Following are the summary arguments by freshman students of Atty. Riodil D. Montebon of the SU College of Law in their Introduction to Law & Legal Profession class, regarding the constitutionality of Articles 1 & 2 of the Family Code which currently defines marriage as a union between a man and a woman.
A petition has been filed by Atty. Jesus Nicardo Falcis III with the Philippine Supreme Court, seeking to declare Articles 1 & 2 unconstitutional.
Where the Philippine Constitution and the 1949 Civil Code of the Philippines were silent on what constitutes marriage, the Family Code promulgated by then President Corazon Aquino under her legislative powers defined marriage as a union between a man and a woman.
The history of marriage is one of both continuity and change. “Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” (Obergefell v. Hodges, No. 14—556, 26 June 2015 of US Supreme Court)
When the US Supreme Court ruled that “same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character,” a Petition of Certiorari and Prohibition filed before the Philippine Supreme Court, seeking the nullification of Articles 1 and 2 of the Family Code, takes center stage in the controversy.
Religious or moral neutrality is assumed in the rulings of the Court. Indeed, it is not the role of the judicial branch to decide on the rightness or wrongness of the law as written. Judges are tasked to interpret the law according to its intent and spirit, and uphold its application in the cases that come before them.
The morality issue is one for the legislators. They pass into law what they deem to be “right” according to whatever moral standard they assume.
However, this petition seeks to expand the role of the judiciary, an encroachment into the legislative function, making them unrepresentative legislators.
No doubt, it is disguised as a question of constitutionality, but moral and religious commitments are at the core of this appeal.
Marriage itself is and has always been a religious institution, as well as a societal one. Clear testimony to this fact is the officiating ministers in weddings. The idea of society and government being unreligious is a relatively new innovation in the history of the world.
Added testimony is that the LGBT lobby is not satisfied with the mere legal recognition of same-sex unions as “marriage,” but the accompanying, inseparable demand that churches and ministers comply as well in officiating their weddings, which threatens yet another constitutional doctrine of separation between church and state.
A huge weakness in any of these appeals is the claim that the LGBT community is prevented from having a relationship.
However, there is no prohibition against having a life-long same-sex relationship. A “relationship” does not equal a “right” to government benefits and state recognition. No one is denying them freedom to associate.
What dignity does not include is the right to redefine an institution that has existed for thousands of years.
Moreover, no one is legally excluding values. The LGBT side is demanding more than merely “acceptance” of values. They are asking that their voluntary same-sex relationships, which they are perfectly free to engage in, be granted the same status and benefits as marriage. More accurately, same-sex “marriage” is an invention.
Speculating as to why the Civil Code did not define or limit marriage between a man and a woman can easily be remedied by looking into the cognizance of the time. We will quote Chief Justice Roberts of the US Supreme Court: As the majority acknowledges, marriage “has existed for millennia and across civilizations.” For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. As the Court explained two Terms ago, “until recent years,. . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history–and certainly, not as a result of a prehistoric decision to exclude gays and lesbians.
It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
To say that because it is not defined or limited in this way is a weak argument from silence. Just because “it doesn’t say not to”, it does not necessarily follow that it permits it.
Are homosexuals unduly deprived of liberty? No one has taken any liberty from the LGBT community, rather, you want to invent new liberties and new rights, and redefine an institution that is by necessity and natural law limited.
What rights did you have that you now do not because of the definition of marriage? What equal protection did you have that now you do not? Everyone has the right to marry, provided that they marry the opposite sex.
The State’s interest is to ensure the propagation of future generations. As stipulated in Art XV, Section 1: The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
A family is a group of persons united together by ties of marriage and blood. Restrictively, it is applied to the group formed by the spouses and their children. (Old Civil Code of the Philippines, 1986) Hence, the privilege of being able to marry is given to the ones who are able to procreate.
Lest the Affirmative argues on the basis of the exception to infertility, it would be wise to remember that the exception should not overrule the heart of the provision.
This is an attempt to replicate a context-dependent occurrence in the United States fails to consider the legal history leading to that decision. SCOTUS ruled on an actual case. The US Supreme Court agreed to hear four cases, on appeal from the Sixth Circuit, on whether states may constitutionally ban same-sex marriages or refuse to recognize such marriages legally performed in another state.
This element is lacking in the petition. Even if every citizen petitioned the Supreme Court, that still would not make it their job.
Petitioning a body of unelected, non-representative government officials to legitimize your dignity is repulsive. That is not the behavior of a Republic. Engage in public discourse, persuade people. But do not circumvent the system simply to get your way.
There was no “direct injury” on the petitioner. No one is stopping you, Mr. Falcis, from marrying a woman. As the Court said, whether you “love” her is irrelevant to them. If you want the benefits, you would do it. The petition exposes the motivation that ultimately, this is praying for a validation of a certain lifestyle, and the silencing of all opposition.
