A união homoafetiva no STF e o constitucionalismo democrático: contribuições da filosofia do reconhecimento de Axel Honneth e Nancy Fraser

Abstract

This work aims to outline a philosophical and legal analysis of the argumentative strategy used by the Justices of the STF in the judgment of ADI 4277 / ADPF 132. The main problem of this research is: to what extent the theoretical referencials of Post, Siegel and Fraser can clarify - or criticize - the implicit argumentative strategy presupposed by the votes of STF justices in the judgment of ADI 4277-DF? Would their conceptual structures reveal potential to deconstruct the sexual binarism? In philosophical context, the dissertation works on the theoretical perspectives of Nancy Fraser and Axel Honneth, which aim to answer the question: the recognition is a matter of justice or self-realization? In what concerns the legal issue, the problem that arises is: in the light of Democratic Constitutionalism endorsed by Post and Siegel, the reception of minimalist approach - outlined by Sunstein – in the Brazilian political culture, reveals theoretical power to enhance the judicial realization of the LGBT minorities’s fundamental rights? For this, will be used the phenomenological-hermeneutical method, because it is a approach method that intends to join subject and object of search According Stein (1979), it is not an external analysis, because subject and object aren’t disconnected. In contrast, the subject is directly involved, relating to the study object, which interacts with it. The analytical induction method (approach method) will be also used. Deslauriers (1997) teaches that it is a logical procedure, which consists to start from the concrete to reach the abstract, delimiting the essential characteristics of a phenomenon. So following analytical induction, the research is developed from "down" to "top", starting with a deep analysis about the content of the Justices votes, to establish concepts and theoretical propositions that will be linked to the case study. As a result, it states the relevance of the theory sustained by Fraser, whose central question is the social justice which is three-dimensional. This theory is most appropriated to work the issue about the Brazilian Supreme Court role of enforcing rights of LGBT stigmatized minorities, precisely because it’s disconnected from a psychological approach. In turn, maintains that the Judicial Minimalism also does not reveal theoretical power to increase the achievement of the LGBT minorities rights, because the use of narrow arguments disregards the democratic potential of the backlash, which is a normal condition for the development of constitutional right. Finally, based on Bunchaft (2016), this dissertation intends to articulate the Post, Siegel and Fraser’s theories, through the idea of Democratic-participatory Constitutionalism. The Democratic-egalitarian Constitutionalism, enhancing the communicative practices of constitutional interpretation of social movements and their interaction with the judiciary through subaltern counterpublics, can unmask asymmetries of power that arise in own official public sphere and which are reflected in court decisions that still consecrate sexual binarism, which was expressed on the Justice Carlos Brito’ vote in the ADPF n. 132-RJ This dissertation argues that the argumentative strategies presupposed the votes of Justices Marco Aurélio, Celso Mello and Ellen Gracie contain a set of implicit discourses inherent the paradigm of self-realization.