Traditionalism in constitutional thinking: an introduction
Comparisons between European and Asian legal systems have a long history.Footnote 1 However, especially when discussing fundamental rights, studies have often framed European legal traditions as the primary reference point, perpetuating what may be referred to as ‘methodological Eurocentrism’, a hallmark of early comparative law scholarship.Footnote 2 This article takes a different approach and offers a tangible example of how instances of Asian constitutionalism can be a source of innovative legal reasoning and inform European jurisprudence. The potential of this comparison is exemplified by the rights of same-sex couples.
The Italian Constitutional Court (ItCC) and the Court of Final Appeal (CFA) of the Hong Kong Special Administrative Region (SAR) of the People’s Republic of China have grappled with a common legal dilemma: How should ‘tradition’ be weighed in the resolution of cases concerning the rights of same-sex couples?Footnote 3 The ItCC has repeatedly ruled that individuals in same-sex relationships can legitimately be excluded from rights that relate to family life, such as marriage and accessing Assisted Reproductive Technologies (ARTs). Likewise, the recognition of children that same-sex couples have conceived abroad may be limited to a considerable degree. The ItCC has largely justified these limits with reference to the preservation of historically rooted and supposedly ‘natural’ family models, claimed to be entrenched in Italian culture since, so to speak, the dawn of time. On the other hand, despite some contradictory signals and ongoing evolutions within its jurisprudence, the CFA of the Hong Kong SAR has repeatedly problematised ‘long usage’, ‘tradition’, and ‘nature’ as objectives that can legitimate limits on the rights of same-sex couples. And not merely that: the CFA has held in the landmark case Sham Tsz Kit v Secretary for Justice that justifying differential treatment based on such elements is circular reasoning.Footnote 4
This article aims to use the differences in these judgments as a springboard for developing a critique of what we call ‘traditionalist adjudication’ or ‘traditionalist argument’. For the purposes of this paper, this refers to the justification of differential and possibly lesser treatment based on often contested past normative practices. In a nutshell, this article explores two central questions: How can notions such as tradition or a long history of practice result in limitations on the rights of same-sex couples? And what theoretical and empirical criticisms can be applied to this form of reasoning?
To answer these questions, this article advances a two-pronged argument. First, it shows that the case law of the ItCC encapsulates the main elements of traditionalist thinking as defined by Martin Krygier: ‘pastness’, ‘authoritativeness’, and ‘transmission’.Footnote 5 The ItCC has indeed justified the limits imposed on marriage and procreative rights of same-sex couples by claiming, somewhat controversially, that the heterosexual family dates back thousands of years, mirrors nature, and, as such, may legitimately be presumed to provide a better environment for raising children. For these reasons, the case law of the ItCC, we believe, makes an important contribution to the definition of ‘traditionalist’ thinking in constitutional law.
Second, the article develops both an empirical and a conceptual critique of traditionalism. Empirically, traditionalism may be inadequate to address novel questions because it can lend a veneer of legitimacy and rhetorical force to answers based on factually and historically inaccurate conceptions. To demonstrate this, we draw on socio-legal,Footnote 6 historical,Footnote 7 anthropological,Footnote 8 and psychological literature,Footnote 9 as well as cultural analysis of law.Footnote 10 Conceptually, we contend that traditionalist thinking lacks a rational basis for favouring the preservation of past ideas and practices over accommodating present-day changes in social values and behaviour. This conceptual shortcoming is articulated by the CFA of the Hong Kong SAR, which has, in several cases, dismissed traditionalist reasoning as question-begging.Footnote 11
This article makes four contributions to the existing scholarship – which, particularly in light of recent US Supreme Court decisions, has shown a renewed interest in the role of history and tradition in constitutional thinking.Footnote 12 First, it contributes to clarifying the theoretical contours and practical bearing of traditionalism in constitutional interpretation when applied to LGBTQI+ rights. The outspoken preservation of tradition – in this case, to the disadvantage of LGBTQI+ people – is far from being out of fashion and can result in the limitation of fundamental rights. Second, the article contributes to understanding traditionalism in constitutional adjudication across jurisdictions that are not typically featured together in comparative studies, showing that tradition is pressing a challenge in global constitutional discourse. Third, this piece connects the literature on traditionalist thinking to an empirical discussion. Indeed, the shortcomings inherent in using the discourse of tradition in constitutional adjudication have been primarily discussed from a philosophical standpoint. Yet, to date, the use of tradition expressly to limit LGBTQI+ rights can still be questioned with reference to socio-legal literature. Fourth, the article contributes to the literature on gender constitutionalism. It investigates the constitutional aspects of queer people’s access to several constitutional rights. To date, gender constitutionalism has primarily focused on women and feminism, even though LGBTQI+ rights have a constitutional dimension that deserves exploration in its own right.Footnote 13
Beyond its scholarly importance, the question of traditionalist thinking is socially consequential. As reactionary and populist waves sweep across countries in Europe and generally the West, and present remarkable challenges for minorities,Footnote 14 LGBTQI+ people brace themselves for the backlash against their rights. If traditionalist goals such as the preservation of a (real or imagined) past for its own sake become a constitutionally grounded, legitimate objective, then conservative forces will have gained a powerful rhetorical advantage. To borrow Marc Galanter’s notion, judicial decisions have radiating effects, that is, political reverberations that go well beyond the doctrinal content.Footnote 15
The remainder of the article is divided into six sections. Section 2 presents a few methodological clarifications. Section 3 defines the central theoretical notions upon which the argument rests, namely, tradition and traditionalist thinking in the legal context. Section 4 presents the legal and constitutional framework that regulates access to ARTs in Italy and identifies the elements of traditionalist thinking that are present in the case law of the ItCC. Section 5 addresses some socio-legal criticisms of the reasoning of the Constitutional Court. Section 6 discusses the case law of the CFA of the Hong Kong SAR and delivers a logical critique of traditionalist thinking. Concluding thoughts and future directions for research are presented in Section 7.
A few methodological clarifications
Before proceeding, a few methodological clarifications are in order. First, the respective case law of the ItCC and the CFA exemplifies two different approaches to traditionalist thinking. Nevertheless, such thinking cannot be simplistically seen as static or monolithic. Reality is complex, and complexity has crept into the jurisprudence of these two courts. We fully acknowledge that the ItCC has voiced non-traditionalist suggestions as well. For its part, the CFA has recently stated that the preservation of the traditional family is a legitimate objective, and that the pursuit of this objective can justify restricting the rights of same-sex couples, though arguably in an obiter dictum and in a judgment that has otherwise significantly contributed to LGBTQI+ equality.Footnote 16 This complexity, however, does not undermine our argument. Our aim is not to label or taxonomise these two courts as respectively ‘traditionalist’ and ‘anti-traditionalist’. It is not the institutions that we are concerned with. Instead, we wish to examine the arguments that can ground this specific form of constitutional reasoning – which is exemplified by the case law of the ItCC – against several critiques that can be derived from scholarly and judicial sources, such as the judgments of the CFA. In this sense, the positions expressed in Sham Tsz Kit remain cogent and instructive.
Second, from a comparative method perspective, this study circumscribes the comparison to specific legal questions by examining how the ItCC and CFA address the role of tradition in the adjudication of several rights of people in same-sex couples. Such rights include equal marriage, recognition of same-sex partnerships, access to assisted reproductive technologies, recognition of family ties created abroad, and housing. While we acknowledge the differences among such rights, this article takes a step up the ladder of abstraction by treating them as instances of the same problem – namely, what we term ‘the traditionalist dilemma’. In other words, our analysis highlights a shared characteristic among these rights: the tension between the recognition of new rights for same-sex families and the tradition-grounded resistance to them. As such, the rights selected are fully comparable.
