Religious freedom and hate speech against LGBTQIAPN+ people: analysis of ADO 26 and MI 4733

Abstract

Religious freedom is a fundamental right ensured by the Brazilian Federal Constitution, being essential for pluralistic coexistence in a democratic society. However, this freedom finds its limits when it infringes upon other fundamental rights, such as the right to dignity and non-discrimination. In this context, hate speech against LGBTQIAPN+ individuals emerges as a challenge that must be combated, as the protection of this group needs to be balanced with freedom of expression and religious freedom. This article, through a qualitative methodology of bibliographic, legislative, and jurisprudential analysis, examines the tension between religious freedom and hate speech against LGBTQIAPN+ individuals in light of the Direct Action of Unconstitutionality by Omission (ADO) 26 and the Writ of Injunction (MI) 4733. These actions are significant in this context, providing guidelines on the applicability and limits of religious freedom in the face of the need to protect the dignity of LGBTQIAPN+ individuals. The investigation is justified by the importance of ensuring that fundamental rights coexist in a balanced manner, promoting a more humanized and inclusive society. The general objective of this study is to analyze how the jurisprudence of the Federal Supreme Court (STF), through ADO 26 and MI 4733, addresses the intersection between religious freedom and hate speech against LGBTQIAPN+ individuals. The specific objectives include: exploring the concept of religious freedom and its scope of constitutional protection; examining hate speech and its impacts on LGBTQIAPN+ individuals; analyzing the STF's decisions in ADO 26 and MI 4733, identifying the main arguments and grounds used, as well as evaluating the implications of these decisions for the protection of fundamental rights in a context of religious plurality. The analysis of ADO 26 and MI 4733 aims to understand the STF's considerations and how it has balanced religious freedom with the need to combat hate speech. It is expected to identify criteria and parameters that can guide future judicial decisions and public policies, promoting effective protection of LGBTQIAPN+ rights without unduly infringing upon religious freedom. Furthermore, the study may highlight the importance of continuous dialogue among different social and institutional actors to build a more inclusive and respectful society towards diversity.