La vicenda costituzionale del matrimonio omosessuale. Una prospettiva di Diritto costituzionale e di “Diritto e Letteratura”.

Lucilla Conte

Abstract


The dissertation has the aim to present a complete description of the same – sex marriage case the Italian Constitutional Court has faced, and of its possible developments. To this extent, two perspectives of Law and Literature are identified. The first, which can be defined as a “narrative perspective”, is focused on the special role played by the Constitutional Court in indentifying and reconstructing the legal meaning of key-terms (family, marriage, natural society) and is developed in Chapters I and II; the second is about the activity, played by the judges of merit in redefining (through a style that can be called as “formulaic”) the most significant passages pronounced by the High Courts about same - sex marriage, and is developed in Chapter III. These two activities, that both have the aim of the reconstruction (the first “top-down”, the second “bottom-up”) of legal meanings may be framed into a process (also polemic) that leads to refine the lexicon and that, because of its relation and its impact and on society, can be analyzed also through the sociological theories about literature (especially Erich Köhler’s theory about the literature of the Occitan troubadours, which shows very interesting results, as analyzed in Chapter III). The key point of this research is the achievement of a full consciousness about the meaning of article 3 and article 29 - two central articles of the Constitution- that in the pronounce n. 138 /2010 of the Constitutional Court, in the opinion of the doctrine, had not been deeply analyzed (also in their relationship and in their mutual influences, more considered in the past jurisprudence of the Constitutional Court). The awareness of the fact that the not “alterable” meaning core of article 29 of the Constitution, identified by the heterosexuality of the spouses, may find a break – point through an appreciation of the equality principle only by a serious inquiry about the process in which legal meanings are reconstructed, represents the main result of this dissertation. Talking about “the constitutional case” of same – sex marriage, is to refer not only to the sentence n. 138/2010 of the Constitutional Court, but also to the previous and following judicial steps. This perspective, in its complexity, endorses the theme of the “legal meaning” which permits to focus on the importance on defining and interpreting words also in legal studies and that should be analyzed in a more systematic framework. In this context it must be remarked the fact that the Italian legislator is not showing the political will to extend the institution of marriage to same – sex couples neither to regulate opposite – sex partnerships or same - sex partnerships (as seen in Chapter IV). The analysis of the definition of the concepts of family and marriage (and of the related concept of partnership), by stressing the importance of conveying concepts by words, might contribute to a more considered processing of the role and of the activity of the constitutional players that will face one another soon again about this theme.

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ISSN: 1974-918X