In the "Points of View" column published in "Il Secolo XIX" on August 10, we read about the intervention of two representatives of the "Ligurian and Genoese Forum of Family Associations, Federvita Liguria." In attacking headlong the possible adoption of the "Register of Civil Unions" by the Genoa municipal administration, they made a series of sensational legal blunders, as well as making surprising and completely untrue statements about the Milan resolution.
Essentially, the intervention in question bases its opposition to the adoption of the "Register of Civil Unions" in the Municipality of Genoa on a series of arguments, all of which are fallacious. First, the authors argue, by adopting the Milan-style "Register of Civil Unions," the intention is to equate de facto couples with families. This is untrue, as the Register of Civil Unions, even if established in conjunction with the registry office, does not imply any equality between de facto couples and families in the civil context.
Such an operation, however, tends, as we had occasion to state in these columns a few months ago, to provide greater legal certainty to a de facto situation different from marriage but deserving of protection. This is the case of compensation for damages pursuant to art. 2059 of the Civil Code in favor of the cohabiting spouse or of succession in a rental agreement.
The second claim – also entirely specious and false – claims that the purpose of the aforementioned measure is an ethical operation aimed at providing unspecified subsidies to those registered in the "Register of Civil Unions" by the municipal administration. In Italy, with Milan, there are now as many as 90 municipalities have adopted the register in question and it does not appear that on any occasion it has ever produced the results so feared by the exponents of the "Forum".
The third reason is that there is no legal provision that legitimizes resolutions like that of the Municipality of Milan. This statement is also untrue. In fact, the resolution in question, by adopting a specific regulation establishing the "Register of Civil Unions," merely regulates the issuance of the registry certificate, a tool already provided for by Presidential Decree 223/1989 on civil registry matters.
But there is more, since our Constitution, even before the Municipalities of Genoa and Milan, identified specific ethical values, which are expressed in the centrality it accords to personal freedom, the realization of which is instrumental in the fundamental rights proclaimed precisely in Article 2 of the Constitution.
Moreover, even a simple reading of the provision reveals that the guarantee of fundamental rights refers not only to the individual, but also to the "social groups in which their personality is expressed." It cannot be denied that these principles, to which is added the value of equality and equal social dignity, apply, despite what the August 10 article might seem to imply, to all members of society, as well as to all social groups, including same-sex couples. This opinion was also shared by the Constitutional Court, which in its well-known ruling 138/2010 recognized same-sex couples as constitutional citizens, including them among the social groups referred to in Article 2 of the Constitution. In light of these observations, the "positive and ideological appreciation of such couples" is therefore unavoidable by the Constitution, regardless of the formulas adopted to achieve it.
It is unfortunate, however, to disappoint the heartfelt authors of the August 10th report by emphasizing how the equating of same-sex couples with the concept of family has already been achieved first by the European Courts, and then by the Court of Cassation in a recent ruling, through the recognition of such unions' right to family life. Finally, it is unclear to what extent progressive recognition of the status of civil unions would conflict with Article 31 of the Constitution, which, in regulating measures in favor of the family, refers to the Republic as a whole and, therefore, like it or not, also to municipalities! In short, the civil union registry is a legally legitimate instrument, already well-established in the best practices of many Italian municipalities, while in terms of values, it constitutes an important testimony to the ethics that lie at the heart of our constitutional text.
by DAMIANO FIORATO and DANIELE FERRARI – lawyers in Genoa – Legal Help Desk Arcigay Genoa