At first glance: whoopee! Rio state is getting its legal house in order and finally complying with National protocols regarding lesbian and gay marriage licenses.
But then, it is never that simple. Let me try to explain. [Note: I am not a lawyer and do not have a complete understanding of all the legal nuances here. But I have read through a bunch of stuff since the recent ruling and offer these comments to help shed some light on the subject. Please add your comments if I have gotten something really wrong.]
Civil marriage for lesbian and gay couples, which has technically been legal in the State of Rio de Janeiro since the May, 2011 unanimous decision by the Supreme Court of Brazil allowing gay couples to enter into legal Civil Unions (which were then later converted to marriages), is now easier to obtain and no longer requires a legal petition to a judge. Or so it seems.
While local LGBT rights groups are generally pleased with the April 19, 2013 ruling by Judge Valmir Silva de Oliveira, Rio state’s General Magistrate of Justice, determining that gay and lesbian couples can apply for a marriage license directly through regular channels (thus skipping the previous Civil Union step), there is some question as to whether easier access to marriage will play itself out equally across the state given the staunchly anti-gay marriage rulings to date by Judge Luiz Henrique Oliveira Marques, of the First Court of Public Registry in Rio city. (Sorry for the long sentence, I am starting to write like a Brazilian.)
In practice, when a marriage license is applied for at the notary public office you complete some paperwork, present some documents, pay a fee and then there is a minimum 15 day waiting period during which an announcement of the request is published in the Civil Registry ostensibly so others may contest the marriage on legal grounds and to give the local prosecutor time to weigh in, should they have a beef. Then the application is forwarded to the local judge in the Court of Public Registry for final approval. Then voilà! You have a marriage.
So the recent statewide ruling that streamlines the process for gay and lesbian couples is a good thing. The process is the same as it is for straight couples. No more extra steps getting a Civil Union license and then petitioning the court to have it converted into a Marriage license. Sounds good.
But the reality to date for local gay and lesbian couples has been that when they have petitioned the court to have their Civil Unions converted to Marriages (consistent with the opinion expressed by the Supreme Court) nearly every petition has been denied by the particular judge that presides in the Court of Public Registry in Rio city. Now guess who is the judge who grants final approval of marriage applications in Rio? Yep, same guy.
So people are worried that he will continue his longstanding behavior of denying gay and lesbian marriages by not giving final consent in the new streamlined process. True, the question before the court is not exactly the same. But the judge has ticked off a lot of queer couples (more than 100) in Rio to date and they are not looking forward to a repeat appearance of their petition before this guy. Nobody wants to hire a lawyer and fight in court just to get married.
Perhaps the judge will get with the program. Perhaps the slight change in the process tips the legal scales such that the judge no longer has the prerogative to deny petitions. Perhaps we should not be worried by this whole “what’s past is prologue” thing.
Time will tell.
Why bother, some may ask. Just get the Civil Union. Throw a party and invite your family and friends to buy you a new toaster, thirstier bathroom towels or maybe a night out at a nice restaurant. Forget the whole “marriage” thing. Well, as you might imagine, being in a legal “marriage” comes with critical legal rights. The differences between the two types of marriage go well beyond the status. For example, in a marriage the spouse may use the surname of their partner, may be enrolled as a dependent on Social Security, a health plan or for income tax purposes. Furthermore, spouses can add the income of the household when applying for some types of financing, the spouse is entitled to alimony in a separation, they automatically receive inheritance in the event of death and they have the right to adopt a child. Outside of marriage, all these issues need to go through the legal system.
But hey, we won the case, right? Who wants to be a Debbie Downer? In the short term – whoopee! Luiz and I are getting married! The date is set in June. Luiz’s friends have already been checking in about the party. Process be damned – here we go (again). Plus, we live in Niterói, just out of reach of the wicked witch of the west (we hope).