The Justices of the Supreme Court (STF), by judging the Direct Unconstitutionality Action (ADI) 4277 and the Allegation of Disobedience of Fundamental Precept (ADPF) 132, recognized unanimously the civil union for same-sex couples.
The plenary hearing was conducted in two plenum sessions on May 4th and 5th. In the first session, the rapporteur , Justice Mr. Ayres Britto, voted to give the Federal Constitution an interpretation that would exclude any meaning of article 1723 of the Brazilian Civil Code that prevents the recognition of marriage between same sex as the family.
The Justice Mr. Ayres Britto argued that Article 3.IV of the Constitution prohibits any discrimination on grounds of sex, race, color, and in that sense, nobody can be decreased or discriminated against because of their sexual preference. "The sex of individuals does not lend itself to legal inequality", noted the Justice, in order to conclude that any depreciation of the civil union of same-sex couples collides with item IV of Article 3 of the Constitution.
Prior to the rapporteur, the plaintiffs of the two actions had the words - the Brazilian Chief Prosecutor and the governor of Rio de Janeiro, through its representative – the Federal Government Attorney, and lawyers from various entities, admitted as amici curiae (friends of the Court).
The other Justices of the Supreme Court followed the rapporteur’s understanding, the merits of actions and the binding effect, in order to interpret the Constitution as to exclude any meaning of article 1723 of the Civil Code that prevents the recognition of marriage between persons of same sex.
The ADI 4277 was initially filed in court as ADPF 178. The lawsuit sought a declaration of recognition of the union between same-sex as a family entity. It also asked the same rights and duties of partners in civil union were extended to same-sex partners.
In the ADPF 132, the state government of Rio de Janeiro (RJ) has argued that non-recognition of same-sex civil union contravenes fundamental principles such as equality, freedom (from which comes the freedom of choice) and the principle of human dignity, all from the Federal Constitution. With this argument, the Supreme Court applied the legal regime of civil union under Article 1723 of the Civil Code, to the same-sex unions of civil servants in Rio de Janeiro.
Justice Ayres Britto held that Article 1723 of the Civil Code should be interpreted according to the Constitution, for it excludes "any means that prevents the recognition of the continuing public and lasting between same sex as the 'family unit', conceived as perfect synonym of 'family'."
According to the Justice Fux, the direct consequence of the constitutional establishment that all humans are equal before the law is that gay couples constitute, before the law, comparable to a stable family.
According to the minister Ricardo Lewandowski, since there is no constitutional provision for this new type of family unit, it is yet to be applied what the Justice called "analog integration technique", ie a delimitation of this new legislation, until it is eventually ruled by a law passed by Congress. The closest constitutional provision in this case is the Article 226, paragraph 3, which states: "For purposes of state protection, it is recognized as civil union between a man and woman, as family entity. The law should facilitate its conversion into marriage."
To the Justice Carmen Lucia, all forms of prejudice deserve the repudiation. "Those who make their choice for civil union can not be unequal in their citizenship. No one can be considered a different and lower class of citizens, because they made their emotional and sexual choice apart from the majority."
The Justice Marco Aurelio affirmed that the concept of family has evolved and that there is no express prohibition in the Federal Constitution of the application of such civil union. He believes that "we chose the love, care and affection among the members as central elements of characterization of a family unit at the expense of the property. The traditional view of family has changed. It serves no longer purely for property issues, but to ensure that their members can have a full life in common (…) The guarantees of religious freedom and the secular state prevent religious/moral principles guiding the legal treatment to fundamental rights, such as the right to human dignity, the right to self-determination, privacy and freedom of sexual orientation," he said.
Celso de Mello has manifested himself in the sense that both heterosexual and homosexual unions are family entities. "Being the relationshipbetween two persons lasting, continuous and public, with the aim of starting a family - in the widest sense - there must recognized the existence of the civil union, regardless of the sexual orientation," said Celso de Mello, understanding that these couples should be entitled to the same protections. "Until the time that the Legistative regulates these protections", he said,"the judiciary must ensure that the unions of homosexual couples have the same rights as all other unions".
Watch the trial on STF channel on YouTube (in Portuguese)
Plenum - Discussion on civil union of same-sex couples (Session of 04/05/2011)
Plenum - STF recognizes civil union of same-sex couples (Session of 05/05/2011)
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