SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning additionally the chance of a Regressive Turn 1

SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning additionally the chance 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.

This paper investigates what lengths the Brazilian Supreme Court has argumentatively committed it self to upholding marriage that is same-sex the facial skin 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 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 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 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, plus one administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3

What exactly is best in cases like this is the fact that the ruling because of the Supreme Court was at reality perhaps not about same-sex wedding, but about same-sex partnerships that are domestic. This really is because of the fact that homosexual wedding advocates in Brazil adopted an incremental way of homosexual wedding litigation, intending first during the recognition of same-sex domestic partnerships as families beneath the law ( Moreira 2012, note 1, pp. 1.003-7).

Centered on an interpretation associated with the 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 wedding permit.

Finally, 2 yrs later on, according to these tall Court rulings, the nationwide Justice Council, that 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 previous authorization given by a court of justice. 4

Between 2013 and 2016, 19,522 couples that are same-sex legitimately hitched in Brazil. 5 for the time being, as a reaction to these developments, Congress happens to be 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 of this outcome of the current 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 is concern that this or any other restrictive bill will see a good governmental environment and start to become passed away. 8

Magazines report that numerous gay partners rescheduled their weddings to an early on date, fearing they wouldn’t be capable of getting hitched any longer, when the legislature that is next 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 to date. However with three more years to get, the possibility of a turn that is regressive legislation concerning same-sex wedding continues to be significant.

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