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Brazil Supreme Court legalizes civil unions

Timothy Kincaid

May 5th, 2011

From Veja (translated by Google)

Most justices of the Supreme Court (STF) has recognized civil unions between homosexuals, ensuring these couples the same rights as heterosexual couples. Of the eleven ministers of the Supreme Court, six had already voted in favor of the thesis until late afternoon on Thursday. If no request for examination and any minister to change the vote, the trial is set. Only José Antonio Dias Toffoli, former attorney general of the Union and who starred in one of the processes in question, did not participate in the discussion by declaring itself prevented.

The deciding vote was the former Chief Justice Gilmar Mendes. He agreed with his colleagues in saying that, even without words, in the constitutional text, stable homosexual marriage, the civil rights of same-sex couples can not be denied. “The fact that the Constitution deal with the union between man and woman does not mean the negative union between persons of the same sex.” Given the lack of definition on the issue in Congress, Gilmar Mendes was critical to the inertia of deputies and senators, as a plan is under discussion at home, without success. “What is required is a minimal model of institutional protection to prevent discrimination. This protection should be done by the Congress.”

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enough already
May 5th, 2011 | LINK

Good for them!
I wish all the Brazilians well.They’ve come a long way in a short time, I remember the days of the dictatorship.

And now, yet another nation joins the ranks of the civilized countries.

James
May 5th, 2011 | LINK

Even more interesting as I watched this unfold in Brazil (where I live) – the final vote was unanimous. All ten of the justices supported this, the eleventh having recused himself owing to having been an advocate for one of the cases on its way to the Supreme Court before himself being appointed a justice.

Lindoro Almaviva
May 5th, 2011 | LINK

Have the justices created a separate category? Am I reading this right? Obviously, civil “unions” mean something completely different here in the USA and maybe I am assuming that they are something completely different from marriage.

Clarification please

Embarcadero
May 6th, 2011 | LINK

Congrats Brazil, and especially to Arco-Iris, GGB and the other groups that have been instrumental in bringing this to the Court.

But I also have to gloat in the irony of this situation, an outstanding example of how Catholic judicial activism can have unintended consequences.

Back in the 1990s, a law called “Lei do Concubinato” made de-facto marriages very easy to establish. This law meant that if a couple (male/female, at the time) was involved over time and if knowledge of that involvement was public, they had to assume legal obligations of a legally married couple.The rationale was that this would undo what divorce permitted: men could no longer abandon their spouses and children, or ditch their mistresses in a time of need. If they didn’t want to step up to their obligations through a legal marriage, the state would do it for them.

The effect was to impose marriage on couples who had chosen to not be married. After the passage of this law, it became legally impossible to choose to be an unmarried adult if you were in an ongoing relationship with someone of the opposite sex.

Under Brazilian family law, parental and spousal obligations may persist over a lifetime, even in case of divorce. A parent may not legally disinherit a child – under any circumstances. This law was intended to stop Brazilian men from fooling around, cheating on their wives or having “frivolous” sexual relationships. Doing so could mean a very serious drain on one’s personal net worth.

Same-sex couples, on the other hand, could never be married and were categorically barred from the kinds of rights and obligations that all opposite sex couples had – even if they made a decision not to get married.

Fast-forward 20 years, and the glaring inequalities generated by a state that forcefully marries all opposite sex couples and denies that relationship to same-sex couples becomes so absurd that we see 10 of 11 Ministers voting in favor of extending state-mandated marriage to all “stable” couples.

I’m absolutely tickled with this outcome, in no small part because I’m sure the Brazilian Council of Bishops has come to regret their insistence on the Lei do Concubinato.

ali
May 6th, 2011 | LINK

it so shamefull for Brasil,very bad decition from the court.

Timothy Kincaid
May 6th, 2011 | LINK

Lindoro,

You have the advantage on me here. Most of the news coverage has been in Portuguese or Spanish (and, if I recall correctly, you speak Spanish). I rely on Google Translate and what few words and phrases I know.

Embarcadero
May 6th, 2011 | LINK

Lindoro,

I’ll answer as best I can. I am in close contact with a few groups in Brazil and have worked extensively there. I have a good command of Portuguese, including a non-professional grasp of the legal terms used here.

To the best of my knowledge, the primary distinction between a “casamento” and a “união” is the mechanism for entry. A marriage is initiated by the issuance of a civil license. The “união” is initiated by a declaration in front of a notary, through legal demand of a de-facto spouse or through a petition for some government agency to recognize the union and provide benefits to the de-facto spouse.

The Supreme Court has declared that, for certain purposes, there is a hierarchy of relationships. Legal spouse is superior to “companheiro” (as in a “união estável”), which is superior to a concubine. This hierarchy is important primarily for determining inheritance. However, because same-sex couples do not have access to marriage, it is unclear how this principal will operate. One cannot have both a “união estável’ and a marriage at the same time, so spouse and “companheiro” would not likely be competing for an inheritance. A “companheiro” could compete with siblings for inheritance, in which case this hierarchy might come into effect – and be challenged. If the deceased has both a “companheiro” and a concubine (defined under the “lei do concubinato” of 1994), both have rights to an inheritance.

These points are somewhat esoteric, but they are the only substantive differences I can find in the Brazilian Civil Code (2002). If anyone knows any different, or can elucidate further, that would be appreciated.

In the Brazilian system, laws must be coded into a regulatory and adminsitrative structure before they can be applied more generally (this is called “regulamentação”). This has not happened here, so the only way to apply this decision to the world of actual people is by judicial order.

So, until this decision is “regulamentada”, another important difference between marriage and “união” is that the latter might require the intervention of a judge to enforce rights/obligations.

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