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 it self to upholding same-sex wedding in the face area of potential restrictive legislation in line with 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 marriage could have generated the possibility of a turn that is regressive homosexual liberties with 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 uniao estavel homoafetiva that is sobre. Conclui-se que a separacao da litigancia 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 achieved 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 act because of the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What’s most fascinating in cases like this is that the ruling because of the Supreme Court was in reality perhaps not about same-sex wedding, but about same-sex domestic partnerships. That is due to the fact that gay wedding advocates in Brazil adopted an incremental way of homosexual wedding litigation, intending first during the recognition of same-sex domestic partnerships as families underneath the legislation ( Moreira 2012, note 1, pp. 1.003-7).
According to 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 best getting a married relationship permit.
Finally, 2 yrs later on, according to these tall Court rulings, the nationwide Justice Council, which 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 the permission that is prior with 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 the results of the recent election that is presidential won by the radically conservative Jair Bolsonaro, as well as the rise within the quantity of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will see a good governmental weather and become passed away camfuze live sex. 8
Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing they wouldn’t be capable of getting married any longer, after the next legislature began in 2019. 9
That fear failed to develop into reality through the year that is first of Bolsonaro’s term. Other matters-mainly a significant 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.