A few words are also due on the selection of jurisdictions. This article engages with what Rosalind Dixon understands as one crucial objective of comparison, namely, trying to understand ‘how courts around the world have formulated answers or solutions to common problems’Footnote 17. The argument presented here aims to highlight the potential of the case law of the Hong Kong CFA to offer new perspectives on balancing tradition and modernisation within the global legal discourse concerning the rights of same-sex couples. This focus allows the article to engage with comparative legal studies beyond the ‘usual suspects’, fostering an analytical understanding of legal challenges across diverse cultural contexts.Footnote 18 That being said, we are not advocating a simplistic transposition of the case law of Hong Kong to Italy, as we are cognisant of the institutional and cultural differences between the two courts and, indeed, societies. Nevertheless, these differences should not prevent scholars from engaging in what Sandra Fredman has dubbed ‘deliberative comparison’, that is, in the context of this article, employing the case law of the CFA not as a prêt-à-porter legal solution, but as a source of intellectual engagement that might broaden legal horizons and imaginations.Footnote 19 To this purpose, the jurisprudence of both the ItCC and the CFA seems particularly promising. Both courts focus on the notion of tradition, use it in the context of balancing LGBTQI+ rights related to family, and define it in a strikingly similar fashion – though the normative weight given to it is different. Finally, in this article we have deliberately compared the case law of these courts to counteract, at least in part, the Eurocentrism that weakens comparative law, especially when it comes to gender and sexuality rights, where Europe and North America are oftentimes problematically assumed to be the model to follow.
All these reasons support our choice of jurisdictions. None of this is to suggest that the role and the use of tradition in comparative constitutional law is new; we acknowledge that other courts have either embraced or criticised traditionalist approaches before. A few non-exhaustive references illustrate the global dimension of this question. The US Supreme Court has recently demonstrated a traditionalist attitude,Footnote 20 as has the Constitutional Court of Uganda.Footnote 21 The European Court of Human Rights has stated ‘that support and encouragement of the traditional family is in itself legitimate or even praiseworthy … [and] that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation’.Footnote 22 On the other hand, in 2017, the Inter-American Court of Human Rights (IACtHR) initiated a significant line of jurisprudence regarding the recognition of same-sex couples’ rights by issuing an advisory opinion.Footnote 23 The opinion urged, inter alia, signatory states to ensure full recognition of families formed by same-sex couples.Footnote 24 The IACtHR reasoned that the influence of culture, religion, and tradition on the recognition of same-sex couples’ rights does not exempt states from their obligation to eradicate discriminatory practices.Footnote 25 More research would be needed about other courts. For example, in 2009, the German Constitutional Court argued that, while the institution of marriage requires particular protection of the state, such special protection does not, in itself, justify ‘unfavourable treatment of other ways of life’ – arguably showing an implicit non-traditionalist attitude.Footnote 26 The Slovenian Constitutional Court has also showcased interesting arguments challenging tradition.Footnote 27
As for the third methodological clarification, we must reiterate that this article focuses on reference to traditional social practices in the context of legal and, more precisely, constitutional reasoning. We do not aim to discuss other forms of traditionalism in law. Law itself can be understood and interpreted as a traditional practice, one in which the preservation of the past is often institutionalised by recording case law, reiterating interpretations, justifying legal arguments based on past authority, and so on. Footnote 28 Lawyers and judges are bound by their own sets of traditions.Footnote 29 This further dimension certainly complicates the question of traditionalism in law.Footnote 30 Here, we are focusing on ‘traditional’ social practices as the object of legal deliberation, and these can (and must) be differentiated from the law as a traditional practice.
Finally, we do not wish to develop any grand theory about the workings of traditionalist thinking in all circumstances and in relation to all rights. Nor do we intend to offer a general taxonomy of traditionalist adjudication; there certainly may be many more forms of traditionalist adjudication that this article does not account for. More modestly, we aim to engage in an exercise of theory building as we identify elements of traditionalist thinking in the field of LGBTQI+ rights and related criticisms concerning empirical and logical flaws without engaging in a broader challenge to the use of traditional thinking in constitutional adjudication. We, therefore, contend that traditions can be mobilised to achieve different results, and the soundness of these results depends on the type of reasoning developed by courts.
Traditionalist thinking and its limits
Before turning to the constitutional case law of Italy and Hong Kong, we need to define a few theoretical concepts. First, we must engage with the notions of ‘tradition’ and ‘traditionalist thinking’. Second, we need to present some of the main criticisms addressed to the notion of traditions and their normative uses.
The notion of tradition and its normativity
The notion of tradition is elusive. Despite the difficulty of pinning down its content, a useful account is offered by Martin Krygier, who argued that three elements constitute the core of tradition: pastness, authoritativeness, and intergenerational transmission.Footnote 31 Intuitively, pastness encapsulates the reliance on past values or practices. Authoritative presence refers to the normative influence of pastness on present-day actions or beliefs. Lastly, transmission from one generation to the next underscores the dynamic interplay between the past and the present, in which participants actively engage. In short, a tradition exists when elements derived from a real or imagined past bear authority today as they are handed down to, and subjectively received by, subsequent generations. Krygier highlights the continuous dialogue between the past and the present. In this sense, the contents of tradition are not fixed but received and creatively perpetuated by a generation that is interested in solving the problems of today. It is not on the basis of intrinsic merits or qualities that tradition is normative; rather, it is the recipient generation’s attitude towards the past and their commitment to upholding tradition that allows it to play a decisive role in the present.Footnote 32 Along these lines, Felipe Jiménez has defined tradition as a ‘complex, long-lasting, collective undertaking that sums up multiple actions, decisions, and patterns, and rationally connects past, present, and future’.Footnote 33
As intergenerational transmission is dialogic and open-ended, traditions can be subjected to change over time.Footnote 34 Recipients’ engagement signals that traditions are received and elaborated by the present generation, with some elements neglected, others reinforced, and others creatively reshaped.Footnote 35 Engagement with tradition, however, does not only involve the interplay between the past and the present; the future also takes part in the modes and functioning of the transmission. Jiménez maintains that discussions about traditions often overlook the future’s bearing on the present decision to uphold a certain practice, and that ‘[r]esponsible participation in a tradition, thus, involves a concern for how that tradition might fare in the future, and how our actions today can impact that future. Concerns about the future also affect our reconstruction of the past’.Footnote 36
Jiménez, then, believes that the communication process between generations also involves the current generation’s intention to shape the future according to some identified normative commitments. This implies that traditions are upheld today not merely as relics of the past, but as active influences on the future. Patrick Glenn articulates this more succinctly, noting that with tradition, ‘the past is mobilized to invent a future’.Footnote 37 Hence, traditions are normative by definition because they serve as vehicles for future-oriented influence, grounded in the values and commitments of the present generation.
