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17 German L.J. 451 (2016)
An Emerging Right to a Gay Family Life: The Case Oliari v. Italy in a Comparative Perspective

handle is hein.journals/germlajo17 and id is 457 raw text is: 













An Emerging Right to a Gay Family Life? The Case Oliari v.

Italy   in  a Comparative Perspective


By  Sabrina Ragone & Valentina Volpe





Abstract

This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment,
which  was issued by the  European  Court of Human   Rights (ECtHR) in July 2015. The Oliari case is
important  for being  the first judgment  in which  the  ECtHR  established  the granting of  legal
recognition and protection to same-sex  couples as a positive obligation for the Member States of
the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order
to understand  the role of judicial bodies in the progressive protection of homosexual  rights, this
Article combines an analysis of European case law with the national perspective. As it concerns the
supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence
of the ECtHR.  Elements  of both continuity and innovation emerge   from the analysis, as well as a
relevant dimension   of judicial dialogue supporting the incremental  recognition of gay  rights in
Europe. As  it concerns the national facet, this specific case was initially dealt with at the domestic
level and was the object of judgment  138/2010  by the Italian Constitutional Court. The judgment is
critically put into perspective through the examination  of  the jurisprudence of  other European
Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the
same  period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its
relevance and speculating on the potential value of this case for the future recognition of the right to
a gay family life in Europe.




  Sabrina Ragone is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and
International Law of Heidelberg (position funded by the Deutsche Forschungsgemeinschaft) and Associate
Lecturer at the Universite Catholique de Lille (France) [ sabrina.ragone@mpil.de ]. Valentina Volpe is a Senior
Research Fellow at the Max Planck Institute for Comparative Public Law and International Law of Heidelberg and
Associate Lecturer at the Universite Catholique de Lille - campus of Paris (France), LUISS Guido Carli University of
Rome  (Italy), and University of Mannheim (Germany) [ vvolpe@mpil.de ].

The Authors wish to express their gratitude to Junyu Chen and Natalia Filandrianou for their helpful research
assistance. The article is the result of a common reflection; nevertheless, sections B and D are attributable to
Sabrina Ragone and sections C and E to Valentina Volpe. The footnotes and Internet websites quoted in the
article were updated and last accessed on February 16, 2016, when we submitted the Article to the German Law
Journal. In May 2016, the Italian parliament passed law 76/2016, introducing for the first time same-sex civil
unions in the legal system. This result is also the outcome of the international obligation recognized by the ECtHR
in Oliari andothers v. Italy, which proves and enhances the relevance of this judgment.

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