The contribution below by Massimo Fichera and network member Helen E. Hartnell appeared originally on Verfassungsblog and UK Constitutional Law Group and is cross-posted here with permission.
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.