FROM SAME-SEX DOMESTIC PARTNERSHIP TO SAME-SEX MARRIAGE: THE 2011 RULINGS

FROM SAME-SEX DOMESTIC PARTNERSHIP TO SAME-SEX MARRIAGE: THE 2011 RULINGS

I. Same-sex domestic partnership at the Supreme Court

Brazil has a rather complex and step-by-step Constitution which has conditions regarding family members law. With its art. 226 it establishes that family is the foundation of society and it is eligible for protection that is special their state.

On defining family, the Constitution expressly states that the domestic partnership between “a man and a lady” comprises a family group and it is therefore eligible for special security by the State. More over, it determines that the statutory legislation must further the transformation of domestic partnerships into wedding.

Art. 1723 associated with the Brazilian Civil Code additionally clearly determines that the partnership that is domestic a guy and a female comprises a family group.

That which was expected associated with Supreme Court would be camrabbit to declare it unconstitutional to interpret the Civil Code as excluding domestic partnerships between folks of the same intercourse from being considered families for legal purposes.

The situation ended up being tried by the Supreme Court on might 2011. Ten justices participated within the test 19 and unanimously voted to declare this interpretation associated with Civil Code (and, consequently, for the constitutional text itself) unconstitutional. Whenever their specific views and arguments are thought, nonetheless, you are able to see a divide that is significant. 20

The ruling about same-sex domestic partnerships argumentatively implies a position of the court on same-sex marriage, I will not reconstruct the justices’ opinions in full detail since what matters for the purposes of this paper is to what extent. 21

Whenever examined from the point of view of an argumentatively suggested position on same-sex marriage, it will be possible do determine in reality two lines of thinking, which go the following: 22 (a) the systematic interpretation line of thinking, and (b) the gap into the Constitution type of thinking. 23 the very first one (a), adopted by six for the nine justices, is dependent on the systematic interpretation regarding the Constitution. In accordance with these justices, to exclude couples that are same-sex the thought of household would be incompatible with a few constitutional axioms and fundamental legal rights and it is, consequently, unsatisfactory.

Into the words of Minister Marco Aurelio, “the isolated and interpretation that is literal of. 226, § ۳-? associated with Constitution may not be admitted, for this contributes to a conclusion this is certainly as opposed to fundamental constitutional principles. 24

It can primarily be considered a breach associated with constitutional axioms of equality (art. 5) and of non-discrimination on such basis as sex (art. 3, IV). 25

Within the terms of Minister Ayres Britto, “equality between hetero- and homosexual partners can simply be fully achieved if it provides the right that is equal form a household” (Supremo Tribunal Federal, note 24, p. 25).

Great emphasis is wear the role that is counter-majoritarian of Courts while the security of minority legal rights.

The reference that is explicit to “man and woman” within the constitutional text is tackled in different methods by justices adopting this very first type of thinking.

A number of them dismiss it by saying it had been perhaps not the intention associated with the legislature to limit domestic partnerships to heterosexual partners.

Minister Ayres Britto, as an example, considers that “the mention of the guy and woman needs to be comprehended as a technique of normative reinforcement, that is, as being a real means to stress that there’s never to be any hierarchy between gents and ladies, in an effort to face our patriarchal tradition. It’s not about excluding couples that are homosexual for the point is certainly not to tell apart heterosexuality and homosexuality” (Supremo Tribunal Federal, note 24, pp. 28-9).

In accordance with Minister Luiz Fux, the guideline was written in this way “in purchase to simply take partnerships that are domestic regarding the shadow and can include them into the idea of family members. It could be perverse to offer a restrictive interpretation to an indisputably emancipatory norm” (Supremo Tribunal Federal, note 24, p. 74).