With this judgment, the Constitutional Court once again addresses the treatment reserved by the Italian legal order to same-sex couples, declaring the constitutional illegitimacy of Article 13 of Royal Decree-Law No. 636 of 14 April 1939, as converted into law, insofar as it does not permit the award of the survivor's pension to the surviving partner of a same-sex couple bound by a marriage contracted abroad, where the death of the other party occurred prior to the entry into force of Law No. 76 of 20 May 2016 (the so-called Cirinnà Law).

Two men, in a stable relationship, had a child in the USA through assisted reproduction in 2010, subsequently recognised in Italy with paternity attributed solely to the Italian biological parent. The couple later married in New York in November 2013. The marriage certificate, however, could not be transcribed in Italy other than as a civil union in October 2016, by which time the partner had already died, and before the entry into force of Law No. 76 of 2016 and, a fortiori, of Legislative Decree No. 7 of 2017, which extended to same-sex marriages contracted abroad the effects of civil union.

INPS accordingly refused to award the survivor's pension to the surviving partner, including in his capacity as holder of parental responsibility for the child.

The Court of Appeal of Milan, overturning the first-instance judgment, had recognised the entitlement to the benefit by means of an interpretation of the survivor's pension rules that was constitutionally and Convention-compliant. Seised of INPS's appeal, the Court of Cassation, sitting as the United Sections, held that this interpretative route exceeded the bounds of conforming interpretation, and raised of its own motion a question of constitutional legitimacy concerning Article 13 of Royal Decree-Law No. 636/1939, with reference to Articles 2, 36(1), and 38 of the Constitution.

The essence of the question did not concern a general claim for the equal treatment of same-sex unions with marriage, nor a retroactive extension of the Cirinnà Law. The United Sections isolated the particular case at hand.

A passage of systemic significance concerns the exclusion of the survivor's pension under the general compulsory insurance scheme from the scope of Directive 2000/78/EC: the INPS survivor's pension, founded on a mechanism of intergenerational redistribution rather than on a synallagmatic link with a single employer, thus falls outside the perimeter of the prohibition of discrimination on grounds of sexual orientation laid down by EU law, with the consequence that the request for a preliminary reference under Article 267 TFEU, reiterated by the private party, is absorbed rather than requiring a ruling.

The crux of the Court's reasoning, however, lies in its reading of its own precedent on the matter: in judgment No. 461/2000, the Court had held that the exclusion of the de facto cohabiting partner from survivor's pension beneficiaries was not unreasonable, on account of the revocability, at any moment, of the affectio, and the absence of a "pre-existing legal relationship" from which the pension could "genetically" derive. By contrast, in the case of an equal marriage not recognised in Italy for reasons unrelated to the rules of private international law, what is at issue is not a de facto cohabitation, but a marital bond validly contracted abroad — that is, a certain, documentable historical fact, which the couple had been unable to have produce effects in Italy not by choice, but owing to a legislative obstacle subsequently removed. Any equation between the position of the couple in question and that of the cohabiting partner is therefore precluded from the outset.

The most innovative passage, however, is the Court's reliance on the criterion of anachronism as a parameter for scrutinising reasonableness, already employed in judgment No. 223 of 2015. The Court assesses the obsolescence of a past legislative choice in the light of the currency of a subsequent legislative choice. Since the legislature has by now recognised same-sex marriages contracted abroad as producing the effects of civil union, thereby equating spouse and civil partner for the purposes of the survivor's pension, maintaining the exclusion solely because the death occurred before the entry into force of Law No. 76/2016 gives rise to an unjustified disparity of treatment — one rooted not in any substantive difference between the situations, but in the mere "combination of the event of death with its occurrence at a point in time prior" to the reform.

In support of this conclusion, the Court invokes its settled case law on the rationale of the institution of the survivor's pension as a form of the continued efficacy, beyond death, of family solidarity, and reaffirms that, however broad the legislature's discretion in matters of social security, a legislative choice that unreasonably impinges upon such solidarity cannot be regarded as consistent with the Constitution.

Judgment No. 91/2026 forms part of a line of case law that, over the past twenty years, has progressively extended — with the chisel rather than the axe — the protections afforded to couples and families that do not find full correspondence in the traditional heteronormative marital model. In doing so, it builds a system of protections that radiates across the various models of affective and family relationships: from judgment No. 138 of 2010, which was the first to recognise in the same-sex union a social formation within the meaning of Article 2 of the Constitution, through the rulings on filiation in same-sex parented families, up to these more recent decisions in matters of social security and property.

The Court corrects a specific and disproportionate effect that the absence of transitional provisions produces upon a fundamental right.

Seen in this light, the judgment confirms the role of the constitutional judge not as the architect of a family pluralism imposed from above in substitution for the legislature, but as the guardian of a systemic rationality that accompanies, corrects, and renders coherent over time the choices made by Parliament — preventing the passage of years and the shifting of social and legal sensibility from leaving trapped in a limbo of unjustified exclusion, or rendered invisible, situations that the legal order itself has subsequently recognised as deserving of protection.

 

 

(Comment by Stefania Pia Perrino)