Discrimination or religious freedom? Judicial decision study about luteran cemeteries and catholic cemeteries in locality in the interior of Rio Grande do Sul under the approach of theory of constraints legal reasoning

Abstract

In the interior of Rio Grande do Sul there are religious communities that only allow the burial, in their cemeteries, of people who share the same creed. Lutherans are buried in Lutheran cemeteries and Catholics are buried in Catholic cemeteries. Faced with a traffic accident that took the lives of family members with different beliefs, TJRS understood that they should have been buried under the same headstone. Reforming the decision of the first instance court, it granted the request for compensation for moral damages. Otherwise, it would be discrimination based on the religious choice of one of the deceased. But the refusal was not due to the religious belief. How, based on the theory of constraints, was the argument constructed in this case? Under the focus of the French version of the theory of constraints legal reasoning, this work aimed to identify how the second degree decision was constructed. This is a case study. Elements in the legal argumentation of the decision were found to identify the performance of the constraints.