—Juliano Zaiden Benvindo, University of Brasilia, Brazil
The debate over same-sex marriage is once again in the newspaper headlines. After the US Supreme Court accepted, on February 16, to hear the cases brought by fifteen same-sex couples from four states (Michigan, Ohio, Kentucky, and Tennessee), chances are that, finally, a federal judicial ruling in this matter will be delivered. Still, the American case is just one chapter of a greater movement of worldwide constitutionalism.[i]
In Latin America, this debate is certainly on the crest of the wave. Argentina, in 2010, took the lead in recognizing same-sex marriages. Boosted by Cristina Kirchner’s government, the law[ii] passed both Houses of Congress despite great opposition from religious groups.[iii] Uruguay, which is normally at the forefront of interesting legal matters in Latin America,[iv] also passed a law legalizing same-sex marriage in 2013.[v]
Brazil followed the same wave, and, in 2011, the Brazilian Supreme Court unanimously ruled in favor of same-sex civil unions.[vi] In 2013, the National Council of Justice (CNJ), an administrative body responsible for overseeing the Brazilian judicial system, extended this decision to same-sex marriages.[vii] Therefore, in Brazil, unlike Argentina and Uruguay, the decision was the result of a mixture of judicial and administrative rulings, and not an outcome of parliamentary deliberation. This naturally raises the question of whether this is the best configuration at the institutional level for deciding such a controversial subject. After all, a possible backlash from Congress may happen, and with the conservative composition of Congress since the last Brazilian elections in October 2014,[viii] there are some risks involved. Will Brazil go backwards in this matter?
The Brazilian example is indeed very unusual in comparative perspective, because it included a final administrative ruling in the middle of this controversy. Therefore, in addition to the interesting discussion of whether a decision made by the judicial branch is the most legitimate in cases of clear political disagreement,[ix] Brazil offers the scenario where a Supreme Court’s ruling was not final. Instead, an administrative ruling prevailed in the end, extending that decision from same-sex civil unions to same-sex marriages.[x]
After the Supreme Court’s ruling on same-sex civil unions in 2011, many notaries public and state judges in Brazil started to interpret that decision as if it also allowed same-sex marriages.[xi] Just two months after the Supreme Court’s decision, the first same-sex marriage was celebrated,[xii] a movement that has since then grown substantially.[xiii] However, since this interpretation was not unanimous in all Brazilian federal states, the National Council of Justice, in 2013, decided that all notaries public in Brazil were required to allow the civil registration of same-sex marriages and the conversion of same-sex civil unions into same-sex marriages.
The National Council of Justice has the authority to unify practices and understandings of notaries public in Brazilian federal states, but certainly not the authority to extend the scope of a Supreme Court’s ruling. Its role, after all, is administrative and not judicial. A controversy arose right after that administrative decision. Supreme Court Justice Gilmar Mendes noted that “the Court only addressed the issue of same-sex civil unions,”[xiv] but his colleague, Justice Marco Aurélio de Mello, argued that the National Council of Justice’s decision did not significantly expand the ruling of the Supreme Court. In fact, he argued that the Council’s ruling was a direct consequence of that ruling, since marriage is a form of civil union.[xv] The controversy reached Parliament, and many congressmen reacted by stating that that decision contradicts the principle of separation of powers.[xvi] This institutional confusion notwithstanding, the fact is that, in reality, same-sex marriages have being celebrated nationally and at an exponential rate.
