While we in Singapore were preoccupied with the general elections, half the world away in Brasilia on 5 May 2011, a momentous decision was announced. The Federal Constitutional Tribunal of Brazil unanimously ruled that people in “stable, enduring and public” same-sex relationships must be granted the same rights as people in opposite-sex unions. It does not exactly address the question of gay marriage, because the case brought to the court pivoted on the question of whether “registered partnerships” between same-sex couples must mandatorily be recognised as a family entity. The court said it must, effectively extending to gay couples the same legal rights as straight couples.
Individuals in same-sex unions can now benefit from their partner’s pension, retirement and health plans, and enjoy all the benefits afforded under family law, such as adoption.
As reported in the Guardian,
Prior to the ruling some, but not all, public notaries would register a document stating that the couple lived together. Such documents did not, however, have guaranteed legal value, were subject to interpretation and could be disregarded.
All notaries are now obliged to register, when requested, same-sex partnerships as a legally recognised “family entity”, just as they do with heterosexual couples. This opens the way for a series of rights previously denied to same-sex couples in Brazil, such as joint adoption of children, inheritance, the consideration of both partners’ income when applying for loans or mortgages or the right for one partner to take decisions regarding the other’s medical treatment in cases of incapacity. The ruling also brings obligations that did not previously exist for same-sex couples in the event of separation.
Explaining their decision, two judges made these noteworthy comments:
“Here, the state is one of absolute equality, since one cannot allege that hetero-affective couples lose if homo-affective couples gain. Who gains from the equality that homo-affective individuals are seeking? Homo-effective individuals! And who loses? Nobody. Hetero-affective couples do not lose, and society does not lose.” – Justice Ayres Brito
“A decent society is one that does not humiliate its members.” – Justice Hellen Gracie
Interestingly, the case was not launched by any aggrieved gay individual, but by the State of Rio de Janeiro. The State had recognised civil servants’ same-sex partners as dependants, but this move was challenged by local entities. The State then sought a definitive ruling by the constitutional court. A boost to the State’s case came after the federal government’s attorney-general joined the battle by filing a claim that failure to recognise same-sex partnerships would be unconstitutional.
The problem faced by the court was that heteronormative language could be found in two key documents: Article 226 of the constitution and article 1723 of the civil code which discuss marriage rights as available to “a man and a woman”. Referring to this, opponents of gay rights in Brazil contended that granting quasi-marriage rights to same-sex couples would be unconstitutional.
Not so, the court said: Heteronormative phrasing notwithstanding, nothing suggests that those same rights can be denied to others. Moreover, a democratic constitution based on non-discrimination would be useless if it were unable to ensure that the rights granted to some groups also applied to everyone else.
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By this decision, the constitutional court was exercising leadership where legislators would not. A bill proposing legal recognition of same-sex partnerships has been languishing since 1995.
Brazil now (nearly) joins its neighbour Argentina where full gay marriage — not just civil unions — was enacted into law by its parliament last year.
This is not to say that homophobia has disappeared. Far from it. At a social level, it is much harder to eradicate than making a court ruling. The country also has a sorry record in terms of murder rates on account of sexual orientation and gender identity, though the overall murder rate (for all reasons) is also very high.
Nonetheless, Brazil boasts the largest annual gay parade anywhere in the world. Some three million people — yes, that would be close to the entire citizen population of Singapore — participate in Sao Paulo for its annual Pride.
Most Brazilians profess the Roman Catholic faith. I can’t find any statement from the Brazilian Roman Catholic Church on this latest ruling, not that it really matters anymore. Argentina too is deeply Roman Catholic, as is Spain and Portugal where gay marriage is legal as well — and by acts of parliament to boot, not just the courts.
What I managed to find was a statement by the Episcopal Church in Brazil. It said:
A unanimous decision by Brazil’s Supreme Court May 5 to legally recognize the union of same-sex couples has been hailed by the primate of the Episcopal Anglican Church of Brazil as “an important advance in our society … in the concept of equality and citizenship.”
Archbishop Maurício Andrade said in a statement that the Supreme Court’s decision “poses serious challenges to all Christians of all churches because it requires openness to recognize that [homosexual] relationships are part of the way of being of the society and of the human nature.”
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Coming back to Singapore (and our recently-concluded elections), I received an email wherein a voter in Bishan-Toa Payoh described his decision process. In this group representation constituency, the People’s Action Party (PAP) was challenged by the Singapore People’s Party (SPP):
The PAP as a party does not have a policy regarding homosexuals, but neither does the SPP. So it is meaningless to choose along party lines.
The SPP was led by Chiam See Tong. Although a veteran Member of Parliament, Mr Chiam has not once stood up in Parliament to oppose Section 377A of the Penal Code. I have no doubt he is well-liked by his Potong Pasir constituents, but popularity is irrelevant to me. Mr Chiam may also promise to speak up on behalf of the oppressed, but I do not think he will ever be my voice.
The PAP team contained Hri Kumar Nair. Like Chiam, Hri is an MP. Unlike Chiam, Hri has spoken up on my behalf, and on behalf of gays all over Singapore.
Which candidate is more likely to speak up for me? Mr Chiam isn’t. But Mr Hri Kumar Nair is, and he has done [so] before.
So the ultimate choice was very simple. I wanted to retain one of the rare anti-discriminatory voices in Parliament. So I voted PAP. There was no other logical choice. If the right opposition party comes along to Bishan-Toa Payoh, offering to speak on my behalf, I might consider them too.
I reproduce my synopsis of the points raised by Hri Kumar during the debate on Section 377A of the Penal Code in 2007, first mentioned in the article When you should vote PAP.
Hri Kumar argued that “laws must meet the three Cs, i.e. be clear, consistent and concrete, meaning that they must be substantive, effective and make sense.” Section 377A, he pointed out, falls short of these tests. When the government keeps a law yet say they will not enforce it, it becomes counterproductive, inviting attacks on the integrity of the law.
He also pointed out that claiming homosexuality to be immoral is no argument, since:
society has done away with criminalising a whole host of other conduct, which is far more damaging to family values, such as adultery, which carries a more direct threat to the integrity of the family. And adultery was one of the original Ten Commandments.
and, referring to the government’s refusal to criminalise a husband raping his wife:
I cannot imagine any Member of the House believing that it is acceptable for a man to force himself on a woman under any circumstances, regardless of whether they are married. But we do not completely outlaw marital rape.
He also spoke out against those who used religious arguments: “we must remind ourselves that we are a secular state. . . . and . . . decisions will always be made on secular grounds.”
Moreover “it is stretching logic to suggest that the repeal will lead to a sudden proliferation of homosexual activity.” And as for fears about HIV,
making something illegal only forces it underground. That will restrict the ability of the Government to respond to the HIV threat through promotion and education, when Government agencies feel that they cannot engage with the gay community in any way except a condemnatory one.
Concluding, he posed this question: “assume we are here debating whether to include section 377A into our Penal Code, would we do it?”