Análise do julgamento da ADO 26 e do MI 4.733 (criminalização da homofobia) : função judicante contemporânea ou ativismo judicial

Abstract

In June 2019, in the judgment of ADO/26 and M/I 4,733, the Supreme Federal Court recognized the delay of the National Congress in editing a law that criminalizes acts of homophobia and transphobia, determining the application of Law 7.716/89 that defines the crimes resulting from prejudice of race or color, conduct of discrimination based on sexual orientation or gender identity. In this context, this work proposes to answer the research problem: “does the performance of the Superior Court reveal itself as the realization of fundamental rights constitutionally enshrined or does it go beyond its limits, invading the orbit of the Legislative Power, revealing itself in an activist stance? " In the present work, the analytical method was used, and more specifically a case study (one judged) and as research techniques, the literature review was chosen. In order to achieve the proposed objective, an analysis of the main arguments that supported the vote of the rapporteur, Minister Celso de Mello, was carried out, so that it is possible to understand the extent to which the criminalization of the conducts can be justified, based on the legal system.