Brazil’s Recognition of Same-Sex Unions

In a historic and unanimous ruling, the Brazilian Supreme Federal Tribunal declared on May 5 that people in “stable, enduring and public” same-sex relations must be granted the same rights as people in straight marriages. The ruling does not exactly establish gay marriage in Brazil as it is in Canada, Argentina and Mexico City, but it essentially erases the inequality in legal rights between married couples and civil unions.

All for one and one for all

In making this decision, the Brazilian Supreme Federal Tribunal advanced a landmark argument that could have ripple effects across Latin America and beyond. What the court did was to find a solution to the problem of heteronormative language in legal documents. In the case of Brazil, article 226 of the constitution and article 1723 of the civil code discuss marriage rights as available to “a man and a woman.” Opponents of gay rights in Brazil used this blatantly heteronormative language to contend that granting marriage rights to same-sex couples would be unconstitutional. This is the argument that the court dismissed.

The court argued that despite the fact that Brazil’s fundamental legal documents discuss marriage in heteronormative terms, nothing suggests that those same rights “can be denied” to others. A democratic constitution based on non-discrimination, one judge argued, is useless if it is unable to ensure that the rights granted to some groups are also granted to everyone else.

Access the full story at AmericasQuarterly.org.

Javier Corrales is a visiting scholar at the David Rockefeller Center for Latin American Studies and associate professor of political science at Amherst College. He is currently working on a project on constitutional changes in Latin America.