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Religious Freedom and Gay RightsEmerging Conflicts in the United States and Europe$
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Timothy Shah, Thomas Farr, and Jack Friedman

Print publication date: 2016

Print ISBN-13: 9780190600600

Published to Oxford Scholarship Online: June 2016

DOI: 10.1093/acprof:oso/9780190600600.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 January 2022

Same-Sex Partnership and Religious Exemptions in Italy

Same-Sex Partnership and Religious Exemptions in Italy

Constitutional Textualism versus European Consensus

(p.225) 9 Same-Sex Partnership and Religious Exemptions in Italy
Religious Freedom and Gay Rights

Andrea Pin

Oxford University Press

This chapter compares current Italian jurisprudence concerning constitutional rights for same-sex couples with prevailing legal norms in Europe established by the European Court of Human Rights (ECtHR). It faults the Italian Constitutional Court for employing a strict originalist reading when it found that the Italian Constitution does not guarantee a right to same-sex marriage. In so doing, the court avoided addressing important substantive issues, such as the justification for heterosexual marriage (religious or otherwise), how to balance conflicting rights, and how to properly understand “self-determination.” The impact of these omissions is not merely theoretical; they set up a potential standoff between Italian courts and the ECtHR. To prevent future conflict, it is suggested that religious communities in Italy be given a proactive role in shaping gay rights legislation before—and not simply after—it is enacted.

Keywords:   Italy, Constitutional Court, marriage, same-sex marriage, same-sex couples, partnership, rights, religious freedom, European Court of Human Rights, ECtHR

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