Constituição, instituições e performance: um olhar da prática constitucional do Supremo Tribunal Federal a partir do reconhecimento da parceria civil homoafetiva

Abstract

This essay intends to identify the influences on decision-making processes of the Brazilian Supreme Court, and how they influence to the courts performance. It seeks to understand the limits by which judges and courts are liable, and how these limits influence the construction of decision-making procedures. Based on the constructions performed by the LGBT movement, we analyze the contributions and influences of social movements in the recognition of rights, and how the narratives of identity gained consideration in the Brazilian Supreme Court decision about same-sex steady union. Based on this, we used a dialectical procedure to comprehend the relations and tensions within the decision-making process and the LGBT movement. Thus, the constitutional practice was explored in a longitudinal approach which concludes that the judges and courts must be responsive to the decisional context and the process of institutional interactions that includes social movements. We argue that the constitutional discourse should contemplate identity narratives and decisions of another official institutions. Hence, the performance of the Brazilian Supreme Court also needs to evolve and allow for the constitutional language to go beyond an elite dialogue. In this sense, minority groups will be considered rather than accepted. It advances into constructions of more open-ended processes of decision-making which imply in controlled and limited performances. The investigation starts from constitutional categories adopted by Jack Balkin in the sense that the constitutional interpretation takes place simultaneously in society and in courts, so that the way to legitimacy of constitutional system. Its up to the competent official institutions, to internalize the will of the people as way to considerations of identity narratives and fostering the continuity of constitutional project. This research was conducted by theoretical construction of democratic constitutionalism in both descriptive and constitutional history approach.