SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning and also the chance 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 how long the Brazilian Supreme Court has argumentatively committed it self to upholding marriage that is same-sex the facial skin 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 legal 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 sobre uniao estavel homoafetiva. 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 battle that is social same-sex wedding in Brazil played call at the Judiciary and had been 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 another administrative work because of the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What’s best in cases like this is the fact that ruling because of the Supreme Court was at reality perhaps maybe not about same-sex wedding, but about same-sex partnerships that are domestic. That is because of the fact that homosexual wedding advocates in Brazil adopted an incremental method of homosexual wedding litigation, intending first during 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 proper to obtain a married relationship permit.

Finally, couple of years later, according to these tall Court rulings, the nationwide Justice Council, which can 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 permission that is prior by way of 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 brand new statute to expressly limit the idea of household to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view regarding the results of the current presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise when you look at the quantity of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a good governmental environment 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 next legislature began in 2019. 9

That fear would not develop into truth through the year that is first of Bolsonaro’s term. Other matters-mainly an important security that is social dominated the political agenda so far. However with three more years to get, the possibility of a regressive change in legislation concerning same-sex wedding remains significant.