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Brazilian Council declares nationwide marriage equality

Timothy Kincaid

May 14th, 2013

From ENCA.com

The National Council of Justice, which oversees the Brazilian judicial system and is headed by the chief justice of the Supreme Court, said government offices that issue marriage licenses had no standing to reject gay couples.

The Supreme Court “affirmed that the expression of homosexuality and homosexual affection cannot serve as a basis for discriminatory treatment, which has no support in the Constitution,” said Chief Justice Joaquim Barbosa on the council’s website, referring to a 2011 ruling by the top court.

Barbosa also said there was no reason for the government’s marriage licensing offices to wait for the Brazilian Congress to pass a law authorising same-sex marriage.

Currently a same-sex couple can create a union in any state in the nation. They then can have a judge rule that union to be a marriage. In 14 of Brazil’s 27 jurisdictions, a marriage license can be provided directly, without the two step process. This appears to resolve the remaining jurisdictions and allow same-sex couples in any state to marry without an extra burden.

The decision can be appealed to the Supreme Court. But as the Supreme Court’s chief justice announced the ruling, I am not clear as to whether such an appeal would be made or has any likelihood of success. So it may be that Brazil is the 15th country to offer nationwide offer marriage equality.

The countries which currently provide marriage equality are:

Netherlands (2001)
Belgium (2003)
Spain (2005)
Canada (2005)
South Africa (2006)
Norway (2009)
Sweden (2009)
Portugal (2010)
Iceland (2010)
Argentina (2010)
Denmark (2012)
Uruguay (2013)
New Zealand (2013)
France (2013)

Comments

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jpeckjr
May 14th, 2013 | LINK

And it would be the largest country by population to provide it, with around 200 million people.

An inquiry: what’s the status of marriage equality in England? It was moving along nicely for a time, but I’ve not seen an update.

Another inquiry: what’s the status of marriage equality in Germany? I don’t think I’ve ever heard anything about Germany.

jutta
May 14th, 2013 | LINK

In Germany civil unions (Eingetragene Lebenspartnerschaften) provide nearly equal rights to civil marriage but under the present government and majority parties in parliament there is no chance to get full marriage equality. On a legal level a constitutional amendment may be necessary for marriage equality as there is a clause in the constitution (Grundgesetz) that grants “special protection” to marriage and families, which is mostly interpreted as granting special protection to traditional mother-father-children families.

Timothy Kincaid
May 14th, 2013 | LINK

jpeckjr,

England is in a bit of a holding pattern. Marriage has passed the House of Commons, but has not yet been heard in the House of Lords.

The process and politics are a bit peculiar. It was proposed and supported by the Prime Minister and passed by a landslide in the House. However, a slim majority of his own party, the Tories, do not support the bill and have grumbled in the papers about it. Additionally, recent elections losses of seats to independents have been attributed to Cameron’s support for the bill (though such single-issue causation seems unlikely).

The latest is a lot of whining that military chapels will be allowed to conduct marriage ceremonies. Under the proposed law, religious institutions would have to “opt-in” to perform religious marriages, with the exception that the Church of England will not have opt-in rights.

In practical terms, the opt-in provisions will be fairly tiny and mostly consist of Jewish and Quaker churches.

Cameron believes that marriage equality is a consistent conservative position, but he also recognizes that without it his party will probably join the dinosaurs. Oddly, with it, his party may lose some of its more conservatives support to independents and perhaps even the right to rule.

The survival of a dominant more conservative party in England may be up to whether conservatives choose ‘existence with gay equality’ over non-existence or loss of power. That may sound familiar.

Timothy Kincaid
May 14th, 2013 | LINK

And, ironically, some activists in Australia are looking forward to Labor losing power to the more conservative Liberal Party. Though Labor is generally in support, Labor Prime Minister Gillard has thoroughly opposed equality. Meanwhile some conservatives have begun to express support and it may prove to be that the party less in support for marriage may be the one to actually allow equality to occur.

