SAME-SEX WEDDING WITHIN THE BRAZILIAN SUPREME COURT: Legal Reasoning together with threat of a Regressive Turn 1

SAME-SEX WEDDING WITHIN 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. 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 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 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 da that is separacao 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 social battle for same-sex wedding in Brazil played call at the Judiciary and had been accomplished 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’s most fascinating in cases like this is the fact that the ruling because of the Supreme Court was at reality perhaps perhaps not about same-sex wedding, but about same-sex domestic partnerships. This can be because of the fact that homosexual wedding advocates in Brazil adopted an incremental way of gay 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).

According to 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 ability getting a married relationship license.

Finally, couple of years later on, centered on 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 with no need of the previous authorization released by 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 was debating a brand new statute to 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 consequence of the current election that is presidential won by the radically conservative Jair Bolsonaro, as well as the rise when you look at the amount of conservative congressmen, 7 there’s missmina xxxstreams been concern that this or any other restrictive bill will discover a great governmental weather and become passed away. 8

Newspapers report that numerous gay partners rescheduled their weddings to a youthful date, fearing they wouldn’t be capable of getting married anymore, after the next legislature began in 2019. 9

That fear failed to 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 governmental agenda to date. But with three more years to go, the possibility of a regressive change in legislation concerning same-sex marriage continues to be significant.

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