Become impossible thinking about the documents regarding the congressional debates that result in the use for the norm, where the objective to restrict domestic partnerships to heterosexual relationships is quite clear (Supremo Tribunal Federal, note 24, pp. 92-3).
The main reason she considers the literal interpretation with this norm to be inadmissible is the fact that the Constitution needs to be grasped being a whole that is harmonious. Minister Carmen Lucia claims: “Once the proper to freedom is granted … it is important to make sure the alternative of really working out it. It could make no sense if the exact same Constitution that establishes the right to freedom and forbids discrimination … would contradictorily avoid its workout by publishing people who wish to work out their straight to make free individual alternatives to prejudice that is social discrimination” (Supremo Tribunal Federal, note 24, pp. 91-4).
Justices adopting the next type of reasoning (b), regarding the other hand, acknowledge that the Constitution will not control same-sex domestic partnerships and view this as being a space when you look at the constitutional text.
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 family members to homosexual domestic partnerships, the guidelines about heterosexual domestic partnerships needs to be placed on homosexual partnerships, by analogy.
At first it could maybe not appear to be a lot of a big change, but this argument will leave space for difference between heterosexual and homosexual domestic partnerships, as they are perhaps not regarded as being exactly the same, just comparable. The thinking assumes there are (or may be) appropriate distinctions, which means not totally all guidelines that connect with heterosexual domestic partnerships always connect with homosexual partnerships that are domestic.
It is clarified into the views of the many three justices whom adopted the line that is second of in their viewpoints.
Minister Ricardo Lewandowski, for example, explicitly states that the legislation of heterosexual domestic partnerships should be used to homosexual domestic partnerships, but “only in aspects in which they’ve been comparable, rather than in aspects which are typical of this relationship between folks of opposite sexes” (Supremo Tribunal Federal, note 24, p. 112).
Minister Gilmar Mendes claims that “in view of this complexity of this social trend at hand there is a danger that, in just equating heterosexual relationships with homosexual relationships, we possibly may be dealing with as equal situations which will, over time, end up being various” (Supremo Tribunal Federal, note 24, p. 138).
Minister Cezar Peluso states that not absolutely all the guidelines on domestic partnerships connect with homosexual partnerships that are domestic they may not be the exact 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 what the relevant differences might be or exactly just exactly what norms are to not be used to same-sex domestic partnerships, but you will find indications they could be thinking about the rule that states what the law states must further the transformation of domestic partnerships into wedding.
Minister Gilmar Mendes, for example, expressly identifies the transformation into wedding as one example of this aspects that may be issue if both forms of domestic partnerships were regarded as the exact same (Supremo Tribunal Federal, note 24, p. 195).
Finally, additionally they inform you that the ruling must not be comprehended as excluding legislation because of the Legislature (Supremo Tribunal Federal, note 24, pp. 112, 182, 269).