SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning while the threat of a Regressive Turn 1
Casamento homoafetivo no Supremo Tribunal Federal: argumentacao juridica e o risco de retrocesso
* Fundacao Getulio Vargas, Sao Paulo, SP, Brasil. E-mail: 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 facial skin of potential restrictive legislation in line with the thinking the court utilized in its 2011 ruling about same-sex domestic partnerships. The paper concludes that the separation of litigation over domestic partnerships and wedding might have resulted in the possibility of a turn that is regressive homosexual rights with this matter.
KEYWORD PHRASES: same-sex wedding; same-sex domestic partnership; Brazilian Supreme Court; appropriate 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 uniao estavel homoafetiva that is sobre. Conclui-se que a da that is separacao sobre uniao estavel ag 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 social battle for same-sex wedding in Brazil played away in the Judiciary and ended up being achieved through one ruling by the Supreme Court (Supremo Tribunal Federal – STF), one ruling by the Superior Court of Justice (Superior Tribunal de Justica – STJ), 2 both from 2011, plus one administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What exactly is most fascinating in this case is that the ruling because of the Supreme Court was at reality maybe not about same-sex wedding, but about same-sex partnerships that are domestic. This can be because of the fact that homosexual wedding advocates in Brazil adopted an approach that is incremental homosexual wedding litigation, aiming first at the recognition of same-sex domestic partnerships as families beneath the legislation ( Moreira 2012, note 1, pp. 1.003-7).
Centered on an interpretation for the Supreme Court ruling on same-sex domestic partnerships www.camhub, the Superior Court of Justice later that exact same year granted a lesbian few the best to obtain a married relationship permit.
Finally, couple of years later on, centered on these tall Court rulings, the nationwide Justice Council, that will be the authority in charge of regulating and supervising officials that problem wedding licenses and perform weddings, permitted same-sex marriages without the necessity of a prior authorization given with a court of justice. 4
Between 2013 and 2016, 19,522 couples that are same-sex legitimately hitched in Brazil. 5 for the time being, as a reaction to these developments, Congress happens to be debating a statute that is new expressly limit the idea of household to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view regarding the outcome of the present election that is presidential won by the radically conservative Jair Bolsonaro, as well as the rise into the wide range of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will see a good governmental weather and stay passed away. 8
Magazines report that numerous gay partners rescheduled their weddings to a youthful date, fearing which they wouldn’t be in a position to get hitched any longer, when the legislature that is next in 2019. 9
That fear failed to develop into truth throughout the very first 12 months of president Bolsonaro’s term. Other matters-mainly an important social safety reform-have dominated the political agenda to date. However with three more years to get, the possibility of a turn that is regressive legislation concerning same-sex wedding continues to be significant.