The recognition of stable civil unions between same-sex partners as a fundamental right by constitutional justice

Abstract

In its ruling concerning the interpretation of the institution of family law established by the constituent from 1988 (article 226, § 3 of the Brazilian Constitution) and reiterated practically ipsis litteris by the civil legislator from 2002, the Federal Supreme Court (STF) intended to present a political and legal mark in favor of a (fair) political claim. With its strategic attempt to give a systematic interpretation for this specific constitutional provision, aiming to make the special constitutional protection to heterosexual unions go beyond its restrictive meaning to also encompass homosexual unions, the STF did not reach its goal, especially not from the juridical and constitutional point of view and probably also not from the political point of view, as evidenced by the comments developed in this article. Especially embarrassing is the lack of comprehension or the misunderstanding by the Court about the reach of fundamental rights, which must serve as its decision-making parameter and, especially, the distinction between fundamental rights of freedom and equality, on one hand, and institutional guarantees, on the other, as in the case of the institution of stable civil unions. In addition, as it has been happening lately in the STF’s jurisprudence, the use of the legal-dogmatic figures with Germanic origin known as “interpretation according to the Constitution” remains skittish. It has also been recurrent some rhetorical excesses, with barely disguised supposed erudition and mastery of German constitutional law. This article reveals the theoretical, legal, dogmatic and methodologically rigorous approach given by the Federal Constitutional Court of Germany to a very similar case, compared to which the dogmatic and political deficiencies and inconveniences in the STF’s ruling here in question become clear. It is not about being pro or against the judicial activism of the STF under politically controversial issues, but requiring some accuracy, at least legal-dogmatic and methodologically speaking. The Federal Supreme Court also - and specially - has this burden.