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 same-sex wedding in the face area of potential restrictive legislation on the basis of 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 liberties about this matter.
KEYWORD PHRASES: 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 separacao da litigancia sobre uniao estavel ag 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 marriage in Brazil played down 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, and something administrative work because of the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What exactly is best in this situation is the fact that the ruling because of the Supreme Court was at reality maybe maybe maybe not about same-sex wedding, but about same-sex partnerships that are domestic. This might be because of the fact that gay 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).
Centered on an interpretation regarding the Supreme Court ruling on same-sex domestic partnerships, the Superior Court of Justice later on that exact same year granted a lesbian few the best getting a marriage license.
Finally, couple of years later on, predicated on these High Court rulings, the nationwide Justice Council, that is the authority responsible for regulating and supervising officials that problem wedding licenses and perform weddings, permitted same-sex marriages with no need of the previous authorization given with a court of justice. 4
Between 2013 and 2016, 19,522 couples that are same-sex legitimately married in Brazil. 5 In the meantime, as a response to these developments, Congress happens to be debating a statute that is new expressly limit the idea of family members to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view associated with results of the current election that is presidential won by the radically conservative Jair Bolsonaro, and of the rise within the range conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a good governmental environment and start to become passed away. 8
Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing they wouldn’t be able to get hitched any longer, after the legislature that is next in 2019. 9
That fear failed to become reality throughout the year that is first of Bolsonaro’s term. Other matters-mainly a significant social safety reform-have dominated the governmental agenda to date. However with three more years to get, the possibility of a regressive change in legislation concerning same-sex marriage continues to be significant.