The need for a configuration – in terms of status – also of the marital relationships between same sex individuals is not grounded in EU rules or in our country’s adhesion to other international organizations, especially to the European Convention on Human Rights. In fact, according to the Art. 9 of the EU Charter of Fundamental Rights, “[t]he right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”. Besides, according to the Art. 12 of the European Convention on Human Rights, “man and woman have the right to marry and to found a family according to the basic laws governing the exercise of this right.”
No Bill of Rights has therefore deleted the requirement of different sex belonging for marriage. In this regard, those regulatory documents refer to the individual national legal systems. Whereas it is true – although there is no need to refer to the European institutional context for this purpose – that discrimination based on sexual orientation is not admitted. Yet, respecting this fundamental principle certainly does not imply that we need to extend marriage legislation also to couples formed by same sex individuals or to foreshadow or create for them special recognition of the status in the institutional form.
It is certainly true that, for the Court of Strasbourg, the Art. 8 of the European Convention on Human Rights, which enshrines that “everyone is entitled to respect for their private and family life”, compels the single states to adopt positive measures to ensure respect for private or family life also in the sphere of interpersonal relationships. However, according to the Court itself, in implementing this obligation, Member States enjoy a certain “margin of discretionary power.” And that margin, still according to the Strasbourg Court, includes also the choice to extend marriage to couples formed by same sex individuals.
It is also true that, with the recent Oliari sentence of 21 July 2015, the Strasbourg Court has recognized that “Italian government has exceeded its discretionary power, failing to comply with the positive obligation to guarantee petitioners a legal framework providing for the recognition of homosexual unions.” Not even on that occasion, however, the European Court of Human Rights has stated that this positive duty has to be fulfilled through the introduction of same-sex marriages nor that the considered recognition must be realized in the shape of a status. Moreover, some rules question all the previous decisions taken by the Court.
Emanuele Bilotti – family law professor at the European University of Rome