L’orientamento sessuale nell’interpretazione costituzionale: il caso del matrimonio nella Costituzione italiana

Abstract

This study reconstructs the legal consequences of an interpretation of the constitutional field founded on heterosexuality. In this regard, I examine the institution of marriage. In the first part, I premise some theoretical models that describe the trends in the different European States with regard to the relationship between sexual orientation and conjugacy. In the second part, with regard to the Italian legal system, moving by the interpretation of the institution of marriage in constitutional jurisprudence, we can see that the conjugacy have been reserved only for those of the opposite gender, resulting in the exclusion of same-sex couples, unable to be legally owner of the corresponding rights and duties. In this perspective, sexual orientation, despite the constitutional principle of equality, is still a quality of the person capable of making distinctions between subjects. The Italian situation, in the final part, is read, in a problematic sense, in the European context, in which many legal details of both the European Union and the Council of Europe have neutralized sexual orientation with respect to access to marriage, allowing all couples to marry.

Keywords: sexual orientation, marriage, constitution, legal status, legal capacity.