Can a law established before the constitution be unconstituional? In 1912, when legislation on citizenship was drafted in Italy regarding the tranfering of citizenship from parents to children, it maintained a distinction between the transfering of citizenship through paternal and maternal succesor lines.
The phenomenon of emigration happened en masse and so many Italian women ended up marrying foreigners. These women acquired their husbands' nationality and so relinquished the right to transfer Italian citiznehsip to their children.
Although most part of our emigrants have not explicitly renounced their origins, according to the law of 1912 marriage with a foreigner erased their Italian roots.
The constituion, valid from the first of Janurary 1948, has restored the posibility for those Italians who moved abroad and married foreigners of not cutting all ties with Italy.
Thus they were able to transfer their Italian citizenship to their descendents. However, what resulted was that only those born after the constituion were able to obtain recognition of their citizenship being able to be transferred in a simple linear fashion, by means of iure sanguinis. They could do this through a request to the consulate if resident abroad, or by means of the mayor, if they were Italian residents.
The situation is quite different for those of whom the female Italian successor line began before 1948, because Italian citizenship can only be obtained via judicial action.
In practice one is obliged to turn to the judge in cases of transferring citizenship, if a descendent of an Italian woman born before 1948 is present.
Yet, in many countries citizenship is not automatically transferred to a foreign wife through marriage. Therefore, the women in question have never lost their status as Italian citizens, the law however does not take this into account. This leaves judicial sentences to establish who has the right in each individual case to Italian citizenship in the presence of a female ancestor.
It just so happens that two brothers born one after the other in 1948, had different outcomes regarding the recognition of Italian citizenship. They were at different times, but the outcome risks being different, given the undpredicatability of the verdict in the absence of a clear and unequivocal law. According to Italian law these two brothers cease to have the same rights.
Law no. 555 of 1912, continues to discriminate against Italian women and their...