SAME-SEX WEDDING WHEN YOU LOOK AT THE BRAZILIAN SUPREME COURT: Legal Reasoning and also the threat 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 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 may have resulted in the possibility of a turn that is regressive homosexual legal rights with this matter.
KEYWORD PHRASES: same-sex wedding; same-sex domestic partnership; Brazilian Supreme Court; legal 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 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 away in the Judiciary and had been achieved 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, and another administrative work by the National Justice Council (Conselho Nacional de Justica – CNJ), in 2013. 3
What exactly is most fascinating in this situation is the fact that the ruling because of the Supreme Court was at reality maybe maybe not about same-sex wedding, but about same-sex domestic partnerships. This might be because of the fact that homosexual wedding advocates in Brazil adopted an incremental method of homosexual wedding litigation, aiming first during the recognition of same-sex domestic partnerships as families beneath the legislation ( Moreira 2012, note 1, pp. 1.003-7).
Centered on an interpretation regarding 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 ability to obtain a married relationship permit.
Finally, 2 yrs later on, centered on these tall Court rulings, the nationwide Justice Council, which will 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 permission that is prior by a court of justice. 4
Between 2013 and 2016, 19,522 same-sex partners had been legitimately 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 concept of family members to heterosexual couples, therefore banning same-sex wedding ( Nagamine; Barbosa 2017, p. 224). 6 In view regarding the consequence of the current presidential election, won by the radically conservative Jair Bolsonaro, as well as the rise within the amount of conservative congressmen, 7 there’s been concern that this or any other restrictive bill will discover a great governmental weather and become passed away. 8
Magazines report that numerous gay partners rescheduled their weddings to a youthful date, fearing which they wouldn’t be in a position to get hitched any longer, when the next legislature began in 2019. 9
That fear failed to develop into reality throughout the year that is first of Bolsonaro’s term. Other matters-mainly a significant security that is social dominated the political https://www.camsloveaholics.com/camdolls-review agenda so far. However with three more years to get, the possibility of a turn that is regressive legislation concerning same-sex wedding remains significant.