EQUIPARAÇÃO DA HOMOFOBIA AO CRIME DE RACISMO NO ÂMBITO DO ATIVISMO JUDICIAL: as consequências da criação ou ampliação de um tipo penal incriminador através de uma decisão judicial para o estado democrático de direito

Abstract

The present study aims to analyze judicial activism going through its historical and conceptual origin, as well as the role of the Judiciary in the judgment of the Direct Action of Unconstitutionality by Default in the. 26 in 2019, asking whether in this case there is a disproportionate performance or supported by the democratic context. It is in this sense that one investigates the influence of contemporary constitutionalism in a current context and what this has influenced in the judgment of that action. In addition, it seeks to construct a bibliographic investigation on the objective aspects of the action, its origin and the correlation with the principle of separation of powers, the methods of interpreting the constitution in relation to the collision between fundamental rights. However, the essence of people's sexual orientation or the philosophical or even physiological nature of gender ideologies are not discussed, but only the legal aspects of recognizing the inertia of the Public Power and the existence of constitutional commands that determine punishment discriminatory acts, as well as mechanisms that seek effective constitutional provisions. Therefore, the research delves into the role of the judge in the face of state failure to protect citizens' fundamental rights and freedoms.