After the Brazilian Supreme Court’s decision in 2011, Brazil experienced a process in which the pace of the institutional change was overcome by the pace of the pressure of distinct civil society groups. The recognition of same-sex unions was not enough in this wave of new rights, and indeed generated a fundamental contradiction within the constitutional system. The National Council of Justice took the lead in this change by adapting the Supreme Court’s ruling to this reality. However, it also brought about some instability. An administrative ruling, after all, is quite fragile in this environment of political disagreement. For example, Bill n. 6.583/13,[xvii] the so-called “The Family Statute,” now under discussion at the Chamber of Deputies, defines a family as the union of a man and a woman. Also under discussion in the Federal Senate is Bill n. 470/13,[xviii] “The Families Statute,” which recognizes instead same-sex marriages and unions. The dispute between “The Family” and “The Families” statutes is highly symptomatic of the divide in Brazilian opinion on this subject. According to a recent survey carried out by the Chamber of Deputies, almost half of Brazilians still favor the narrow definition of family.[xix]
How this situation will evolve is uncertain. On the one hand, that administrative ruling is quite unstable and can naturally be overturned by other institutional movements, such as those of Congress. On the other, its effects on constitutionalism and on social life are so intense that, in the end, regardless of how that decision was made, any opposite movement to this achievement may sound a serious setback, contradicting the wave of new rights of worldwide constitutionalism. Moreover, there is a potential inertial effect of the administrative decision. Many people, after realizing that their lives are not directly affected by those decisions, may see no point at all in rowing against the tide. Therefore, the way Brazil has dealt with this subject may be not the most suitable at the institutional level, but, in the end, the gain in equality rights may prove stable.
The Brazilian example proves that constitutional institutions do not produce straightforward and immediate foreseeable outcomes.[xx] Many of the immediate imaginable effects of those interactions do not happen as planned, and many others occur without previous notice. We could argue, for instance, that Brazilian constitutionalism would be better off were the final decision made by Congress or even the Supreme Court. Still, since many civil society groups had a hand in pushing this agenda at the institutional level, there is some legitimacy in how things happened in Brazil, with serious debates on this subject now being held as never before. In the end, constitutionalism, regardless of how the final decision was made, might have emerged stronger. Moreover, in controversial cases as such, we might be first misled into thinking that people and other institutions will aggressively react against that decision, but timing, inertia, and serious debates over this subject may calm things down.
In any case, the conservative Deputy Eduardo Cunha (PMDB-Rio de Janeiro) was elected last February 1 the President of the Chamber of Deputies. Many religious Deputies celebrated his victory.[xxi] He immediately announced that he is radically opposed to any bill extending the possibilities of legalized[xxii] abortion.[xxiii] As the author of the bill that aims to create the “Day of the Heterosexual Pride,”[xxiv] same-sex rights are certainly on his radar. Will he and his colleagues be strong enough to make Brazil constitutionalism move backwards?
Suggested citation: Juliano Zaiden Benvindo, Brazilian Constitutionalism Moving Backwards? Same-Sex Marriage and the New Conservative Congress, Int’l J. Const. L. Blog, Mar. 4, 2015, at: http://www.iconnectblog.com/2015/03/brazilian-constitutionalism-moving-backwards-same-sex-marriage-and-the-new-conservative-congress/
[i] See, e.g., the comparative analysis of gay marriage around the world brought by the Pew Research Center at http://www.pewforum.org/2013/12/19/gay-marriage-around-the-world-2013/ (accessed February 4, 2015).
[ii] Ley Nacional n. 26.618
[iii] See, e.g., Uki Goñi, Defying Church, Argentina Legalizes Gay Marriage, Time, July 15, 2010, available at: http://content.time.com/time/world/article/0,8599,2004036,00.html (last accessed: February 14, 2015).
[iv] See, e.g., the liberalization of marijuana in Uruguay, which now moves to “create the world’s first state-run marijuana marketplace.” Uki Goñi, Uruguay’s legal marijuana plan to go ahead despite new president’s concerns, The Guardian, December 1, 2014, available at: http://www.theguardian.com/world/2014/dec/01/uruguay-vazquez-legal-marijuana (last accessed: February 4, 2015).