Opportunity and rights are not the same for all people and even that is not unconstitutional. This may be pertinent.
You have the opportunity to marry, but you don’t have the “right” to marry anyone you want. The state must protect its own interest in this “special contract.”
This is why there are rules against incest, polygamy, and bestiality, and it is perfectly justified and constitutional for the state to do so. It is not a simple agreement between two, but an institution between two people plus the state, with the objective to ensure the future generation is protected.
Unless the nature of separation of powers has changed, the Supreme Court does not redefine, nor does it legislate. The importance of this doctrine is well laid down by Perfecto V. Fernandez when he said: Separation of Powers is not adhered to in Constitutional Law solely by virtue of its force as doctrine. Surely it is doctrine, but it is also more. Because it provides the structure for Limited Government, and the Power interrelationships indispensable to a Free and Independent Judiciary, it is a basic institutional safeguard of Democracy and Civil Liberty. It is, indeed, the cornerstone in the constitutional edifice. For as put in the French Declaration of the Rights of Man, without the separation of powers, there is no Constitution.
It is clear there is inequality in the treatment of genders in status quo. The government cannot remain apathetic and mute in these times of public clamor. There are many benefits of the implementation of same-sex marriage in the Philippines.
The Affirmative is celebrating human rights for the Lesbians, Gays, Bisexuals and Transexuals, and equality towards all members of the society.
Being a democratic country, it is proper that the State exhibit the truest essence of democracy in every aspect, law and circumstance. Although same-sex marriage is only a portion of the big picture, the Affirmative sees the high importance to the definition of a family and the purpose of marriage because it is opinionated that the Filipino culture is centralized on family ties.
As Louise Richardson-Self said, legalizing same-sex marriage can contribute to ending the discrimination and social stigma faced by the LGBT.
Unconstitutionality of Sec. 1, 2 of the Family Code, purpose of marriage
The Family Code did not go through the exact legislative mill we have now, as it was enacted during the time of President Aquino, who was then the Legislative power of the State, without proper deliberation. This means that it was not a direct democracy.
Direct democracy involves giving citizens an extraordinary amount of participation in the legislation process, and granting them a maximum of political self-determination.
With the Family Code, these elements of participation and legislation process are missing. There was no body of representatives because only President Aquino was behind the enactment. We can infer, therefore, that the provisions of the Family Code regarding the family was bent towards the sentiment of the people at the time of its enactment.
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a)
According to Section 1 of 1987 Constitution, the “family” is the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Section 2 describes marriage as an inviolable social institution, as the foundation of the family and shall be protected by the state. Section 3 further states that the state shall defend the right of spouses to found a family in accordance with religious conviction and the demands of responsible parenthood.
Sections 1 and 2 of the Family Code is deemed unconstitutional because there is limitation of freedom given to members of the state. These sections are prohibitory. There is no specification in the Constitution of a man and a woman. The Constitution is silent on this matter. These provisions prohibit something that the Constitution does not. The LGBT Community hence questions this.
According to Dianne Collins, one of the elements of marriage is commitment as the foundation of relationship. Commitment is paradoxical in relationships. We want a hundred percent commitment from the other person, yet we want a back door in case things don’t go the way we want them.
The Affirmative argues that the real purpose of marriage is not just procreation, but more essentially, communion. There is no importance to limiting genders which are legible to marry, because doing so would be undemocratic. It will show a society of injustice and unfairness.
In Falcis v Civil Registrar General, it was argued that the Family Code does not require married individuals to procreate or have the ability to procreate. The law allows impotency, which refers to the inability to copulate or have sexual intercourse as a ground for annulment of marriage but not sterility, which refers to the inability to procreate. Old men and women who are sterile are allowed to marry, and are not allowed to annul their marriage on the frond of sterility.
Furthermore, there is no difference in the rights of heterosexuals and homosexuals. All varying genders have guaranteed equal rights to act in liberty as long as these acts do not go against public morals, public safety, etc.
Morality is subjective. Those against same-sex marriage do have their own definition of morality, but that doesn’t dictate that those supportive of same-sex marriage lack moral beliefs.
Human rights, benefits of same-sex marriage
The right to enter into a marriage has also been regarded as within the ambit of the constitutional right of association. (Sta. Maria, Persons and Family Relations Law 5th ed. 2010 pg. 105) The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. (Loving v. Virginia, 388 US 1, 87 S. Ct 1817, 18 L. Ed. 20)
In light of these, we establish there is a prevalent discrimination against homosexuals. It is the duty of the Constitution to protect the interest of the minority. Article II Sec 1 of the Constitution. Article 6, Section 5 (2) evident in the partylist representation.
