Same-Sex Marriage and Italian Exceptionalism

ICL Journal 2018; 12(4); 431–456

HEC Paris Research Paper No. LAW-2019-1343

26 Pages Posted: 26 Jun 2019 Last revised: 3 Jul 2019

Date Written: 2018

Abstract

This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior. In Bernaroli, a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.

Keywords: Same-sex marriage, Italy, constitutional law, human rights law, ECHR

Suggested Citation

Winkler, Matteo, Same-Sex Marriage and Italian Exceptionalism (2018). ICL Journal 2018; 12(4); 431–456; HEC Paris Research Paper No. LAW-2019-1343. Available at SSRN: https://ssrn.com/abstract=3366765

Matteo Winkler (Contact Author)

HEC Paris ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

HOME PAGE: http://www.hec.edu/Faculty-Research/Faculty-Directory/WINKLER-Matteo-M

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