PAREJAS DE HECHO E IGUALDAD CONSTITUCIONAL. PERSPECTIVAS DE DERECHO SUSTANTIVO Y PROCESAL EN EL ORDENAMIENTO JURÍDICO BALEAR.

Abstract

Comparison of the legislation on registered partnerships with the legislation on marriage arouses controversy as regards real, effective equality, an issue that this paper approaches from the substantive as well as the procedural standpoint, without overlooking the divergences between marriages of persons of the same sex and marriages of persons of different sexes. The paper also looks at the differentiation between the legislation (or lack thereof) enacted by the state and by the autonomous communities, and differentiation amongst autonomous communities, a matter that is tied to legislative competence in matters of substantive law and matters of procedural law. One particular development is how very relative the substantive facet has been rendered in the wake of the introduction of marriage between persons of the same sex. The author feels compelled to analyse some traits that differentiate between marriage and registered partnership, even though substantive regulations inevitably entail a type of procedural regulation that may at all events pose unequal situations. Indeed, unequal approaches live on from the procedural perspective, but their constitutional scope would be relevant only if the de facto situations were seemingly equal, which is certainly a large «if». Nevertheless, the redefinition of civil marriage without the kinds of moral influences traditionally characteristic of the Catholic religion sometimes does appear confusing, at least in our current cultural context. And that is notwithstanding the fact that morals always put forth interesting arguments in legal construction and, as such, morals are still present in the contents and interpretation of numerous provisions of the law. Lastly, the paper adds to all the above a questioning of national and regional government interventionism in individual decisions aimed openly at creating situations unregulated by any type of law, individual decisions that only the interests of higher protection could restrict, by introducing into the debate the justifying notion of the minor and, above all, the concept of «family».