Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage

Diego Werneck Arguelhes; Leandro Molhano Ribeiro

doi:10.5771/0506-7286-2017-3-281

Contents
- Chapter Expand | CollapseAuthorsPage
- 215–216 Titelei/Inhaltsverzeichnis 215–216
- 217–299 Abhandlungen / Articles 217–299
  - 217–241 Self-determination in the Case Law of the African Commission: Lessons for Europe Stefan Salomon Stefan Salomon 217–241
  - 242–258 Indigenousness and peoples’ rights in the African human rights system: situating the Ogiek judgement of the African Court on Human and Peoples’ Rights Ricarda Rösch Ricarda Rösch 242–258
  - 259–280 An Advisory Body for Aboriginal Peoples in Australia – one step forward and two back? Bertus De Villiers Bertus De Villiers 259–280
  - 281–299 Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage Diego Werneck Arguelhes, Leandro Molhano Ribeiro Diego Werneck Arguelhes, Leandro Molhano Ribeiro 281–299
- 300–311 Berichte / Reports 300–311
  - Shayara Bano versus Union of India and Others. The Indian Supreme Court's Ban of Triple Talaq and the Debate around Muslim Personal Law and Gender Justice Tanja Herklotz Tanja Herklotz
- 312–329 Buchbesprechungen / Book Reviews 312–329
Durchsuchen Sie das Werk
Geben Sie ein Keyword in die Suchleiste ein
No access

VRÜ Verfassung und Recht in Übersee , page 281 - 299

Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage

Autoren

Diego Werneck Arguelhes Leandro Molhano Ribeiro

DOI
- doi.org/10.5771/0506-7286-2017-3-281
- ISSN: 0506-7286
- ISSN online: 2941-9603
Abstract

Since 2012, same-sex marriage has been legal in Brazil. This, however, was accomplished without the participation of any political branch: the only lawmaking actor involved was the Supreme Court. In existing studies on the judicialization of politics, lawmakers are typically the first movers, while courts function as actual or potential veto players regarding the outcome of the legislative process. The Brazilian Supreme Court, however, when provoked by social and political actors under specific circumstances, has delivered decisions that: (a) established rules in areas of law where the elected branches had not made any decisions in the last decades; and (b) at least in how they came to be treated by the Supreme Court itself, foreclosed further congressional or presidential lawmaking on these topics. This paper is a case study on the conditions in which this judicial role - of a first and only legislative chamber - has emerged in Brazil. Although Brazilian constitutional law includes a couple of mechanisms designed for judicial review of legislative omissions, it was the Supreme Court’s increasingly expansive reading of its own powers - not those deliberately designed to allow for judicial legislation - that created opportunities for social and political movements to bypass Congress and change the constitutional status quo according to their ideals. This new role of the Supreme Court, however, creates tension between two different justifications for judicial intervention in politics - when judges act last, they are constrained by not having also been the first to decide what the constitution requires and allows for on a given issue. In same-sex marriage litigation and in several other recent cases, however, the Brazilian Supreme Court has been trying to have it both ways.
Share