Rio State Court Approves Gay Marriage

By Ben Tavener, Senior Contributing Reporter

RIO DE JANEIRO, BRAZIL – The State of Rio High Court last week approved so-called “direct authorization” of same-sex civil marriages, making Rio one of eleven states which have approved gay marriage in Brazil, including São Paulo and the Federal District. However, there is uncertainty over whether judges in certain areas of Rio state, particularly in the capital itself, will give permission to such marriages.

Judge Valmir de Oliveira Silva, Magistrate General of Rio State High Court, who presided over the change, told Agência Brasil that the revision was now in force, and that same-sex couples would no longer need to first have a stable union (união estável) to convert to a civil marriage, which is already possible.

While registry offices (cartórios) across the state should now allow same-sex couples to apply for civil marriages, the state will likely see divisions over which judges authorize them: in Rio city itself, judges have argued against such authorizations.

However judges in other districts, such as São Gonçalo, Petrópolis and Teresópolis, are said to be in favor, and registry offices would probably no longer have to submit each request to the judge, in line with general practice with heterosexual marriages. If no challenge to the marriage is made within fifteen days of publication, the couple is considered married.

Previous calls from Brazil’s Supreme Court for judges to allow stable unions to be converted into civil marriages have been disputed by Rio judges, citing the Constitution’s definition of marriage as between a man and a woman; those in favor, however, point to clauses in the Constitution on equality before the law.

Cláudio Nascimento, coordinator of the state’s Rio Sem Homofobia (Rio Without Homophobia) program, described the approval as “a step forward that we should celebrate.” But others slammed the fact that marriage permits would depend on the local judge’s take on the law, meaning clients in one area of Rio would be successful, whereas others would be refused – simply based on address.

Deputy Jean Wyllys, a renowned gay activist, attacked the decision as one of “absurd inequality,” saying that “a historic opportunity” had been missed to grant true equality.

“Regrettably, the Magistrate General has wasted a great opportunity to regularize this civil right, so important for millions of gay people, once and for all, something already done in many other states, such as Bahia, São Paulo, Mato Grosso do Sul and Paraná […] which have ruled that gay marriages should be treated exactly as heterosexual ones,” Mr. Wyllys said.

In 2011, Brazil’s Supreme Court ruled that all couples, regardless of gender, should have the right to enter into a stable union, which gave gay couples the rights and benefits enjoyed by married heterosexual couples. One of the biggest benefits for non-Brazilians was the option to apply for a temporary or permanent visa to Brazil on the basis of the stable union.

However, the right to same-sex marriage has not been enshrined in the Constitution, and Michael Royster, lawyer and regular Opinion contributor for The Rio Times, says until this happens, something which is fiercely opposed by Evangelic and Catholic members of Congress, judges will continue to apply the law as they interpret it.

Royster also added, “The pressure for allowing a stable civil union was partly based on the government policy that provides fairly generous pensions to the [unmarried] widows and daughters of deceased military personnel. Since a stable union is not marriage, there are any number of ‘unmarried’ daughters of military pensioners who continue to receive their pension, although in stable civil unions.”

The topic is also likely to be in the spotlight when Pope Francis arrives in Brazil in July for World Youth Day 2013.