Ellen Gracie Ministers Celso de Mello and the STF (Supreme Federal Court); Surpemo recognizes gay marriage The decision is binding, and reaches across society. The ministers were allowed to decide pending cases individually.
Despite not speaking in equality but in assimilation - making reservations, as the ministers and Ricardo Lewandowski Mendes - Peluso said that the Constitution does not exclude other forms of family entities, but recognizes that there are regulatory gap to be filled.
To Peluzo as well as to Mendes, the Legislature should regulate the assimilation with the stable heterosexual. Lewandowski had said earlier that there are some rights that are unique to a relationship formed by people of opposite sex, but did not specify.
In practice, the decision makes possible for homosexual rights such as pensions, inheritance and adoption.
Ten ministers voted - just Dias Toffoli minister did not attend the session because it has declared unable to stand, since he worked when he was in the process of the AGU (Attorney General's Office).
The Supreme Court decision is not equivalent to a law on the subject.Article 1723 Civil Code states stable heterosexual marriage as a family.What the Supreme did was to extend this recognition to gay couples.
Now, if a club veto the name of a homosexual partner as a dependent, for example, the couple can go to court and probably win the case, because the judges take their decision based on what the Supreme Court said on the subject, recognizing the union stable.
VOTES
Minister Carlos Ayres Britto - who is the rapporteur of the case - recognized the relationship between same-sex couples as "family entity" and was the first vote, given on Wednesday (4).
The session was resumed on Thursday with the vote of Justice Luiz Fux, who accompanied the rapporteur.
"Why can not constitute a homosexual family? By virtue of two issues that are abhorred by the Constitution: the intolerance and prejudice," he said."Almost the Constitution as a whole conspires to equalize the homo marriage to stable," he said.
The minister also cited recent data from the Census, that there are more than 60 thousand couples of the same sex living together in Brazil, to say that "homo marriage is a fact of life, is a social reality."
The minister Carmen Lucia was the third to vote. For her, the Constitution abhors any kind of prejudice. "Discrimination is repudiated in the existing constitutional system," said the minister, saying that the gay couple also form a "family entity" with rights and duties recognized by Brazilian law.
Then the minister Ricardo Lewandowski made reservations in his concurring opinion. He voted for union recognition as a homo "family entity", but set limitations, saying that some rights apply only to heterosexual relationships.
However, he did not elaborate on what his vote would be the exclusive rights to couples of the opposite sex.
Joaquim Barbosa, the fifth minister to vote, it was all in favor. "Human dignity is the notion that everyone, without exception, are entitled to equal consideration," he said in his vote.
According to him, the Constitution establishes, in crystalline form, the objective of promoting social justice and equal treatment of citizens. "
The Minister Gilmar Mendes, the seventh vote, also made remarks.
Mendes said there were "a series of questions and discrepancies" and that their vote would not enter the merits of "consequences" of this recognition.
The minister said that his vote merely acknowledge the legal existence of homo union by analogy with the constitutional text. "You want to regulate this is our vocation to exacerbate other legislators positive, with serious risk of derailing, producing gaps."
In a brief speech, the minister Ellen Gracie also voted in favor of full assimilation.
She said that developments in the law that it is for homosexuals began long ago, "since the Napoleonic Code, which decriminalized homosexual behavior, previously considered a crime."
"A decent society is a society that does not humiliate its members," he said.
The Eighth was voting for the minister Marco Aurélio. "The guarantees of religious freedom and secular state prevents religious moral principles guiding the treatment meted out to state fundamental rights, such as the right to human dignity, the right to self-determination, privacy and freedom of sexual orientation," he said.
"If recognition of a family unit depends only on the free choice and responsible for setting up everyday life to promote the dignity of the participants, conducted by the affection between them, so there seems no doubt that the 1988 Federal Constitution permits the union to be homoadmitted as such, "the minister said during the vote.
Minister Celso de Mello gave the ninth vote. "Everyone has the right to a family, regardless of sexual orientation or gender identity. Can not a democratic state to live with the people and property from citizens based on their sexuality. It is unconstitutional to exclude these people," he said.
Mello also noted that one can not confuse the legal issues with questions of a moral or religious because Brazil is a secular country.
"The Republic is secular and, therefore, while respecting all religions, not to be confused with legal issues questions of a moral or religious," he said.
The final vote was the chief justice. For Peluso, the trial is a "milestone, a starting point for further conquests."
Six votes were needed for the recognition of stable unions for gay couples.
HISTORY
This is the first time the Supreme Court evaluates whether the union between same sex can be framed in the legal regime of stable and homo examines whether the union can be regarded as a family unit.
Two actions are at stake. The first, filed in February 2008, is re-elected governor of Rio, Sérgio Cabral (PMDB). He contends that the Civil Code and the Civil Servants Statute of the State do not discriminate between heterosexual and homosexual couples with regard to legal recognition of a stable union. The suit alleges that discriminatory placements clash with constitutional principles as the right to equality and freedom and the principle of human dignity.
The lawsuit also claims that the current situation, with conflicting judgments in the state and nationwide, opposes the constitutional principle of legal certainty. The governor claims to have interest in the state action because there are a number of servers that are part of stable marriages homoafetivas.
"Therefore, put to the governor and the public administration matters concerning the rules on allowances due to illness of family member or accompanying spouse, and on social security and welfare," the suit says.The governor also says that since there are many gay couples in Rio, he finds himself obliged to plead the right portion of the citizens of the state.
The other action under review, the Attorney General's Office, was filed in July 2009. The request is similar: that the Supreme Court declared mandatory recognition in Brazil, the union of same-sex couples as a family. It also asks that the same rights as heterosexual couples are extended to homosexual couples.
The process, 322 pages, was proceeding under the responsibility of the minister Ellen Gracie until March this year when it was redistributed to Ayres Britto for dealing with similar subject to what was already being considered by the minister.
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