Traditions are not without merits, and arguments can be made to support referring to them in legal reasoning. To mention a few (without claiming to be exhaustive), Edmund Burke understood tradition as a guarantee that the legacy inherited from the past does not dissipate.Footnote 38 Anthony Kronman argued that traditions allow us to experience and perpetuate the ‘world of culture’ – that complex of artifacts (to which law also belongs) that characterises human life and defines our identities as human beings.Footnote 39 According to Kronman, respect for traditions stems primarily from the responsibility to preserve and maintain a ‘partnership’ between generations that will ultimately contribute to the development and sustainability of the world of culture.Footnote 40 Referring to the US context, Marc DeGirolami has generally defended traditionalism, as it leads courts to produce a jurisprudence that is in harmony with entrenched social values.Footnote 41 Jiménez believes that ‘practical reasoning is situated’: we make moral – and, arguably, legal – judgments based on our culturally shaped understandings.Footnote 42
Tradition: conceptual and empirical questions
Numerous criticisms have pointed out the problems inherent in invoking tradition to support one’s normative commitment, especially in legal reasoning. Kronman has highlighted how the invocation of the past as authority for present choices has been challenged since at least the time of the French Revolution, which sparked a confrontation between tradition-based arguments and those grounded in human rationality.Footnote 43 As Jiménez pointed out:
[a]s a normative matter, we can never be bound to honor the past just because it is the past. This does not mean that deference to tradition is irrational. But it does mean one must answer why we ought to follow a particular tradition or recognize its authority.Footnote 44
David Strauss believed traditionalism to be justified as long as it was motivated by the rational choice of trusting experience and distrusting abstract judgments detached from any reflection upon knowledge, practice, and information that the past can offer to the present.Footnote 45 In this context, the past may be seen a storehouse of solutions that can be used to address present issues. But when applied to preserving the past as an end in and of itself, this form of reasoning becomes much more problematic; it is not best-suited to deal with divisive practices, conceptions, or ideas, and reveals a quasi-religious attitude that may be difficult to justify.Footnote 46 William Eskridge pointed out that the use of tradition in legal reasoning often entails oversimplification and cherry-picking, and neglects the evolving nature of social practices, which can certainly not be presumed to be ossified in the past.Footnote 47
Empirical critiques add to the conceptual ones. Eric Hobsbawn argued that traditions may be deliberately reconstructed and are often done so in a way that is historically inaccurate. Hobsbawn defined an ‘invented tradition’ as ‘a set of practices, normally governed by overtly or tacitly accepted rules and of a ritual and symbolic nature, which seek to inculcate certain values and norms of behaviour by repetition’.Footnote 48 Traditions appeal to values and beliefs and are reinforced by rituals or some other type of formalisation. For Hobsbawn, a tradition is invented through rituals and institutions that rely on the past to either address novel problems or, more broadly, to condition social behaviours or attitudes by imposing repetition. Political and legal institutions can adopt this strategy by using ancient materials for legitimation purposes and in order to establish a continuity between the past and present choices, especially when unprecedented changes are happening.Footnote 49 In fact, as Marco Wan has argued, traditionalist arguments may rely on a past that is nothing short of being invented.Footnote 50
Similarly, a number of scholars exploring traditions from a theoretical perspective have argued that traditionalist modes of argument may privilege contemporary policy goals over fidelity to the historical record. Krygier suggests that historical accuracy may not be a top priority in traditionalist thinking; those who rely on traditions seem to be more interested in the storehouse of ideas and solutions that they can offer to present circumstances than in whether they are historically precise.Footnote 51 In this sense, traditions are not unearthed from the past as self-evidence of agreement around fundamental truths. Rather, they are crafted in the process of transmission and then presumed almost subconsciously to be natural and immutable. As Krygier puts it,
[t]he authoritative presence of the past in traditions is frequently unnoticed by participants. Indeed, the past is often most powerfully and pervasively present when it is not known to be past or present. It is simply ‘obvious’ or ‘natural’, an unremarked piece of the furniture of the world.Footnote 52
Discussing the question of whether a ‘western legal tradition’ exists, Pier Giuseppe Monateri draws on Foucault to challenge the relationship between tradition and history. According to Monateri, traditions are neither invented nor spontaneously formed. Rather, they are retrospectively created. In fact, traditions might be made up, so to speak, to address present problems or even to pursue strategic choices through law.Footnote 53 Lawyers, then, often choose interpretations or legal solutions to deliberately design the future rather than to be consistent with a past that carries along theoretical or practical constraints. For Monateri, readings of legal systems that point out the continuity of institutions and interpretations are motivated by a systematic denial of changes that happen in history.Footnote 54 Instead of exposing the deliberate aim to design the future, political and legal institutions prefer to describe their decisions as examples of a compelling tradition. Monateri suggests that, when approaching traditions, one must consider the extent to which they have been retrospectively created by the present generation – whether to manipulate the past or in an attempt to legitimate present decisions.
Cass Sunstein offers a different view, suggesting that constitutional lawyers can use the past and traditions ‘to put things in a favorable or appealing light without, however, distorting what actually can be found’ through historical research.Footnote 55 For Sunstein, mobilising what he calls the ‘useable past’ is not inherently misleading because the constitutional lawyer is ‘identify[ing] those features of the constitutional past that are … especially suitable for present constitutional use’.Footnote 56 In this way, Sunstein argues, lawyers are building on traditions in a way that contributes to the development of legal culture.
References to tradition, however, can clearly be detrimental to LGBTQI+ rights. Traditionally, LGBTQI+ people got the shorter end of the stick, after all. A few examples illustrate this point. Focusing on the US, Eskridge has underlined how a traditionalist reasoning was at the centre of Bowers v Hardwick.Footnote 57 This allowed the majority of the justices of the US Supreme Court to ‘conclude, without any evidence in the record, that citizens of Georgia intended their gender-neutral sodomy law to reflect an anti-homosexual morality’ that suggested the inclusion of oral sex within the definition of sodomy in a Georgia statute.Footnote 58 Stefano Osella has pointed out how the ItCC has essentially affirmed the exclusion of a nonbinary gender identity because of the presumed – and quite contestable – historical existence of only two genders in Italian society.Footnote 59
In all fairness, invocations of the past have been at times used to protect LGBTQI+ people. Eskridge refers to the opinion of Justice Kennedy, who, in Lawrence v Texas,Footnote 60 researched ‘a tradition-based original meaning’ for ‘liberty’, and concluded that there was no long-standing usage of excluding same-sex intimacy from a liberty otherwise ‘assured [to] all other Americans’.Footnote 61 An ancient tolerance of gender diversity, reportedly entrenched in Indian culture and society in pre-colonial times and then repressed by the British rule, has been recalled by the Supreme Court of India to protect the rights of trans, nonbinary, and queer people in general.Footnote 62 These examples demonstrate that, as Sunstein suggests, the past can be ‘usable’ for various purposes. The inherent ambivalence of tradition, however, underscores the importance of critically examining its role in constitutional reasoning, particularly to assess how well traditional reasoning withstands logical and empirical challenges.
