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OPENING STATEMENT (Substantive)

1. To the Honorable Chief Justice Antonio Carpio, to the Honorable Associate


Justices, and to all Filipino families, we wish everyone a loving afternoon.

2. According to this Honorable Court, in the case of Antonio vs. Reyes (2006), the
Constitution does not establish the parameters of state protection to marriage as a
social institution and the foundation of the family. It remains the province of the
legislature to define all legal aspects of marriage [and prescribe the strategy and the
modalities to protect it, based on whatever socio-political influences it deems proper,
and] subject [of course] to the qualification that such legislative enactment itself
adheres to the Constitution and the Bill of Rights.

3. The text of the Constitution is clear – marriage, as an inviolable social institution,


is the foundation of the family. Nothing in Article XV or other provisions of the
Constitution limits the definition of marriage as between a man and a woman. But
something in the Constitution commands that marriage under the Family Code be
extended to lesbian, gay, bisexual, or transgender (LGBT) couples.

4. When the Constitution says no person shall be denied equal protection of the
laws and that the State values the dignity of every human person, the Constitution
requires any couple, regardless of their sex or gender, to be recognized as having the
right to marry. Because they are similarly situated. Because any couple needs marriage
to serve as the foundation of their family.

5. And so we must ask, what is marriage?

6. “The freedom to choose her status, which is a privilege that inheres in her as an
intangible and inalienable right…”

7. This is how this Honorable Court has characterized the right to marry in the case
of Cadiz vs. Brent Hospital. Without the right to marry, people are denied the freedom to
choose their status.

8. Petitioners – partners Crescencio Agbayani and Marlon Felipe, and Sugar Ibanez
and her partner, and myself – are denied the freedom to choose our status. The
freedom to choose to remain single or to become married. We are forced and
condemned to live out the rest of our legal lives as “single.”
9. Intervenors Ceejay and Marlone have been together for twelve years. They met
and fell in love and got married under a religious ceremony by the Metropolitan
Community Church, an LGBT affirming Christian denomination. Since then, they have
deported themselves as spouses – husband and husband – to their friends and families.
Together, they have lived under one roof, paid their bills, and shared their struggles.

10. One struggle they shared was when Marlon, who is a public school teacher, was
accused of being immoral in his workplace. Some people heard he was gay and living
together with his partner. Despite the fact that they got married under a religious
ceremony, he was accused of immorality and he could not show people that it was ok
for he could not legally marry.

11. And they are growing old and getting. They worry about a lot of things married
couples don’t worry about – does my partner have a right to my government benefits,
will my partner be allowed in the hospital to make decisions for me, does my partner
have the legal right – and duty – to make funeral arrangements for me?

12. On August 3, 2015, Intervenors tried to apply for a marriage license before the
Quezon City Civil Registrar. They were denied. And this is not an isolated case. Just last
June 7, Pastor Jason Masaganda and Lester Budy from the Metropolitan Community
Church also tried to apply for a marriage license but met the same fate.

13. Marriage is a bundle of legal rights and obligations. It comes as a gift that allows
couples to have peace of mind, that they will be legally recognized as spouses because
they have the freedom to choose their status.

14. This Honorable Court, in the case of Imbong vs. Ochoa, explained that, “The right
to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by
the Constitution.”

15. Justice Jardeleza, in his Concurring Opinion in the case of Cadiz vs. Brent Hospital,
has said that “the decision to marry and whom to marry are two of the most important
choices that a woman (or man) can make in her life.”

16. The decision to marry is transformative. As Justice Kennedy said in the case of
Obergefell vs. Hodges, marriage transforms strangers into relatives, binding families
and societies together.
17. Legally, Intervenors Crescencio Agbayani and Marlon Felipe are strangers to each
other, forced to live the rest of their lives as strangers. And that is an infringement on the
constitutional rights of Petitioners, primarily the right to marry.

18. What are Petitioners asking from this Honorable Court?

19. In the very recent case of Republic vs. Manalo, this Honorable Court speaking
through Justice Peralta explained that the right to marry is a fundamental right whose
infringement would trigger strict scrutiny. In that case, this Honorable Court found
paragraph 2 of Article 26 of the Family Code to be violative of the equal protection
clause and thus adopted a liberal interpretation. We ask this Honorable Court to
similarly rule in this case.

20. A liberal interpretation of Articles 1 and 2 of the Family Code where LGBT couples
are extended the right to marry is justified under the doctrine of constitutional
supremacy, where the Constitution is deemed written into every statute – as most
recently affirmed in the case of Resident Marine Mammals of Tanon Strait.

21. Given the infringement of a fundamental right, the Articles 1 and 2 of the Family
Code is presumed unconstitutional – it is now the State which has the burden of proof,
not the Petitioners. Regardless of the presumption, Petitioners submit that the exclusion
of same-sex couples is unconstitutional for three reasons:

(1) One, it deprives the Petitioners of the right to marry without substantive due
process;
(2) Two, it denies the Petitioners of the equal protection of the laws, and;
(3) Three, it violates the religious freedom of Petitioners.

22. On the first argument: deprivation of right to marry without substantive due
process.

23. There is no compelling state interest to limit marriage as only between a man and
a woman. The Solicitor General, in its two Comments, has not proffered any reason at all
or compelling state interest that may exist to exclude LGBT couples from the institution
of marriage.
24. In fact, on the flipside, Petitioners submit that there is a compelling state interest
for LGBT couples to be included in the institution of marriage.

