A Stable Union

All week, I'd been gathering material to write about Foxconn and high tech industries in Brazil, and then put everything on hold for the historic decision that came out of Brazil's Supreme Court today.

The STF ruled that gay couples have the same rights as straight couples, before the law as citizens and in terms of government, work, and legal benefits, including health insurance coverage, pensions, alimony, inheritances, property rights, health care proxy rights, and some say may even be argued to include the right to adoption. Previously, lower courts had issued mixed rulings about gay couples' rights, and the only way to try to exercise these types of rights was by going to court and trying your luck. The ruling comes after ten years of stalled legislation in Congress, and gay rights advocate legislators hailed the ruling but lamented the fact that the decision didn't come from those responsible for writing the nation's laws.

The ruling couldn't come at a better time. Not only have LBGT rights advocates been struggling with pushing legislation through Congress, but gay rights have become more of a visible issue, with reports of increased violence against gays and the continued persecution of and prejudice against LGBTs, even by politicians. Not only did the STF enshrine the legal principle that gay couples have equal rights, but also recognized the need for change in terms of how gays are treated in society as a whole, and many of the judges specifically cited discrimination as a basis for the ruling.

There were a couple other interesting things about the case. One of them is that the ruling was unanimous. One judge abstained, since he had worked with similar cases in the past, but all ten other judges ruled in favor. For a case of this magnitude that was opposed by many in Congress and by the Catholic Church, it was an unexpected surprise, just the cherry on top of a historic decision. The other interesting thing was that the case was brought by both the attorney general's office and by Sérgio Cabral, the governor of Rio state. This is particularly interesting because though Cabral is known for installing pacification units in favelas to try to reduce violence, he's not exactly a social reformer. I'd like to think he's altruistic, but I do wonder what his motivation was. I'd like to think it's because there are now enough openly gay constituents to throw their weight around, or it could be his close relationship to the president, who is in fact committed to social reform.

In the ruling, the judges cited a number of reasons for their decision, including the right to privacy, the freedom of expression, and even the right to pursue happiness. While some argued this type of decision should have come in the form of a law from Congress, it was hard to question the triumph of democratic principles. As usual, Minister Ellen Gracie was eloquent in her explanation:

"O reconhecimento hoje, pelo Tribunal, desses direitos, responde a pessoas que durante longo tempo foram humilhadas, cujos direitos foram ignorados, cuja dignidade foi ofendida, cuja identidade foi denegada e cuja liberdade foi oprimida. O Tribunal lhes restitui o respeito que merecem, reconhece seus direitos, restaura sua dignidade, afirma sua identidade e restaura a sua liberdade."

["Today, this court recognizes those rights which belong to people who for a long time were humiliated, whose rights were ignored, whose dignity was offended, and whose freedom was oppressed. This court restores them with the respect they deserve, recognizes their rights, restores their dignity, affirms their identity, and restores their freedom."']

There was the usual reaction from the Church and right wingers (Bolsonaro, the same controversial homophobic congressman I've written about, complained that after legalizing civil unions, they'd legalize pedophilia. He's really lovely, isn't he?), but otherwise the news seemed to reverberate without too much incident, at least for now. The only thing that seems to be confusing some is the difference between a civil union and marriage. The decision did not legalize gay marriage, but in Brazil, civil unions among straight couples are quite common, and are what we'd consider a common law marriage, but with certain rights guaranteed. So while it did not legalize marriage, it legalized something somewhat close to it. In a country where the Catholic Church still wields power, evangelical Christianity and its corresponding socially conservative values are on the rise, and abortion is still illegal, this kind of decision is truly momentous.

Perhaps one of the most important elements of the decision was the very definition of a civil union, called a "stable union." The court determined that such a relationship in fact applies to all women and men, regardless of whether they are in a same sex relationship, essentially redefining the Civil Code, which sets a legal precedent and also opens the door for similar decisions. In the code, the definition for a civil union is this:

"É reconhecida como entidade familiar a união estável entre o homem e a mulher, configurada na convivência pública, contínua e duradoura e estabelecida com o objetivo de constituição de família."

[Roughly: A civil union is recognized as a family entity between a man and a woman, who live together and have a stable, lasting relationship, and is established as constituting a family.]