Traditionalism at work: the italian case law
To understand the weight of tradition within the Italian system of family law, it is important to provide some context. In this jurisdiction, marriage is, in principle, regarded as an institution oriented toward procreation. It is therefore reserved for heterosexual couples, as is access to ARTs. This situation has emerged from years of public debate on marriage, family, and procreation. Notably, an alliance between conservative movements within Italy and some sectors of the Catholic Church has vocally opposed the recognition of marriage and family rights for same-sex couples.Footnote 63
In 2007, amid parliamentary debates on marriage reform, the Episcopal Conference, a body representing Italian bishops, reminded Catholic legislators of their duty to oppose legislative efforts that would recognise de facto families, especially those comprising individuals of the same sex.Footnote 64 A few years later, the Episcopal Conference openly discouraged Catholics from participating in a referendum aimed at partially repealing the law regulating medically assisted procreation to make access to ARTs to same sex couples possible. Some political parties have attempted to capitalise on the social climate, aligning themselves with the political claims of traditionalist movements and introducing concepts like ‘tradition’ into the political discourse to sway legislative outcomes.Footnote 65
The partnership between these parties, certain sectors of the Church, and the Episcopal Conference is largely unprecedented. Sociologists remark that Catholics’ involvement in Italian politics has been historically characterised by ‘non-confessional Catholicism’, which values pluralism and secularism and avoids imposing a single moral view.Footnote 66 However, some parties have sought to closely associate Catholic identity with traditional values, even when these values are contested by other significant sectors of the Catholic Church.Footnote 67 Consequently, Catholic tradition is sometimes invoked to support political claims hostile to the queer community, thereby creating a misleading impression of an ideological alignment between Catholicism and non-pluralistic views. Shifting from Catholicism to a broader overview of Italian society, demographic data indicate that the percentage of Italians who agree or strongly agree that same-sex couples should have the right to adoption has increased over time. In 1993, only 14 per cent of Italians expressed agreement with the idea of adoption for same-sex couples,Footnote 68 while this figure reached 36 per cent in 2020.Footnote 69
When examining Italian case law on the reproductive rights of LGBTQI+ couples, therefore, references to tradition should not be hastily dismissed as merely reflecting a particular ideological stance. Rather, such references reveal how arguments based on very different grounds and underlying assumptions can be intertwined. To fully understand the role of traditionalist reasoning, the case law must be analysed in its broader social context, assessing the extent to which such arguments are grounded in societal values and lived realities.
The right to (non)marriage
A traditionalist attitude can arguably be detected throughout the Italian constitutional case law concerning the rights of same-sex couples.Footnote 70 Decision 138 of 2010 lies at the centre of a constitutional framework that treats heterosexual and homosexual unions differently. In this judgment, the ItCC ruled that same-sex couples have a right to be recognised as a ‘social formation’Footnote 71 in which human personality develops.Footnote 72 In this sense, it ensured an important right to same-sex couples and transformed the constitutional landscape in Italy. Yet the Court determined that same-sex couples could not be protected as a ‘family’ – and in fact, throughout its judgment, the ItCC was careful not to refer to same-sex couples as ‘families’. While the ItCC admitted that the notion of family is evolving,Footnote 73 it also stressed that the drafters of the Constitution embraced the traditional and heterosexual understanding of marriage.Footnote 74 Even though homosexuality was known at the time the Constitution was enacted in 1948, the drafters did not mention same-sex marriage; therefore, the ItCC reasoned, they had no intention of protecting it.Footnote 75 Excluding same-sex couples from marriage, the Court continued, cannot, therefore, be considered discriminatory. The difference in treatment between same-sex and different-sex couples is justified because the heterosexuality of marriage is grounded in Article 29 of the Constitution, which protects the traditional family as a natural society (società naturale). According to the constitutional interpretation, homosexual unions cannot therefore be considered analogous (omogenee) to marriage.Footnote 76 The crucial difference between same-sex and different-sex couples, the Court established, lies in the potential fertility of heterosexual couples and the infertility of same-sex ones.Footnote 77 In brief, despite granting the right to some form of recognition for same-sex couples, the ItCC denied the existence of a constitutional right to marry a person of one’s own sex, because marriage is limited to traditional families, which are also the reproductive ones. Nevertheless, it urged Parliament to recognise same-sex couples by way of legislation, without, however, providing any direction regarding the form that this recognition should take.
Indeed, the precise reach of Decision 138 of 2010 has been debated. Some scholars have suggested that the Court was establishing constitutional neutrality towards same-sex marriage, whose recognition is neither forbidden nor required.Footnote 78 Others – in our opinion, more faithful to the letter and spirit of the judgmentFootnote 79 – read the decision as excluding same-sex couples from marriage, establishing a constitutional prohibition of same-sex marriage.Footnote 80 At any rate, all doubts were dispelled in a 2014 decision concerning the mandatory and ex officio divorce of married trans people who have obtained gender recognition. The applicant was a trans woman who had been assigned the male gender at birth and who, while still legally classified as a man, had married a woman. The ItCC urged Parliament to provide some form of recognition to married trans people who, after gender recognition, found themselves in a same-sex marriage, as same-sex marriages were simply to be dissolved under the law. Yet the ItCC unequivocally underlined that this recognition could not be same-sex marriage; it would have to be a different form of recognition, as same-sex marriage would be at odds with Article 29 of the Italian Constitution.Footnote 81
The reasoning that sustains the preclusion of same-sex marriage – and that requires a two-pronged family recognition in Italian law – contains many references to pre-existing models of family formation and, we suggest, is traditionalist.Footnote 82 The three elements of traditionalism that Krygier identifies can indeed be traced in the 2010 ruling of the ItCC: first, the past; second, the authoritativeness; third, the transmission of a past norm to regulate a present practice. The ItCC established that the law that denies marriage to same-sex couples reflects a ‘solidified’ and ‘thousands of years old conception’ (nozione consolidata e ultramillenaria) of marriage.Footnote 83 The invoked and rhetorically powerful tradition – a past stretching back ‘thousands of years’ – led the Court to affirm the exclusively heterosexual nature of marriage with little scrutiny. Paraphrasing the judgement, marriage is heterosexual because it has always been that way.
This reasoning has broader implications: if marriage is strictly tied to procreation, same-sex couples are consequently defined as incapable of fulfilling its primary purpose. In a way, the ItCC seemed to suggest that tradition differentiates between fecund marriages and barren homosexual unions. This differentiation seemed to be justified with reference to nature.Footnote 84 Tradition, procreation, and marriage are, apparently, linked in the reasoning of the Court.
Interestingly, Justice Alessandro Criscuolo – who drafted decision 138 of 2010 on same-sex marriage – delivered a speech on the question of same-sex marriage under Italian constitutional law just a few months after the judgment had been published. He underlined that the heterosexuality of marriage constitutes ‘an ancient and entrenched tradition’.Footnote 85 Heterosexuality, in this understanding, is part of the ‘natural essence’ of marriage. Criscuolo also stressed that same-sex couples deserve respect and recognition, and that homosexuality is to be understood as a variation of human behaviour. Nevertheless, he also stated that it would be an overreach to equate two situations that are different due to the procreative potential of heterosexual marriage.Footnote 86 To paraphrase, traditional marriage, which is to be protected, is understood as procreative. Same-sex couples, who are not traditional, are seen as non-procreative and are therefore excluded from marriage.
Parliament heeded the (repeated) invitation of the Constitutional CourtFootnote 87 – and the condemnation of the European Court of Human Rights, which had intervened in the meantimeFootnote 88 – with Law 76 of 2016, which grants the right to enter same-sex civil unions.Footnote 89 Parliament took great pains to differentiate between same-sex civil unions and different-sex marriage. This differentiation was achieved in part through symbolic actions. The legislature, for example, removed the duties of fidelity and cohabitation (which are required of marriages) from the laws regulating civil unions. This differentiation signified the intention to attach a lesser moral status to same-sex unions, implicitly assuming those involved in them to be promiscuous.Footnote 90 The law is likewise very careful to avoid any reference to same-sex couples as ‘families’, sticking to the constitutionally endorsed ‘social formation’. Yet the limits on same-sex unions are not only symbolic; same-sex couples are also stripped of all procreative and parental rights. Law 76 of 2016 seems to enact at the legislative level the traditional understanding of queer people as non-procreative, an understanding that, as we will see shortly, has been validated by the Constitutional Court.Footnote 91
The limits on donor insemination
Preserving the understanding of same-sex couples as non-procreative, the Constitutional Court has not protected the right of same-sex couples to access ARTs and, more specifically, donor insemination with a trend-setting decision in 2019. The case was about a lesbian couple being denied the possibility of using donor insemination in Italy to conceive a child.Footnote 92 They challenged Law 40 of 2004, which limits access to ARTs to heterosexual couples of potentially fertile ageFootnote 93 and imposes hefty monetary sanctions on transgressors.Footnote 94 For context, the Constitutional Court has, over time, gradually softened some of the limits imposed on ARTs. For example, the prohibitions against donor insemination for heterosexual couplesFootnote 95 and pre-insemination diagnosis for heterosexual couples carrying genetically transmissible diseases have been considered unconstitutional.Footnote 96 Yet a legal distinction based on sexual orientation remains.
