THE POLYAMOROUS UNIONS IN BRAZIL: ANALYSIS OF ITS CONSTITUTIONALITY FROM THE LIBERAL THEORY OF FUNDAMENTAL RIGHTS PERSPECTIVE
Polyamory; Fundamental right to family; Fundamental right to equality; Liberal
theory of fundamental rights.
Polyamorous relatioships and the possibility of their legal recognition by the state is a subject
whose interest has grown considerably in recent years, mainly because of the news about the
registration of these unions in Brazil and the environment created by the Supreme Court’s
ruling on the equating between stable heterossexual unions and same-sex unions. The debate
on the new dynamics of relationship is related to the discussion about the Family and its
double facet. At the same time is a social fact, with its own social and historical origins, and
an institution that acquires legal configuration with its prediction in the legal order. In this
context, the general goal of this paper is to carry out a legal examination regarding the
compatibility of the state omission in the regulation of the polyamorous unions and the
possibility of creating a legal institute for such relationships with the control parameters,
fundamental right to Family and equality. The instruments of the liberal theory of
fundamental rights and their methods of conflict resolution involving fundamental rights are
used. From this perspective, questions are debated as the characterization or not of the
inaction of the Legislative as unconstitutional; the interpretation of the constitutional non-
prediction about polyamorous unions as an eloquent silence of the Constitution or a
permissive opening; Monogamy as a limit to the action of the legislator in extending the
fundamental right to the family or an infraconstitutional rule pertaining to marriage and stable
union; and the existence or not of an essential core of that organizational guarantee to be
protected. Finally, it is analyzed, under a critical vision, the confrontation, by the Judiciary, of
demands arising from conflicts involving non-monogamous unions, proposing, in the end,
some outputs for the judgment of these cases, in spite of the non-specific treatment of
polyamory by law.