Brazilian Courts and Social Inclusiveness
Brazilian same-sex couples have achieved a considerable degree of legal protection in the last twenty years, a consequence of several judicial decisions extending to same-sex couples the same status and rights afforded opposite-sex couples. These decisions represent one of the most important developments in the recent history of Brazilian equal protection jurisprudence because they establish important precedent for future group oriented litigation. Abandoning the traditional formalism that has long prevented greater social inclusion of disadvantaged groups, several Brazilian courts have ruled that same-sex couples should have access to equal legal treatment. These decisions have provided a considerable degree of legal protection to a form of adult relationship of which many Brazilians strongly disapprove. This is all the more significant given that Brazilian courts have traditionally played a minor role in the process of construction and expansion of citizenship. In recognizing their importance in the process of social change, Brazilian courts have significantly contributed to the transformation of the social status of gays and lesbians, a group that faces severe discrimination in Brazil.
One particular aspect of Brazilian same-sex union litigation has generated the judicial decisions responsible for the promotion of social inclusiveness of gays and lesbians. Brazilian same-sex couples have prioritized the struggle for access to the institutions that regulate domestic cohabitation instead of advocating immediate legal recognition of same-sex marriage. This incremental approach has proven to be very successful since the decisions granting legal protection to same-sex partners initiated a decisive movement toward legal recognition of same-sex unions in Brazil. Considering the various categories of rights afforded to same-sex couples in one of the world’s most unequal countries, one can classify Brazilian same-sex union litigation as an example of a successful struggle for the achievement of higher levels of social justice. The convergence of two main factors led to the series of judicial decisions that extended spousal rights to same-sex couples: the characteristic liberalism of Brazilian family law and the struggle for new forms of citizenship. Brazilian same-sex union jurisprudence derives from the long national tradition of giving legal protection to unmarried couples, a practice that reflects the liberal approach which has long characterized Brazilian family law jurisprudence. Brazilian courts have always emphasized the importance of the judicial system in maintaining an adequate balance between legislation and the transformation of social reality. Several Brazilian courts have argued that a conservative interpretation of family law legislation in a country with a large number of informal families would increase the level of social exclusion. Favoring the promotion of social justice over moral concerns regarding legal protection to nonmarital relationships, Brazilian courts have consistently extended legal protection to domestic cohabitants. The courts usually claim that such protection realizes the basic principles of the Brazilian constitutional order by extending legal protection to new forms of family arrangements.
In addition to their liberal position on questions regarding domestic cohabitation, many Brazilian courts have emphasized the importance of the judiciary in promoting social inclusion of same-sex couples. Brazilian same-sex union jurisprudence emerged after the end of a military dictatorship that ruled the country for more than twenty years. Making reference to the notions of formal and material equality - the former guaranteeing equal legal treatment and the latter granting access to social resources - gay and lesbian couples have consistently come before the courts to claim equal legal treatment. By prohibiting discrimination based on sexual orientation, Brazilian courts have created a counterbalance to the laws restricting spousal rights to opposite-sex couples. Several Brazilian courts have resorted to the Brazilian Constitution prohibition of all forms of discrimination to extend several categories of rights to same-sex partners. These decisions have significantly contributed to the transformation of their social status, and serve as an example of how the courts can expand the meanings of citizenship to include gays and lesbians. The judicial movement toward social inclusion of same-sex couples has gradually begun to influence the legislative and executive powers. State and municipal legislatures have passed legislation extending partner welfare benefits to governmental employees and banning all forms of discrimination based on sexual orientation in public and private places. Certain branches of the current federal administration have recognized the marital status of foreign gay couples and issued executive orders extending full equality to gay and lesbian employees, and titles of landownership to same-sex couples.
Despite the criminalization of homosexuality, pervasive social prejudice, and the absence of any form of social support, same-sex couples have entered committed relationships throughout Brazilian history. The prohibition of homosexuality by both canonical and secular law during the colonial period did not prevent gays and lesbians from seeking same-sex partners. Many historical studies reveal a striking contrast between the harshness of the law and the reality of social life. Several records of ecclesiastical trials indicate the existence of long term same-sex relationships, even between persons of different social classes and racial groups. The removal of sodomy laws in the early 19th century did not eradicate the stigma surrounding same-sex relationships, but Brazilian gays and lesbians often dealt with the enduring social prejudice by living extremely discreet lives or concealing relationships behind the curtain of marriage to other people. Only the process of urbanization in the middle 20th century has finally created the conditions allowing the construction of a community of social support for same-sex relationships. Furthermore, the recent enactment of a new Constitution that affords a considerable degree of legal protection to social groups encouraged Brazilian same-sex couples to seek legal recognition for their unions.
It is possible to identify three distinct phases in the development of Brazilian same-sex union jurisprudence, each one establishing the basis for the achievement of new rights. The first phase began in 1989 with the first decisions entitling same-sex couples to legal protection through the classification of same-sex unions as de facto partnerships. Originally created to regulate equal division of property among participants of non-registered business partnerships, this institution guaranteed access to property rights to domestic cohabitants upon evidence of direct or indirect contribution to the construction of the common property. The Brazilian courts have resorted to this institution to solve property rights problems arising from domestic cohabitation since the first decades of the twentieth century. By affirming that same-sex partners have legal obligations towards each other, the Brazilian courts classified same-sex unions as de facto partnerships, a measure that conferred access to property rights on same-sex couples. The Brazilian courts unanimously agree that same-sex unions can be classified as de facto partnerships because this institution guarantees same-sex couples access to a category of spousal rights without deeming them to be spouses.