The same-sex couple who brought the 2019 case to court unsuccessfully argued that the preclusion contained in the law violated a generic right to procreate,Footnote 97 the right to equality,Footnote 98 and the protection of maternityFootnote 99 and of healthFootnote 100 established in the Italian constitution. In substantively ruling against the claim of the applicants, the Court deferred to the discretion of the legislature.Footnote 101 According to the Court, the law adopts a strictly medical interpretation of assisted procreation as a technique that should be accessible solely for reasons related to fertility issues. This interpretation, the Court continued, can only be altered by the legislature itself. At the same time, the Court considered the law valid, as it did not find a violation of a more general procreative liberty. Importantly for our argument, the Court maintained that procreative liberty can be limited for the sake of other compelling public interests, especially when the ‘naturalistic dynamics of procreation’ are altered in such a way that ‘the paradigms of family historically entrenched in social culture, which underlie the [constitutional provisions concerning the family]’ (emphasis added) are fundamentally refashioned. In such circumstances, the Court stated that ‘it is not unreasonable’ to preserve a historically rooted family form that mirrors nature (ad instar naturae).Footnote 102
Furthermore, the Court ruled, it is equally ‘not unreasonable’ that the legislature aims to grant to future children what are – in the common-sense and traditionalist understanding – the best conditions in which to grow up. The Court acknowledged that sexual orientation should not be presumed to conflict with the best interests of the child, and that there are no ‘scientific certainties or data’ that being raised in a same-sex household would affect the child negatively.Footnote 103 In reaching this conclusion, the ItCC followed a suggestion from the Court of Cassation, which explicitly recognised same-sex couples as being as fit as different-sex couples to adopt children, and which did not find a constitutional prohibition for same sex couples ‘to welcome and generate children’.Footnote 104 And yet it acknowledged the legislature’s choice to establish a preference for traditional family formations without demanding thorough justifications. In other words, the decision of the legislature to preclude same-sex couples from accessing ARTs is legitimate and can supersede constitutional jurisdictions precisely because the ‘historically entrenched’ heterosexual families mirror nature and thus allow children to grow up in a supposedly more congenial environment.
The Court also denied the claim that precluding same-sex couples from accessing ARTs violates the right to equality.Footnote 105 It recalled the explicit rationale of the law, that is, to offer the possibility of procreation to heterosexual couples who suffer from sterility having a pathological cause.Footnote 106 Therefore, it concluded, it is not any impediment to procreation that should grant individuals access to ARTs, but only those that are the result of a pathological condition. As same-sex couples are not sterile in a pathological sense, continued the Court, they are not comparable to sterile heterosexual couples. Hence, concluded the ItCC, the law does not discriminate against them.Footnote 107
Tradition, narratives about nature, and conceptions of the well-being of children are woven together in this judgment, which has influenced subsequent case law.Footnote 108 The past becomes normative, and tradition for its own sake becomes a valid objective, capable of restricting constitutional rights. As Krygier has highlighted, the past, to be authoritative, can be dressed up with other values such as ‘naturalness’. The ‘historical’ family, the ItCC ruled, can be legitimately preferred by the legislature over ‘new’ forms of family because the former mimics nature while the latter, by implication, goes against it. The normativity of the past, argued Krygier, is often justified as obvious, natural. In that sense, one could argue that traditions can be presented as a matter of ‘common sense’. As Clifford Geertz put it, however, ‘common sense is what the mind filled with presuppositions … concludes’.Footnote 109 Commonsensical judgments are imbued with a sense of ‘naturalness’ or ‘of-courseness’, which is rhetorically powerful, but might also be ‘thin’.Footnote 110
The CFA of the Hong Kong SAR provides a rebuttal of this ‘of-courseness’ approach, asserting – as will be detailed below – that the mere invocation of tradition does not, in itself, constitute a valid argument in judicial reasoning. The ItCC faced such criticism when it claimed that the heterosexual couple is the historically rooted family form and yet failed to demonstrate it. The past is here treated as an evident reality – and hence a powerful one. Finally, the Court stated that it is entirely reasonable for the legislature to believe that this historical and natural family is the ideal setting to raise a child, regardless of the concrete capacity of diverse families to provide an adequate environment to children. The Court does not in fact state that heterosexual families offer better environmental conditions. Rather, the ItCC limits itself to ruling that it is reasonable to believe it. By doing so, the Court seems to establish a ‘quasi-religious bond with the past’: an attitude that even authors more prone to accept traditionalist argument may find questionable.Footnote 111 In short, preserving past family patterns and passing them on to the next generation is imbued with a normative dimension, and hence becomes a reasonable and legitimate public interest despite possibly being problematic, as it may be the case with traditions.Footnote 112
Birth certificates and the rights of step-parents
The Court has repeated its position in subsequent judgments. Deciding on the impossibility of registering two women in a same-sex union as mothers of a child conceived abroad via donor insemination, the Constitutional Court ruled once again that two people of the same sex have not a constitutional right to be the legal parents of a child.Footnote 113 The Court conceded the legal parenthood ‘of a child born via ART is also connected to the “consent” given, and the “responsibility” consequently assumed, by both parties’,Footnote 114 thus arguably opening up to forms of social parenting. Nevertheless, it also specified that such forms are limited to heterosexual couples by Law 40 of 2004 on ARTs. Explicitly recalling Judgment 221 of 2019 on access to donor insemination, the Court restated the intention of excluding same-sex couples from procreation not only in the law regulating ARTs, but also in the 2016 law on same-sex civil unions.Footnote 115 Such laws, the Court considered, were the result of long and careful discussions. They are based on the idea that a family ‘that mirrors nature’ offers the best environment in which to raise a child, and that the liberty to become parents
must be balanced against other interests … [and] constitutionally safeguarded, especially when access to ARTs is discussed. [Such technologies create] new family forms with respect to the paradigms of parenting and family rooted in social culture, [around which is built the constitutional discipline of the family].Footnote 116 (emphasis added)
The Court reiterated the Constitution’s neutrality towards the matter. The legislature, the Court explicitly said, is not forbidden to recognise same-sex parenthood. This important first step towards the equality of same-sex couples, however, is occurring in the context of a constitutional jurisprudence that considers same-sex couples non-procreative by definition and legitimately excluded from parental rights precisely because they are non-traditional. At the same time, this decision also confirms once again that the pursuit of traditions is acknowledged as a legitimate, constitutionally safeguarded, public interest.Footnote 117 Although Parliament will have to strike a balance among the various interests in tension,Footnote 118 the preservation of tradition for its own sake represents a legitimate objective.Footnote 119
More recently, the Court seems to have shown some further openness to same-sex parenthood.Footnote 120 This judgment concerns the lack of legal ties between a woman in a same-sex relationship with the children that she and her partner had conceived abroad through donor insemination and whom she had taken care of for years. Despite being conceived as part of the couple’s joint family plan, the children were legally related to the delivering mother only. When the relationship between the two women broke down, the non-birthing mother was denied contact with the children. Although parents in same-sex relationships may pursue stepparent adoption under certain circumstances,Footnote 121 the procedure is complex, not guaranteed, and, at any rate, dependent on the consent of the legal parent – which, in this case, was not forthcoming. This difficult situation would not have presented itself had the law consented to both mothers being registered on the birth certificate. The applicant, therefore, contested the rules that posit that the parents must be of different sexes for parenthood to be recognised.
