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 prospective 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 could have resulted in the possibility of a turn that is regressive gay legal rights on this matter.
KEYWORD PHRASES: same-sex wedding; same-sex domestic partnership; Brazilian Supreme Court; appropriate thinking; separation of abilities
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 separacao da litigancia 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 because of the Supreme Court (Supremo Tribunal Federal – STF), one ruling because of 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 most fascinating in this instance is that the ruling by the Supreme Court was at fact perhaps maybe maybe not about same-sex wedding, but about same-sex domestic partnerships. This really is because of the fact that homosexual marriage advocates in Brazil adopted an approach that is incremental gay wedding litigation, intending first in the recognition of same-sex domestic partnerships as families underneath the legislation ( Moreira 2012, note 1, pp. 1.003-7).
Considering an interpretation for 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 ability getting a wedding permit.
Finally, 2 yrs later on, according to these tall Court rulings, the nationwide Justice Council, which can be the authority in charge of regulating and supervising officials that problem marriage licenses and perform weddings, permitted same-sex marriages with no need of a previous authorization released with a court of justice. 4
Between 2013 and 2016, 19,522 same-sex partners had been lawfully hitched in Brazil. xhamsterlive 5 for the time being, as a a reaction to these developments, Congress was 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 associated with results of the present election that is presidential won by the radically conservative Jair Bolsonaro, and of the rise into the quantity of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will see a great political 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, after the legislature that is next in 2019. 9
That fear would not develop into truth through the very first 12 months of president Bolsonaro’s term. Other matters-mainly a significant security that is social dominated the political agenda so far. However with three more years to go, the possibility of a regressive change in legislation concerning same-sex wedding continues to be significant.