A look at marriage in Brazil

Timothy Kincaid

April 30th, 2013


Brazil has an interesting approach to marriage. Since 2011, same-sex couples have been able to register their unions across the nation. And once registered, they could petition a judge to convert that union into a marriage.

However, many of Brazil’s states have eliminated the two-step dance by allowing marriage licenses to be granted directly to same-sex couples. Two more passed marriage equality bills yesterday, bringing the total to 14 of the 27 jurisdictions: the states of Alagoas, Sergipe, Espíritu Santo, Bahía, Piauí, São Paulo, Ceará, Paraná, Mato Grosso do Sul, Rio de Janeiro, Rondônia, Paraíba, and Santa Catarina along with the Brazilian Federal District.

Nine of those were enacted within the last six months (four this month alone).

Glen Hart

May 1st, 2013

Hello…

Just a quick point of information on your otherwise excellent map of Brazil: you have coloured in Mato Grosso state, but it is South Mato Grosso state that has equal marriage (Mato Grosso do Sul).

Just thought you should know!

Cheers,

Glen

Timothy Kincaid

May 1st, 2013

Thank you, Glen.

It’s revised.

Patrick

May 1st, 2013

Just a note about the state of Rio de Janeiro – the recent judicial ruling there allowed judges the option of a one-step process to civil marriage but stopped short of making this the rule in the entire state. Notably, the chief jurist for the city of Rio de Janeiro (with about half the state’s population) opposes mariage equality and has said he will block any request to convert a union into a marriage.

The subtlety of the ruling seems to have escaped most of Brazil’s press but Congressmen Jean Wyllys (PSOL, of Rio de Janeiro) quickly grocked the difference and called out the ruling as a “missed opportunity.”

See the mainstream media’s take on the ruling here (in Portuguese): http://vejario.abril.com.br/especial/rio-de-janeiro-regulamenta-o-casamento-civil-entre-pessoas-do-mesmo-sexo-739175.shtml

See Jean Wyllys’ reaction to the ruling here (also in Portuguese) http://jeanwyllys.com.br/wp/jean-wyllys-a-justica-do-rio-de-janeiro-perdeu-uma-oportunidade-historica

james

May 1st, 2013

You know, every time a country in which marriage laws are a national matter passes nationwide marriage equality (Uruguay, New Zealand), someone posts something along the lines of “When will the United States finally do this? What is wrong with the United States?”

So while I’m certainly glad to see the state-by-state progress in Brazil, I have to ask “When will Brazil’s national congress pass nationwide marriage equality, or its President issue an executive order overriding what must apparently be state authority over issuing marriage licenses? What is wrong with Brazil?”

Timothy (TRiG)

May 1st, 2013

The Brazillian process does seem a bit odd, but at least it appears there that a marriage is a marriage. DOMA means that this is not the case in the USA: two marriages treated identically by the State government can nonetheless be treated differently by the Federal government.

TRiG.

Fran

May 1st, 2013

A few comments:
– In May of 2011, the Supreme Court recognized same-sex couples as a family entity, which meant they could enter a “stable union”. The Brazilian Constitution specifically dictates that the law must facilitate the conversion of stable unions into marriage. Based on the Supreme Court decision and the constitutional mandate, lower courts throughout the country (not just in the 13 states shown in green in the map) have approved requests to convert stable unions into marriages.
– Like you said, the 13 states in the map decided to bypass the “two-step dance.” It should be noted that marriage is still possible in the other states of the country, but depend on a judicial nod (whereas the 13 states in the map have already given a sweeping judicial nod).
– Unlike U.S. same-sex marriages, these marriages are fully recognized at the federal level.
– The states did not pass “equality bills” because marriage legislation is a federal matter in Brazil. They issued statewide judicial provisions based on the Supreme Court precedent. No legislation regarding same-sex unions or marriage have ever passed in Brazil. All that’s happening is the judicial branch’s doing.
– The correct spelling is Espírito Santo, with an ‘o’ at the end of the first word (as opposed to ‘Espíritu’)

james

May 2nd, 2013

@Fran. Sincerest thanks for your post. The real point of my snarky comment was to note that every country has a different approach based on its own constitutional and legal practices. Your explanation was so helpful.

I am assuming the “stable union” provision of the Brazilian constitution predates the May 2011 ruling. Further, I am assuming a case was brought, or a question put before the court along the lines of “Shall a same-sex relationship meet the constitutional definition of a ‘stable union’?” I am intrigued the entire movement is being driven by a ruling on a constitution provision. Every place is a little different.

Fran

May 2nd, 2013

@james You’re right, that was precisely the question brought before the court. You’re also right when you say the “stable union” (the Brazilian equivalent of civil unions) predates the May 2011 ruling. The Brazilian case is interesting because it is not uncommon for straight couple to enter “stable unions” in Brazil, so these unions are not just the same-sex version of marriage like they are in other countries. This is also why the constitution provides that the law should facilitate their conversion into marriage. One has to look at the history behind these unions to understand the constitutional mandate: they are basically meant to protect women. It used to be the case that many men would have not only an official wife and family but also a mistress with children (i.e., a second family). The latter were left unprotected before the law. It also used to be the case that many couples (usually poor and uneducated) didn’t legally marry. Women and children were also left empty-handed whenever men decided to walk away. To protect women (and children) legally, the concept of “stable union” was created. These women can sue their partner and ask for their relationship to be recognized as a stable union before the law if their husband ever decide to abandon the family. Couples can also enter ‘stable unions’ whenever they want. They give most, but not all benefits of a regular marriage (for example, people in a stable union are still considered ‘single’). Same-sex couples asked the Supreme Court to rule on whether they could enter a stable union. The Supreme Court unanimously said yes. Because Supreme Court rulings in Brazil are binding, same-sex civil unions took effect in Brazil starting May 5, 2011. The Supreme Court did not rule on whether same-sex marriage was allowed. However, couples that entered stable unions soon asked for their conversion into marriages. The Supremo Tribunal de Justiça (court right below the Supreme Court) set a precedent, allowing one such conversion. Many couples throughout the country filed lawsuits asking for the same thing. Decisions conflicted throughout the country. Some judges agreed to the conversion and some didn’t, which is legal because there is no Supreme Court ruling on the conversion issue. Based on this precedent plus the Supreme Court ruling plus the constitutional mandate saying stable unions must be easily converted into marriages, some states decided to “pacify” the matter, that is, issue a decision meant to avoid conflicting rulings. These are the 13 states whose state courts have as of now ruled in favor of same-sex marriages. The Supreme Court has been asked to rule specifically on same-sex marriage, but the way I see, the court is allowing time for the state courts to issue their own rulings. Same-sex marriage is pretty much irreversible in Brazil at this point, because if Congress were to pass a bill forbidding it, the Supreme Court would most likely deem it unconstitutional (based on the 2011 ruling). It’s just a matter of time for the remaining states to follow the 13 states that already do allow it.

Fran

May 2nd, 2013

I forgot to say that an interesting argument made by attorneys and accepted by the court in the 2011 Supreme Court ruling was that, even though the Brazilian constitution does not specifically allow same-sex unions, it does not expressly forbid it either, and “what is not specifically deemed illegal must be assumed to be legal.”

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