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 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 could have resulted in the possibility of a turn that is regressive homosexual legal rights with this matter.
KEYWORDS: 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 sobre uniao estavel homoafetiva. 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 social battle for 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 because of the Superior Court of Justice (Superior Tribunal de Justica – STJ), 2 both from 2011, plus one administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What exactly is most fascinating in cases like this is the fact that the ruling by the Supreme Court was at reality perhaps 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 during the recognition of same-sex domestic partnerships as families underneath the law ( 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 that exact same year granted a lesbian couple the best to obtain 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 a prior authorization released by 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 happens to be debating a statute that is new expressly limit the idea of family members to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 squirting pussy In view of this outcome of the present election that is presidential won by the radically conservative Jair Bolsonaro, and of the rise within the quantity of conservative congressmen, 7 there’s been 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 a youthful date, fearing which they wouldn’t be capable of getting hitched any longer, when the legislature that is next in 2019. 9
That fear failed to become truth throughout the very first 12 months of president Bolsonaro’s term. Other matters-mainly an important social safety reform-have 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.
