Judicial restraint and political responsibility : a review of the jurisprudence of Italian, Spanish and Portuguese high courts on same-sex couples

Abstract

The Chapter states that on a topic like that of same-sex couples, that stirs and divides public opinion and about which there is no consensus among political actors, courts refuse to act as avant-garde actors.. In the jurisdictions under analysis – Italy, Spain and Portugal –, the judiciary chose to give precedence to the legislator, stating it was the province of the latter to regulate the issue. The main argument put forward was that the Constitutions at stake do not mandate same-sex marriage and therefore there is no constitutional right to perform it. Simultaneously, nonetheless, they also acknowledged, to a certain extent, that the Legislator is free to choose which type of legal protection to afford to same-sex couples, from civil partnerships to same-sex marriage (except for the Italian Constitutional Court, which seems to have implied that same-sex marriage could only be allowed after a constitutional amendment). While doing so, a substantial part of the majority reasonings are packed with references to comparative law and to the Strasbourg’s jurisprudence as a way to seek external legitimation.