Become impossible taking into consideration the documents for the debates that are congressional result in the use associated with norm, when the objective to restrict domestic partnerships to heterosexual relationships is extremely clear (Supremo Tribunal Federal, note 24, pp. 92-3).
The reason why she considers the literal interpretation of the norm to be inadmissible is the fact that Constitution must certanly be grasped as being a whole that is harmonious. Minister Carmen Lucia claims: “Once the right to freedom is granted … it is important to ensure the alternative of really working out it. It can make no feeling if exactly the same Constitution that establishes the right to freedom and forbids discrimination … would contradictorily prevent its exercise by publishing people who wish to exercise their straight to make free personal alternatives to prejudice that is social discrimination” (Supremo Tribunal Federal, note 24, pp. 91-4).
Justices adopting the 2nd type of reasoning (b), on the other side hand, admit that the Constitution will not manage same-sex domestic partnerships and determine this as being a gap when you look at the text that is constitutional.
The right to form a family, that gap must be filled by analogy since it would be against basic constitutional principles and fundamental rights to completely deny homosexual individuals. And because heterosexual domestic partnerships would be the form that is closest of household to homosexual domestic partnerships, the guidelines about heterosexual domestic partnerships must certanly be put on homosexual partnerships, by analogy.
At first it could maybe maybe maybe not look like most of a significant difference, but this argument renders room for difference between heterosexual and homosexual partnerships that are domestic since they will be perhaps not regarded as being the exact same, just comparable. The thinking assumes there are (or may be) appropriate distinctions, meaning that not absolutely all guidelines that connect with heterosexual domestic partnerships always connect with homosexual domestic partnerships.
This can be clarified when you look at the views of all of the three justices whom adopted the 2nd line of thinking in their viewpoints.
Minister Ricardo Lewandowski, for example, explicitly states that the legislation of heterosexual partnerships that are domestic be reproduced to homosexual domestic partnerships, but “only in aspects for which they truly are comparable, rather than in aspects which are typical associated with the relationship between folks of other sexes” (Supremo Tribunal Federal, note 24, p. 112).
Minister Gilmar Mendes claims that “in view of this complexity regarding the phenomenon that is social hand there clearly was a danger that, in merely equating heterosexual relationships with homosexual relationships, we would be dealing with as equal circumstances which will, with time, turn out to be various” (Supremo Tribunal Federal, note 24, p. 138).
Minister Cezar Peluso states that not absolutely all the guidelines on domestic partnerships affect homosexual domestic partnerships since they’re not exactly the same and “it is important to respect the particulars of each institution” (Supremo Tribunal Federal, note 24, p. 268).
Not one of them specifies exactly just exactly what the differences that are relevant be or exactly what norms are not to ever be reproduced to same-sex domestic partnerships, but you can find indications they may be thinking about the rule that states regulations must further the transformation of domestic partnerships into wedding.
Minister Gilmar Mendes, by way of example, expressly relates to the transformation into wedding as one example regarding the aspects that would be a nagging issue if both kinds of domestic partnerships had been regarded as the exact same (Supremo Tribunal Federal, note 24, p. 195).
Finally, they even inform you that the ruling ought not to be grasped as excluding legislation by the Legislature (Supremo Tribunal Federal, note 24, pp. 112, 182, 269).