By: William Eugene Tipton
New legislation is up for vote in the Italian Legislature pertaining to the legal recognition of same-sex civil unions. Currently, Italy does not have any safeguard in place to protect homosexual couples rights to parenthood or spousal employment benefits. The European Court of Human Rights has condemned Italy for failing to be proactive in supporting the rights of same-sex couples through legislation.
The Catholic Church, with its staunchly conservative views on the family, has vehemently opposed the adoption of any legislature that would recognize the rights of same-sex couples. The Church has used its ties to Italian Government to influence legislative voting on this and many other issues of LGBTI rights. Arguments presented by the Church and other conservative groups in Italy focus on the potential detriment to the tradition view of the family unit within Italian and the potential erosion of Italian morality.
The erosion of the Italian family unit is not the aim of the same-sex couples vying for their rights: “We don’t want to take anything away from the traditional families …but our families also exist, our children exist and our children need to have both of their parents recognized.” In spite of this, and similar statements made on behalf of the groups in favor of the legislation, opponents of the bill vehemently oppose its institution, as it could be the first step towards legalized same-sex marriage in Italy.
The strict definition of a marriage and the lack of civil unions create major issues for same-sex couples in Italy. If a spouse wishes to draw from the pension of their incapacitated partner, he or she would be denied access to the funds. Further, the lack of legal recognition for same-sex unions creates issues with children who are adopted by same-sex couples. If a child is adopted by a same-sex couple that child, and the parent recognized as that child’s legal guardian dies or is incapacitated, the child will not be able to remain with the other parent, because the partnership was never legally recognized.
All of this is occurring at a very interesting time in Europe. Several countries in the European Union (EU) have recently passed laws recognizing civil unions. One of the more interesting cases of these phenomena is Greece. Having a similar culture of religious influence in politics, Greece recently passed a law recognizing civil unions between same-sex couples in spite of the protest of the Orthodox Church. Given the similarities between the two cultures and the religious powers involved, it is likely that Italy will eventually recognize civil unions as part of the basic rights of their people.
The unfortunate truth, though, about the Greek legislation is that it does not grant any rights beyond those of civil unions to same-sex couples; they are still unable to collectively adopt a child, to share health benefits, and to share pensions between partners. LGBTI activists in Greece are currently working to gain further rights for their cause. Still, rights for same-sex couples have been expanded throughout the EU in countries like Britain, Cyprus, and Spain. Italy’s close proximity to these countries as well as its history of conforming to the regulations and expectations of the EU will likely lead to the adoption of legislation recognizing the rights of the same-sex couples as part of the rights guaranteed by the European Convention on Human Rights (ECHR), specifically those enumerated in Article 8:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Given the text of the Convention it seems as though the Italian Government has a duty to same-sex couples within its borders. After all, everyone has a right to a “private and family life,” and “there shall be no interference by a public authority,” unless there is an adverse effect on “national security, public safety, or economic wellbeing of the country” or it incites crime, violates moral standards, has a negative impact on public health, or encroaches on the freedoms of others. Civil unions of same-sex couples would certainly not be a threat to national security, public safety, the Italian Economy, nor would it have a noteworthy effect on the crime rate. However, arguments could be made based on moral and health concerns. Further, arguments have been addressed that it will adversely affect the rights of traditional married couples.
The morality argument is simple to state and simple to discredit. The basis of the moral argument can only be based on the culture of Italy, and the importance of religion in that culture. Italy proclaims itself to be a secular state, so it follows that religious entities, such as the Catholic Church, should not command major political influence. However, Italy is still a very religious country. According to a 2015 estimate, Italy is 80% Christian and the vast majority of those people identify as Catholic. The large population of Catholics may side with the Church on issues of domestic partnership; thus, the lack of legislation may, in fact, be a reflection of the will of the people. In spite of this, the right to a “family life” is violated by the restrictions placed on same-sex couples under Article 8. Further, if Article 8 is violated, then Italy is obligated to change its laws.
Italy is not only a party to the ECHR, but it is also a member of the EU. All members of the European Union are subject to the common moral standards that exist throughout the member states of the European Union. This provision is set forth in Article 6(3) of the Treaty on European Union (TEU). Given the obligations Italy has it is unlikely that its legislature would be able to argue against the adoption of this legislature based solely on moral groups; it seems more likely that Italy would be required to draft legislation, even against the will of its people, based on the terms of the treaties it has ratified.
