Un caso di disgregazione creativa. La corte di cassazione sul matrimonio omosessuale

2012 ◽  
pp. 151-158
Author(s):  
Xenia Chiaramonte
Keyword(s):  
Human Rights ◽  
Gay Rights ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
European Court

La Corte di Cassazione stabilisce che il matrimonio fra gay contratto all'estero non č trascrivibile in Italia per inidoneitŕ a produrre effetti, non piů per inesistenza. La CEDU ha radicalmente superato la concezione secondo cui la diversitŕ di sesso dei nubendi č presupposto indispensabile per il matrimonio. La decisione č in linea di continuitŕ con le precedenti pronunce della Corte Costituzionale e puň essere vista come un esempio di ciň che Lawrence Friedman ha definito "disgregazione realizzata attraverso i tribunali". Xenia Chiaramonte, A case of creative disruption: the Italian Court of Cassation rules on same-sex marriage [Gay rights - Same-sex couples - Same-sex marriage - Registration] The Italian Court of Cassation has decided that same-sex marriages entered into abroad cannot be registered in Italy because of their unfitness to produce effects - no longer because of their purported "non-existence". The European Court of Human Rights has radically overcome the approach that a difference of gender between the parties to the marriage is a prerequisite. The decision of the Court of Cassation maintains continuity with the previous decisions of the Italian Constitutional Court and may be seen as an example of what Lawrence Friedman defined as "disruption through court".

‘Marry in Haste …’: The (Partial) Abolition of Same-sex Marriage in Bermuda

2020 ◽  
Vol 20 (1) ◽  
pp. 153-188
Author(s):  
Nicola Barker
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
European Court ◽  
Legal Context ◽  
The Right ◽  
Court Of Appeal

Abstract In 2018, the British Overseas Territory of Bermuda revoked the right to marry for same-sex couples. In a judgment that reconceives the relationship between sexual orientation and religious freedoms, the Bermuda Supreme Court and Court of Appeal found this revocation to be unconstitutional. I explore the political and legal context in which same-sex marriage was granted and then revoked in Bermuda. I also consider the Bermuda Courts’ judgments in light of the subsequent judgment of the United Kingdom’s Supreme Court in Steinfeld, among others. While there was an assumption from both the Bermuda and United Kingdom Governments that the revocation provision was compatible with the European Convention on Human Rights, I argue that this underestimates the significance of the distinction between declining to recognise a right to same-sex marriage and revoking a right that has already been exercised. While the European Court of Human Rights has not yet found the absence of same-sex marriage to be a violation of Article 12 of the Convention, I argue that the revocation of a right to marry between same-sex couples that had been recognised in accordance with national law changes the terrain on which the Convention arguments would be made.

scholarly journals Democratic Values, Religiosity, and Support for Same-Sex Marriage in Latin America

2017 ◽  
Vol 59 (4) ◽  
pp. 75-98 ◽  
Author(s):  
Michelle L. Dion ◽  
Jordi Díez
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Latin American ◽  
Capital City ◽  
Religious Values ◽  
Democratic Values ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Latin American Countries

AbstractLatin America has been at the forefront of the expansion of rights for same-sex couples. Proponents of same-sex marriage frame the issue as related to human rights and democratic deepening; opponents emphasize morality tied to religious values. Elite framing shapes public opinion when frames resonate with individuals’ values and the frame source is deemed credible. Using surveys in 18 Latin American countries in 2010 and 2012, this article demonstrates that democratic values are associated with support for same-sex marriage while religiosity reduces support, particularly among strong democrats. The tension between democratic and religious values is particularly salient for women, people who live outside the capital city, and people who came of age during or before democratization.

scholarly journals The Church of England and Same-Sex Marriage: Beyond a Rights-Based Analysis

2019 ◽  
Vol 21 (2) ◽  
pp. 153-178 ◽  
Author(s):  
Charlotte Smith
Keyword(s):  
Human Rights ◽  
Pastoral Care ◽  
Church Of England ◽  
Institutional Response ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
The Church ◽  
Apparent Conflict ◽  
Do So

Some scholars, faced with the apparent conflict between the Church of England's teaching on marriage and the idea of equal marriage embraced by the Marriage (Same Sex Couples) Act 2013, have focused on the implications of that Act for the constitutional relationship between Church, State and nation. More frequently, noting the position of the Church of England under that Act, academics have critiqued the legislation as an exercise in balancing competing human rights. This article by contrast, leaving behind a tendency to treat religion as a monolithic ‘other’, and leaving behind the neat binaries of rights-based analyses, interrogates the internal agonies of the Church of England as it has striven to negotiate an institutional response to the secular legalisation of same-sex marriage. It explores the struggles of the Church to do so in a manner which holds in balance a wide array of doctrinal positions and the demands of mission, pastoral care and the continued apostolic identity of the Church of England.

scholarly journals I MATRIMONI OMOSESSUALI DI ITALIANI ALL’ESTERO E LE UNIONI OMOSESSUALI DI STRANIERI IN ITALIA

2019 ◽  
Author(s):  
Franco Mosconi ◽  
Cristina Campiglio
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Constitutional Court ◽  
Same Sex ◽  
European Court

Law no. 76/2016, replying to the requests of the Constitutional Court and of the European Court of Human Rights, regulates same-sex civil partnerships. This contribution deals with some aspects of the new regulation: in particular with the effects in Italian legal system of same-sex marriages entered abroad by Italian citizens, and the conditions according to which other States’ citizens are admitted to enter a same-sex partnership in Italy.

scholarly journals Adoção e casais do mesmo sexo

2014 ◽  
Vol 8 (29) ◽  
pp. 30-46
Author(s):  
Neliana Rodean
Keyword(s):  
Human Rights ◽  
Sex Partners ◽  
Heterosexual Couples ◽  
Same Sex ◽  
Biological Parent ◽  
National Legislation ◽  
Same Sex Couples ◽  
European Court ◽  
New Period ◽  
Domestic Legislation

The European “backyard of rights” is enlarging and Member States face a new period of acknowledgment of human rights. The guarantee of the new rights occurs both through national legislation and through the jurisprudence of international or supranational courts. The European Court of Human Rights (ECtHR) became the “fourth judge” called to intervene when the domestic legislation is not guardian of new rights regarding the recognition of the same-sex couples but also the adoption of a child by these couples. In this sense, recently the ECtHR ruled that the impossibility of second-parent adoption in a same-sex relationship is  discriminatory when such adoption is possible for unmarried heterosexual couples, although the exclusion of the biological parent. Thus, the decision of the ECtHR established the principle that the adoption of children by same-sex partners should be possible, as it is for heterosexual unmarried couples.

Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1746-1763 ◽  
Author(s):  
Sarah Lucy Cooper
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Same Sex ◽  
Registration System ◽  
Same Sex Couples ◽  
European Court ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

What Obergefell v. Hodges Should Have Said

2020 ◽  
Keyword(s):  
Social Movement ◽  
Supreme Court ◽  
Constitutional Law ◽  
Gay Rights ◽  
Political Struggle ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
The Social ◽  
The Right

The authors of this book, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. In addition to serving as Chief Justice of this imaginary court, the book's editor provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell, and he explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how — through legal imagination and political struggle — arguments once dismissed as “off-the-wall” can later become established in American constitutional law.

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