Quando a inovação vem das cortes: o casamento homoafetivo e suas fragilidades no diálogo constitucional entre Brasil e Estados Unidos

Abstract

This research examines the legal instruments that have innovated the recognition of same-sex relationships in Brazil and in the United States, problematizing the vulnerability of judicial achievements in contexts of omission and institutional, political, and democratic crises. Its aim is to foster a critical and innovative consciousness geared toward promoting the effective dignity of this historically marginalized social group. To achieve this purpose, the research employs documentary analysis to study the following Brazilian precedents: the Allegation of Noncompliance with a Fundamental Precept No. 132 (2011) from the Federal Supreme Court; Special Appeal No. 1.183.378/RS from the Superior Court of Justice; and Resolution No. 175 from the National Justice Council. Next, through a constitutional dialogue, the study examines the decisions rendered in the cases “Obergefell v. Hodges” (2015) and “Dobbs v. Jackson” (2022), adjudicated by the United States Supreme Court. In its final stage, the study deepens the investigation into the phenomenon of overruling by examining the case “Dobbs v. Jackson Women’s Health Organization” (2022), now being explored as a potential precedent for future restrictions on fundamental rights, notably those related to the singularities of the LGBTQIA+ multitude. Situated within the fields of critical and empirical legal studies, this dissertation adopts both the hypothetico-deductive and legal-documentary methods. Drawing on a Foucauldian perspective and theorists such as Judith Butler, Michael Hardt, Antonio Negri, and Konrad Lachmayer, the research highlights the fragility of advances in fundamental rights achieved solely through judicial means, due to the lack of strict normative support to stabilize them – especially in light of the approval of the “Respect for Marriage Act.” It is argued that the absence of strictly defined norms undermines the stability of fundamental guarantees, rendering the rights to same-sex unions and marriages vulnerable to reversal, particularly in contexts where constitutional courts are co-opted by autocratic regimes. Therefore, it is emphasized that relying exclusively on the Judiciary is both precarious and insecure.