That the decision officially recognized gay couples as families is one of the things that truly impacted the 60,000 gay couples in Brazil (though by the way, I think that number is conservative). Not only were they recognized as equals before the law, but they were recognized as equals as people, redefining the notion of what it means to be gay in Brazil. It's not just a victory for the Brazilian LGBT movement, but is also a victory for Brazilian democracy.

Comments

[RFS]

It should be noted that many of the rights conceded under the STF decision - for instance, pension rights - the central government had already guaranteed before. As for the right to adopt, the law already afforded it to stable but unregistered couples, both gay and straight. There was, however, a preference for registered couples. The STF shall make things more equal.

"with reports of increased violence against gays and the continued persecution of and prejudice against LGBTs, even by politicians."

I have already stated my objections to reports of increased violence. Oft-cited figures are produced by gay NGOs - as opposed to independent, neutral organizations - and they say nothing on what are the crimes' motivations. For example, the Grupo Gay da Bahia estimates that 260 homosexuals and transexuals were murdered in 2010. The reason for the killings, however - whether they had to do with anti-gay hate or not - is something they themselves don't know. And considering that those figures correspond to only 0.5% of all murders in Brazil and that gays, bisexuals and transexuals are 2-5% of the total population - it seems LGBTs are actually less exposed to violence and "persecution" than the general population.

As for prejudice on the part of politicians - it's unfair to use the plural word. It makes it look like there's in Brazil an equivalent to the Republican Party. The fact, however, is that the largest right-wing parties in Brazil - the PSDB and the DEM - are not social conservative and tend to focus on economic and administrative issues. Bolsonaro is, so far, the only notable politician to come out with abusive words on gay people. But he is an extremist - for instance, he's the only modern politician who still has nothing but nice words about the military regime.

I also don't agree that social conservative values in Brazil are on the up. It's true that many people - mainly poor people - are converting to Evangelical Christianity. We don't know, however, how much this has impacted popular opinion on "values issues." After all, Catholicism is still and by far the largest religion, and the percentage of non-religious people is also increasing. In 2003 Gallup asked people in many countries throughout the world whether they thought homosexuality should be accepted by society. 54% of Brazilians said then that it should. In 2007, that percentage had increased to 65%. (By contrast, in the US that percentage decreased from 51% to 49%.) It confirms my personal experience that the younger generation is quite liberal regarding gay rights.

[Andrew]

Before I make my comment, full disclosure: I am one of the Christian Evangelicals you write about, and am singularly dedicated to the cause of Christ in Brazil.

Having said that, my purpose here is not to engage in a debate about the rightness or wrongness of the current decision, in and of itself.

Furthermore, let me say that I have followed your blog for some time (commenting occasionally) and have found it to be a valuable resource for information and opinion regarding my adopted country--current post included.

Ok...now that that is out of the way, here is my question: How can this decision be construed as a victory for democracy? Ten individuals superseded the will of the elected public servants. If, in a democratic government, the congress represents the collective will of the people, then ten members of the STF just violated that will. This is not democracy--it is oligarchy.

Remember when individual judges kept shutting down the process to get Sean Goldman reunited with his father? We were outraged at that blatant abuse of power. In this case, ten judges have decided the will of the entire nation. This seems to me to be a major blow TO democracy, not for it.

Of course it is much easier to get eleven (or, in the case of the US, nine) powerful people to agree with you than it is to re-educate an entire nation. But if you want to champion your cause AND preserve democracy, then re-educate you must. Otherwise, you win your cause at the cost of democracy.

[Carlos]

Rachel,

I'm writing about Sean and David Goldman. Yesterday, David's book "A Father's Love: One Man's Unrelenting Battle to Bring His Abducted Son Home" was published. I surmise you may already be reading it.

Today, Folha de Sao Paulo published a brief blurb about it, and says that in the book, Goldman said Bruna Bianchi was "calculating" (the Brazilian term for it is "calculista" and in my view as a native Brazilian, it is just as negative if not even more negative than it is in English) and she could not stomach the fact that he was not wealthy and therefore unable to give her the affluent lifestyle to which she was accustomed in Brazil. Given what I've read of the story, this is perfectly realistic.

But what the blurb said (you most probably know this already) was that he got a call a few days later in which the caller warned him that they know who he was, where he lived, and that he was going to die. Weren't you yourself given death threats while you worked to bring awareness to David's cause during your time living in Brazil?