In this specific case, the Court acknowledged that children born to same-sex couples via ARTs may face discrimination vis-à-vis other children, as they are ultimately not guaranteed the possibility of establishing legal relationships with both the biological and the intentional parent.Footnote 122 The Court stressed that, ‘departing from the traditional notion of the family’, ‘social parenthood’ – and not just biological parenthood – deserves protection.Footnote 123 Hence, the ItCC invited Parliament to provide a solution for this complicated scenario by way of legislation. The Court considered that this question is ‘ethically sensitive’ and concluded that a jurisprudential correction of the legislation would run the risk of generating legal inconsistencies in the system.Footnote 124 Yet this decision, while certainly promising, is entirely motivated by the protection of the rights of children. The denial of reproductive rights to same-sex couples for traditional reasons remains, in this sense, unchallengedFootnote 125.
The empirical problems with – and the rhetorical advantage of – traditional thinking
Traditionalist thinking appears to offer a rhetorical advantage, as it taps into seemingly powerful ‘commonsensical’ reasoning. Nevertheless, this type of reasoning can be challenged empirically. In particular, references to tradition by the ItCC seem to oversimplify at least three key issues: (1) that the family model protected by the ItCC dates back ‘thousands of years’, presenting it – rhetorically, if not literally – as immutable over time; (2) that this model mirrors nature; and (3) that heterosexual families are the ideal environment in which to raise a child.
The ‘thousands of years old’ family
The Court’s use of tradition seems to be rather selective. As Krygier clarified, ‘the past is not univocal in complex traditions’,Footnote 126 yet the ItCC satisfied itself with stating the existence of a tradition without supporting the assertion with sufficient historical and empirical data. This is problematic in a context such as that of the history of the development of family models, where it has been documented that families are far from immutable over time.
In fact, the formation and structure of the family may change according to the varying social, economic, and cultural circumstances. Stephanie Coontz argued that the monogamous and nuclear heterosexual family is a relatively new and, all in all, unusual family formation.Footnote 127 With specific reference to the Italian context, Marzio Barbagli showed how Italian families have changed over the course of Italian history.Footnote 128 A multitude of factors can account for such changes, including social class, ownership of the means of production (perhaps most notably, agricultural land), different farming systems, as well as the size of the farmed land plot. Equally important has been the location – whether urban or rural – of the family. Granted, the nuclear family has been present for a long time in Italy. Yet, Barbagli suggested, its radical prevalence dates back only to the 1950s, following mass industrialisation.Footnote 129
Of course, this is not to say that LGBTQI+ families were a common and accepted reality of the past. In their current form, they may well also be a recent development. It is, however, irrelevant whether they belonged to the past or not, as we do not intend to point to some forgotten family archetype that would legitimise current family arrangements. What we want to emphasise is that the idea that the currently predominant family model is immutable and perennial might be misleading, as families tend to adapt and change over time.
The family in the image of nature
References to the ‘image of nature’ (instar naturae) that the heterosexual nuclear family presumably ‘mirrors’ are equally problematic.Footnote 130 Such references are a particularly important feature of traditionalist argumentation, where ‘nature’ and ‘tradition’ are often lumped together in an attempt to reinforce the normativity of the past. However, the Italian Court remains vague about what it means by appealing to the ‘image of nature’, treating it as a seemingly self-evident notion. To be clear, there is no question that it takes both a male and a female gamete to produce a child. But claiming solely on this basis – without adequate discussion – that only a single form of family organisation is in the image of nature is simplistic and disregards, if not contradicts, the findings of anthropology. To begin with, assuming that a kinship structure that centres on biological ties is, so to speak, more faithful to nature because it is grounded in the science of reproduction seems to be itself a cultural attitude. These assumptions are challenged by the relatively novel and momentous appearance of ARTs and the questions that they present to established notions of kinship. In fact, Marilyn Strathern argued that the advent of ARTs has complexified the Western understanding of kinship and revealed its cultural basis.Footnote 131
ARTs have empowered (among others) people who are not of a procreative age and/or not heterosexual. For example, same-sex couples have largely benefited from ARTs.Footnote 132 Same-sex couples are now able to have children with a biological connection to one, and possibly even to two, parents. Corinne Hayden offered the ‘obvious and “perfect” option for lesbian families: One woman could contribute the genetic material, and her partner could become the gestational/birth mother’.Footnote 133 These new technologies challenge the very notion of same-sex couples as non-procreative.Footnote 134 Likewise, developments in ARTs further problematise the correlation between sexual intercourse, procreation, and kinship, and ‘generate a number of questions about the founding truth constituting a family’.Footnote 135 ARTs can also lead to problematising the nuclear family built around the couple as the only site of reproduction. Multiple parties, all possibly longing for a connection to the child, can be involved.
ARTs have created many opportunities to rethink kinship beyond the nuclear and, obviously, heterosexual family. It seems clear that implying that other forms of procreation are ‘unnatural’ would leave the legislature – as well as the Court itself – theoretically ill-equipped to deal with what are undeniable challenges ahead, and stuck in a binary thinking of normality and abnormality that ultimately fails to capture the complexity of reality. In addition, the Court itself seems to apply the likeness to nature selectively. As noted earlier, the ItCC has ruled that the exclusion of donor insemination for heterosexual couples is unconstitutional, thus allowing heterosexual couples to establish parental links when only one parent is biologically related to the child and, potentially, neither parent is related to it genetically.
At any rate, one does not need ARTs to question the ‘traditional’ young heterosexual couple’s likeness to nature. Ladislav Holy clarified that ‘[k]inship theorists now generally acknowledge that the nuclear family is neither universal nor inevitable’,Footnote 136 adding that ‘assum[ing] that each person is immediately genealogically connected to two others … does not mean that one has to assume that the unit from which kinship is built is the nuclear family’.Footnote 137 Referring specifically to the perceived novelties in family arrangements, Marie-Claire Foblets has argued that ‘[family] diversity is nothing new’.Footnote 138 Families have always taken multiple forms, essentially to accommodate a variety of sociocultural needs. Foblets refers to ‘blended families, same-sex unions, the role of fathers, and the alleged sexual permissiveness of contemporary Western societies’, and points out how ethnographers have not only documented these, but also connected them to social institutions and other political, religious, or economic considerations.Footnote 139
A few examples may help to understand how the conception of the heterosexual nuclear family is culturally situated, far from representing a natural archetype. Godelier, for one, argued that the notion of parenthood – and, we add, subsequent identification of the parent – can be split into seven ‘fields’,Footnote 140 of which only begetting and bearing are, strictly speaking, biological. In general, he added that ‘there is nothing mechanical about the correspondences between kinship relations, forms of power, and representations of what makes up the identity of a gendered individual’.Footnote 141
To be clear, we do not intend to argue in favour of family diversity by resorting to ‘nature’. Rather, we draw on anthropological studies to question the supposed naturalness of the family as described by the ItCC, showing instead that family forms are diverse and context-dependent.Footnote 142 We want to emphasise that the structure of the family is not so self-evident as traditionalist thinking might suggest, and that it cannot be found in ‘nature’. Kinship and kinship rules – what individuals can or cannot do vis-à-vis specific others, and therefore also which individuals are related to one another – are indeed ‘mental realities … that are by no means an epiphenomenon of kinship relations but one condition of their production’.Footnote 143 Or, to borrow from Claude Levi-Strauss, ‘[a] kinship system does not exist in the objective ties of descent or consanguinity between individuals. It exists only in human consciousness; it is an arbitrary system of representations, not the spontaneous development of a real situation’.Footnote 144 Kinship and, for our purposes, the family, seem therefore to be cultural constructions. To be sure, there is no denying that biological links, genetic connections, and so forth, exist. Yet the value that we assign to those links, what one does with them, and the weight one attributes them in the law seem to be cultural and, of course, political.
