ADI 4277 — Same-Sex Marriage

Introduction

ADI 4.277 (Ação Direta de Inconstitucionalidade 4.277), decided jointly with ADPF 132 on May 5, 2011, is the landmark decision in which the Supreme Federal Court (STF) recognized same-sex stable unions (união estável) as family entities entitled to full legal protection. The decision fundamentally transformed Brazilian family law, establishing that discrimination based on sexual orientation violates the constitutional principles of equality and human dignity.

Background

The case was filed by the Attorney General’s Office (Procuradoria-Geral da República), arguing that Article 1,723 of the Civil Code — which defined stable unions as relationships between a man and a woman — was unconstitutional for excluding same-sex couples. Simultaneously, ADPF 132, filed by the State of Rio de Janeiro, raised similar issues regarding the application of the state civil service statute.

The legal question centered on whether the omission of same-sex relationships from the definition of stable unions violated: (i) the principle of equality (Article 5, I); (ii) the principle of human dignity (Article 1, III); (iii) the prohibition of discrimination based on sexual orientation; and (iv) the recognition of plural family forms (Article 226).

The Decision

By a unanimous vote of 10-0, the STF recognized same-sex stable unions as family entities. The opinion was authored by Justice Ayres Britto, who held that the Constitution, by guaranteeing equality and prohibiting discrimination, required recognition of same-sex unions.

Key Holdings

• Sexual orientation discrimination is unconstitutional: The Court held that differential treatment based on sexual orientation violates the constitutional principle of equality
• Family entity recognition: The Constitution’s protection of family entities extends to same-sex stable unions
• Full legal effects: Same-sex stable unions carry the same legal consequences as heterosexual ones, including property rights, inheritance, and social security benefits

Reasoning

The Court’s reasoning emphasized several constitutional principles:

Equality and Non-Discrimination

Justice Ayres Britto held that the Constitution’s equality principle applies to sexual orientation, as Article 3, IV prohibits discrimination of any kind. The distinction between heterosexual and same-sex unions has no constitutional justification.

Human Dignity

The Court held that excluding same-sex couples from family recognition violates their human dignity by denying them the legal framework for organizing their personal and emotional lives.

Pluralism of Family Forms

Article 226 recognizes multiple family entities, including stable unions, and does not limit them to opposite-sex couples. The Court held that the constitutional text, by its evolution and purpose, must be interpreted to include same-sex unions.

Impact

Immediate Effects

Following ADI 4.277: (i) same-sex couples could register stable unions with all legal effects; (ii) rights to inheritance, social security, and pension benefits were confirmed; and (iii) conversion of stable unions into marriage was permitted.

CNJ Resolution 175

In 2013, the National Council of Justice (CNJ) issued Resolution 175, requiring all notaries to perform same-sex marriages, effectively recognizing same-sex marriage nationwide.

Social Recognition

The decision contributed to broader social acceptance of same-sex relationships in Brazil, though discrimination and violence against LGBTQ+ persons remain significant concerns.

Subsequent Developments

After ADI 4.277, the STF addressed related issues: (i) the right of same-sex couples to adopt children was confirmed; (ii) transgender persons’ rights to name and gender change were recognized (ADI 4.275); and (iii) anti-discrimination protections were extended to sexual orientation and gender identity.

Conclusion

ADI 4.277 is a foundational case for LGBTQ+ rights in Brazil. The STF’s unanimous recognition of same-sex stable unions as family entities reflected a constitutional interpretation rooted in equality and dignity. The decision’s legacy extends beyond family law, influencing the broader recognition of LGBTQ+ rights in Brazilian legal and social life.