The Supreme Federal Court (STF) is established in the 1988 Federal Constitution as one of the bodies of the Judiciary Branch, responsible for constitutional interpretation.
It is composed of 11 Ministers, both male and female, of notable legal expertise and impeccable reputation. The appointment is made by the President of the Republic, after the choice has been approved by an absolute majority of the Federal Senate.
The Supreme Federal Court's responsibilities are also outlined in the Constitution. One of them is its role as a Constitutional Court, guardian of the Constitution. The Supreme Court considers the constitutional text as defining the limits of the government's power and authority.
Another responsibility is to judge three types of actions: (a) Direct Action of Unconstitutionality (ADI); (b) Declaratory Action of Constitutionality (ADC); and (c) Argument of Non-Compliance with Fundamental Precept (ADPF).
But how do we study ADIs, ADCs, and ADPFs in practice? How can we delve into case studies where the Supreme Federal Court's constitutional interpretation had a national impact?
We will take as a precedent ( leading case ) the example discussed as a hypothetical-deductive method in legal methodology , here on the IDP Blog. It deals with the 2011 decision that equated same-sex civil unions with heterosexual civil unions in Brazilian law, broadening the interpretation of article 226, § 3, of the Constitution.
Come on!
Argument of Non-Compliance with Fundamental Precept No. 132/RJ and Direct Action of Unconstitutionality No. 4277/DF
The Governor of the State of Rio de Janeiro filed a lawsuit alleging violation of constitutional principles due to the denial of rights to homosexuals, particularly regarding social security, in relation to the state legislation of Rio de Janeiro.
On the merits, the plaintiff requested the application of the legal regime for heterosexual stable unions to homosexual unions, in light of constitutional principles, instead of a reductionist interpretation of the Federal Constitution and the Civil Code.
The Direct Action of Unconstitutionality (ADI) was filed by the Attorney General's Office (PGR) to have the Supreme Federal Court (STF) declare the mandatory recognition of same-sex unions as family entities. The PGR also requested that same-sex couples have the same rights as heterosexual partners.
The two cases were voted on jointly. The session was presided over by Minister Cezar Peluso, and the following Ministers voted: Cármen Lúcia, Celso de Mello, Marco Aurélio, Gilmar Mendes, Ayres Britto (Rapporteur), Joaquim Barbosa, Ricardo Lewandowski, and Luiz Fux.
The content of the votes
Rapporteur Ayres Britto was the first to vote. He stated that stable unions are not a patrimonial, business, or biological bond, but an affective and supportive one. For them to be recognized, four characteristics must be considered: durability, public recognition, continuity, and the purpose or desire to form a family.
He argues that the term "man and woman" in the constitutional text (and reproduced in the Civil Code) is intended only to emphasize the prohibition of hierarchy between them, as was legitimate until recently.
It is also emphasized that it cannot be argued that heterosexual couples would lose out if the equalization were deemed valid, because it does not cause harm to third parties. Furthermore, the formation of a family entity cannot be tied to any formality, be it notarial, civil or religious ceremony.
Next, Minister Luiz Fux voted. He understands that the issue at hand is the violation of fundamental rights of those who practice a minority sexual orientation. Homosexuality is an orientation (not a choice), a fact of life (not an ideology), and a characteristic of individual personality (not a belief).
The question is not whether same-sex unions are supported by the Constitution, but rather what legal treatment should be given to these unions. It seeks the constitutionally appropriate way to achieve dignity and the free exercise of fundamental rights for its members.
Regarding the expression "man and woman," it is understood that it was inserted into the constitutional text to highlight stable unions as a family entity. It acknowledges that the emancipatory gains that women, and now same-sex couples, have been achieving are a consequence of the evolutions that society is undergoing.
Then Minister Cármen Lúcia voted. Regarding the expression "man and woman," she points out that it is not accurate to suggest that they intend to eradicate any differentiation between the two.
In fact, discussions in the National Constituent Assembly (ANC) of 1987-1988 prove that non-discrimination based on sexual orientation was debated but lost momentum thanks to the conservative wing of voters.
In order to be free, in a democratic state governed by the rule of law, people also need freedom of sexual orientation, and all forms of discrimination must be prohibited.
The next to vote was Minister Ricardo Lewandowski. He says that it is impossible to equate same-sex unions with the same concept as heterosexual unions, not even in marriage, especially considering the debates of the National Constituent Assembly.
They should therefore be classified under a different category, not foreseen in the list of Article 226 of the Constitution, but resulting from a systematic reading of the text and constitutional principles.
Despite the differences, the rules of the legal institution closest to it, that of the stable union of heterosexual persons, should be applied, but only in aspects that share similarities.
