BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

governments even outside of Brazil to finance experimental medical treatments and provide drugs for various disorders, such as male erectile dysfunction and baldness. The procedural chaos generated by the case regarding homosexual unions shows how the discussion on the role of the judiciary in a constitutional democracy causes turmoil in Brazilian law. As previously mentioned, in the decision that healed the process, the then Chief Justice, Judge Gilmar Mendes, correctly indicated that the ADPF did not seem to be the best mechanism for resolving the dispute because the alleged omission of the State and the degree to which it helped define the issue were unclear. Thus, as a consequence of this need for an adequate procedural remedy, ADPF 178 was transformed into ADIn (Ação Direita de Inconstitucionalidade – Direct Action of Unconstitutionality) and inscribed with the serial number 4277. To make the issue even more complex, even before the Attorney General of the Republic had filed ADPF n. 178, the Governor of the State of Rio de Janeiro had already questioned the constitutionality of the lack (sic) of State protection for homosexual unions in ADPF n. 132. Thus, in May 2011, the FSC ruled on ADPF n. 132 and ADIn 4277. The Governor of the State of Rio de Janeiro filed the former, and the Attorney General of the Republic filed the latter. The actions were judged partially valid because the Court had unanimously recognized the State’s duty to protect homosexual unions. The Court interpreted art. 1723 of the Brazilian Civil Code in a manner that conformed with the Constitution. The arguments that comprised the discursive web present in the votes are, for the most part, sociological and/or moral. The majority of the ministers avoided confronting the principal legal question regarding the right of the judiciary to override a constitutionally derived power and thereby change the text of the Constitution. Rather, the judges merely asserted that the idea of judicial restraint in this case represented an “oblique vision” (sic) of the functions of the judiciary in modern law, as Judge Marco Aurelio stated in an aside during Judge Gilmar Mendes’s vote. During the voting process, the rapporteur wrote that “the sexual organ is a plus, a bonus, a gift of nature. It is not an onus, a burden, an encumbrance, much less a rebuke of the Gods.” Another judge wrote, “Homosexuality is a personality trait, not a belief, ideology or lifestyle choice.” 10 From these examples, one can see that the judgment guiding the judges’ votes was determined more by the judges’ personal understanding of the subject rather than by their technical interpretations of the Constitution. Ribas Vieira, et al. (2009) (ed), for research on this issue ( Judicial Activism and the Federal Supreme Court: laboratory for analyzing the jurisprudence of the FSC, Publisher: Juruá). It is always helpful to remember that, although judicial activism is inextricably linked to an act of will by the adjudicatory body, the judicialization of political or social issues does not depend on this act but rather stems from the expansion of society, which becomes increasingly more complex, and from the crisis of democracy itself, which tends to produce a colossal number of regulations through various measures, such as laws, provisional measures, decrees, and ordinances. These measures find their point of capillarization in the judiciary and, principally, in issues whose demarcation involves acts of constitutional jurisdiction. 10 We pose the following question: if homosexuality was a belief, ideology or lifestyle choice, then should the protection of the State be rejected? Additionally, is the freedom of expression also a constitutional guarantee? Moreover, what is the scientific basis for the argument that homosexuality is a personality trait? In this instance, would the judiciary be correct to assert that psychologists have not yet reached a consensus with regard to this argument?

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