Same-sex marriage in Brazil has not been guaranteed by law, although it has been discussed for over twenty years by deputies and senators, along with other issues related to Family Law, which also lack a definition to maintain constitutional guarantees. In the case of PLS 612/2011, proposed by then senator Marta Suplicy, the text proposed changing the law to establish as a family “a stable union between two people”, without defining genders, maintaining the rest of the text. The proposal, presented in 2011, was approved by two committees, but did not pass through the plenary and was archived at the end of the parliamentarian's term in 2018.
In the same year that the senator's bill was presented, the Supreme Federal Court (STF) voted unanimously to recognize civil unions between same-sex couples as family entities. From then on, the LGBTQIAP+ population was granted the same rights provided for in the Civil Union Law. Two years later, in 2013, the National Council of Justice (CNJ) published a resolution guaranteeing the right to same-sex marriage in Brazil.
The fact that the STF ruled on a topic that was being discussed latvia mobile database by the Legislative Branch can be seen as a practice of judicial activism. More precisely, judicial activism is a term used to define the expansive and proactive action of the Judiciary Branch when interfering in the agendas and decisions of the Legislative and Executive Branches. This happens more frequently precisely when dealing with controversial topics in society, such as the example cited above regarding the recognition of same-sex unions.
Neither the law nor the Constitution had provided for homosexual relationships, therefore, several social demands ended up being made by the LGBTQIAP+ population, who had already lived the reality of forming a family for many years, but without the guarantee of rights regarding assets, pensions and division of assets in cases of separation. It was the accumulation of these problems not solved by the legislation that led the STF to make an activist decision, using constitutional mutation – when there is the possibility of changing the meaning of a norm without altering the text – to meet a social need.
In addition to the recognition of same-sex unions, other issues can be examples of judicial activism in Brazil, such as party loyalty; the declaration of unconstitutionality regarding the prohibition of the progression of heinous crimes; the ban on printed votes in electronic ballot boxes; and the criminalization of homophobia.