is European law that is applied) is moving towards acknowledging the rights of homosexual couples.

The Court in Reggio Emilia, recently addressing the delicate issue of the definition of a “spouse” as far as residency law is concerned, stated that the word spouse cannot be interpreted according to Italian law, but instead must be used according to European law. In this sense, on the basis of a gay couple’s right to have a family life in Italy, a residency permit was issued to the spouse in a gay couple. Finally, in addition to the juridical recognition of gay couples, another particularly delicate issue concerns types of families differing significantly from our own Italian “traditional” model due to cultural and religious reasons. Due to the migratory phenomena and changes in our society in a multicultural sense, these new family models question our legal system. One should think, for example of a number of customs present in the laws in Muslim states, such as polygamy or a father’s right to oblige a raped daughter to marry, unilateral repudiation or all those situations that are detrimental to women’s rights. Such institutions are in conflict with the fundamental rights guaranteed by the constitution and result in the thorny issue of the relationship between respect for cultural identity and the protection of rights.

Unfortunately, for the moment, legislators have proved to be more interested in intervention with measures aimed at controlling migratory flows, regulating access and the right to remain for foreigners, rather than measures aimed at integration and reciprocal knowledge of other cultures. There is a lack of legislation, but above all a lack of cultural policies capable of managing conflicts that may arise, also at a legal level, due to a belonging to different cultures. In a society that is now as multicultural as ours, it instead appears to be increasingly urgent to create, at an institutional level, areas of political dialogue, to encourage reciprocal knowledge and find shared solutions.

Translated by Francesca Simmons  

[1] G. ZAGREBELSKY, La virtù del dubbio, page 54.

[2] See among others E. BETTI, Le categorie civilistiche dell’interpretazione, Milan, Giuffré, 1948, stating that interpretation “has the function of keeping alive the law or other sources of law through interpretation, thereby preserving ever-lasting efficiency in the life of a society of precepts, norms and normative assessments, destined to regulate this life and serve as an orientation”, p. 34. See also L. CAIANI, La filosofia dei giuristi, Padova, CEDAM, 1955, “there is always a vacuum, a hiatus between the definition of norms and the situation or the real relationship referred to and to which it must be applied.” p. 156.

[3] As known, for example, the Constitutional Court has extended a guarantee of formal and material equality not only to Italian citizens, but also to foreigners, stating with ruling no.15/1967 that, “while it is true that Article 3 is referred specifically only to citizens, it is also certain that the principle of equality also applies to foreigners when this involves respect for those fundamental rights.”