Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage
Bibliographic Data
| ID | 4756064 |
|---|---|
| Authors | Diego Werneck Arguelhes (0000-0001-7522-3717), Leandro Molhano Ribeiro (0000-0002-0827-6103) |
| Year | 2017 |
| Volume | 50 |
| Issue | 3 |
| Pages | 281-299 |
| Publication date | 2017-01-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | Verfassung in Recht und Übersee (JOURNAL) |
| Journal identifiers | ISSN: 0506-7286 |
| Publisher | Nomos Verlag (PUBLISHER) |
| DOI | 10.5771/0506-7286-2017-3-281 |
| OpenAlex | W2783725995 |
| Language | EN |
| Citations received | 3 |
Since 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 legislationthat 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
Legalization · Legislature · Political science · Supreme court · Law · LGBTQ Health, Identity, and Policy
| Unique citing works | 3 |
|---|---|
| Citations per year | 0.6 |
| Citation span | 2021 - 2022 (2) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 2 |