The principle of non-discrimination is laid out in Article 26 of the ICCPR: Art 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
In this context, the principle of non-discrimination requires that laws of general application … applied equally to all persons, regardless of sexual orientation. Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements. (Ladlad vs. COMELEC GR No. 190582, April 8, 2010)
This jurisprudence is a landmark case. We uphold the legal principle: stare decisis determining points in litigation according to precedent. The law finds its strength in cases decisions, and jurisprudence. We must then reexamine the buttresses of our judicial structure lie on our laws. We have provided definition but must also look at the law’s intent.
The legislative intent of the Family Code must be reflective of the Constitution but we must contend that Sections 1 and 2 are no longer reflective of the needs of the family. There is no clear-cut definition excluding the inclusion of homosexual couples in the Constitution. In its title, it did not expressly say it is limited to “heterosexual family code” protection. In its spirit and intent, it seeks to protect all kinds of family, to encompass it to forward its interest.
We argue that this discrimination should not deprive homosexual couples from reaping the benefits of legal recognition of the State and the law.
The duties performed by heterosexual couples are not exclusive. The ministerial qualifications of The Family in Article 15 Sec. 3 of the Constitution enumerates:
For the spouses, right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood.
For children, assistance, proper care, nutrition and special protection from all forms of neglect, abuse cruelty and exploitation.
Homosexual couples can still fulfill these qualifications with the same if not better results. All the more if we provide legal support and State recognition to these marginalized couples. If so what stops us from allowing these marginalized couple from: Property Relations, Legitimization of children, Legal marital obligation between homosexual of legally acknowledge couples.
Even if the Filipinos are not ready, they don’t have to be because the enjoyment of fund right and liberties do not depend on the acceptance or approval of the majority. (Falcis)
Justice Nachura said, societies change; it is also inevitable that laws change. Man is born free but everywhere he is in chains. These prejudicial and discriminatory provisions bind us. Let us be free once more and examine ourselves. If we do not reexamine our laws now, when will we? Love wins.
Right to contract, equal protection, due process
“The perfection of humanity is not possible without freedom for the individual. Thus, the existence of social institutions and all political organizations and relationships are justified insofar as they have for their primary aim and the defense and protection of freedom.” (Marcelo del Pilar)
Under the Right to Contract: The 1987 Constitution provides the people with the right to liberty, which encompasses the freedom to contract, as provided for in Article 1305 of the New Civil Code which states, “The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” As such, the gender requirement of the contracting parties as provided by Articles 1 and 2 of the Family Code impairs these freedoms.
The Civil Code provides people with the freedom to contract. Although the express provision deals only with the object of the contract, the Civil Code does not prohibit the parties with whom one may contract with. The only legal impediments against same-sex marriage are Articles 1 and 2 of the Family Code. With the repeal of these articles, same-sex marriage can be contracted with through the various freedoms afforded by the Constitution and the new Civil Code.
Omissus pro omisso habendus est. A person, object or thing omitted from the enumeration must be held to have been omitted intentionally, according to the case of Nueva Era vs Marcos. Although the Constitution provided for the contract of marriage, it did not limit the parties who can avail of the sanctity of marriage to man and woman only. It is silent as to the genders of the parties. As such, it would be unconstitutional for a law to restrict such freedom afforded by the Constitution to the people.
Under the Equal Protection Clause: This is the specific constitutional guarantee of the equality of the person, according to Fr. Joaquin Bernas, member of the 1987 Constitutional Commission. It requires that laws operate equally and uniformly on all persons under the circumstances or that all persons must be treated in the same manner, the conditions not being different, both the privileges conferred and liabilities imposed.
In the issue being debated on, there is discrimination when a man cannot marry a man, and a woman cannot marry a woman, because there is a preference of one gender over another. As such, it violates the equal protection clause. Articles I and II of the Family Code is a class legislation because it limits the parties who can enter into a contract of marriage to heterosexual relationships. Homosexual relationships are completely ostracized by this legislation.
Under Due process of Law: The family Code was enacted by the President through the legislative power afforded to her after the Marcos regime. As such, the Family Code is a representation of her own sentiments and intent. Unlike the ‘old’ civil code enacted in 1949, which included the Articles 52-304, which was enacted by Congress. Such Congress was composed of the representatives of the entire citizenry.
As a result, the old civil code reflected the legislative intent of the people, by extension. As such, the latter is a truer reflection of what the people really want. The old Civil Code not have any prohibition against same sex marriage. Article 54 states: “Any male of the age of 16 years or upwards, and any female of the age of 14 years or upwards, not under any of the impediments mentioned in articles 80-84, may contract marriage.”
As can be seen in the letter of the law, same-sex marriage is not prohibited. These provisions of the Civil Code are more reflective of the will of the people. Since they are elected by the people, they are closer to the sentiments of the people.
The Family Code, on the other hand, was enacted by the President through her legislative power as there was no working legislative branch at that time.
