Casamento homoafetivo no Supremo Tribunal Federal: argumentacao juridica e o risco de retrocesso
* Fundacao Getulio Vargas, Sao Paulo, SP, Brasil. Email: flavia. Puschel@fgv.br
This paper investigates what lengths the Brazilian Supreme Court has argumentatively committed it self to upholding marriage that is same-sex the face area of potential restrictive legislation on the basis of the thinking the court found in its 2011 ruling about same-sex domestic partnerships. The paper concludes that the separation of litigation over domestic partnerships and wedding could have resulted in the risk of a regressive change concerning homosexual liberties with this matter.
KEYWORDS: same-sex wedding; same-sex domestic partnership; Brazilian Supreme Court; legal thinking; separation of capabilities
Este artigo pretende estabelecer em que medida o STF comprometeu-se argumentativamente a sustentar a inconstitucionalidade de possivel legislacao restritiva ao casamento entre pessoas do mesmo sexo, com base nos argumentos que fundamentaram sua decisao sobre uniao estavel homoafetiva. Conclui-se que a da that is separacao sobre uniao estavel ag e casamento pode ter resultado em risco de retrocesso em relacao aos direitos das pessoas homossexuais.
PALAVRAS-CHAVE: casamento homoafetivo; uniao estavel homoafetiva; Supremo Tribunal Federal; argumentacao juridica; separacao de poderes
The battle that is social same-sex wedding in Brazil played down in the Judiciary and ended up being achieved through one ruling because of the Supreme Court (Supremo Tribunal Federal – STF), one ruling by the Superior Court of Justice (Superior Tribunal de Justica – STJ), 2 both from 2011, and something administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What’s best in this situation is that the ruling by the Supreme Court was in reality perhaps perhaps not about same-sex wedding, but about same-sex partnerships that are domestic. This really is because of the fact that homosexual wedding advocates in Brazil adopted an incremental method of homosexual wedding litigation, intending first in the recognition of same-sex domestic partnerships as families beneath the legislation ( Moreira 2012, note 1, pp. 1.003-7).
Predicated on an interpretation of this Supreme Court ruling on same-sex domestic partnerships, the Superior Court of Justice later that exact same year granted a lesbian couple the proper to obtain a married relationship permit.
Finally, couple of years later on, considering these tall Court rulings, the National Justice Council, that is the authority in charge of regulating and supervising officials that problem wedding licenses and perform weddings, permitted same-sex marriages with no need of the permission that is prior by way of a court of justice. 4
Between 2013 and 2016, 19,522 same-sex partners had been lawfully hitched in Brazil. 5 In the meantime, as a response to these developments, Congress happens to be debating a brand new statute to expressly limit the idea of family members to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view regarding the results of the present election that is presidential won by the radically conservative Jair Bolsonaro, and of the rise into the wide range of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a good governmental weather and become passed away. 8
Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing which they wouldn’t be capable of getting hitched any longer, when the next legislature began in 2019. 9
That fear failed to become truth through the year that is first of Bolsonaro’s term. Other matters-mainly a significant social protection reform-have dominated the governmental agenda so far. However with three more years to get, the possibility of a turn that is regressive legislation concerning same-sex wedding continues to be significant.
