The Changing Scope of the Freedom of Expression in the United States and Brazil

Posted in: Civil Rights

In recent years, the US Supreme Court (SCOTUS) and the Brazilian Federal Supreme Court (STF) have similarly decided numerous issues relating to the rights of gay and lesbian individuals.

Recognizing Rights of LGB Individuals in Brazil and the US

In May 2011, STF held in Direct Action of Unconstitutionality (ADI) 4277 and in Claim of Breach of Fundamental Precept (ADPF) 132 that same-sex marriage deserves equal protection under the law. Justice Ayres Britto, delivering the opinion of the Court, argued that Article III, section IV of the Brazilian Constitution (CF) prohibits any discrimination based on sex, race and color, so that any means of disparaging of same sex couples is in conflict with the aforementioned legal clause.

More recently, in May 2017, STF ruled unconstitutional Article 1,790 of the Brazilian Civil Code in Extraordinary Appeals (REs nº 646721 and nº 878694). The Article prescribes different inheritance rules for spouses and partners. The Court’s conclusion was that there is no element of discrimination that justifies the different treatment of spouse and partner (including a gay partner) established by the Civil Code.

In June 2015, SCOTUS decided Obergefell v. Hodges in favor of marriage equality, stating that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

Recognition of this right in both countries invariably affected other matters.

In Pavan v. Smith, SCOTUS held that a state rule requiring a child’s birth certificate to list the non-biological father if he is married to the biological mother but that does not allow both same-sex spouses to be listed as parents is unconstitutional discrimination in violation of Obergefell v. Hodges. In a per curiam opinion, the Court stated that the rule functionally deprives married same-sex couples the same rights to be listed on their children’s birth certificates as married opposite-sex couples have.

In a decision with nearly identical reasoning, the Brazilian National Council of Justice, based on previous STF decisions, issued a ruling (Ruling 52/2016), stating that the birth certificate of children born with the use of assisted reproductive technology should be registered regardless of prior judicial authorization by both parents, heterosexual or homosexual, and that in the case of children raised by same-sex couples, the names of both ascendants should be included in the birth certificate without distinction as to the paternal or maternal ancestry (article 1).

The STF has also declared unconstitutional provisions of the Brazilian Military Penal Code (BMPC) criminalizing homosexual acts. In ADPF 291, STF stated that the criminalization of libidinous acts practiced by soldiers in environments subject to military administration is justified, in theory, for the protection of military hierarchy and discipline (article 142 of the CF) but the reference to “pederasty” and “homosexual” in Article 235 of BMPC is unconstitutional. This is because, according to the Court, the law is not allowed to use pejorative and discriminatory expressions, given the recognition of the right to freedom of sexual orientation as an existential freedom of the individual.

Does Recognition of These Rights Infringe on Other Rights?

Many other related issues have not yet been decided, notably those related to religious interests versus gay rights. Here is a jurisprudential penumbra zone.

In the US, the Supreme Court will soon decide whether requiring a baker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violates the Free Speech or Free Exercise Clauses of the First Amendment (Masterpiece Cakeshop v. Colorado Civil Rights Commission).

Several state courts have already decided similar matters, but a decision by the Supreme Court clearly has further-reaching implications. In February 2017, the Washington Supreme Court ruled that a florist who refused to provide services for a same-sex wedding broke the state’s antidiscrimination law, even though she claimed doing so would violate her religious beliefs (Washington v. Arlene’s Flowers, Inc.). Earlier, in 2013, the New Mexico Supreme Court held that a wedding photography company’s refusal to photograph a same-sex couple’s commitment ceremony constituted discrimination based on sexual orientation in violation of that state’s law (Elane Photography, LLC v. Willock), and the US Supreme Court denied a petition of certiorari.

The outcome of Masterpiece Cakeshop, however, is anyone’s guess. Notwithstanding the Obergefell decision, the nomination of Neil Gorsuch reinstated the nine-seat Court’s 5-4 conservative majority, so Masterpiece Cakeshop may follow in the footsteps of Hobby Lobby (recognizing a broad right to avoid any semblance of complicity in causes one strongly opposes).

In Brazil, no similar case is pending in STF, but lower courts have already made initial steps. For example, in Public Defender’s Office of São Paulo v. Prayer House of Ribeirão Preto (case no. 0045315-08.2011.8.26.0506) the local judge ordered the immediate removal of an anti-gay Biblical billboard paid by the Prayer House a few days before the city Gay Pride Parade.

In her decision, Judge A. Cypriano stated that if a message does not observe limits of Rights to Expression and Religious Freedom, it violates other equally protected rights by the CF. The judge also said that the billboard conveys an intolerant, degrading and discriminatory message, as well as inciting hatred and violence and the Prayer House’s religion profession does not include posting biblical phrases on billboard.

The São Paulo Court of Appels affirmed and stressed that Freedom of Religion does not provide grounds for public manifestation of a prejudiced nature. However, STF has a lottery jurisprudence and rightly predicting its decisions in such issues defies odds.

The US Supreme Court and the Brazilian Federal Supreme Court historically have both recognized a broad right to freedom of expression, but the limits of that right, especially as it encounters actual or perceived conflicts with the increasingly-recognized rights of gays and lesbians, remain unclear. Litigation in the coming years may illuminate whether these two democracies will continue in lock-step with each other on these issues, or whether they will diverge.