ADI N 4.277 – Constitutionality and relevance of the decision on same-sex union: the Supreme Court as a countermajoritarian institution in the recognition of a plural conception of family.

Abstract

THE ARTICLE IS WITHIN THE STUDIES OF PUBLIC LAW CONCERNING JURISPRUDENCE AND IT SEEKS TO SHOW THE CONSTITUTIONALITY AND RELEVANCE OF THE DECISION OF THE BRAZILIAN SUPREME COURT IN THE ADPF N. 132 AND ADI N. 4.277. IT DEBATES THE COUNTER-MAJORITARIAN ROLE OF THE COURT IN POLITICAL QUESTIONS AND THE ROLE OF FUNDAMENTAL RIGHTS PARTICULARLY IN THE APPLICATION OF THE CONSTITUTIONAL PRINCIPLES BY THE POWERS OF THE STATE, WHICH SHOWS THE INERTIA OF THE PARLIAMENT AND THE MIGRATION OF POLEMICAL QUESTIONS FOR THE SUPREME COURT. IN SEQUENCE, IT DEVELOPS DE CONTEMPORARY CONCEPT OF CONJUGAL FAMILY, BASED MOSTLY IN AFFECTION (LOVE) AND IN THE TOTAL COMMUNION OF LIFE AND INTERESTS (IN A PUBLIC, CONTINUOUS AND LONG-LASTING FORM), IN ORDER TO DEMONSTRATE THAT THE HOMOAFFECTIVE UNION IS IDENTICAL OR, AT LEAST, ANALOGUE TO THE ONE FORMED BY THE HETEROAFFECTIVE UNION, WHICH GENERATES THE CONCLUSION ABOUT THE CORRECTION OF THE DECISION THAT RECOGNIZED THE RIGHT TO THE STABLE UNION TO HOMOAFFECTIVE COUPLES.