All you need is law: Same-sex marriage in Italian courts

The Italian Corte di Cassazione (CdC) has delivered a judgment which marks a fundamental change of direction in the treatment of same-sex marriage in the Italian legal system. Case 4184/12, decided on 15 March 2012, illustrates the piecemeal nature of legal developments affecting same-sex marriage, as well as the complex mix of issues that arise in this legal field. Same-sex marriage bridges private and public law, and implicates family, free movement, and equality (non-discrimination) rights found in national, European and international sources.

To grasp the importance of the CdC’s ruling on family rights and non-discrimination, we must first clarify what this case does not decide by distinguishing it from two earlier Italian court decisions on same-sex marriage in the context of European Union (EU) citizenship and the free movement of persons under Directive 2004/58/EC (formerly 2004/38/EC) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens’ Directive). That Directive is silent about whether the term ‘spouse’ includes a same-sex husband or wife. Both prior Italian cases resolved this ambiguity in favor of same-sex couples.

The first case (Cass. Pen. sez. I n. 1328, 19 January 2011) concerned a non-EU citizen who was convicted by the Justice of Peace of Mestre for illegal entry and residence in Italy. On appeal to the CdC (criminal section), he argued that his marriage celebrated in Spain with an EU citizen should entitle him to EU free movement rights, even when the marriage was between two men. The CdC agreed in principle, and directed the Justice of Peace to ascertain whether Spanish legislation treats the same-sex partner as a “spouse” and, if so, to recognize the effects of the marriage in the Italian territory ...

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