Same-sex marriage, human rights and constitutional adjudication: a comparative analysis of decisions of the constitutional courts of Spain, Brazil and the United States

This paper aims to discuss how equality claims made by LGBT community and movements about same-sex marriage are based on human rights language and constitutional interpretation to overcome impasses or limitations of legislative deliberations through demands presented to judicial courts, including constitutional ones, and the democratic legitimacy of these judicial decisions, based on the analysis of decisions of constitutional courts in Spain, Brazil and the United States as different forms of judicial approach: as ratification of parliamentary deliberation; as overcoming a legislative silence; or sometimes overcoming difficulties constitutional limits. The central idea is to demonstrate how same-sex (or egalitarian) marriage has been defined and interpreted as belonging to the catalog of human and constitutional rights, based on the notion of freedom of family life, and how this has been appropriated by the courts. beyond the conjectural parliamentary majorities.