Same-Sex Marriage Is Spreading Through Laws and Court Rulings

Undoubtedly, starting with the last part of the 20th century, civil rights have been the prime driver in the development of Western legal institutions. The inclusion of gender orientations has been the latest addition to this trend.
On this point, the study of comparative law brings unambiguous conclusions: same-sex marriages are legal in a number of countries, either because lawmakers or supreme courts said so. Belgium and Holland pioneered same-gender marriages in 2001, followed by Spain, and then six more Western European countries around 2010, until the recent approval in the UK of the Marriage (Same Sex Couples) Act in 2013 by the House of Parliament.
Outside Europe, it was the courts that took the initiative. Consider the example of Canada, where prohibition of gender discrimination was interpreted by the Supreme Court to include also sexual orientation (Egan v. Canada) and then used by Provincial Courts to strike down laws stating the heterosexual nature of marriage (Halpern v. Canada and Eagle v. Canada). The South African case is similar: the Constitutional Court reconstructed in terms of the protection of human dignity the right to marry the person of one's choice (Fourie ruling).
Recent US experience falls in the same trend, although it has proceeded along a more tortuous road. There the process starts with a 1993 Hawaii Supreme Court ruling – Baehr v. Miike – in which the norm restricting marriage to heterosexuals was declared contrary to the principle of equal protection by the law. The US Congress reacted to this ruling by passing the Defense of Marriage Act (DOMA), which aimed at preventing same-sex marriages celebrated according to norms passed by individual states from having effects under federal law.
Last July, with the United States v. Windsor ruling, the US Supreme Court brought federal law onto a position of benign neutrality vis-à-vis same-sex marriages, striking down DOMA as unconstitutional. The Court's reasoning revolves around both the due process clause in the Fifth Amendment, and federal jurisdiction over the marriage contract.
In fact, on the one hand, marriage and its legal effects fall under state supervision, on the other the objective pursued by the federal lawmaker was to make void the objective of equal protection accorded to same-sex couples, i.e. to impose inequality. The objective to limit state choice on this issue was found to lack justification, thereby violating the well-known due process clause. However, when as in Hollingsworth v. Perry, the Supreme Court was asked to recognize as fundamental right the right to marry a person of the same gender, the Justices tried to elude the merit of the question, hiding behind legal procedure.
Summing up, Comparative law leads one to conclude in favor of the legal recognition of same-sex marriage. This doesn't mean that Italy must necessarily take the same road. More simply, it means we have to look at what's happening abroad to finally have a public debate and raise awareness around an issue that cannot be willed away.