Igualdade em relações privadas e discriminação por orientação sexual: uma releitura constitucional do slogan o “pessoal é político” a partir do caso Masterpiece Cakeshop

Abstract

This thesis aims to study the application of equality in private relationships with a focus on discrimination based on sexual orientation. The work is inspired by the Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018 by the United States Supreme Court, in which it was understood that a confectioner has the right to refuse to make a wedding cake for a same-sex couple based on religious ground. For the stated objective, the work starts from an analysis of the current state of the art of studies on the horizontal effect of fundamental rights to verify an insufficient treatment of equality. Then, it investigates the content of this right and its corollary of non-discrimination, focusing on discrimination based on sexual orientation. At this point, it maintains that the recognition of differences and specificities of individuals and groups in society does not contradict the prediction of equality, but, on the contrary, it is required by it. Also, the defense of equality for the LGBT+ population must be linked to the recognition and protection of their freedom and dignity. This work - refusing the watertight separation between public and private made by classical liberal doctrine - is based on a feminist interpretation of egalitarian Rawlsian liberalism, and, also using Gerald Cohen's considerations on social ethos, proposes a reading of the slogan “the personal is political” that includes the incidence, to some extent, of equality in spheres traditionally seen as private. Only in this way is it possible to guarantee everyone equal freedom. Several of the arguments developed and supported in this study are presented and applied in the study of the Masterpiece Cakeshop case. Finally, the work ends with a brief systematization of the arguments developed during its course and proposes that equality should have a recognized application even in private relations. The strength of equality must be mediated by the variation of the predominance of the public or private character. It must obey the argumentative burden - whether to justify greater protection of freedom (also required by the equality and dignity of one party to a conflict) or of equality (also required by the freedom and dignity of the other party to the conflict). In short, our hypothesis is that the principle of equality in the dimension of non-discrimination should be applied in private relationships, as protecting equality only in the public sphere would reduce its importance, in addition to not taking the normativity of the Constitution and fundamental rights seriously. The work mainly uses studies of Constitutional Law and Political Theory and follows the hypothetical-deductive method and also the case study.