ADI (Ação Direta de Inconstitucionalidade) 4277 and ADPF (Arguição de Descumprimento de Preceito Fundamental) 132, Supreme Tribunal Federal of Brazil (5 May 2011)
The Supreme Tribunal Federal heard two cases simultaneously: Direction Action (ADI) 4277, filed by the Federal Prosecutor (Ministério Público); and Action for Breach of Fundamental Rights (ADPF) 132, filed by the Governor of Rio de Janeiro. The first requested that Article 1723 of the Civil Code be declared unconstitutional because it defined a “stable union” as consisting of a man and a woman and thus violated guarantees of human dignity, non discrimination, equality, and liberty. The second challenged the Rio de Janeiro Civil Servant Act and decisions by State courts that refused to recognise same-sex stable unions.
Under Brazilian law, only opposite sex couples were recognised as having stable unions within the meaning of the Civil Code and Law No. 9278. Stable unions were accorded rights and benefits very similar to marriage. Although stable unions could be registered before a notary public, such registration was not necessary for recognition of a stable union. No laws in Brazil addressed same-sex unions.
Whether the legal definition of stable unions should be interpreted to include same-sex couples.
Constitution of Brazil, Article 1 (dignity), Article 3 (affirming that the objective of the State was to promote the good of everyone “without prejudice as to origin, race, sex, color, age and other forms of discrimination”), Article 5 (equality before the law), Article 226(1) (“Marriage is a civil act and its celebration is free of charge”), Article 226(4) (“Family shall be understood to mean the community formed by any of the parents and their children”), and Article 226(3) (“For purposes of protection by the State, the stable union between a man and a woman is recognised as a family entity, and the law shall facilitate the conversion of such entity into marriage”).
Civil Code, Article 1723 (recognising as a family union the stable union of a man and a woman).
Law No. 9278 of 10 May 1996 (Stable Union Law) (recognising as a family unit the permanent, public and continual partnership of a man and a woman that has been established for the purpose of constituting a family).
Reasoning of the Court
Per Justice Ayres Britto (Rapporteur)
The Court voted unanimously to recognise stable unions for same-sex couples under Law No. 9278 and the Civil Code.
First, the Court relied on Article 3 of the Constitution, that prohibiting discrimination on the basis of sexual orientation. The Court noted that the Constitution did not endorse or prohibit a particular type of sexual orientation. Sexual orientation belonged to the sphere of private autonomy.
Second, the Court interpreted Article 226 of the Constitution and declared that its statement, that stable unions were formed by the union of a man and a woman, was not a limiting definition. It was intended to protect the equal role of women, and did not exclude the possibility of same-sex stable unions. Furthermore, the purpose of Article 226 was to recognise the family as the centre of society. The Court held that the word “family”, in the absence of constitutional definition, was defined by reality.
Interpreting Article 1723 and the Stable Union Law consistently with the Constitution required the Court to recognise same-sex stable unions and opposite-sex stable unions in the same manner in law.
Individual justices wrote separate concurring opinions. Justice Marco Aurelio emphasised that the traditional view of the family had changed. The guarantees of freedom of religion and secularism meant that religious and moral principles could not be used to limit fundamental rights.
ADI (Ação Direta de Inconstitucionalidade) 4277 and ADPF (Arguição de Descumprimento de Preceito Fundamental) 132, Supreme Tribunal Federal of Brazil – Portuguese (full text of judgment in Portuguese, PDF)