SAME-SEX MARRIAGE IN THE BRAZILIAN SUPREME COURT: Legal Reasoning as well as the threat of a Regressive Turn 1

SAME-SEX MARRIAGE IN THE BRAZILIAN SUPREME COURT: Legal Reasoning as well as 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. 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 facial skin of potential restrictive legislation in line with the reasoning the court utilized in its 2011 ruling about same-sex domestic cams webcams partnerships. The paper concludes that the separation of litigation over domestic partnerships and wedding might have resulted in the possibility of a regressive change concerning homosexual liberties 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 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 by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What exactly is most fascinating in this instance is the fact that the ruling by the Supreme Court was at reality perhaps maybe maybe not about same-sex marriage, but about same-sex domestic partnerships. This might be because of the fact that gay wedding advocates in Brazil adopted an incremental way of homosexual wedding litigation, intending first during the recognition of same-sex domestic partnerships as families underneath 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 wedding permit.

Finally, two years later on, predicated on these tall Court rulings, the nationwide Justice Council, that is the authority in charge of regulating and supervising officials that problem marriage licenses and perform weddings, permitted same-sex marriages with no need of the previous authorization released by way of a court of justice. 4

Between 2013 and 2016, 19,522 couples that are same-sex lawfully 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 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 when you look at the quantity of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will see a great governmental environment and become passed away. 8

Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing they would not be in a position to get hitched any longer, when the legislature that is next in 2019. 9

That fear would not develop into truth through the year that is first of Bolsonaro’s term. Other matters-mainly a significant security that is social 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.