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Sentenza 38/2010, Italian Constitutional Court (14 April 2010)

Procedural Posture

The Venice Tribunal and the Trento Court of Appeal received two constitutional challenges to the Civil Code provisions relating to marriage. Having decided that the challenges were not manifestly ill-founded, the courts filed two separate motions to the Italian Constitutional Court, which the Court decided to examine together.


In one case, a same-sex couple tried to obtain the banns for their marriage from the registry office of the Venice municipality. The registrar refused their request because, under the Italian Civil Code, the right of marry was reserved to heterosexual couples. The same-sex couple then filed a complaint to the Venice Tribunal, challenging the constitutionality of the relevant provisions of the Civil Code. Two other same-sex couples went through the same procedure with the Trento municipality and filed a complaint to the Trento Tribunal, which rejected the complaint. The plaintiffs then appealed to the Trento Court of Appeal.


Whether the provisions of the Civil Code, that limited marriage to heterosexual couples, were unconstitutional.

Domestic Law

Constitution of Italy, Articles 2 (human rights), 3 (equality), 10 (international law), 29 (family and marriage), and 117 (State and regional legislative power)

Civil Code of Italy, Articles 93, 96, 98, 107, 108, 143, 143-bis, and 156-bis.

International Law

Charter of Fundamental Rights of the European Union, Articles 7, 9, and 21.

European Convention on Human Rights, Articles 8, 12, and 14

Goodwin v. United Kingdom, ECtHR, 2002 (holding that classifying post-operative transgender persons according to their sex prior to surgery violated Articles 8 and 12 of the European Convention).

Reasoning of the Court

The Court began by reviewing the arguments which the parties had presented to the Venice Tribunal and the Trento Court of Appeal, and the reasoning of those two courts.

The plaintiffs had argued that Italian laws neither defined marriage in specific terms nor explicitly prohibited homosexual marriage. Furthermore, the challenged provisions (at least if interpreted literally) would be contrary to the Constitution of Italy as well as to the Charter of Fundamental Rights of the European Union.

The Tribunals had accepted the plaintiffs’ arguments. The Court therefore focused its analysis on the motion presented by the Venice Tribunal.

First, the Tribunal had noted that, under Italian national law, same-sex marriage was neither contemplated nor explicitly prohibited. However, even if no specific definition was provided, the institution of marriage under Italian law undoubtedly referred to heterosexual marriage only. Therefore, according to the Tribunal, it was not possible to extend the institution of marriage to include same-sex couples. This would amount to re-interpretation of existing legislation, which could only be done by a constitutional court. Nevertheless, the Tribunal argued that recent changes in society and social mores could not be ignored. In the Tribunal’s view, the traditional model of the family was no longer the only valid one, because new forms of cohabitation were becoming more common and were in need of protection.

The Tribunal then noted that the Constitution affirmed that the right to marry was a fundamental right. Article 3 of the Constitution (on equality) was also relevant in the present case and required that everyone without discrimination could enjoy the right to marriage. The Tribunal argued that since this provision prohibited unjustified disparate treatment, the implicit norm excluding homosexual couples from marriage had no rational justification. In order to support its argument, the Tribunal drew a comparison with the situation of transsexual persons who were permitted to marry a person of the same biological sex.

With regard to Article 29 of the Constitution, the Tribunal affirmed that family and marriage were institutions open to transformation and that their constitutional meaning had already evolved under the influence of social change.

Lastly, Article 117 of the Constitution required legislators to respect international treaty obligations. The Tribunal cited Articles 8, 12 and 14 of the European Convention as well as Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union, and the judgment of the European Court of Human Rights in Goodwin v. United Kingdom. The Tribunal also noted that several European States had already enacted laws recognising same-sex marriage.

The State intervened in the proceedings to defend the challenged provisions and asked for the motions to be declared inadmissible and manifestly ill-founded. It argued that all the legislation relating to the institution of marriage undoubtedly referred to heterosexual couples and this had been confirmed by both doctrine and jurisprudence. Furthermore, according to the State, Article 3 of the Constitution ordered equal treatment for equal situations and allowed disparate treatment for situations that were in fact different. It also argued that the European Union had just adopted guiding principles relating to marriage but had left States with a wide margin of appreciation. The State affirmed that European countries had taken different approaches to same-sex unions, but the common element had been the central role of the legislature in deciding on the matter. The judicial inclusion of same-sex couples in the text of the legislation would violate the principle of separation of powers.

The Court first examined whether the challenged provisions were compatible with Article 2 of the Constitution. It noted that, under current legislation, the institution of marriage referred only to heterosexual couples, following a well-established and thousand-year-old concept of marriage. The question was therefore whether the legislation, by excluding same-sex couples from marriage, violated Article 2. According to the Court, homosexual unions, understood as a stable cohabitation of two persons of the same biological sex, were among the social groups protected by Article 2. Therefore, these persons had the right to freely live as a couple and to obtain legal recognition of their rights and duties as a couple. This said, recognition was not necessarily to be realised through marriage. In the Court’s view, this was evident from the wide differences in the way same-sex unions had been recognised in different European States. It was the responsibility of the legislative branch to identify the appropriate form of recognition and protection for same-sex unions.

With regard to the compatibility of the challenged provisions with Article 29 of the Constitution, the Court argued that the constitutional concepts of family and marriage could not be considered to be frozen at the time the Constitution entered into force. They had to be interpreted, taking into account the evolution of society and social mores. However, judicial interpretation could not modify the core of the law and include issues that had not been contemplated when the law was adopted.

Next, the Court examined the constitutionality issue under the Article 3 equality provision of the Constitution, concluding that the challenged law did not amount to prohibited discrimination because same-sex unions could not be compared to heterosexual marriages. The situation of transsexuals was not a valid comparator. On the contrary, the right of transgender persons to marry a person of the same biological (as opposed to acquired or preferred) sex was a confirmation of the heterosexual character of marriage.

Lastly, with regard to Article 117 of the Constitution and the international law obligations of the State, the Court noted that both the European Convention and the Charter of Fundamental Rights of the European Union affirmed the right to marry but then referred to national legislation for the concrete type of protection to be given to this institution. None of the international instruments required the recognition of same-sex marriage or the full equalisation between same-sex unions and heterosexual marriage.

The Court dismissed all the constitutionality questions as being inadmissible (Articles 2 and 117 of the Constitution) and ill-founded (Articles 3 and 29 of the Constitution).

Sentenza 38-2010, Italian Constitutional Court – Italian (full text of judgment in Italian, PDF)

Sentenza 38-2010, Italian Constitutional Court – English (summary of judgment in English, PDF)