Le coppie dello stesso sesso tra la sentenza della Corte costituzionale n. 138 del 14 aprile 2010 e la pronuncia della Corte europea dei diritti dell’uomo del 24 giugno 2010 nel caso Schalk and Kopf v. Austria

Abstract

More and more often, same-sex couples ask judges to recognize their rights. With two recent rulings, the Italian Constitutional Court and the ECHR Court ruled on same-sex marriages; in both cases gay couples had not the possibility to marry because of the lack of national legislation on the matter. Both rulings deny (for different reasons) to same-sex couples the right to marry, but at the same time the rulings affirm their right to be legally recognized. While the Italian Court considers their right to marry as the reflection of an individual right protected by Article 2 of the Constitution, the Strasbourg Court considers same-sex couples as «families» under the scope of Article 8 ECHR. This innovative intepretation poses the problem of CoE Member States with a legal vacuum on same-sex couples; for this reason, the article focuses on the consequences of the Strasbourg ruling in the Italian legal system, taking into account both the Convention standpoint (does a general obligation to comply with the ECHR case-law exist?) and the Italian one (which internal effects accordingly with the Constitutional case-law?). Even if an obligation to comply with the ECHR Court case law could be inferred, the lack of an Italian law on same-sex couples is still the main critical point. As a conclusion, the article notices that ECHR case-law (and ECJ’s too) can contribute to guarantee an omogeneous treatment of same-sex couples in the European context.