The Court of Cassation decided on a case in which the claimants alleged that the prohibition of same-sex marriage under Italian legislation was contrary to their inalienable rights and the right not to be discriminated (Articles 2 and 3 of the Constitution), as well the EU Charter of Fundamental Rights and the ECHR. Remembering earlier decisions of the Constitutional Court, the Court of Cassation rejected the recourse. It observed that, according to the European Court of Human Rights, States have a margin of appreciation in regulating the same-sex marriage in their domestic legal order. This means that Italian judges have, under the ECHR, a duty to protect the rights and obligations of same-sex couples; and this also in the lacking of national regulation. They cannot however replace the Parliament, which has exclusive competence to decide whether the protection of omoaffettive couples should be realized through marriage or other means. These same principles govern the recognition in Italy of same-sex marriage contracted abroad: though the marriage is not contrary to public order, its recognition is not possible.
Decision of the Court of Cassation, I Civil Section, No. 4184 of 15 March 2012; Decision of the Constitutional Court No. 170 of 11 June 2014.