I am sickened now as I was then by the corruption of the Brazilian system, a corruption you described all too well in December 2009... a country on the brink of modernity tied to its feudal past. To drive the point home, here are a few user comments by Brazilians on uol.com.br/folha:

- A AVÓ FEZ O AMERICANO DE GATO E SAPATO QUANDO ELE VINHA VISITAR O FILHO, OS LINS E SILVA SEMPRE SE CONSIDERARAM OS DONOS DO MUNDO, AGORA ESTÃO PAGANDO , ESTÃO RECEBENDO O MESMO TRATAMENTO QUE DERAM PARA O PAI DO GAROTO, MUITO BEM FEITO.

- Para mim, tratava-se de uma carioca decadente, que vive a custa do Estado brasileiro, deveria ser uma reacionariazinha, que inclusive, daqueles que negam o Brasil e vao morar no exterior. Nao para estudar ou trabalhar, para nao fazer nada mesmo, porque tem nojo do Brasil. Conheceu um americano, teve um filho, depois, se sentiu no direito de roubar a crianca do pai, por pura vaidade. Tendo o apoio da familia e da Globo para esta aberracao. Achando que rico (decadente) pode fazer o que quer.

- O BRASIL ESTÁ COM VOCÊ DAVID! VIVA EM PAZ COM O SEAN! VC MERECE.

- Pois é Deus é justiça pois enxergou a péssima mãe que ela era e a pessima família sem escrúpulos que o menino ia ter que conviver e a tirou desse mundo. Quanto a avó , não existe amor , apenas interesse, vaidade e orgulho ferido A justiça foi feita............

- Eu me pergunto, como é q o governo e a justiça brasileira, dão respaldo a este tipico caso de filho, nascido no exterior e sequestrado pela mãe brasileira,caça dotes, ou melhor, troucha americano p/ provedor de suas mordomias às custas da pensão a ser concedida p/ o filho, caso o golpe tivesse dado certo.Uma vergonha, depois não sabemos o porque da má fama da mulher brasileira no exterior. Uma VERGONHA!

- A Mãe do menino agiu ilegalmente, assim como pais estrangeiros que levam os filhos brasileiros para o Oriente Médio, Europa ou Japão. Nestes casos a Mídia Nacional costuma fazer reportagens lacrimosas "denunciando" o absurdo da situação. A família Lins e Silva é de juristas e atuou ativamente contra a devolução do filho ao Pai. A Mídia não informa mas o Pai entrou com Ações na Justiça Americana e Brasileira assim que tomou conhecimento que a mãe não retornaria aos EUA e esperou anos pela decisão.

But, Rachel, this one really captures my sentiments, and echoes Goldman's own description of his now deceased ex-wife:

- A minha visão é esta: a mãe e o pai dele se encontraram numa escola de modas em Milão. Apaixonaram-se e se casaram. Foram morar na cidade do pai, em Nova Jersey (estado fabril, sem graça). Nasceu o menino. A brasileira caiu na real: o glamoroso americano de Milão era um homem pobre nos EUA. Ela fugiu com o menino. Faleceu. O pai buscou o filho e com razão. Tivesse tudo bem, os avós visitariam sempre, como fazem avós. Mas... agora sofrem. Uma pena.

I'm certainly not glad that Bruna Bianchi died, but she should have known better. If money and quality of life were that important to her (and this is each person's own criteria), she should've known better what kind of life he could've offered her in America. Not every American is rich just as there are many Brazilians who live glamorous lifestyles.

[RFS]

Andrew,

Your interpretation on what is a democracy seems to be this: that a democracy is by necessity a system whose policies reflect nothing but the will of the majority. This is one of the crudest interpretations of democracy, one that could easily degenerate into mob rule. In the constitutions of most liberal democracies there are provisions to protect the rights of minorities from the humor variations of the majority. You who are an Evangelical Christian, please tell me: if, in a non-Christian majority country - say, India or Pakistan or China - the people voted to rob Evangelical Christians of all rights to freely and peacefully practice their religion without state interference - would you consider it a democratic decision, a victory of democracy? If not, why not? After all, isn't it the majority who gets to decide issues such as this one?

[Andrew]

RFS,

A fair question, based on what I wrote. Of course modern democracy is more than just the will of the people. That is why there are representatives, branches of government, checks and balances. I understand this.