Minister Joaquim Barbosa continued the voting. According to him, and several experts, same-sex unions have always existed, just like heterosexual unions, and will possibly always exist. What varies, in fact, is the cultural context in which they are embedded.
Within the framework of Constitutional Law, same-sex civil unions are justified by the need to protect fundamental rights and the principles of equality, human dignity, and non-discrimination.
Regarding the expression "the man and the woman," it is believed to demonstrate a process of social inclusion and a rejection of the prejudice that existed between heterosexual couples who lived together without formalizing their marriage.
Next, Minister Gilmar Mendes argues that the fact that the Constitution protects heterosexual civil unions does not mean, and could not mean, a denial of protection for same-sex unions, in respect for Human Rights.
For him, the expression "man and woman" cannot obstruct the recognition of same-sex unions, as if it were a prohibition or exclusion, by virtue of constitutional principles. They must be removed from legal limbo and included in the list of family entities.
Finally, it acknowledges that same-sex unions, as defined by the Judiciary, are a temporary solution until the Legislative Branch makes a decision. As of the end of October 2022, no federal legislation to that effect had been approved.
The next one, Minister Marco Aurélio, distances the concept of family from exclusive procreation and patriarchy, mainly by equalizing the rights and duties between men and women.
According to him, same-sex unions should be legally equated to heterosexual unions, without any reservations in their application, considering the protection of affection.
The penultimate one was Celso de Mello. He stated that it would be arbitrary and unacceptable for any law to exclude, discriminate against, disrespect, or punish individuals based on their sexual orientation.
The literal wording "man and woman" does not imply a prohibition on extending the same legal framework to same-sex unions, as this would distort its constitutional nature. It was included in the Constitutional Amendment to overcome the discrimination that historically affected relationships between men and women.
The last to vote was Minister Cezar Peluso. He stated that the list of family entities provided for in Article 226 of the Constitution is not exhaustive, and that the normative recognition of other families, such as same-sex families, is possible.
It emphasizes that not all rules relating to heterosexual civil unions should be applied to homosexual unions. This is because it is a matter of equating the institutions, not full equality, which is why they require their own particularities due to their distinct natures.
The conclusion of the decision
In the end, by unanimous vote, the Ministers agreed to rule in favor of the actions, with erga omnes effectiveness (for all those who fall under that conjecture of incidence) and binding effect (of mandatory observance), with the same rules and consequences as heterosexual stable unions.
The Ministers were authorized to decide individually on the same issue, regardless of the publication of the ruling.
It has also become permissible to convert same-sex unions into marriage: Article 226 of the Constitution itself stipulates that the law should facilitate the conversion of stable unions into marriage.
In light of this, the Superior Court of Justice (STJ) has begun to allow marriage registration directly with the Civil Registry, eliminating the need to formalize the union before transforming it into matrimony.
Practical effects of equalization
The decision didn't just stay on paper. In May 2013, the National Council of Justice (CNJ) issued Resolution No. 175, prohibiting competent authorities from refusing to process applications, celebrate civil marriages, or convert stable unions into marriages between people of the same sex, under penalty of immediate notification to the respective judge for appropriate action.
There are numerous news reports in the media about registry offices refusing to register stable unions or convert them into marriages. However, according to a survey, 2.188 same-sex unions were registered in the country in 2021, an increase of approximately 2% compared to the previous year. In 2019, the number of declarations was 2.151.
The highest rates are in Rio de Janeiro and São Paulo, and the lowest in Roraima, Acre, and Tocantins.
This case study from the Brazilian Supreme Court demonstrates the importance of constitutional interpretation for legal professionals, especially for the protection of fundamental rights and respect for human dignity.
Interested in this topic? Come and learn about the Postgraduate Program in Constitutional Law at IDP . Invest in knowledge combined with practice based on Human Rights and respect for difference.
References:
BRAZIL. Civil Code (2002). Law No. 10.406, of January 10, 2002. Available at: <http://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm>. Accessed on: October 24, 2022.
BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil of 1988. Available at: <http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm>. Accessed on: October 24, 2022.
BRAZIL. Supreme Federal Court. Argument of Non-Compliance with Fundamental Precept 132 Rio de Janeiro and Direct Action of Unconstitutionality 4.277 Federal District. Rapporteur: Justice Ayres Britto. Brasília, May 05, 2011. Available at: <https://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=628635>. Accessed on: October 24, 2022.
CNN. Brazil registers more than 21 same-sex unions in 2021. Available at: <https://www.cnnbrasil.com.br/nacional/brasil-registra-mais-de-2,1-mil-unioes-homoafetivas-em-2021/>. Accessed on: October 24, 2022.
