Ativismo judicial como meio de defesa de direitos fundamentais: uma análise acerca da legitimidade do Supremo Tribunal Federal na criminalização da homofobia

Abstract

The present work seeks to analyze judicial activism as an instrument for the defense of fundamental rights, as well as to evaluate the legitimacy of the Federal Supreme Court in the characterization of this phenomenon concerning the criminalization of homophobia. To do so, the historical context that led to the emergence of judicial activism is initially shown, highlighting the principle of separation of powers, neoconstitutionalism and the expansion of the Judiciary. Then, the study deepens the understanding of sexuality and homophobia and how the latter is characterized as a violation of rights, the so-called sexual rights. In addition, it reaches the core of the monograph, where the discussion focuses on the judgment of the Direct Action of Unconstitutionality by Omission 26 and the Writ of Injunction 4733, in which the STF gave a favorable decision in the sense of criminalizing discriminatory practices due to orientation sexuality and gender identity, based on the consideration that such practices constitute racism. Thus, the present work evaluates the reasons for the judicial activism of the Brazilian Court in face of the omissions of the Legislative and the Executive, in the attempt of effectiveness of the constitutional norms relative to the need of legal protection of social minorities, without which the real existence of a Democratic rule of law based on equality, freedom and dignity.