My point is that the justices overstepped their bounds. Instead of interpreting the law, they made it. Or, at the very best, they ignored the simple language of the constitution in order to make it say what they wanted it to say.

The following phrase is from the linked article: "But the attorney general's office argued the clause is only a definition and not a limitation..." That has to be one of the most amazing pieces of semantic gymnastics since the infamous "it depends on what the definition of 'is' is."
When you define something, you limit it. If you define a zebra as an animal that looks like a horse and has black and white stripes, you automatically relegate any animal without black and white stripes to non-zebra status. If you want to include non-striped animals into the category of "zebra", you are going to have to change the definition of zebra.

Your use of the persecution of Christians worldwide is actually helpful to the argument. My brethren in countries like China, Indonesia, Iran (and the list goes on and on) would love to participate in the governmental process to secure their own liberty, but cannot. Why? Because the countries in question are dictatorships, or, at best, oligarchies. Here in Brazil people of the gay persuasion can and do participate in public life at all levels. Do you see the difference?

I hope I'm making sense. It's late and I just had rodízio de pizza, so all the blood is running to my stomach. Thanks for helping me flesh out what I was trying to say.

[Eduardo Marques]

O casamento entre homossexuais no Brasil e na Argentina é um fato engraçado. Na argentina, o casamento gay foi legalizado em 2010. Mesmo assim, é comum ver notícias de juízes e profissionais de Direito que se recusam a celebrar casamento. No Brasil, a união civil é permitida desde 2004, e a jurisprudência é favorável à adoção, tendo sido a primeira realizada em 2005. A legalização do ato sexual entre pessoas do mesmo sexo no Brasil data de 1830, na Argentina, de 1887. Acredito que a Argentina legalizou o casamento homo pura e simplesmente para macaquear a Europa e forçar alguma semelhança com ela.

http://en.wikipedia.org/wiki/LGBT_rights_by_country_or_territory#South_America

Lembremos que a Constituição argentina é notável pelo seu caráter conservador e retrógrado. O artigo 2º diz que o Estado argentino deve sustentar o culto católico. Há pouco tempo, ela também definia como obrigatória essa religião para ser eleito o presidente do país. O artigo 25, com mensagem claramente racista e discriminatória e racista, estatui que o Estado deve estimular a migração para o País pessoas vindas da Europa.

http://en.wikipedia.org/wiki/Religion_in_Argentina
http://en.wikipedia.org/wiki/Racism_in_Argentina#.22White-European.22_racism_and_Article_25_of_the_Constitution

O casamento homossexual, sendo aprovado no Brasil, não seria nada mais do que a materialização da vontade popular e de evolução gradual da sociedade e do direito. Na Argentina, é só mais uma forma de eles tentarem chegar mais próximos do "sonho europeu", uma maneira de tentarem parecer mais "modernos" e "civilizados".

[Ray]

Andrew,

I personally think Jesus Christ and everything Christians believe is pathetic, it's a lie, including everything written in your mistranslated Bibles, all different versions of it, including the ones that used to say Black people didn't have souls, so it was ok to slave them. Someone brilliantly created this bunch of crap to manipulate people thousands of years ago, it has worked very well, you are living proof, you are like a zombie repeating the same absurd on line and fighting against civil rights.
Unfortunately in the US, idiots who share the same bigoted beliefs as you do still make this country socially backwards and lagging behind in civil rights. Shame on you and every stupid Evangelical Christian in the US and around the world.
You should consider yourself lucky that Democracy is not what you think it is, as you poorly demonstrated on your comment, the "will of the majority". Because if the will of the majority really happened, your manipulative pals who seduce millions of Americans to give you their money, would be rightfully taxed, like I think they should be, because in my eyes, you are a business, but once you don't pay any taxes anywhere, I suggest you stay out of politics, where you belong.
You belong in a church, with your funny hats, your colorful clothes, praying to a made up bunch of crazy stories, that makes you feel good, good for you. But remember some of your pals might just be abusing little children on Sunday school behind the church at the same time they fight against civil rights. You guys are a classy bunch.

Evangelicals have become synonymous with HYPOCRISY and you just help to fortify that notion. Did you enjoy the Pizza Rodizio, belly full? Thank your Bible and all the idiots who believe in it.
I am not an atheist, before you go making any assumptions. I do believe in God.

