The case was brought to the attention of the court through a suit filed by a number of gay couples in Venice and Trento who were not allowed to post the banns of their upcoming ’marriage’.
According to the suit, there is nothing in Italy’s legal code which prohibits same-sex marriage because the diversity of gender is not established as a requisite for marriage.
The plaintiffs argued in their suit that a ban on same sex marriage violated the constitutional principle of equality between citizens and was in contrast to European Union law as well.
They also noted that an "unreasonable inequality in treatment" existed in regard to homosexuals and trans-sexauals given that the latter, once they have had a sex-change operation, are allowed to marry members of their original sex.
The office of the state attorney, acting on behalf of the government, said the suit was inadmissible because it sought to establish a legal precedent "through the manipulation of the fabric of the law" whereas only parliament can create laws.
The attorney also said that European and international law clearly gave national legislatures jurisdiction in governing the rules of marriage.
The Constitutional Court, one of Italy’s two supreme court along with the Cassation Court, may decide as early as Tuesday whether or not to take up the suit.