Thursday, October 27, 2011

Gay marriage in Brazil, an update

On Tuesday, October 25th, the Supreme Court of Brazil upheld the same-sex marriage of two women. This was after two lower courts rejected their petition to convert their civil union to a legal marriage. The court has previously, unanimously, held that same-sex civil unions are to be afforded a great number of important rights such as community property, inheritance, health insurance, property rights, alimony, tax benefits and adoption.

So you would think this would settle the matter. Not quite. In Brazil State courts are not bound to follow the rulings from the Supreme Court.

What this means is that if a same-sex couple is in a registered civil union (so-called “stable relationship”) they can petition the State court to have it converted into a legal marriage (which affords additional privileges, protections and responsibilities). If the State court then rejects this petition the couple can appeal their way to the Supreme court where it will be granted.

So we still can’t get married “the easy way” like our straight counterparts, but this was an important step in the right direction.

Ultimately, what is needed is for the legislature to pass a law that provides for the legal marriages of same-sex couples. That’s not such an easy feat given the powerful influence of religious institutions among legislators. But we’ll get there.

In the meantime, there is a path available to legal marriage.

NOTE: be sure to read the clarification from Denis in the comments section. He corrects me that it was not the Brazilian Supreme Court that ruled, but rather a superior appeals body one level below the Supreme Court.  Thanks Denis.


Denis said...

Hi Jim, I've being following your blog for some time now; I find amusing to see Brazil from a foreigner's perspective, yours seem to be a good perspective :)

I am not a lawyer, but this is what I got from the news about the recent decision:
It was not the Supremo Tribunal Federal (STF, the Brazilian equivalent to the American Supreme Court) that ruled the case, but the Supremo Tribunal de Justiça (STJ, I'm not aware of an American equivalent), which is one level below. STF's decisions do have to be followed by lower courts (which include State courts), as with the Supreme Court, but the same is not true for STJ. However, STJ's decisions do become part of Brazilian jurisprudence, and as such are supposed to be used as models for lower courts. In practice, I expect local courts to grant same-sex marriage from now on, because Judges now know that all one's gotta do is to appeal to STJ. Still, some Judges might overrule just for the sake of being dicks....

Brazilian politicians try at all costs to avoid dealing with controversial matters, so I don't expect this issue to be voted so soon.

Jim said...

THANKS for the clarification Denis. It makes more sense to me now.

Harveer said...

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Jim said...

Thanks Harveer!

Jennifer Souza said...

Well, it is something. We are getting there! There's a lesbian couple here, they sell used furniture, and they just told me they are legally married. They also mentioned when they got here, they were the only same-sex couple in town. Now there's like 7, or something ridiculously small.

Jim said...

Não é facil!