ADI 4277 and ADPF 132 v. Brazilian civil union
Encyclopedia
ADI 4277 and ADPF 132 is a landmark Brazil Supreme Court case. In the 10-0 ruling, the justices recognized unanimously the de facto recognition for same-sex couples relationships, by judging the Direct Unconstitutionality Action (Ação Direta de Inconstitucionalidade - ADI) 4277 and the Allegation of Disobedience of Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental - ADPF) 132.
The Brazilian plenary
hearing was conducted in two plenum sessions on May 4th and 5th. In the first session, the rapporteur
, Justice Mr. Ayres Britto
, voted to give the Federal Constitution
an interpretation that would exclude any meaning of article 1723 of the Brazil
ian Civil Code
that prevents the recognition of marriage
between same-sex as the family
.
Britto argued that Article 3.IV of the Constitution prohibits any discrimination
on grounds of sex, race, color, and in that sense, nobody can be decreased or discriminated against because of their sexual preference. "The sex
of individual
s does not lend itself to legal inequality," noted the Justice.
Prior to the decision, the Brazilian Chief Prosecutor
and the governor of Rio de Janeiro, the Attorney General of Brazil, and lawyer
s from various entities, were admitted as amici curiae ("friends of the court").
The Supreme Court interpreted the Constitution to exclude any meaning of article 1723 of the Civil Code that prevents the recognition of marriage between persons of same-sex.
of opposite-couples were to same-sex couples too, including the most important:
The Brazilian plenary
Plenary
Plenary is an adjective related to the noun plenum carrying a general connotation of fullness.Plenary may refer to:*Plenary session or meeting, the part of a conference when all members of all parties are in attendance,...
hearing was conducted in two plenum sessions on May 4th and 5th. In the first session, the rapporteur
Rapporteur
Rapporteur is used in international and European legal and political contexts to refer to a person appointed by a deliberative body to investigate an issue or a situation....
, Justice Mr. Ayres Britto
Carlos Ayres Britto
Carlos Augusto Ayres de Freitas Britto is a Brazilian judge of Supreme Court of Brazil.-External links:* *...
, voted to give the Federal Constitution
Constitution of Brazil
During its independent political history, Brazil has had seven constitutions. The most recent was ratified on October 5, 1988.-Imperial Constitution :Background...
an interpretation that would exclude any meaning of article 1723 of the Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
ian Civil Code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
that prevents the recognition of marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
between same-sex as the family
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
.
Britto argued that Article 3.IV of the Constitution prohibits any discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
on grounds of sex, race, color, and in that sense, nobody can be decreased or discriminated against because of their sexual preference. "The sex
Sex
In biology, sex is a process of combining and mixing genetic traits, often resulting in the specialization of organisms into a male or female variety . Sexual reproduction involves combining specialized cells to form offspring that inherit traits from both parents...
of individual
Individual
An individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...
s does not lend itself to legal inequality," noted the Justice.
Prior to the decision, the Brazilian Chief Prosecutor
Office of the Solicitor-General in Brazil
The Solicitor-General of the Union represents the Brazilian Union before national courts and also provides legal advice to the Brazilian executive branch....
and the governor of Rio de Janeiro, the Attorney General of Brazil, and lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s from various entities, were admitted as amici curiae ("friends of the court").
The Supreme Court interpreted the Constitution to exclude any meaning of article 1723 of the Civil Code that prevents the recognition of marriage between persons of same-sex.
Rights
After of the decision of the Supreme Court, the same 112 rightsRights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
of opposite-couples were to same-sex couples too, including the most important:
- LGBT adoption
- Inheritence
- PensionPensionIn general, a pension is an arrangement to provide people with an income when they are no longer earning a regular income from employment. Pensions should not be confused with severance pay; the former is paid in regular installments, while the latter is paid in one lump sum.The terms retirement...
