SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning together with 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.

This paper investigates how long the Brazilian Supreme Court has argumentatively committed it self to upholding same-sex marriage in the face area 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 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 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 away in the Judiciary and had been accomplished through one ruling because of 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 act because of the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What exactly is best in this instance is the fact that the ruling because of the Supreme Court was in reality perhaps maybe maybe not about same-sex wedding, but about same-sex partnerships that are domestic. That is because of the fact that homosexual marriage advocates in Brazil adopted an approach that is incremental 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).

Predicated on an interpretation of this Supreme Court ruling on same-sex domestic partnerships, the Superior Court of Justice later that exact same year granted a lesbian couple the ability to obtain a marriage permit.

Finally, couple of years later on, predicated on these tall Court rulings, the nationwide Justice Council, that will 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 permission that is prior by a court of justice. 4

Between 2013 and 2016, 19,522 same-sex couples had been legitimately hitched in Brazil. 5 for the time being, as a a reaction to these developments, Congress is 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 the results of the current presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise within the amount of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a good governmental weather and get 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 failed to turn into truth throughout the year that is first of Bolsonaro’s term. Other matters-mainly an important security that is social dominated the governmental agenda to date. However with three more years to get, the risk of a regressive change in legislation concerning same-sex wedding remains significant.