The paper present a recent case decided by the Italian Constitutional Court (221/2019), in which it seems that the criteria elaborated by the European Court regarding the protection of homosexual couples have not been respected.
I am referring to the access of lesbian couples to assisted procreation techniques. In Italy,since 2016, a law allows access to these procedures only to heterosexual couples.
An Italian judge noticed a discrimination in this law and raised a question of unconstitutionality to the Constitutional Court.
It should be noted that since 2013 the European Court condemns the States that recognize in their laws some rights to unmarried heterosexual couples and do not extend these rights to homosexual couples.
Despite this doctrine, the Constitutional Court ended up considering “rational and justified” the exclusion of lesbian couples from these types of treatments, with some very conservative and even somewhat worrying arguments, which will be analyzed in the paper.
In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civ Rights Com in favor of a baker who refused service to a same-sex couple due to his religious beliefs. This article examines the behavioral effect of this decision in a field experiment (N=1,155 businesses) that measured discrimination towards same-sex couples in the field of wedding services shortly before and after Masterpiece. I find that Masterpiece significantly reduced the agreement to provide services to same-sex couples as compared with heterosexual couples, even among vendors that provided this service before the decision. These results discredit the argument that religious exemptions will not expand discrimination. Instead, the Masterpiece experiment shows that even exemptions can have a significant and robust, even if inadvertent impact on a market and its customers. I discuss how an empirical approach to rights conflicts can guide legislatures and courts that deliberate how to navigate these conflicts.
This paper aims to discuss how equality claims made by LGBT community and movements about same-sex marriage are based on human rights language and constitutional interpretation to overcome impasses or limitations of legislative deliberations through demands presented to judicial courts, including constitutional ones, and the democratic legitimacy of these judicial decisions, based on the analysis of decisions of constitutional courts in Spain, Brazil and the United States as different forms of judicial approach: as ratification of parliamentary deliberation; as overcoming a legislative silence; or sometimes overcoming difficulties constitutional limits. The central idea is to demonstrate how same-sex (or egalitarian) marriage has been defined and interpreted as belonging to the catalog of human and constitutional rights, based on the notion of freedom of family life, and how this has been appropriated by the courts. beyond the conjectural parliamentary majorities.