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    Same-sex civil marriage: a human rights issue

    Recognition of same-sex unions protects the rights to equality, non-discrimination, freedom and dignity

    Author: Paulo Iotti

    It has been widely reported that the Committee on Welfare, Social Assistance, Children, Teenagers and the Family, of the Chamber of Deputies, has passed and approved the Bill which, contrary to the consolidated case law of the Supreme Court on the constitutional protection of same-sex unions, aims to ban civil marriage between people of the same sex (PL 5.167/09). It will now be analyzed by the Human Rights, Minorities and Racial Equality Committee and then by the Committee on Constitution, Justice and Citizenship Affairs. If approved, it will go through a similar procedure in the Federal Senate before being sent to the President of the Republic for sanction or veto.

    On May 5, 2011, in the judgment of ADPF 132 and ADI 4277, the STF unanimously affirmed that same-sex unions are not prohibited by the Constitution and that the systematic interpretation of art. 226, §3º, of the CF/88 with the principles of equality, the dignity of the human person, freedom and legal certainty demand the recognition of public, continuous and lasting unions between people of the same sex, in “Recognition that must be made according to the same rules and consequences as hetero-affective stable unions” (one of these consequences is the possibility of converting the stable union into a civil marriage). This decision was ratified, also unanimously, in 2019 by the Supreme Court, in ADI 5971 (Plenary, rapp. Alexandre de Moraes, DJe 09/26/2019).

    In the felicitous words of the current Dean of the Supreme Court, Justice Gilmar Mendes, the fact that the Constitution protects stable unions between men and women does not mean that it denies protection to civil or stable unions between people of the same sex. This is dogmatically correct, because a basic lesson in the interpretation of law teaches that the fact that the normative text mentions one fact (in this case, the union between a man and a woman) and says nothing about another (in this case, the union between people of the same sex) does not mean an “implicit prohibition”, but a normative gap, which can be filled by extensive interpretation or analogy. For this reason, on October 20 and 25, 2011, the STJ recognized the right to same-sex civil marriage, stating that “Articles 1.514, 1.521, 1.523, 1.535 and 1.565, all of the Civil Code of 2002, do not expressly prohibit marriage between people of the same sex, and there is no way to see an implicit prohibition on same-sex marriage without affronting expensive constitutional principles, such as equality, non-discrimination, the dignity of the human person and pluralism and free family planning” (REsp 1.183.378/RS, 4TH T., Rapporteur Luís Felipe Salomão, DJe 02/01/2011). And, implementing the force of law resulting from the binding effect and erga omnes efficacy of the STF’s decision of abstract and concentrated control of constitutionality (art. 102, §2, of the CF/88), Resolution 175/2013 was approved by the National Council of Justice, which obliges Civil Registry Offices to celebrate civil marriages between people of the same sex.

    As you can see, Bill 5.167/09 is unconstitutional because it discriminates against same-sex couples, as it denies them rights linked to the status of a conjugal family, originated in Brazil by the legal regimes of civil marriage and stable union. Family and inheritance law in general is governed by rules of public policy, which apply regardless of the will of people, which is why the bill’s justification is wrong when it states that same-sex couples could guarantee such rights to themselves through contracts or wills. On the other hand, there is no real equality when, in order to guarantee it, members of a stigmatized minority need to hire a lawyer and carry out a complex strategy of contracts, wills and powers of attorney to guarantee rights that are automatically granted to members of the majority by law.

    We are talking here about rights related to dramatic existential situations, the denial of which has historically destroyed the lives of non-heterosexual people. After all, if the same-sex partner is not considered a member of the “family” of the one they are in a relationship with, if they are hospitalized, the other person will not even be able to visit them, let alone make decisions about their treatment in the event of unconsciousness (etc.), as happens with heterosexual couples. In the same way, if a same-sex partner dies and the other is not considered to be part of their “family”, the “blood family” inherits the assets that were in the other’s name and the other is left in the lurch (the law guarantees automatic inheritance to spouses or partners), which, many times in history, has led to the expulsion from the house (in the name of the deceased person) in which their same-sex relationship had always lived, of the person who had lived with the deceased person all their life, in joy and sorrow, in health and illness. And this is often done by “blood family” who despised the deceased because of their homosexual orientation. Other examples are the lack of rights to be included as a dependent in health insurance, the lack of discount granted to spouses or partners in Income Tax and the lack of legal protections (of public order) that the law guarantees to married couples or those in a stable union, among many others.

    As we can see, the non-recognition of the legal-family status of same-sex unions has potentially destructive effects on the lives of same-sex couples, something that cannot be justified in light of the principles of equality and non-discrimination. Although they allow legal differentiations, it is common ground that they require them to be logical-rational consequences of the differentiating criterion erected, and arbitrary differentiations are unconstitutional, i.e. unjustifiable by criteria of public reason, which are those that can potentially be accepted by rational people in good faith, as they are not based on metaphysical dogmas or any prejudices. And there is no logical or rational reason to justify denying the rights granted to heterosexual unions to homosexual unions on the basis of the mere homogeneity of their sexes.

