Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage

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dc.contributor.authorDIEGO WERNECK ARGUELHES
dc.contributor.authorRibeiro, Leandro Molhano
dc.coverage.paisAlemanhapt_BR
dc.creatorRibeiro, Leandro Molhano
dc.date.accessioned2022-11-08T15:51:25Z
dc.date.available2022-11-08T15:51:25Z
dc.date.issued2017
dc.description.notesSpecial Issue: Self-Determination and Indigenousnesspt_BR
dc.description.otherSince 2012, same-sex marriage has been legal in Brazil. This, however, was accomplished without the participation of any political branch: the only lawmaking actor involved was the Supreme Court. In existing studies on the judicialization of politics, lawmakers are typically the first movers, while courts function as actual or potential veto players regarding the outcome of the legislative process. The Brazilian Supreme Court, however, when provoked by social and political actors under specific circumstances, has delivered decisions that: (a) established rules in areas of law where the elected branches had not made any decisions in the last decades; and (b) at least in how they came to be treated by the Supreme Court itself, foreclosed further congressional or presidential lawmaking on these topics. This paper is a case study on the conditions in which this judicial role – of a first and only legislative chamber – has emerged in Brazil. Although Brazilian constitutional law includes a couple of mechanisms designed for judicial review of legislative omissions, it was the Supreme Court's increasingly expansive reading of its own powers – not those deliberately designed to allow for judicial legislation – that created opportunities for social and political movements to bypass Congress and change the constitutional status quo according to their ideals. This new role of the Supreme Court, however, creates tension between two different justifications for judicial intervention in politics – when judges act last, they are constrained by not having also been the first to decide what the constitution requires and allows for on a given issue. In same-sex marriage litigation and in several other recent cases, however, the Brazilian Supreme Court has been trying to have it both ways.pt_BR
dc.format.extentp. 281-299pt_BR
dc.format.mediumDigitalpt_BR
dc.identifier.issn5067286pt_BR
dc.identifier.issue3pt_BR
dc.identifier.urihttps://repositorio.insper.edu.br/handle/11224/4660
dc.identifier.volume50pt_BR
dc.language.isoInglêspt_BR
dc.language.otherAlemãopt_BR
dc.publisherNomos Verlagsgesellschaft mbHpt_BR
dc.relation.ispartofVerfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin Americapt_BR
dc.rights.licenseO INSPER E ESTE REPOSITÓRIO NÃO DETÊM OS DIREITOS DE USO E REPRODUÇÃO DOS CONTEÚDOS AQUI REGISTRADOS. É RESPONSABILIDADE DOS USUÁRIOS INDIVIDUAIS VERIFICAR OS USOS PERMITIDOS NA FONTE ORIGINAL, RESPEITANDO-SE OS DIREITOS DE AUTOR OU EDITOR;pt_BR
dc.titleCourts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriagept_BR
dc.typejournal article
dspace.entity.typePublication
local.identifier.sourceUrihttps://www.jstor.org/stable/26429243
local.subject.cnpqCiências Sociais Aplicadaspt_BR
local.typeArtigo Científicopt_BR
relation.isAuthorOfPublication6124bd30-d35a-4f0a-9f08-32e2cd64887d
relation.isAuthorOfPublication.latestForDiscovery6124bd30-d35a-4f0a-9f08-32e2cd64887d

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