O reconhecimento do casamento de pessoas do mesmo sexo: o ativismo judicial na defesa dos direitos fundamentais – análise do resp 1.183.378/RS

Abstract

The present monograph is about the possibility of civil marriage between persons of the same sex. We look up here, by approaching the subject matter, to point out the elements in order to ensure the achievement of such institute. Therefore, we highlight the protection of same-sex marriage in the light of the principles constitutionally provided, especially human dignity and equality, leaders of other rights foretold in Constitution, approaching the so-called constitutionalization of the Brazilian Civil Law and the evolution of the concept of family. To protect the right of this deprecated minority, the role of Judicial Power makes itself relevant against majority, since there is no expressed provision on the subject, as it is approached on REsp 1.183.378/RS. A State that designates itself democratic cannot tolerate unjustified distinctions between citizens, without any rational, logical and constitutional support, as it occurs when the right of access to marriage is refused because of the sexual orientation of the intending spouses.