Notes on Countermovements and Conservative Lawyering: The Bumpy Road to Constitutional Marriage Equality in Brazil

Abstract

This working paper reconstructs the road to same-sex marriage equality in Brazil through the lens of countermovements and the conservative lawyers representing them. First, the working paper brings some insights from constitutional theory regarding non-textual, interpretative constitutional change fostered by social movements and countermovements. From Eskridge’s theory of social movements and constitutional law, the author hypotheses whether the arguments presented by the conservative lawyers before the Brazilian apex court (Supremo Tribunal Federal – STF) indicates a ‘politics of preservation’. Second, the author argues that combination of interpretative syncretism in the STF, and the inertia of political branches in protecting sexual minorities partially explain the prominent role of the STF in sexual where there is an increasing participation of conservative lawyers and the countermovements they represent in constitutional adjudication. This is done through a closer look at the STF decision on same-sex union (2011), at the National Council of Justice (Conselho Nacional de Justiça – CNJ) resolution establishing nationwide same-sex marriage (2013), and the subsequent pending case challenging such resolution before the STF in the same year. Overall, the author calls for a more solid equality jurisprudence in Brazil – marked by carefully crafted interpretation of equality, agreed among the majority of the STF Justices. Only then, the STF will have the institutional courage and legal soundness to face up the inertial of political branches in protecting sexual minorities and to deal with the rise of conservative lawyering.

Keywords: Same-sex Marriage, Conselho Nacional de Justiça, Constitutional Change, Conservative, Countermovements