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 same-sex wedding in the facial skin of potential restrictive legislation in line with the reasoning 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 might have generated 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 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 sobre uniao estavel homoafetiva. Conclui-se que a da that is separacao sobre uniao estavel 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 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 act 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 the ruling because of the Supreme Court was at reality maybe perhaps not about same-sex wedding, but about same-sex partnerships that are domestic. It is because of the fact that homosexual wedding advocates in Brazil adopted an approach that is incremental homosexual 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).
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 to get a wedding permit.
Finally, 2 yrs later on, according to these tall Court rulings, the nationwide Justice Council, that is the authority in charge of regulating and supervising officials that problem wedding licenses and perform weddings, permitted same-sex marriages without the necessity of a previous authorization granted by way of a court of justice. 4
Between 2013 and 2016, 19,522 same-sex partners had been lawfully hitched in Brazil. 5 for the time being, as a response to these developments, Congress was debating a 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 present presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise into the range conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a great governmental weather and get passed away. 8
Magazines report that numerous gay partners rescheduled their weddings to a youthful date, fearing that they wouldn’t be able to get married any longer, when the legislature that is next in 2019. 9
That fear would not develop into truth throughout the very first 12 months of president Bolsonaro’s term. Other matters-mainly an important 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.