25. Marriage, as the foundation of the family, does not only contemplate a nuclear
family – the traditional model of a mother, a father, and children. A family founded by
marriage under the Family Code also includes a family setup without children – where
only the spouses constitute the family. That is why the Family Code itself says that
marriage is a special contract for the purpose of establishing a conjugal and family life.

26. LGBT couples, with or without children, constitute a family and so should have
access to marriage to serve as their foundation.

27. On the second argument: denial of the equal protection of the laws. The
legislative classification under the Family Code does not rest on substantial distinction, is
underinclusive, and overinclusive.

28. In the case of Mosqueda vs. Pilipino Banana Growers & Exporters Association, this
Honorable Court speaking through Justice Bersamin explained that strict scrutiny applies
when a legislative classification impermissibly interferes with the exercise of a
fundamental right or operates to the peculiar class disadvantage of a suspect class.

29. The Family Code’s exclusion of LGBT couples not only infringes on the
fundamental right to marry but is also a suspect classification because the four factors
laid out in the case of Ang Ladlad vs. COMELEC are all present – history of invidious
discrimination against LGBTs, ability to contribute to society, immutability of
distinguishing characteristics, and political power of LGBTs.

30. There is no substantial distinction. Same-sex couples just like opposite-sex


couples can and do establish a conjugal and family life.

31. A conjugal and family life means a life of togetherness. A conjugal life means
companionship, according to the authors of the Family Code itself such as Justice
Romero and Judge Sempio-Dy.

32. Black’s Law Dictionary defines family as a collective body of persons who live in
one house and under one head or management. There is nothing sex-specific in
achieving the purpose of marriage under the Family Code.
33. A family founded by marriage under the Family Code also includes a family setup
by opposite-sex couples who do not have children. Sterile couples are still allowed to
marry in the Philippines given that procreation is not a requirement under the Family
Code before or after becoming married.

34. Thus, denying LGBT couples the right to marry would make the legislative
classification underinclusive. Assuming children are necessary to be considered a family,
the Family Code’s legislative classification would be overinclusive.

35. And anyway, current adoption laws allow homosexuals, albeit individually, to
adopt. The fact that LGBT couples cannot jointly adopt is another consequence and
injustice of the denial of their right to marry. A sad consequence for both LGBT couples
and thousands of orphaned children.

36. Petitioners are not unaware that this Honorable Court has said in the case of
Biraogo vs. Truth Commission that mere underinclusivity or mere overinclusivity is not
fatal to the constitutionality of a law. However, this Court also said that when there is
deliberate, purposeful, and intentional discrimination, the equal protection clause is
violated.

37. Here your Honors, the animus is cannot be any clearer when homosexuality or
lesbianism is lumped together with drug addiction as grounds for annulment or legal
separation. The identities of LGBT people are associated as negative traits.

38. Thus, the equal protection clause is violated for the legislative classification of
opposite-sex couples lacking substantial distinction as against same-sex couples.

39. On the third argument: violation of the religious freedom of Petitioners.

40. Intervenors Crescencio Agbayani, Marlon Felipe, and Maria Ibanez are Christians.
Christians who believe sincerely and with all conviction that homosexuality is not a sin.
That God, in His omniscience and omnipotence, created all human beings. They also
believe that the Bible does not prohibit two men or two women from marrying each
other. They in fact have married each other under religious rites of their previous Church
– the Metropolitan Community Church Philippines.
41. Under Article XV of the Constitution, Petitioners have a right to found a family in
accordance with their religious convictions. The Family Code, by excluding LGBT Christian
couples from marriage, has placed an undue burden on their religious freedom by failing
to legally recognize their relationship.

45. It might be said that the right of spouses to found a family in accordance with
their religious convictions belong only to married couples, who are already considered
as spouses. Petitioners submit that such right under Article XV also belongs to unmarried
couples who are covered by and possess the right to marital privacy. As said in the
United States case of Zablocki vs. Redhail, “It would make little sense to recognize a right
of privacy with respect to other matters of family life and not with respect to the decision
to enter the relationship that is the foundation of the family in our society.”

46. And so to close this speech, when the right to marry – a decision so personal, so
intimate, and so life-changing – is denied to LGBT people, the State is not valuing their
dignity.

47. No group of people who are endowed by their God or Creator and recognized
by the Constitution to have dignity and equality should ever be treated as 2 nd class
citizens in their own land.

48. We are aware that some Filipinos may not support same-sex marriage, especially
those who oppose for religious reasons. But to quote Justice Kennedy:

“Religions, and those who adhere to religious doctrines, may


continue to advocate with utmost, sincere conviction that, by divine
precepts, same-sex marriage should not be condoned. In turn, those
who believe allowing same sex marriage is proper or indeed
essential, whether as a matter of religious conviction or secular
belief, may engage those who disagree with their view in an open
and searching debate. The Constitution, however, does not permit
the State to bar same-sex couples from marriage on the same terms
as accorded to couples of the opposite sex.”

49. From the United States to Ireland, many religious countries recognized same sex
marriage because they believe in equality and people’s choices. The Philippines is no
different. We are a Christian nation, yes. But we are also a secular Republic.
50. No less than the highest official of the land, President Rodrigo Duterte recognized
the constitutional right of LGBTs to marry and expressed his support for such.

51. This Honorable Court, speaking through Justice Del Castillo in the case of Ang
Ladlad vs. COMELEC, said:

“One unavoidable consequence of everyone having the freedom to


choose is that others may make different choices – choices we
would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different.”

52. We are different. But we are still also human beings who love and are loved. Like
other Filipinos, we are family too.

53. Thank you for this Honorable Court’s time.