Brazil’s Top Court Weighs Gambling Ban as Fux Pushes Decision Back to Congress

Brazil’s Top Court Weighs Gambling Ban as Fux Pushes Decision Back to Congress
Brazil’s Supreme Federal Court has reopened a fight over a gambling ban dating to 1941, testing whether a constitutional order built around individual and economic freedoms can sustain criminal penalties for operating games of chance.

The case reaches beyond one bar owner accused of running slot machines in São Leopoldo, Rio Grande do Sul. The court’s eventual legal thesis is expected to affect at least 2,728 suspended cases nationwide. The appeal arose after a local criminal small-claims panel acquitted the operator, reasoning that the 1988 Constitution’s protections for individual liberty made the activity no longer punishable as a misdemeanor.

That argument frames the ban as a potential clash between a pre-democratic criminal rule and the Constitution’s guarantees of free enterprise and fundamental liberties. But Justice Luiz Fux, the case’s rapporteur, has cast the concepts differently, saying it is contradictory to invoke freedom of enterprise and economic liberty in relation to gambling because, in his view, they are opposing ideas. He also argued that criminal rules should be struck down only exceptionally, such as where there is a visible violation of human rights through inhuman or degrading punishment.

Fux’s position, continued when the court resumed deliberations on August 6, 2026, places the institutional question at the center of the dispute. He said the legality of gambling should be decided by Congress and that courts should intervene in legislative choices only where there is a clear constitutional breach. He cited investigations into criminal organizations, fights for control of gambling operations and money-laundering schemes, while calling online sports betting a “deleterious new marketing strategy.”

The prosecutor-general, Paulo Gonet, similarly supported keeping the prohibition and said any legislative change belongs to Congress. Unlike the constitutional challenge, that view stresses state control as protection for bettors’ assets, health, families, the economy and society; it also maintains that regulation of online sports betting does not legalize other forms of gambling.

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