Representing an important turn in the history of Brazilian same-sex union jurisprudence, several courts began to recognize same-sex couples as family members as early as 1996, a process that granted a new degree of legal protection to many same-sex partners. The struggle for the inclusion of same-sex partners as beneficiaries of welfare benefits shifted the focus of Brazilian same-sex union jurisprudence from access to property rights to the question of equal legal treatment of same-sex and opposite-sex unions. If the decisions classifying same-sex unions as de facto partnerships guaranteed a right to equal division of property, the decisions granting welfare benefits to same-sex partners increased the degree of legal protection to same-sex couples by recognizing them as family entities. Arguing that Brazilian society must accept the fact that same-sex couples form relationships that have the same characteristics as opposite-sex unions, several Brazilian courts have extended welfare benefits to gay and lesbian federal governmental employees on the grounds that the constitutional principles of formal and material equality require equal legal treatment of same-sex and opposite-sex couples. Anticipating the developments of the next period of Brazilian same-sex union jurisprudence, some courts began to refer to same-sex de facto partnership as a legal status comparable to those regulating opposite-sex unions.
The legal recognition of same-sex unions as stable unions has been the most important development in the history of Brazilian same-sex union jurisprudence. Some courts began to classify same-sex unions as stable unions in 2001, a legal status that basically provides the same rights given to married couples in Brazil. The doctrine and jurisprudence define stable union as a public and stable intimate relationship between a man and a woman who, living together or in separate houses, intend to constitute a family without the formality of civil marriage. Several factors have compelled the Brazilian courts to classify same-sex unions as stable unions: the abandonment of the traditional legal formalism that has long characterized the Brazilian judicial system, the reference to progressive theories of legal hermeneutics that aims to achieve greater social justice, the classification of homosexuality as a prohibited ground for discrimination, the adoption of a functionalist notion of family comprehended as a space of intimacy rather than a mere unity of biological reproduction, and the convergence of the principles that regulate domestic cohabitation jurisprudence with the notions of formal and material equality. Judicial recognition of same-sex unions as stable unions has granted same-sex partners access to many categories of spousal rights such as property rights, social security rights, inheritance rights, partner benefits, spousal support, joint adoption, and the right to permanent visas for foreign partners.
The number of decisions recognizing same-sex unions as stable unions has increased considerably over the last two years, but Brazilian courts still strongly disagree as to whether same-sex unions may be characterized under this institution. This controversy, which is the current battleground of same-sex union litigation in Brazil, derives from the constitutional definition of a stable union as a union between a man and a woman. Some courts argue that the principle of equality directs the interpretation of all constitutional provisions, which justifies an expansive interpretation of the norm defining stable union. But many courts claim that the restriction of stable union to opposite-sex couples does not violate the principle of equality because this status is legally and culturally defined as a heterosexual institution. Because these decisions do not directly determine the outcome of future cases, the possibility of legal recognition of same-sex unions as stable unions remains the subject of considerable debate among the Brazilian courts.
Yet this legal controversy has not prevented some courts from increasing the degree of legal protection afforded to same-sex couples in Brazil. Representing another important strategy to guarantee equal legal treatment to same-sex couples, some Brazilian federal courts have classified same-sex unions as stable unions in a series of class action lawsuits that have granted same-sex partners spousal rights of great importance. Taking advantage of one form of lawsuit aimed at protecting minority rights, the Brazilian gay and lesbian community has sought increasing legal protection through the association of gay rights and diffuse rights. Diffuse rights are a category of rights that provides guarantees to a group of individuals dispersed within the political community who have common legal interests despite their merely circumstantial connection. Brazilian federal courts have ruled that gay rights can be classified as diffuse rights because gays and lesbians constitute a group of people who have common legal interests but cannot be immediately identified because there are no legal bounds connecting them. Resorting to the constitutional principle that establishes the pursuance of material equality among all social groups as a central principle of Brazilian constitutional order, some Brazilian courts have concluded that the classification of gay rights as diffuse rights is an important strategy to advance the well-being of this group of citizens. By successfully persuading the courts that gay rights belong to the category of diffuse rights, Brazilian same-sex couples have gained access to certain categories of spousal rights such as social security rights, recognition of same-sex partners as next of kin, and rights against third parties. The federal agencies responsible for the administration of these benefits have issued new administrative rules complying with these judicial decisions, an ensemble of procedures representing the first form of regulation of same-sex unions in Brazil.
As social resistance to legal recognition of same-sex unions increases in many parts of the world, Brazilian same-sex union jurisprudence provides viable solutions for the problems surrounding legal recognition of same-sex unions. The Brazilian experience suggests that an incremental approach to this legal issue is an effective strategy to avoid the backlash that has followed judicial decisions legalizing same-sex marriage in other parts of the world. Gradual extension of spousal rights to same-sex couples has allowed Brazilian courts to maximize the possibility of granting full marital status to same-sex couples, a process that has contributed to the transformation of the social perception of same-sex unions. The growing number of superior court decisions favoring same-sex couples in the last six years suggests a possible unification of the jurisprudence to recognize same-sex unions as stable unions. A similar development resulted in the legal recognition of domestic cohabitation as a form of marital status in Brazil. Thus, this process may accelerate the enactment of legislation granting full equality to same-sex partners in Brazil.
Adilson José Moreira is a SJD candidate at Harvard Law School. He completed a master degree program in Constitutional Law in 2001 at the Federal University of Minas Gerais and another master degree program at Harvard Law School in 2005. He has developed extensive research on the field of law and sexuality, especially on the process of legal recognition of same-sex unions in Brazil, subject of upcoming articles and books.