@article{2017:arguelhes:courts_as_,
title = {Courts as the first and only legislative chambers? The Brazilian Supreme Court and the legalization of same-sex marriage},
year = {2017},
note = {Since 2012, same-sex marriage has been legal in Brazil. This, however,
was accomplished without the participation of any political branch:
the only lawmaking actor involved was the Supreme Court. In existing
studies on the judicialization of politics, lawmakers are typically
the first movers, while courts function as actual or potential veto
players regarding the outcome of the legislative process. The
Brazilian Supreme Court, however, when provoked by social and
political actors under specific circumstances, has delivered decisions
that: (a) established rules in areas of law where the elected branches
had not made any decisions in the last decades; and (b) at least in
how they came to be treated by the Supreme Court itself, foreclosed
further congressional or presidential lawmaking on these topics. This
paper is a case study on the conditions in which this judicial role -
of a first and only legislative chamber - has emerged in Brazil.
Although Brazilian constitutional law includes a couple of mechanisms
designed for judicial review of legislative omissions, it was the
Supreme Court’s increasingly expansive reading of its own powers -
not those deliberately designed to allow for judicial legislation -
that created opportunities for social and political movements to
bypass Congress and change the constitutional status quo according to
their ideals. This new role of the Supreme Court, however, creates
tension between two different justifications for judicial intervention
in politics - when judges act last, they are constrained by not having
also been the first to decide what the constitution requires and
allows for on a given issue. In same-sex marriage litigation and in
several other recent cases, however, the Brazilian Supreme Court has
been trying to have it both ways.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {281--299},
author = {Arguelhes, Diego Werneck and Ribeiro, Leandro Molhano},
volume = {50},
number = {3}
}