Marriage equality :: No steps backwards

Social Christian Party challenges resolution permitting conversion of same-sex civil union into marriage

Conectas and SBDP (Brazilian Public Law Association) this Thursday, January 8, submitted an amicus curiae in support of resolution 175 of the CNJ (National Justice Council) that requires all notary offices in Brazil to convert same-sex civil unions into marriages.

The document, prepared in conjunction with 17 participants of the “Human Rights Amicus Curiae Workshop” organized by the two organizations, provides an independent technical opinion for the Supreme Court justices who will hear the case and it refutes the arguments raised by the Social Christian Party against the resolution in Direct Action of Unconstitutionality 4966.

Click here to read the amicus curiae presented by Conectas and SBDP.

According to the Social Christian Party, the CNJ does not have the authority to define the boundaries of the unanimous decision of the Supreme Court that permitted same-sex civil union in 2011 (ADPF 132 and ADI 4277). For the CNJ and human rights organizations, however, the ability to convert a civil union into a civil marriage, provided for in the Brazilian Civil Code, also applies to same-sex relationships – despite the fact that the Supreme Court, at the time of its decision, did not expressly specify this.

“In this case, the CNJ did not create a new right, act outside its remit or decide in contrast to what was stipulated by this Court,” reads the document. “The Council did exactly the opposite: it simply sought to establish clearer ground rules for guaranteeing the rights of homosexuals based on the decision of this very Court that assured the constitutionality of civil union between homosexuals.”

A Supreme Court decision in favor of same-sex marriage in this case, say the organizations, would dispel any ambiguity over the scope of the previous decision. Moreover, given the embargo on the discussion of the topic in the Legislative and Executive branches, the Supreme Court has become the place for voicing the demands and guaranteeing the rights of minority groups like the LGBT (lesbian, gay, bisexual and transgender) community.

According to the organizations (Conectas and SBDP), 10 legislative bills currently pending in the lower house of Congress are incompatible with the rights of homosexuals and fundamental constitutional guarantees. Of these, six make it impossible to equate same-sex relationships to marriage or the family.

“The absence of a legal framework at the federal level legitimizing such public policies reinforces the negative prospects for the protection and recognition of rights, both for homosexuals and for the LGBT population as a whole,” reads the amicus. It goes on to say, therefore, that “the judgment of this case should be considered an opportunity to make effective headway in the defense of the rights of homosexuals, with an express recognition of the constitutionality of same-sex marriage”.

Participatory justice

The first edition of the “Human Rights Amicus Curiae Workshop”, organized by Conectas and SBDP, lasted six months and was attended by 17 students. The purpose of the course is to promote the use of this legal instrument as a tool for increasing the participation of society in the constitutional debate.

During the workshop, given by guest experts, the students learned step-by-step how to prepare the document and they debated issues ranging from LGBT rights to the democratization of access to the Brazilian justice system.

In August, for example, the students participated in a debate with Paulo Iotti, president of GADvS (Group of Lawyers for Sexual Diversity); Luís Arruda, an activist and contributor to the Mothers for Equality Movement; Daniela Andrade, director of São Paulo LGBT Youth and member of the Sexual Diversity Commission of the Brazilian Bar Association in Osasco; and the activist Josefina Cicconetti. They spoke about the changes in the structure of the organizations in Brazil, about the importance of specific causes, such as the recognition of the identity of transsexuals and lesbian visibility, and also about the challenges of influencing the Judiciary.

Watch the interviews with Paulo Iotti, Luís Arruda, Daniela Andrade and Josefina Cicconetti.