The tradition trap and the rights of same-sex couples

This article problematizes traditionalist thinking in constitutional adjudication, especially in relation to the rights of same-sex couples to marry and access assisted reproductive technologies (ARTs). It identifies two approaches, represented respectively by the case law of the Italian Constitutional Court (ICC) and the Court of Final Appeal (CFA) of the Hong Kong SAR. The ICC has expressly stated that preserving traditional family forms is per se a reasonable objective for the legislature to pursue. The CFA, on the other hand, has gradually changed its approach to traditionalist thinking in relation to same-sex unions and has concluded that justifying differential treatment based on sexual orientation with reference to tradition is circular reasoning. By resorting to historical, anthropological, and philosophical sources, this article argues that invoking the preservation of tradition, despite its rhetorical force, is empirically and conceptually flawed and essentially represents a form of sophistry to avoid having to come up with more rigorous justifications to limiting the rights of same-sex couples.