K R O & L P v. Ministério Publico do Estado do Rio Grande do Sul, REsp 1183378 (RS), Superior Tribunal of Justice of Brazil (25 October 2011)
A notary in Rio do Sul had denied the application to convert a stable same-sex union into a civil marriage. The denial was affirmed by the court of first instance and the Regional Tribunal of Justice. The parties then appealed to the Superior Tribunal of Justice, the highest court for non-constitutional issues. This special appeal (Recurso Especial) was considered by the STJ Chamber for Private law (Quarta Turma).
A lesbian couple in Rio do Sul made a request for civil marriage. The trial and intermedia courts denied the request on the grounds that Brazil has no law recognizing same-sex marriage.
Whether the current state of Brazilian law prevents same-sex marriages.
Civil Code of Brazil, articles 1514, 1521, 1523, 1535 and 1565.
Federal Constitution of Brazil, article 226 §7.
ADI (Acao Direta de Inconstitucionalidade) 4277 and ADPF (Arguicao de Descumprimiento de Preceito Fundamental) 132, Constitutional Court of Brazil (STF), 2011. (recognizing that the legal definition of stable unions includes same-sex couples.
Reasoning of the Court
Justice Luis Felipe Salomao (Rapporteur)
The court voted by 4 – 1 in favour of same-sex marriage. The dissenting judge (Raul Araújo) argued that this question was not a matter for the STJ but for the Constitutional Court (STF).
In May 2011, the Supremo Tribunal Federal confirmed that a stable and continuous union between two persons of the same sex is recognised as a family unit, within the language of article 1723 of the Civil Code. In the Constitution, this domestic nuclear unit is called “family” and receives “special protection from the state.” The Constitution of 1988 inaugurated a new phase of family law, including marriage. The constitutional concept of marriage is broader than the traditional concept. The final aim for the state is not to protect marriage in the strict sense, yet it is the protection of the human being in its inalienable dignity.
The family pluralism is reflected in the Constitution and explicitly recognized in precedents of both the STJ and the STF. If the foundation of existence of family rules is to generate legal protection to the nuclear family, it should be available to same-sex couples as well. Homosexual couples are in no sense less worth the same protection of the state, compared to heterosexual couples. Civil marriage is the form by which the state best protects the family, and as multiple family “arrangements” have been recognized by the Constitution, there is no way this protection can be denied to any family that opts for it, regardless of the sexual orientation of the participants, since homosexual families possess the same values as heterosexual couples, namely personal dignity and affection. The state should consequently facilitate by law the conversion of a stable union into a civil marriage.
Equality and equal treatment assume the right to be different, the right to self-determination and to a life plan independent of traditions. The right to equality is therefore only fully realized when the right to be different is guaranteed. A different conclusion would not be consistent with the constitutional right to organise freely one’s family life. Family life exists from the moment that two persons make the decision to unite with the desire to constitute a family, and from this moment on, the Constitution gives them the broad freedom to decide on the form they want to give to their union.
In conclusion, no article in the Civil Code explicitly prohibits same-sex marriage, and no implicit prohibition of same-sex marriage can be envisaged without offending the universal principles of human dignity, pluralism and free organisation of family life.
The Superior Court of Justice rules that it possible for same-sex couples to marry within the current state of Brazilian law.
K R O & L P v. Ministério Publico do Estado do Rio Grande do Sul, REsp 1183378 (RS), Superior Tribunal of Justice of Brazil (25 October 2011) (full text of judgment in Portuguese, PDF)