Kath
May 14th, 2013 | LINK

Sorry Timothy, but those Australian activists are nuts. The Liberal party will never, ever introduce marriage equality, and so we will have to wait a long time here in Oz. while the personal opposition to equality of PM Gillard is a huge problem, the Labor party has endorsed it at a party platform level. This is impossible in the Liberal party. As an example, at State level the Liberal Premier of Queensland, though declaring he personally supports marriage equality, killed civil unions in the state as one of his first actions when gaining power. And as Queensland was the only State with even civil unions (the ACT, a Territory, has civil unions after a long fight with the Commonwealth) the situation for LGBT couples in Australia is comparatively dismal. Any LGBT activist that thinks they will be better off under a Liberal government should seek medical attention, unfortunately. Sigh.

TampaZeke
May 14th, 2013 | LINK

Timothy, your comment about Australia is a bit misleading to those unfamiliar with what’s been going on down under. Even though Gillard, the Labour leader, is opposed to marriage they had enough votes from Labour that if just a few Liberals were able to vote for it through a conscience vote it would have passed. However the Liberal leader, after complaining that Gillard wouldn’t allow Labour a conscience vote, refused to allow the Liberals a conscience vote. Bottom line, it’s the LIBERAL

TampaZeke
May 14th, 2013 | LINK

sorry…

…Bottom line, it’s the LIBERAL leader who is actually single-handedly keeping Australia from passing marriage equality.

Yes, he has said that if the Liberals win the election in September they may revisit their position on the issue and allow a free vote. So, even though the legislation may pass under a Liberal government they should get a big pat on the back because they are playing really dirty politics with the lives of gay Australian couples and families. Even if they do pass the legislation under the Liberals it will probably happen in a way very similar to the legislation moving through parliament in England right now. Even though it’s a coalition Conservative government the majority of Tories voted AGAINST marriage equality. So it will pass under a conservative government without majority conservative support.

Timothy Kincaid
May 14th, 2013 | LINK

Kath, you are closer to the situation and of course know more about the parties and their behaviors.

However, here in the US we have discovered an anomaly to political expectation. Generally Democrats support and Republicans oppose equality. However, often partisan positioning has more power than policy. In Hawaii where Democrats have hold virtual unilateral control, we are having difficulty getting a marriage bill passed, while in New York where Republicans hold the Senate, it is legal.

Here’s why: gay marriage is a bit of a culture definer. Everyone, liberal or conservative knows that its an eventuality and that conservatives will be hurt by their positions. So some Republicans here are willing to allow a vote to move forward (and even ensure its passage) so as to make it a non-issue and thus not a liability. Some Democrats – if they do not see an immediate advantage to passage – may be tempted to delay the marriage issue for as long as possible so as to differentiate themselves from Republicans or to avoid forcing a Democrat to take a position that might not be popular in their particular district.

This might be the situation in Australia (if I’m reading the tea leaves correctly). Or it might not be. But I can see that a Liberal might see the advantage of allowing a popular bill to be passed (while offering up token resistance) so as to have his cake and eat it too.

This could be totally wrong – it’s just too soon to know. But if it proves to be the case, it will be a fascinating study in political expediency.

Timothy Kincaid
May 14th, 2013 | LINK

Zeke,

“…Bottom line, it’s the LIBERAL leader who is actually single-handedly keeping Australia from passing marriage equality.”

Ummmm… wow. Just wow.

But as for the reasons it may pass under a Liberal government, I pretty much agree with you. Yes, it is likely to pass under a conservative government without majority conservative support.

bill johnson
May 14th, 2013 | LINK

Jpeckjr, and Timothy Kincaid-

Regarding the progress in England, the marriage bill did pass in the House of Commons but that was only the second reading. Between that vote and now the bill has been going through committee hearings and is now preparing to go back before the House of Commons for the third reading on May 20th and 21st. If the bill is approved in that vote it will then progress to the House of Lords.

