Casamento homoafetivo no Supremo Tribunal Federal: argumentacao juridica e o risco de retrocesso
* Fundacao Getulio Vargas, Sao Paulo, SP, Brasil. E-mail: 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 thinking 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 resulted in the possibility of a turn that is regressive gay 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 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 down in the Judiciary and had been achieved through one ruling because of 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 work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What exactly is most fascinating in this situation is that the ruling because of the Supreme Court was at fact maybe 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 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 associated with Supreme Court ruling on same-sex domestic partnerships, the Superior Court of Justice later on that same year granted a lesbian few the best to obtain a wedding license.
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 problem wedding licenses and perform weddings, permitted same-sex marriages without the necessity of the permission that is prior by way of a court of justice. 4
Between 2013 and 2016, 19,522 www.sexcamly.com same-sex couples were lawfully hitched in Brazil. 5 for the time being, as a reaction to these developments, Congress was debating a statute that is new expressly limit the idea of family members to heterosexual couples, therefore banning same-sex marriage ( Nagamine; Barbosa 2017, p. 224). 6 In view of this outcome of the present presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise within the wide range of conservative congressmen, 7 there has been concern that this or any other restrictive bill will see a good 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 in a position to get hitched any longer, after the next legislature began in 2019. 9
That fear failed to develop into truth throughout the year that is first of Bolsonaro’s term. Other matters-mainly an important security that is social dominated the governmental agenda so far. But with three more years to go, the possibility of a regressive change in legislation concerning same-sex wedding continues to be significant.