    The argument that the constitutional protection of the family is linked to the protection of procreative capacity is not valid, because if it were (and it isn’t), sterile hetero-affective couples would not be prevented from marrying or having their stable union recognized as a family entity (and this would be an unconstitutional criterion, because it stigmatizes and discriminates against sterile people).

    The protection of children is also not an applicable ground, since several studies have proven that children raised by same-sex couples have their personal development and socialization absolutely equivalent to those raised by heterosexual couples, so the homogeneity or gender diversity of the couple raising them is not a relevant factor. Two STJ decisions that admitted joint adoption by same-sex couples cited such studies (REsp 1.281.093/SP, 3rd T., Rapp. Rapporteur Nancy Andrighi, DJe 02/04/2013, and REsp 889.852/RS, 4th T., Rapp. Rapporteur Luís Felipe Salomão, DJe 08/10/2010). And studies such as these have also shown that there is no greater incidence of people discovering they are LGBTI+ in the future simply because they were raised by a homosexual couple, a concern that already reveals prejudice, since there is no problem in a person being non-heterosexual or non-cisgender (transgender). Thus, as the Inter-American Court of Human Rights has ruled, someone cannot be denied parenthood simply because of stereotypes against their sexual orientation, and the legitimate state purpose of protecting children, with absolute priority, cannot be based on this (case of Atala Riffo and daughters v. Chile, 2012).

    There is no question of creating a parallel “civil union” for same-sex couples, because in addition to generally not guaranteeing equal rights, denying same-sex couples access to civil marriage violates the principle of human dignity, as it sends the sinister message that same-sex couples are not worthy enough to deserve it, as decided by the Supreme Court of Ontario/CAN (Halpern v. Canada, 2002). It also implies, according to the Inter-American Court (OC 24/17, part 2), segregationism as a result of the racist notion of “separate but equal”, which so plagued the coexistence of black and white people in the past, creating a stereotype of heteronormativity for civil marriage, intended for people considered “normal”, relegating parallel civil unions to those considered “abnormal” by the law. We are talking about civil marriage: there has never been a demand to force churches to perform religious marriages for homosexuals, so this is a false problem.

    This right to equal respect and consideration before the law cannot be considered legally offensive to anyone, remembering that, in a judgment of practical concordance between fundamental rights, the STF has stated that even the recognition of homotransphobia as a crime of racism does not prohibit preaching that affirms the supposed “sinful” nature of homosexual relationships and even of LGBTI+ identities in general, as long as it does not constitute hate speech, as incitement to discrimination, segregation and/or intolerance (ADO 26 and MI 4733, Thesis, item 2, final part). In a Secular State, religious foundations cannot guide public policies and laws, as they imply a relationship of dependence or alliance between the state and such religions (art. 19, I, of the CF/88) and the fundamental right to religious freedom was created to protect religious minorities against discrimination against their beliefs, not so that the religious majority can impose its dogmas on those who do not share them.

    As you can see, recognizing the right to same-sex civil marriage is a consequence of the human rights to equality, non-discrimination, freedom and protection of the intrinsic dignity of same-sex couples. Not least because, in the happy words of Ayres Britto, Rapporteur of the aforementioned 2011 STF judgment, heterosexuals lose nothing when homosexuals win: there is no harm to society as a whole or to anyone individually as a result of such recognition. And, as the U.S. Supreme Court ruled in a famous precedent (Department of Agriculture v. Moreno, 1973), if the constitutional guarantee of equal protection of the laws means anything, it must, at the very least, impose that the mere desire to harm a politically unpopular group does not constitute a legitimate state purpose capable of justifying legal discrimination, not least because, as it ruled in 2015 when recognizing the right to equal civil marriage, same-sex couples have equal dignity with heterosexual couples (Obergefell v. Hodges). Moral or religious disagreements with this secular civil premise cannot generate legal discrimination, since moral considerations that are not linked to effective legal goods also do not constitute a legitimate state purpose for denying rights to same-sex couples (Lawrence v. Texas, 2003), because prejudice (“animus”) does not constitute a legitimate state objective capable of justifying legal discrimination (Romer v. Evans, 1996). That’s the point.

    Finally, in the unlikely event that this bill becomes law, it is virtually certain that it will be suspended in limine and declared unconstitutional in the final judgment by the STF, given its consolidated jurisprudence in defense of recognizing same-sex unions as conjugal families, according to the same rules and consequences as heterosexual unions (ADPF 132/ADI 4277, 2011, and ADI 5971, 2019). This was reinforced by a lesser-known decision, which affirmed the formal and material unconstitutionality of a legislative decree that halted the regulation of a local law against discrimination based on sexual orientation because, far from “harming” the protection of families (as mistakenly claimed), it provides effective protection for families, in this case, homosexual families (ADI 5740 and 5744, of 2020).

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