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 marriage that is same-sex the face area 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 regressive change concerning homosexual legal rights about 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 da that is separacao 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 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’s most fascinating in cases like this is the fact that ruling because of the Supreme Court was at reality maybe perhaps not about same-sex wedding, but about same-sex partnerships that are domestic. This really is due to 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).
Centered on an interpretation associated with Supreme Court ruling on same-sex domestic partnerships, the Superior Court of Justice later that exact same year granted a lesbian few the best to get a married relationship permit.
Finally, 2 yrs later on, according to these tall Court rulings, the nationwide Justice Council, that will be anime girl vagina tattoo 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 permission that is prior with a court of justice. 4
Between 2013 and 2016, 19,522 same-sex partners were legitimately hitched in Brazil. 5 for the time being, as a response to these developments, Congress happens to be debating a brand new statute to expressly limit the concept of family members to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view for the outcome of the present presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise when you look at the quantity of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a good 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 reality 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 possibility of a turn that is regressive legislation concerning same-sex wedding remains significant.