Steve
May 14th, 2013 | LINK

Australian same-sex couples actually have many rights that Americans can only dream of. Same-sex de facto couples have the same rights as straight de facto couples. Including things like health care, social security, pensions, military benefits and immigration.

@jutta
The Constitutional Court has already ruled that that ridiculous 1950s morality article does not mean that same-sex unions can’t have the same protection or that they need to be disadvantaged.

And Civil Unions in Germany provide nowhere near the same as rights as marriage. Especially when it comes to tax and family law.

jpeckjr
May 14th, 2013 | LINK

Thanks to everyone for helping answer my questions about England and Germany, and bring us up to speed on Australia.

I enjoy learning how politics and forms of government vary from country to country. It’s a reminder for Americans like me not impose my lens on the way another country does its national business.

Timothy Kincaid
May 14th, 2013 | LINK

bill johnson, thanks for the correction and clarification. Reading two was the “is it going to pass” vote and I forgot it needs a third reading.

TampaZeke
May 14th, 2013 | LINK

By “LIBERAL” I meant the head of the Australian Liberal Party. I don’t know what “Umm. wow, Just wow” is supposed to mean. Do you disagree with something I said. I believe the record will bear out my accounting of who is most responsible for the last vote failing and it would be far and away the leader of the Liberal Party who wouldn’t allow his MP’s a conscience vote in spite of the fact that more than enough of them would have supported it to pass it when joined with the Labour votes.

TampaZeke
May 14th, 2013 | LINK

And also, I just noticed, I meant to say that the Liberal Party SHOULDN’T get a pat on the back for playing dirty politics with the lives of gay couples and their families.

Kath
May 14th, 2013 | LINK

The situation in Australia is a strange one in some respects. The party that technically supports marriage equality allows a conscience vote, which basically means that those Labor members (democrat equivalents) who personally don’t support marriage equality are able to (and did) vote against it, including the PM. The Liberal party however has required its politicians to vote in line with their party position – ie no – regardless of individuals who do support equality (and there are indeed a few, though not many). The end result is it can’t be passed. And the Liberal leader has made it quite clear that though they may technically revisit the issue, there will be no change to their position against marriage equality.

As for Steves comments, actually while we do indeed have most of the same rights as heterosexual de facto couples, we don’t have them all. Especially in relation to having legal marriages performed in other countries recognised – they are not – and other immigration rights (same sex couples must live together for 12 months to qualify for a partner visa, which is very difficult when normal visas are less than 12 months. Whereas a straight couple can simply get married wherever and whenever they like, and hey presto! Problem solved.

I won’t get into the detail of other areas where we are disadvantaged, but they do exist. However Steve is correct in saying that the situation has improved dramatically under the Labor government which has specifically addressed many of the inequalities, without going the whole way (in order not to upset the religious right).

Nonetheless marriage equality is far far away as it is almost certain the Liberals will get in (probably for a least two terms), and I repeat they will NEVER introduce it. They may possibly reach a point where they will allow their people to have a conscience vote if another bill is put forward, but they certainly won’t put it forward themselves. And I can’t see them even moving to a conscience vote under their current (very catholic) leadership.

Both parties are at fault, but I agree with TampaZeke that the majority of that fault sits squarely with the Liberal party.

Both parties know they are out of step with the people (polls continue to show high support for equality) but they just don’t care.

If I could afford to I’d move to New Zealand in a heartbeat!!

Fran
May 14th, 2013 | LINK

“But as the Supreme Court’s chief justice announced the ruling, I am not clear as to whether such an appeal would be made or has any likelihood of success.”

