Fractured identities and fragments of power: the influence of the European Union on the Italian judicial system as seen through the lens of the struggle for rights on behalf of same-sex couples

In this dissertation, I describe the ongoing struggle over legal recognition of rights for same-sex couples in Italy and demonstrate how in Italy, a nation where (for a myriad of historical, social, and political reasons) there is little faith in the ability of state institutions to reckon with societal change, European Union (EU) law offers a means for circumventing national politics to create policy change in an area of law long subject to political impasse. I use the topic of the struggle for same-sex marriage in Italy as a lens through which to conduct an ethnographic investigation of the globalizing effects of the EU, and more specifically of EU law and policy, on Italian society and the Italian legal system. I argue that recent legal and policy changes with respect to the treatment of same-sex couples in Italy are a direct consequence of the stimulus of the EU on the national judicial system and evidence a burgeoning judicial activism. Such activism occurs at the expense of national politics in Italy and this is therefore a story about compromised sovereignty and the judicialization of politics, but it is also about something more; i.e., the formation of new post-national identities in the face of an emergent supranational entity. As a supranational entity, the EU exists in constant tension with its member states, and relations between the EU and its nation-states are continuously negotiated. Much of this happens through law in general and the courts in particular, where conflicts are presented for resolution. The account I present here is based on participant-observation, interviews, and over four and a half years of tracking online discussions and media sources dealing with LGBTI rights in Italy and in Europe between May 2009 and February 2014. Between July 2009 and February 2011, I spent over a year in Italy, living first in Rome and later in Turin, and working with various Lesbian, Gay, Bisexual, Transsexual, and Intersex (LGBTI) rights advocates in Italy and the EU. In an effort to provide a holistic account of the contemporary struggle for recognition of rights on behalf of same-sex couples in Italy, I approach the subject from the perspectives of the main protagonists: the activists, the Italian courts, and the EU and Europe. I begin with a description of the problem (Chapter 2), looking closely at the activities of Italian LGBTI activist groups currently fighting for marriage equality, and focusing specifically on the Affermazione Civile campaign initiated by Italian LGBTI activist groups, Associazione Radicali Certi Diritti (Certi Diritti) and Avvocatura per i Diritti LGBT (Rete Lenford). Due to particularities in the Italian constitution, the desired goal of the Affermazione Civile campaign is marriage equality, and anything less will prove discriminatory with respect to same-sex couples. Because much of the resistance to same-sex marriage is due to opponents\u27 perceived need to protect the so-called traditional family, I consider the relevance of “the family” as a central institution and the role of marriage in structuring family relationships in Italy (Chapter 3). While the Italian family has changed significantly, Italian family law has not, and this is problematic for “non-traditional” families who are denied the full plethora of rights made available to alleged traditional families. Despite substantial changes in family structure, Italian politicians have been unable to reform Italian family law, and the Italian courts have stepped in to fill the void. The Italian Constitutional Court, Italy’s Supreme Court of Cassation (Corte Suprema di Cassazione), and several lower-level courts have recently issued historic decisions recognizing certain rights on behalf of same-sex couples residing in Italy. In their decisions, Italian courts are displaying signs of a flourishing judicial activism and attendant judicialization of politics (Chapter 4). The decisions of the Italian courts in this area are important not only to the advancement of LGBTI rights in Italy, but also to the further delineation of a transnational EU citizenship and processes of European integration. For this reason, I also look closely at the EU, and explore how various institutions within the EU structure and generate contemporary debate over marriage equality in the member states (Chapter 5). I devote special attention to the activities of the European Court of Justice, as well as to the European Court of Human Rights, because it is the European courts, more than any other European or EU institution, which have influenced and advanced the recognition of rights for same-sex couples in Europe and Italy (Chapter 6). I return to the struggle over recognition of rights for same-sex couples in Italy, and look specifically at the relationship between Church and State in contemporary Italian politics and its role in the struggle over recognition of rights for same-sex couples (Chapter 7). In the Conclusion, I tie everything together to show how recent changes with respect to the treatment of same-sex couples in Italy are the direct result of the EU’s influence on the nation-state in general and its judicial system in particular. This points to larger issues regarding sovereignty and territoriality, and demonstrates how profound changes in the status of the nation-state occur through often unintended and peripheral post-national identity formations in which the state itself is implicated