However, although the decision does create a legal basis for a stable homosexual union, it does not make same-sex marriage legal and does not quite recognize a civil union although the path to civil unions for homosexuals is now open.
Vicente went on to say that the ruling leaves various issues unresolved that will need congressional action, such as what he called “complete citizenship for the Brazilian homosexual movement that includes the right to a civil union.”
According to Vicente, the Rainbow Group wants equal rights, not privileges.
Brazil’s Federal Bar Association (Ordem dos Advogados do Brasil – OAB) commemorated last week’s decision by the Supreme Court recognizing that homosexuals can have a stable union. The OAB said the ruling was in accordance with the principles of human equality and dignity described in the Brazilian constitution.
“This is something that is part of Brazilian life and society. It is something that needed to be recognized by the courts so as to protect the rights of those who live in a situation similar to a stable union,” declared Ophir Cavalcante, the OAB president.
The Ruling
‘The Supreme Court of Brazil has given legal recognition to stable homosexual unions. That means a gay couple will now have the same rights (and obligations) as a family entity (entidade familiar).
In practical terms, a gay couple will be considered a family and the partners will be able to give one another an inheritance or a pension, share social security benefits and health plans, include the companion on an income tax return, as well as, in the case of separation, receive alimony and property. And as of now, a gay couple can adopt children and register them in their names.
That is just a small list because, according to Maria Berenice Dias, of the Brazilian Institute of the Family Rights (Instituto Brasileiro de Direito da Família – Ibdfam), heterosexual couples had no less than 112 restricted rights that a gay couple did not have.
The vote at the Supreme Court was unanimous (10-0), with one justice not participating. Justice Antonio Dias Toffoli recused himself because of work he did when he was the head of the Government Attorney Office (Advocacia Geral da União – AGU).
In spite of the unanimous vote, three justices, Lewandowski, Mendes and Peluso, pointed out that the decision was limited and did not resolve all the issues in the question of homosexual unions.
The judges insisted that what was needed was specific legislation on rights, legislation that only the Congress could take care of.
The Chief Justice (presidente) of the Supreme Court, Cezar Peluso, made it clear that there should be a specific law by the Congress, saying Congress was responsible for more specific legislation on the rights of homosexuals.
“We convoke the Legislative branch to take on this task – something they have not been eager to do in the past: implement appropriate legislation,” declared the Chief Justice.
According to Peluso, the Supreme Court decision was a kind of stopgap measure due to a legal lacuna that should be filled by a law. The Chief Justice said the court had ruled that hetero- and homosexual relations were similar, but that did not mean that in legal terms they were automatically equal.
“Today’s important decision opens the door for action by the legislature. Members of Congress must step up and do their part by creating the appropriate legislation that will ensure that the Court’s ruling will be effective,” declared Peluso.
Lewandowski added that the decision “…was an opening of the doors for homosexual unions, but not a closing of the doors in the Legislature.”
A number of bills on homosexual rights are bogged down in the Brazilian Congress and have been bogged down for a long time with little possibility of quick approval due to strong opposition by the Catholic church and many members of both Houses of Congress.