A caneta é mais forte que a espada, after all.
In a spectacularly Brazilian way (a mixture of avoiding conflict, speaking through legalese, and using a relatively non-transparent process) the country made marriage equality the law of the land with the stroke of a pen. The Conselho Nacional de Justiça, a 15-member council that issues advice on legal issues and disputes, published guidance yesterday proclaiming
“É vedada às autoridades competentes [no caso, os cartórios]a recusa de habilitação, celebração de casamento civil ou de conversão de união estável em casamento entre pessoas de mesmo sexo”.
“The responsible authorities are prohibited from refusing civil marriage or the conversion of common law marriage from petitioners of the same sex”
This is important because, like in the United States, same-sex marriage has been a state-by-state affair in Brazil, with a patchwork of states managing a hodgepodge of laws. The federal government has tiptoed into the issue in the past, but yesterday’s decision makes the federal legal opinion clear.
What remains to be seen is if Congress agrees with their decision. Currently, marriage legislation is before the National Congress, and the issue has been more loaded on a legislative basis than this footloose and fancy free decision would imply.
If this was cover for a lily-livered Congress, it will mean that the CNJ is not as independent as they claim to be (a malaise common in the Brazilian government). If it is a truly autonomous decision, it is an interesting step forward for the judiciary and the balance of power in Brazilian democracy.
Regardless of what happens, Latin America’s largest country just set an important precedent for its neighbors and the developing world.