- Health plan
High Court decision
Judiciary representation
| Supreme Court members | Ministers | Yes | No |
|---|---|---|---|
| Antonio Cezar Peluso | 1 | 1 | |
| Carlos Ayres Britto Carlos Ayres Britto Carlos Augusto Ayres de Freitas Britto is a Brazilian judge of Supreme Court of Brazil.-External links:* *... |
1 | 1 | |
| Carmen Lúcia Antunes Rocha | 1 | 1 | |
| Gilmar Ferreira Mendes | 1 | 1 | |
| José Celso de Mello | 1 | 1 | |
| Marco Aurélio Mello Marco Aurélio Mello Marco Aurélio Mello is a Brazilian judge, and member of the family of the former President of Brazil Fernando Collor de Mello.-External links:*... |
1 | 1 | |
| Ellen Gracie Northfleet Ellen Gracie Northfleet Ellen Gracie Northfleet is a Brazilian judge of American descent. She is the first woman to be appointed to the Supreme Court of Brazil and the Court's first female president.... |
1 | 1 | |
| Joaquim Benedito Barbosa Gomes Joaquim Benedito Barbosa Gomes Joaquim Benedito Barbosa Gomes is the only black Supreme Federal Tribunal justice minister in Brazil.Although many people believe he is the first black justice minister in Brazilian Supreme Court, he is actually the third one... |
1 | 1 | |
| Enrique Ricardo Lewandowski | 1 | 1 | |
| Luiz Fux Luiz Fux Luiz Fux is a Brazilian judge. He was appointed justice minister of the Supreme Federal Court by President Dilma Rousseff and had his nomination approved by the Senate... |
1 | 1 | |
| Total | 10 | 10 | 0 |
Legislative representation
| Attorney General of Brazil | Prosecutor | Yes | No |
|---|---|---|---|
| Roberto Gurgel Roberto Gurgel Roberto Gurgel is the General Prosecutor of Brazil.-External links:*... |
1 | 1 | |
| Total | 1 | 1 | 0 |
Executive representation
| Solicitor-General of Brazil Office of the Solicitor-General in Brazil The Solicitor-General of the Union represents the Brazilian Union before national courts and also provides legal advice to the Brazilian executive branch.... |
Solicitor General | Yes | No |
|---|---|---|---|
| Luís Inácio Adams Luís Inácio Adams Luís Inácio Lucena Adams is a Brazilian lawyer, and was appointed to be Brazilian Attorney-General of the Union on October 23, 2009.... |
1 | 1 | |
| Total | 1 | 1 | 0 |
Amici curiae
| Amici curiae (Support for ADPF 132 and ADI 4277) (13) | Conectas Direitos Humanos | Associação Brasileira de Gays, Lésbicas e Transgêneros (ABGLT) | Associação de Incentivo à Educação e Saúde de São Paulo | Instituto Brasileiro de Direito de Família (IBDFAM) | Grupo Arco-Íris de Conscientização Homossexual | Sociedade Brasileira de Direito Público (SBDP) |
|---|---|---|---|---|---|---|
| Grupo Gay da Bahia Grupo Gay da Bahia The Gay Group of Bahia is the oldest association for the defense of the human rights for homosexuals functioning in Brazil. Founded in 1980 by Luiz Mott, in the city of Salvador, Bahia, the GGB was registered as a non-profit organization in 1983, and was declared a public service organization of... (GGB) |
Instituto de Bioética, Direitos Humanos e Gênero (ANIS) | Grupo de Estudos em Direito Internacional da Universidade Federal de Minas Gerais (GEDI - UFMG) | Associação de Travestis e Transexuais de Minas Gerais (ASSTRAV) | Centro de Luta pela Livre Orientação Sexual (CELLOS) | Centro de Referência de Gays, Lésbicas, Bissexuais, Travestis, Transsexuais e Transgêneros do Estado de Minas Gerais (Centro de Referência GLBTTT) | Escritório de Direitos Humanos do Estado de Minas Gerais (EDH) |
| Amici curiae (Against ADPF 132 and ADI 4277) (2) |
Associação Eduardo Banks | Conferência Nacional dos Bispos do Brasil (CNBB) |
|---|
See also
- Recognition of same-sex unions in Brazil
- Civil unionCivil unionA civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
- LGBT rights in the AmericasLGBT rights in the AmericasLesbian, gay, bisexual, and transgender rights are complex in the Americas. The British, French, Spanish and Portuguese colonists, who settled most of the Americas, brought Christianity from Europe...
- LGBT rights in Brazil