The best start in life
The Constitutional Court determined that, in excluding same-sex couples from ART, Parliament might have reasonably believed it was serving the purpose of giving children the ‘best start in life’. As noted earlier in the article, the Court has never established that being raised by a heterosexual family does, in fact, provide the best start in life. Rather, the Court avers that it is not unreasonable to believe so. It thus allows the legislature to prevent homosexual couples from pursuing a family project through heterologous fertilisation, a possibility that is now open to heterosexual couples.Footnote 145
However, anthropological findings show ‘the paternal and maternal functions can be ensured by persons with no genetic or other link with the child’,Footnote 146 something that the ItCC is willing to concede,Footnote 147 but also that ‘the paternal functions are not necessarily attached to a person of the male sex nor the maternal functions to a person of the female sex’.Footnote 148 Drawing on a wealth of ethnographic studies, Foblets suggested that ‘a child can have a balanced upbringing in any family model’.Footnote 149 Adding to ethnographic observations, research in family studies supports Foblets’ conclusions. Taking stock of decades of research, sociologist Susan Golombok has demonstrated that children born via ARTs in LGBTQI+ families are not at a disadvantage vis-à-vis those born in so-called traditional families. Needless to say, this does not ‘mean that all children in new family forms flourish. But it does mean that they have an equal chance of doing well’.Footnote 150
The ItCC seems aware of that when it maintains that ‘there are no scientific certainties or empirical data which prove that including a child in a family composed by a same-sex couple can negatively affect the upringing or development of the child’s personality’.Footnote 151 Yet, having presumed that the heterosexual family model remains the traditional benchmark to be preserved, the Court fails to conclude that all family forms deserve equal legal recognition. Again, our point here is not to reinvent the historical, anthropological, or sociological literature on kinship and filiation. Rather, we seek to underline how, by invoking the notion of ‘tradition’, the Court sidesteps meaningful engagement with this body of scholarship, leaving unexamined its departure from evidence that contradicts such traditionalist assumptions.
The jurisprudence of the CFA, or, the conceptual critique to traditionalist adjudication
The critiques discussed earlier are thorough, highlighting both the empirical weaknesses and the rhetorical appeal of traditionalist reasoning. Yet even these evidence-based critiques can occasionally fail to fully grapple with the deeper questions surrounding the justification of traditionalism.
Here, the CFA of Hong Kong, despite some changes in recent case law,Footnote 152 offers an incisive logical challenge to the reliance on tradition in adjudicating the rights of same-sex couples. The CFA’s questioning of tradition as a legitimate objective, in and of itself, for limiting the rights of same-sex couples is grounded in a demand for reasoned justification. The Court’s rejection of traditional thinking developed over time and was affirmed in Sham Tsz Kit (岑子杰) v Secretary for Justice (No 1) (henceforth ‘STK’), which concerned the right of same-sex couples to be legally recognised.Footnote 153 In this judgment, the CFA confirmed constitutional neutrality on the issue of equal marriage, which Hong Kong’s Basic Law – the Territory’s ‘Mini-Constitution’, as it is usually referred toFootnote 154 – was found to neither require nor prohibit. In that same judgment, the CFA ordered the Hong Kong Government to define, at a minimum, a framework for recognising the relations of same-sex couples.Footnote 155 Whatever the merits of this decision – which, despite all its lights and shadows, can be hailed as a significant achievement for LGBTQI+ people in Hong Kong – the CFA in Sham Tsz Kit clearly demonstrated a non-traditionalist attitude to the question of same-sex marriage.
In all fairness, it should be noted that the CFA itself has not always been completely consistent in its challenge to tradition. For example, Michael Ng has demonstrated not only that the CFA recalled notions of tradition when deciding on the effects of marriage and concubinage taking place during the Republican era, but, more importantly, that it misunderstood such notions and offered an ‘Orientalist image of traditional Chinese law and custom’.Footnote 156 Marco Wan has made a compelling argument on the invention of tradition in the Hong Kong public and judicial discourse about same-sex marriage.Footnote 157 Generally speaking, however, there has been considerable improvement in the rights of LGBTQI+ people, especially when we consider the central role of religious institutions in the provision of services.Footnote 158 It should also be noted that Article 141(3) of the Hong Kong Basic Law in fact allows religious organisations to ‘run seminaries and other schools, hospitals, and welfare institutions and to provide other services’ in continuation of their ‘previous practice’, as long as this ‘previous practice’ involves their freedom of religious belief and activity.Footnote 159 The extent to which this provision might imply consent to the prosecution of traditional (and possibly discriminatory) practices remains to be investigated.
There is no denying, Wan suggests, that the Hong Kong courts have repeatedly resorted to traditionalist logics when it comes to LGBTQI+ rights.Footnote 160 In the 2017 QT case, the Court of Appeal of the Hong Kong SAR granted to the applicants – an overseas same-sex couple in a civil partnership – a dependant visa. Despite the outcome – favourable to the applicant – Cheung CJHC argued that ‘[t]here are certainly areas of life which are, whether by nature or by tradition or long usage, closely connected with marriage such that married couples should and do enjoy rights and shoulder obligations which are unique to them as married people’ (emphasis added).Footnote 161 Under this ‘uniqueness doctrine’, the government only has to justify restricting the rights of same-sex couples when these rights are not among the rights and obligations that are ‘unique’ or inherent to married couples – in other words, as long as the difference in treatment is not rooted in the ‘nature, tradition, or long usage’ of the practice of heterosexual marriage. If the right under discussion is among the latter (as determined by nature, tradition, or long usage), the need for justification seemingly did not apply.Footnote 162
Judging on the appeal of the case, however, the CFA rejected the uniqueness argument and stated:
Why [emphasis in the original] should [a certain] benefit be reserved uniquely for married couples? Is there a fair and rational reason for drawing that distinction? Differences in treatment to the prejudice of a particular group require justification and cannot rest on a categorical assertion. Footnote 163 (emphasis added)
Interestingly, the CFA stated that ‘[w]hat may seem obvious to some may not be at all clear to others’.Footnote 164 In other words, it can be argued that the CFA in QT denied the possibility that ‘nature’, ‘tradition’, or ‘long usage’ could exempt the government from justifying the unequal treatment of same-sex couples.
At the same time, however, the protection of ‘traditional marriage’ – with all the theoretical questions that such a notion presents – remained a legitimate objective. This was expressed clearly by the CFA in the 2019 decision in Leung Chun Kwong v Secretary for Civil Service, a case on the exclusion of an overseas married same-sex couple from tax benefits available to married heterosexual couples.Footnote 165 Recalling the rejection of the uniqueness argument, the CFA also stated that restricting rights to married couples simply because they are married is circular reasoning. It further stressed that acknowledging that preserving the traditional marriage is a valid goal does not logically lead to the conclusion that same-sex couples should be denied equal tax and benefit rights. Furthermore, it held that there is no clear connection between restricting the rights of same-sex couples and promoting heterosexual marriage.Footnote 166 To put it plainly, differential treatment still needed to be justified, even though the preservation of tradition was considered a legitimate objective. There was, we suggest, a contradiction within the case law. As Wan put it, the preservation of traditional marriage remained good law. However, the traditionalist thinking that supported the ‘uniqueness’ doctrine was considered circular.