GOD created the gays and you are INSULTING GOD with your ridiculous and UNGODLY views about the GAYS, or you just may burn in hell. Oops I don't believe in hell either, but you probably do, so watch out!
The Brazilian Supreme court made a simple,smart and rather very technical decision, the Brazilian constitution assures EQUAL rights to all citizens, PERIOD. Hence their unanimous decision to afford same sex couples all the RIGHTS given to everyone else, it wasn't a liberal or conservative vote. Any judge voting against the decision would be considered a HYPOCRITE trumping the Brazilian constitution for personal biased or religious beliefs, there is no room in the Judiciary for imaginary friends ( religion ) and very little room for personal beliefs, definitely no room to vote any different due to the extreme technicality of this specific decision.
Have you ever heard of SEPARATION of CHURCH and STATE? Probably not, well, you might need to re-educate yourself and learn about AMERICAN HISTORY.
Why don't you USE some more of that MONEY folks give you at CHURCH on SUNDAYS and go eat some more PIZZA RODIZIO. The worse kind and lower quality by the way, which is what you deserve.
You don't deserve to be in BRAZIL.

Why don't you move back to a backwards little corner of the US where religion still trumps common sense, civil rights, human dignity, and decency.
How dare you criticize the Brazilian Supreme Court's decision!
Do you know anything about LAW and CIVIL PROCEDURES in BRAZIL?
Clearly not or you wouldn't have written such absurd.
You should abstain yourself from exposing the Evangelicals to further embarrassment, not all of them are as evil and or as bigoted as you.

[Ray]

Dear Rachel,

Great post!
Well written as usual, thanks for sharing all the links as well.
Keep up the excellent work.

Ray

[Eloisa]

Andrew, "Here in Brazil people of the gay persuasion can and do participate in public life at all levels." Yeah, NOW, after the decision, that's true. Because before, they couldn't get any of the public rights that were granted to straight couples, as listed in the judges decisions. "Public life" is not only voting and political participation. It includes rights as pensions, health care, etc. How, if not on religious grounds, can one deny gays those rights and still have "all equal before the law"? That was the reasoning of the judges, who are very good writers BTW, and I suggest everybody to take a look at the full text of their opinions, which are grounded in hard core principles of justice.

[Dennis]

Ray, you honey badger!
I'm so happy for Brazil and only wish the same for the US, for no other reason (though there are thousands of good ones) than getting to see Glenn Greenwald on TV more. Rachel, he deserves q profile (sorry if you did already and I missed it)!

[Pedro]

Guys
Really, stop wasting your time, it's totally impossible to discuss something like this with someone close-minded like Andrew.... It's just hard for him to accept that, for once, human rights won over religion!

Andrew, please, do us a favour, and get your religious evangelic ass the hell out of my country, we have more then enough of your kind here taking money from the poor in change of a promised spot in heaven... You guys are no better then our corrupt politicians!

I went to an evangelical marriage last year and during the ceremony, the "pastor" made the wife promise she would be faithful, servant and subordinate to her husband, no matter what, while this was not required from the husband.... If they can't even recognize equal rights to a heterossexuai couple, you can't expect much from then for gay rights!!

[RFS]

What Eloisa is saying an unfair distortion of reality.

As I wrote in my first post, gay couples already had at the federal level some of the rights granted to heterosexual couples: a gay person could list his partner as a dependent on the INSS and the income tax; gay couples could adopt; health insurance companies were also compelled to cover for partners in an same-sex partnership; and the law granted immigration rights to people in stable same-sex relations with Brazilian citizens. Under the previous arrangement, unregistered couples in a long-term, stable relationship - be it same- or opposite-sex - had many rights recognized under the law. That's far more than one could say of same-sex rights in, say, the US or France.

[Ian Nieves]

Gay Brazilian participation in civic life has been won in the face of stiff Christian opposition, most particularly that of Evangelicals of Andrew's ilk. Beyond gay enfranchisement, the High Court's decision affirmed that Brazil is embracing the social and political secularism characteristic of developed nations, and rejecting the theocratic Christianity that's impoverished Latin America and held it hostage to homegrown Fascism and foreign Imperialism. Fervent Latin Christianity has meant the subjugation of women under authoritarian patriarchy and their shackling to kitchen, church and children, the virtual excommunication of Atheists and gays from society and the enthronement of the Catholic church as pervasive moral police. The marginalization of religion in all aspects of Brazilian life is vital for the nation's social and economic maturation.