[v] Ley n. 19.075
[vi] STF, ADI 4277 / ADPF 132 (DJE October 14, 2011)
[vii] CNJ, Resolução n. 175 (DJE May 15, 2013)
[viii] See, e.g., Juliano Zaiden Benvindo, Brazilian Elections and Demonstrations of June 2013: The Rise of Conservatism? , Nov. 1, 2014, available at: http://www.iconnectblog.com/2014/10/brazilian-elections-and-demonstrations-of-june-2013-the-rise-of-conservatism. (last accessed: November, 1, 2014).
[ix] See, e.g., Jeremy Waldron, Law and Disagreement (1999).
[x] According to the Brazilian legislation, civil unions practicably guarantee the same rights as those of marriages, and the Brazilian Constitution (art. 226, §3) protects civil unions as a family. The differences are subtle and are more related to how the distribution of the state will take place. But there is a symbolic distinction that says much within the context of new rights: civil unions do not cause any change in the marital status.
[xi] See, e.g., Brazil Judicial Panel Paves Way for Gay Marriage, Reuters, May 15, 2013, available at: http://www.reuters.com/article/2013/05/15/us-brazil-gaymarriage-idUSBRE94E0PF20130515 (last accessed: February 14, 2015).
[xii] See, e.g., Rodrigo Machado, Primeiro Casamento Civil Gay do Brasil Acontece Hoje em Jacareí (SP), UOL Notícias, June 28, 2011, available at: http://noticias.uol.com.br/cotidiano/ultimas-noticias/2011/06/28/primeiro-casamento-civil-gay-do-brasil-acontece-hoje-em-jacarei-sp.htm (last accessed: February 14, 2015).
[xiii] See, e.g., Regina Bandeira, Um Ano Após Norma sobre o Casamento Gay, Chegam a 1.000 as Uniões entre o mesmo Sexo, CNJ, May 14, 2014, available at: http://www.cnj.jus.br/noticias/cnj/28530:um-ano-apos-resolucao-do-casamento-gay-chega-a-1000-o-numero-de-unioes-entre-pessoas-do-mesmo-sexo (last accessed: February 14, 2015).
[xiv] See, e.g., Carolina Brígido & Evandro Éboli, Gimar Mendes diz que STF decidiu sobre União Estável, não Casamento Gay, O Globo, May 14, 2013, available at: http://oglobo.globo.com/brasil/gilmar-mendes-diz-que-stf-decidiu-sobre-uniao-estavel-nao-casamento-gay-8386287 (last accessed: February 14, 2015).
[xv] See id.
[xvi] See, id.
[xvii] Câmara dos Deputados, PL n. 6583 (October 10, 2013).
[xviii] Senado Federal, PLS n. 470 (November 12, 2013).
[xix] See, e.g., Bancada Evangélica tenta derrubar no Congresso Projeto que inclui Casamento Gay, Estado Notícias, November 19, 2014, available at: http://www.estadonoticias.com.br/bancada-evangelica-tenta-derrubar-no-congresso-projeto-que-inclui-casamento-gay/ (last accessed: February 14, 2015).
[xx] See, e.g., Adrian Vermeule, The System of The Constitution (Oxford Univ. Press. 2011).
[xxi] See, e.g., Ueslei Marcelino, A Câmara sob as Mãos de um Fiel, Eduardo Cunha, Reuters / Exame, February 11, 2015, available at: http://exame.abril.com.br/brasil/noticias/a-camara-sob-as-maos-de-um-fiel-eduardo-cunha (last accessed: February 14, 2015).
[xxii] Abortion in Brazil is illegal. The only exceptions are in cases of rape, if the pregnancy puts the life of the woman in danger, and in rare instances of anencephaly.
[xxiii] See, e.g., Eduardo Cunha sobre Aborto: “Vai Ter que Passar por Cima do Meu Cadáver para Votar”, O Globo, February 9, 2015, available at: http://oglobo.globo.com/brasil/eduardo-cunha-sobre-aborto-vai-ter-que-passar-por-cima-do-meu-cadaver-para-votar-15290079 (last accessed: February 14, 2015).
[xxiv] Câmara dos Deputados, PL 1672/2011 (June 28, 2011).