União estável poliafetiva: contornos conceituais e análise de decisão de 2018 do CNJ a partir da interpretação do STF nas ADI 4.277 e ADPF 132 sobre uniões além do "homem e mulher"

Abstract

The core of this research is the analysis of the unconstitutionality of a 2018 decision of the Brazilian National Council of Justice (Request for Providence 0001459-08.2016.2.00.0000), especially based on the arguments presented by the Justices of the Brazilian Federal Supreme Court in the Direct Action of Unconstitutionality 4,277/DF and in the Action for Noncompliance with Fundamental Precept 132/RJ, jointly judged in 2011. This paper, using bibliographic analysis, discusses the aforementioned judicial decisions also from the perspective of contemporary scientific production on the matter. The CNJ's decision prohibited the notarization of polyamorous civil union deeds throughout the national territory, and the Councilors by majority defend, in essence, that monogamy is a structural element of Brazilian society, therefore, the autonomy of the will is limited, so as not to give rise to a new family modality. On the other hand, in the paradigmatic ADI 4,277 and ADPF 132, the STF recognized the same-sex union as a family entity, considering the constitutional principles of human dignity, equality, freedom and non-discrimination, the fundamental objective of promoting the good of all, the fundamental rights to intimacy and privacy and absence of restriction by the expression “man and woman” in the definitions of families. Thus, based on the statements of this Court, also observing the theses of avant-garde jurists on the subject, it is concluded that the aforementioned decision of the CNJ is unconstitutional.