The very problem of that endorsement is that it violates the constitution. The constitution says in an eternity clause that only a civilian union constituted by men and woman can form a family entity and have marriege status. So to change that, the congress should aprove the creation of a new constitution, and an assembley must be elected to right it down.
That endorsement was done by the supreme court, who said that law didn't followed the social changes, ignoring that only the congress has the power to change law. Our juridical system is by no means costumary, following a very strick codification. That might be the reason for the crisis in the congress that is overburdoned with 20 years old projects pilled up. But bypassing their authority undermines our juridical security and might prove dangerous to our democracy! If the president keep using their war time powers to write law while in peace, and the supreme court start writing their own laws, we'll soom became a new Venesuela.
I assume you are refering to article 226. here is a translation:
Article 226. The family, which is the foundation of society, shall enjoy special protection from the State.
Paragraph 1 - Marriage is civil and the marriage ceremony is free of charge.
Paragraph 2 - Religious marriage has civil effects, in accordance with the law.
Paragraph 3 - For purposes of protection by the State, the stable union between a man and a woman is recognized as a family entity, and the law shall facilitate the conversion of such entity into marriage.
Paragraph 4 - The community formed by either parent and their descendants is also considered as a family entity.
Paragraph 5 - The rights and the duties of marital society shall be exerci sed equally by the man and the woman.
Paragraph 6 - Civil marriage may be dissolved by divorce, after prior legal separation for more than one year in the cases set forth by law, or after two years of proven de facto separation.
Paragraph 7 - Based on the principles of human dignity and responsible parenthood, family planning is a free choice of the couple, it being within the competence of the State to provide educational and scientific resources for the exercise of this right, any coercion by official or private agencies being forbidden.
Paragraph 8 - The State shall ensure assistance to the family in the person of each of its members, creating mechanisms to suppress violence within the family.
As you can see, the constitution does
not define marriage as between men and women; the "stable union" (a more precise translation than the terminology of "civilian union" I used before, but the same thing) is the only moment in which the need for "men and women" are presumed.
In a naive reading, this means that you'd need an amendment to recognize stable unions, but
not to recognize marriage, because you don't have to change text to acknowledge that this relationship has broader spectrum than just the heterosexual.
What the STF did, correctly IMHO, was to acknowledge a very well established legal consequence of an interpretation principle (in this case, theleological/contextual interpretation); Coupling the before mentioned article with the provisions of the 5th article (this one being truly a "hard clause" - what I assume is what you meant as an " eternity clause", while the 226 actually isn't one), it's clear that a separation of the sorts is a form of distinction, and such cannot be tolerated.
Sounds like interpretation trickery? It is, in a sense; however, the insertion of the limited terminology do seen illegitimate before the broader context of the ample freedom of the 5th article,
ergo the STF decision seems rather organic and entirely defensible with the constitutional project of society. It's no coincidence that this became, perhaps, the only hi-profile vote in the history of the STF to have been unanimous. Getting Gilmar Mendes, Joaquim Barbosa and Marco Aurélio to agree is no small feat.
Rather than
change the law, then, what the court did was to conform it's interpretation between two different plausible readings of it, one more obvious but unconstitutionally restrictive, other a bit more subtle (but not that much, just takes a little training in hermeneutics) but fully compatible, obviously preferring the second.
That said, I have to tell you that Brazilian legislation is, actually, making a shift from the civil law of France tradition to a common law regime of english tradition. Well, perhaps this isn't fair, because it won't go all the way. It's becoming a mix of both, with institutes that are typical of either (like the ACPs, our equivalent to class actions, the binding rulings, and being the only country in the world (AFAIK) to have both the american disperse and the austrian concentrated regimen of constitutional control).
OTOH, our Constitution as it is does not allow for gay marriage. That means that the Constitution should be ammended, and there is a procedure for that, and that procedure goes through Congress.
An amendment would be better, because this would mean an actual and current support for that cause, as well as a more precise laying out of rules. That said, I believe I dealt with that argument in my above reply.
Now Fred, just like you I am no fan of our Congressmen, with bigotry and outright corruption being almost the norm. But those corrupt bigots were elected by the Brazilian people - a corrupt and bigotted people. I am no radical democrat and I agree individual rights should not be dependent on the will of the majority. But it's a complicated matter as I don't think our Constitution should be treated so lightly.
On this case the STF clearly is taking a role that belongs to Congress. The result was a good outcome, but that may not always be the case. For instance, this year the STF will judge whether or not racial quotas on public universities and public companies are legal - our Constitution clearly states they are not. To allow racial quotas one would need a 2/3rds majority in Congress to ammend the Constitution, and that would be hard to achieve - which is very good. If the STF however again takes the role of Congress and says racial quotas are OK - despite the fact they clearly aren't - than we'll be here regretting their judicial activism.
I singled out this from my previous comment because in a broader sense I agree. Lemme put on a little context here.
For those who don't know, the 1988 Brazilian Constitution marked a return to democracy in a country that suffered a dictatorship just before. The political climate back then was one of reinforcing the institutions, particularly the judiciary branch, deemed as the mean for the population to garantee it's rights against the possibility of an overly powerful executive.
This experiment has had mixed results. For example, it did succeed in avoid an all-powerful executive branch. But things are going, IMHO, too far, and in present day, judges are so powerful that actually members of executive, specially in small cities and non-influential states, are as a rule afraid of them. I've seen cases where the mayors are afraid of taking steps and having to answer to the public ministry in an ACP law action, and virtually obey the justice promoter instead of actually being the ruler on the city.
But it also has generated a more cynical approach from smart politicians, that delay public policies and decisions, and only take steps before judicial order. It's a clever way to dodge responsibility, saying that a given expense was made, or stopped, because a judge ordered.
The judiciary, however, seeing our inept executive, is becoming more and more involved. The posture of the STF in this case is corollary of this shift in attitude, which begun when the court changed their long standing position in the mandates of injunction to garantee the rights of striking for public servants, something that, though constitutionally granted, was being denied due to lack of legislation, that would never come, no matter how many times the congress was pressed to bring it. So, the STF did acknowledge it's role of positive legislator in whenever there is a malicious gap that the congress refuses to fill.
This is awful IMHO. I don't believe in enlightened tyrants, and I am overly critical of any instance where this happens. Nevertheless, the judiciary is the only technical of the three powers, and seems to be the most solid institutionally, so perhaps this is a step we will need to take in order to force the other powers to execute their duties responsibly. Time will tell.
I used to respect the SFT a great deal, but after the Battistio fiasco they proved they are every bit of a joke as Congress. Fact is Lula named some plainly inapt people: that Adams guy failed to become a simple judge, he was once a member of the Workers' Party, and yet Lula felt he would make a good STF minister! It's ridiculous.
I had an "I told you so" ready to throw at you when this outcame came, but I can't use it, for in fact, I was wrong as well. The STF made that awful decision evoking their historical position, but it's a position that they themselves have abandoned. There was an obvious political component there, and that is obnoxious. A good example as to why I don't believe in enlightened tyrants.
That said, it is a premisse, for any minister that come to the court with the opening on what is known as the "1/5 vacancy", that such person cannot be a judge, the idea being to bring someone of notable competence that can bring a fresh perspective to the court. Besides, the public tests to become judge are a regrettable necessity at best, and I'm positive that many great people failed in several instances because they don't like being submitted to humongous tests of memorization. I myself have trouble there, but I can bring examples of well acknowledge doctrinators, such as Fredie Didier, who despite failed himself, is a best seller author and frequently give classes to the people who succeed and became judges, and actually have been one of the minds behind recent reformations in civilian process.
Regards
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