To answer your question: the president/chief justice of the Supremo Tribunal Federal (the Supreme Court of Brazil) also holds the presidency of the National Council of Justice, hence why the chief justice was the one to make the announcement. As a matter of fact, he’s the one who brought the question before the CNJ (National Council of Justice). And you’re right, this decision is meant to standardize rulings on same-sex marriage across the country. Some local courts had ruled that same-sexmarriages could be performed while some other refused to perform them. Since marriage is a federal matter in Brazil, the National Council of Justice saw it fit to issue a provision regulating the matter. The ruling says that notary publics cannot refuse to perform same-sex marriages. To support the ruling, the National Council of Justice refers to the Supreme Court 2011 ruling legalizing civil unions as well as decisions by lower courts authorizing same-sex marriages.

The National Council of Justice is not even a court, it’s an administrative office of the Brazilian judiciary. It simply issued a provision to harmonize proceedings regarding same-sex marriage. Therefore, an appeal can (and probably will) be made asking the Supreme Court to deem the decision unconstitutional. But same-sex couples can marry in the meantime! Once the provision is published (which will happen in a matter of days), same-sex couples will immediately be allowed to marry across Brazil (until now, it was this easy only in 14 out of the 27 states).

While an appeal to the Supreme Court is likely, it is very unlikely that the Supreme Court will rule against same-sex marriage. The 2011 ruling in favor of same-sex civil unions was unanimous. Chief Justice Joaquim Barbosa will clearly vote in favor of same-sex marriage. And it would be extremely unlikely for the court to invalidate the thousands of same-sex marriages already performed in the country. It’s pretty clear same-sex marriage has reached a point of no return in Brazil. And it’s actually a good thing for the Supreme Court to be asked to rule on the matter, because its decisions are always binding.

Much of the controversy around the topic in Brazil comes from the fact that same-sex marriage is not being legalized through lawmaking but through court rulings. There’s no legislation on the topic in Brazil. But like justice Joaquim Barbosa said today, legislation is not even needed anymore. Should the Congress pass a bill forbidding same-sex marriage, the Supreme Court would surely deem it unconstitutional given its precedent rulings. If the Congress pass a bill authorizing it, it will be merely legislating on something that’s already happening anyway.

tavdy79
May 15th, 2013 | LINK

England is in a bit of a holding pattern. Marriage has passed the House of Commons, but has not yet been heard in the House of Lords.

The process and politics are a bit peculiar. It was proposed and supported by the Prime Minister and passed by a landslide in the House. However, a slim majority of his own party, the Tories, do not support the bill and have grumbled in the papers about it. Additionally, recent elections losses of seats to independents have been attributed to Cameron’s support for the bill (though such single-issue causation seems unlikely).

Cameron believes that marriage equality is a consistent conservative position, but he also recognizes that without it his party will probably join the dinosaurs. Oddly, with it, his party may lose some of its more conservatives support to independents and perhaps even the right to rule.

The survival of a dominant more conservative party in England may be up to whether conservatives choose ‘existence with gay equality’ over non-existence or loss of power. That may sound familiar.

–Timothy Kincaid

It’s not election losses to independents that have the Tories scared, it’s election losses to Ukip, an upstart party with broadly similar political positions to the Tory far-right. The Tories are scared that, by splitting the right-wing vote, they’ll perform poorly at the European elections next year, and lose any chance of winning the general election the year after that.

In any case, Cameron won’t risk killing the bill. The Lib Dems are a hair’s breadth away from walking out of the coalition, primarily because support for the coalition amongst the party’s grass-roots has fallen about as low as the GOP’s support for tax increases, and if/when they do a general election is inevitable. Right now the most likely result would probably be a slim Labour majority.

This is why Cameron is taking what seems like the more risky step of emphasising the EU membership referendum bill. If it all goes arse over tit it could mean the end of the UK (talk about taking a risk!) but the likelihood of that happening is infinitesimally small. It’s a private member’s bill so much harder to pass, and with Labour and most of the smaller parties (Lib Dems, Plaid, SNP, etc.) opposed to leaving the EU, there’s no chance of it getting past the second reading, let alone making it to the Lords.

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