Estado Constitucional: a mora inconstitucional do Poder Legislativo brasileiro como fator de legitimação à competência do Supremo Tribunal Federal para a “criminalização” da homofobia à luz da ADO 26

Abstract

The present study focuses on bibliographic and documentary research, as well as based on an inductive perspective, the analysis of the unconstitutional delay of the Brazilian Legislative Branch in a perspective of legitimating the Supreme Court in the “criminalization” of homophobia in the judgment of Direct Unconstitutionality Action 26, always in light of the central idea of the supremacy of the Constitution, intumescent in fundamental rights and freedoms, and of the institutional rise of the Brazilian Supreme Court in counterpoint to the Montesquieu’s teaching concerning to a Judiciary attached to simply, and authentically, say the law. For this reason, it will be clear how legitimate it was for the STF to act in ADO 26 by integrating the Brazilian legal system, always providing cognitive elements in order to clarify that there was no legislative work and no invasion of jurisdiction by the STF with respect to the decision densified in ADO 26.