In spite of this, there is still a probable health concern, i.e., that legally recognizing same-sex couples will impact the general health of Italy. This argument is flawed, because it presupposes that same-sex couples are less likely to engage in intercourse without civil unions. Due to the nature of European Culture and the nearly universal attitude toward pre-marital intercourse in Western Society, there would likely be little to no noticeable impact on the health of the populace.
Another argument presented states that allowing same-sex couples to form a legal union would impact the rights of heterosexual couples to form a legal union. This argument was presented by the conservative opposition to the proposed legislation. In truth, there is nothing in the legislation that affects traditional marriages. Since traditional marriages are not affected, then the argument that the rights of heterosexual couples will be affected is meritless.
The conservatives in Italy may argue that under Article 12 of the ECHR, pertaining to the right to marry, they do not have an obligation to recognize civil unions, because of the definition of marriage present in the ECHR. That definition states that marriage is between a man and a woman. The groups opposing the recognition of civil unions in Italy could argue that the creation of civil unions would violate the definition because a civil union is extremely similar to, and are often seen as identical to, a marriage.
The opposition to the legislature could also argue that marriage is a sacred right within their religion and state that the European Court of Human Rights would violate Article 9 of the ECHR by forcing Italy to go against its religious culture by forcing it to redefine what it deems as “marriage” and “family.” The court would likely dismiss this argument since marriage is not solely a religious practice. Further, even if marriage were solely a religious practice, it should be noted that different religions and different sects within religions often have different interpretations of the definition of marriage. A same-sex couple may interpret their civil union as being similar enough to a marriage to have some religious significance, and therefore, they would be just as entitled to use Article 9 as the Catholic majority. Therefore, Article 9 of the ECHR would not provide the conservatives with an excuse to deny rights to same-sex couples.
The Article 12 argument, although more authoritative than the previous arguments, would not overrule both Article 8 of the ECHR and Article 6(3) of the TEU. The Article 12 argument is still based on a single, narrow interpretation of the article that has been contorted for the purposes of an argument, whereas Article 8 of the ECHR and Article 6 of the TEU are broadly encompassing articles that have definite applicability in this argument. If this issue were to manifest itself in a manner that could be appealed to the European Court of Human Rights or the European Court of Justice, either court would rule in favor of facilitating civil unions for same-sex couples in Italy.
Given the nature of the ECHR and the current social mores present in the EU, it is only a matter of time before Italy will have to conform to the contemporary standards expected of Western Powers with regards to the rights of same-sex couples. Italy’s rich Catholic heritage is no excuse to violate the ECHR. While there may be some concern that implementing the ECHR in this case will violate the religious rights of the people of Italy, the ECHR clearly states that the right one has to exercise one’s religion cannot violate the rights and freedoms of others.
 ECHR: Italy Breaches Human Rights by Blocking Gay Marriage, DW (July 22, 2015), http://www.dw.com/en/echr-italy-breaches-human-rights-by-blocking-gay-marriage/a-18598757.
 Lesbian, Gay, Bisexual, Transgendered, and Intersex.
 Hanna Rantala, Italians Rally for Gay Civil Unions Ahead of Battle in Parliament, Reuters (Jan. 24, 2016, 12:02AM), (quoting Liliana Rizzo, member of a gay parents’ association), http://www.reuters.com/article/us-italy-gaymarriage-rallies-idUSKCN0V10S0.
 See, e.g.,
 Renee Maltezou & Georgia Kalovyrna, Greece Allows Civil Partnership for Same-Sex Couples, Reuters (Dec. 22, 2015, 8:26PM), http://www.reuters.com/article/us-greece-rights-vote-idUSKBN0U52HK20151223.
 European Convention on Human Rights art. 8, opened for signature Nov. 4, 1950, C.E.T.S. No. 005 (entered into force Sep. 3, 1953) [hereinafter ECHR].
 Rantala, supra note 3.
 Art. 3, 7, 8 Costituzione [Cost.] (It.).
 The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/it.html (last visited Mar. 15, 2016).
 Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Oct. 26, 2012, 2012 O.J. (C 326/13).
 Rantala, supra note 3.
 ECHR, supra note 12, art. 9(2).
Edited By: Christine Sanders