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

SAME-SEX WEDDING WITHIN THE BRAZILIAN SUPREME COURT: Legal Reasoning together with danger 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 face area 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 could have resulted in the possibility of a turn that is regressive homosexual legal rights about naked couples 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 battle that is social 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 something administrative act because of the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What exactly is most fascinating in this instance 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. This is certainly because of the fact that gay wedding advocates in Brazil adopted an incremental method of homosexual marriage 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 of this 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 permit.

Finally, 2 yrs later on, predicated on these tall Court rulings, the National Justice Council, which can be the authority responsible for regulating and supervising officials that problem wedding licenses and perform weddings, permitted same-sex marriages without the necessity of a previous authorization granted with 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 is debating a brand new statute to expressly limit the idea of household to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view regarding the consequence of the current election that is presidential won by the radically conservative Jair Bolsonaro, as well as the rise into the wide range of conservative congressmen, 7 there is concern that this or any other restrictive bill will discover a great governmental weather and start to become passed away. 8

Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing which they wouldn’t be able to get hitched any longer, after the legislature that is next in 2019. 9

That fear failed to develop into truth throughout the 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 regressive change in legislation concerning same-sex wedding continues to be significant.