The 2023 decision in the Sham Tsz Kit case – concerning the possibility of recognising same-sex marriage and alternative forms of same-sex unions – assumed an even more critical stance towards traditionalism. In fact, the main opinion offered by Ribeiro PJ and Fok PJ seems to represent a further step away from using tradition as a legitimate objective per se to limit the rights of same-sex couples.Footnote 167 The Secretary for Justice – the respondent in the case – contended that denying recognition to same-sex couples ‘in stable, committed, relationships’ had the legitimate aim of ‘uphold[ing] and maintain[ing] the uniqueness and tradition of marriage as an institution, and as a concept, involving heterosexual couples only and the traditional family founded thereon’ (emphasis added), thus justifying the difference in treatment.Footnote 168 The protection of same-sex relations would, the respondent advocated, challenge the unique status that heterosexual marriage has traditionally enjoyed.Footnote 169
The Secretary for Justice’s argument was unsuccessful. We read in the opinion of the Court that ‘in any event’ this ‘uniqueness’ argument is ‘circular and not a basis for establishing a legitimate aim’.Footnote 170 This entails that recognition of same-sex couples, though in a form different from marriage, cannot be denied because of a threat to traditional marriage per se. The pursuit of tradition, in other words, was not deemed to satisfy the first limb of the proportionality test. The mere fact that a practice occurred in the past and has been transmitted across generations with a particular normative intent arguably was not, by itself, considered to be a legitimate objective to restrict a prima facie right. The philosophical critique of traditionalism seems to be well-reflected in this approach. As Jímenez put it, ‘[a]s a normative matter, we can never be bound to honor the past just because it is the past’.Footnote 171 A different justification is required.
In November 2024, the CFA appeared to have tempered the doctrine developed in Sham Tsz Kit in Infinger v The Hong Kong Housing Authority.Footnote 172 With this judgment, the CFA has granted people in same-sex unions equal rights to receive housing benefits designed for low-income families. At the same time, the CFA stressed that ‘[t]here is no dispute that the Family Aim [that is, the support of ‘existing traditional families’] is a legitimate aim as such’,Footnote 173 seemingly distancing itself from Sham Tsz Kit and reaffirming the position of Leung Chun Kwong. It should, however, be noted that the parties did not dispute the legitimacy of the ‘family aim’ before the CFA; therefore, the proclaimed legitimacy of the ‘family aim’ should probably read as an obiter dictum.Footnote 174 Furthermore, the CFA did not show a particular propensity to traditionalism in the reasoning. For instance, Chief Justice Cheung, who drafted the unanimous decision, acknowledged that same-sex families were not considered when the Basic Law was drafted in the 1990s, as the question was ‘non-existent’.Footnote 175 However, he also added that this fact does not imply that the drafters of the Basic Law intended to deny equality – specifically, welfare rights – to same-sex couples.Footnote 176
On the same day, the CFA rendered one more decision in Li Yik Ho v Secretary for Justice.Footnote 177 This case concerned the inheritance rights of persons in same-sex couples married overseas. The CFA did not discuss the question of traditionalism. Nevertheless, it stated that limiting rights to married heterosexual couples based on the special status of marriage under the Basic Law is circular reasoning.Footnote 178 Although not expressly cited, the CFA’s rejection of the uniqueness argument – and of its traditionalist overtones – arguably resonates in this conclusion.
In conclusion, it can be argued that the non-traditionalist approach remains good law before the CFA. Research, however, is needed to confirm this with greater certainty, especially in light of the ongoing developments. What is crucial for our argument is that the intellectual cogency of the CFA’s reasoning in Sham Tsz Kit, and the sharpness of its critique, remain intact, particularly with respect to each of its components. Where the Hong Kong CFA appealed to ‘long usage’, the ItCC relied on ‘historical’ models of family rooted in Italy or the ‘thousands of years old’ conception of marriage. Both the Hong Kong CFA and the ItCC also invoked ‘nature’ to justify differences in treatment. Finally, the ‘commonsensical’ attitude to the subject of law, and the ‘of course-ness’ – the sense that the Court should decide in one sense or another as a matter of self-evidence – is considered in both cases. What seems to differ entirely is the acceptance of these elements for their own sake.
Conclusions
Courts are often confronted with novel issues for which no straightforward legal solution is available. In those cases, invoking tradition can be an argumentative move that helps legitimise decisions in a context in which more than one legal answer is conceivable. Nevertheless, relying on traditions is far from straightforward: they are hard to pin down and demonstrate, logically questionable, and, at the end of the day, give a significant advantage to those who oppose granting equal treatment to groups that, for whatever reason, were traditionally discriminated against.
In the Italian case, the ItCC does not engage with historical records or evidence. Instead, it simply asserts the existence of a traditional family in the ‘image of nature’ dating back millennia, and defends the weight that such tradition carries when judges choose arguments that will justify their decisions. The ItCC entertains a normative argument whereby supposedly traditional families (heterosexual couples, preferably married and with children) are favoured over new ones (same-sex couples with or without children). Yet, it does not provide convincing evidence to back up such argument. Rather, it maintains a rhetoric of ‘of-courseness’, which ultimately fails to be persuasive from a legal standpoint.Footnote 179
The devotion to a binding (and questionable) past explains why the ItCC contends – without explaining the contradiction – that beliefs and behaviours change (thus calling for law to recognise and protect them), and yet these beliefs and behaviours cannot be accommodated if doing so entails overriding the tradition. For example, the ItCC acknowledges that same-sex couples are fully capable of taking on the role of parents – something for which it deserves credit. However, it still defers to the legislature and does not grant them equal access to parenthood, for reasons entirely related to the traditional understanding of the concept of family.Footnote 180 The ultimate effect of this approach seems thus not to be to persuasively defend the preference for the heterosexual family model on its meritsFootnote 181 but, through a rhetorical move, to avoid having to provide such a justification.
For its part, the CFA of the Hong Kong SAR challenges, despite some contradictions, the use of tradition as a conclusive argument. According to the Court in Sham Tsz Kit and in the contestation of the ‘uniqueness’ doctrine, differential treatment necessitates a rational justification, whereas resorting to tradition or long usage merely provides a dogmatic answer rooted in the subjective preference for one model over the other. In this sense, the CFA questions the use of tradition as the determinant of the correctness of the legal solution. The Hong Kong CFA – perhaps unwittingly – elaborates the most severe criticism of the Italian case law, as it exposes the circularity inherent in traditional thinking, thereby undermining it at its very roots.
This comparison between the ItCC and the CFA in no way provides a full picture of the uses of traditionalist thinking in legal reasoning. It does, however, offer some insights into different ways of addressing the legal relevance of traditions. In so doing, this article tries to heed Sherally Munshi’s call to expand beyond Eurocentric frameworks and foster an enriching dialogue between systems that are indeed very different but that should not, for that reason alone, be avoided when it comes to comparative analyses.Footnote 182
Acknowledgements
This paper benefited from the generous comments of many colleagues. A heartfelt thank you goes to Cora Chan, Marie-Claire Foblets, Simone Penasa, Alec Stone Sweet, Marco Wan, and all colleagues who discussed the paper during a Work-in-Progress Seminar at the Faculty of Law, University of Hong Kong, organised by Alec Stone Sweet. Thank you to Jeremy Yu for his research assistance and to Brian Donahoe for his invaluable help with language editing. As the usual disclaimer goes: all mistakes are our own.
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