A top judicial panel in Brazil has ruled that same-sex marriages must be allowed nationwide.
An analysis and resolution issued Tuesday by Brazil’s 15-member National Council of Justice, the council that oversees the country’s judiciary, says that it is illegal for notary publics to refuse to perform same-sex marriages.
A 2011 Supreme Court ruling recognized the right for same-sex couples to have equal access to all marriage-like benefits.
Since then, 12 of Brazil’s 26 states and its Federal District have allowed recognition for gay marriages or formally recognized gay marriage, but this often requires court permission, a situation reminiscent of Argentina’s incremental marriage equality journey a few years ago.
However, not all jurisdictions have chosen to allow same-sex marriage recognition, with a decision often hinging on the moral opinions of individual notary publics.
As a result of this, a legal question was raised. Whether, based on current law which includes the 2011 Supreme Court ruling, it is lawful for notary publics to deny a same-sex couple the right to change their civil union to a same-sex marriage or to recognize same-sex marriages.
The National Council of Justice ruling issued this week deems it unlawful and that notaries cannot refuse to “perform a civil wedding or the conversion of a stable civil union into a marriage between persons of the same sex.”
“If a notary public officer rejects a gay marriage, he could eventually face disciplinary sanctions,” NCJ judge Guilherme Calmon told BBC Brasil.
The investigation was proposed by Brazil’s Supreme Court chief justice, Joaquim Barbosa, who also heads the judicial oversight panel.
He is quoted as saying the Supreme Court “affirmed that the expression of homosexuality and homosexual affection cannot serve as a basis for discriminatory treatment, which has no support in the Constitution.”
In effect, this legalizes same-sex marriage across the nation. However, there is still work to be done.
While technically same-sex marriages must now be allowed across Brazil, same-sex couples may still require a judge to sign off on their marriages because there has so far been no legislative action to properly recognize this right.
Currently, a same-sex marriage bill languishes in Brazil’s Congress where it faces strong opposition from religious and conservative lawmakers. Whether this ruling will serve to spur legislative action remains to be seen.
There is also the threat that legislative action could be taken to try to undermine this week’s ruling and there could still be a Supreme Court legal challenge to the National Council’s reading of the law.
Still, LGBT rights groups have praised the National Council of Justice for the ruling, with Carlos Magno Fonesca, president of the Brazilian Lesbian, Gay, Bisexual and Transgender Association, saying, “It is a major step that will ensure equality among heterosexual and homosexual couples.”
For more information on which countries have formally legalized same-sex marriage, please click here.
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