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 how long the Brazilian Supreme Court has argumentatively committed itself to upholding same-sex wedding in the facial skin of potential restrictive legislation on the basis of the thinking the court found in its 2011 ruling about same-sex domestic partnerships. The paper concludes that the separation of litigation over domestic partnerships and wedding could have generated the possibility of a turn that is regressive homosexual legal rights about 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 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 marriage in Brazil played away in the Judiciary and ended up being 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 another administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What exactly is most fascinating in this situation is the fact that ruling because of the Supreme Court was at reality perhaps maybe not about same-sex wedding, but about same-sex domestic partnerships. That is because of the fact that homosexual marriage 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 law ( Moreira 2012, note 1, pp. 1.003-7).

Centered on an interpretation associated with 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 license.

Finally, couple of years later on, centered on these tall Court rulings, the nationwide Justice Council, that will be the authority in charge of regulating and supervising officials that issue wedding licenses and perform weddings, permitted same-sex marriages without the necessity of a permission that is prior by 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 response to these developments, Congress was debating a statute that is new expressly limit the idea of household to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view associated with consequence of the present presidential election, won by the radically conservative Jair Bolsonaro, and of the increase into the range conservative congressmen, 7 there is concern that this or any other restrictive bill will see a great governmental environment and start to become 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 didn’t develop into truth through the first 12 months of president 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 possibility of a regressive change in legislation concerning same-sex wedding continues to be significant.