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REPUBLICOFTHEPHILIPPINESl:~151.11 18 f,i 3: 38
SUPREME COURT
MANILA
- versus -
CIVIL REGISTRAR-GENERAL,
R espondent.
x-----------------------------------------------------x
PREFATORY STATEMENTS
"The Family Code provides that the '~Jr1ture, consequences, and inCJdents /of
marriage} are governed by law and not subject to stipulation," but this does
not gv as far as reaching into d1e choices of intimacy inherent in human
relations. These choices form part of autonomy, protected by dJe liberty and
human dignity clauses. Human dignitv includes our choices of association,
and we are as free to associatf} and identifv as we are free not to associate or
1denti/Y. " '
I 1' I 11 •1•
"We do not doubt that a number ofour citizens may believe that homosexual
conduct is dist.asteful, olknsive, or even defiant. They are entitled to hold and
express that VIew. On the other hanJ, LGBTs and their supporters, in all
hke!JJ10od, believe with equal fervor that relationships between indiVIduals of
the same sex are morally equivalent to heterosexual relationships. They, too,
are entJded to hold and expres!J t/1at VJe w. However, as far as this Cowt is
concemed, our democracv precludes using the religious or moral VJews ofone
part of the community to exclude from consideration the values of other
members ofthe community.. " ~
/
I.
NATURE OF PETIDON
' Ang Ladlad LGBT Party vs. Commission on Elections, G.R. No.190582, April 8, 2010.
II.
. THE PARTIES
ill.
ANTECEDENT FACTS
5. Articles 52,3 53,' and 54:1 of the Civil Code did not define and
limit marriage as between man and woman.
' Article 52 of the New Civil Code stales: "Marriage is not a mere contract but ;m inviolable
social institution. Its nature, consequences and incidents are governed by law and not
subject Lo slipulalion, except t11a! die marriage sc!Ucments may to a certain extent fix the
properly rclatiom during t11e marriage"
1
Arlicle 53 of the New Civil Code ~t alcs: " 1o marriage shall be solemnized unless all these
requisites are complied with:
(!) Legal capacity or the conlracting p;utics;
(2) T heir consent, freely given;
(3) Authority of the person performing t11c marriage; and
(4) A marriage license, except in a marriage of exceptional character"
" Article 54 of ilie New Civil Code stales: "Any male of the age of sixteen years or upwards,
and any female of the age of four! ~en years or upwards, not under any of the impediments
mentioned in articles 80 lo 84'., may contract 1muTiage"
6. On July 6, 1987, then President Corazon C. Aquino issued,
under her legislative powers, Executive Order No. 209, otherwise known as
the Family Code. The Family Code took effect on August 3, 1988.
7. Articles 1 and 2 of the Family Code repealed Articles 52, 53, and
54 of the Civil Code, thus ch;mging and limiting the definition of marriage as
between man and woman.
IV.
PROCEDURAL ISSUES
A. Jurisdiction
B. Propriety of Rule 65
11. This Honorable Court reiterated such rule recently in Araullo vs.
Executive Secretary stating:
• Prof. Magallona vs. Executive Sccrct;:u·y Ermita, C.R. o.1 87 167, August 16, 2011.
"With respect to the Courl, however, the remedies of certiorari
and prohibition are necessarily broader in scope and reach, and the
writ of certiorari or prohibition may be issued to correct errors of
j urisdiction commilted not only by a tribunal, corporation, board or
officer exercising 1i1dicial, quasi:fudicial or ministerial functions but also
to set right, undo and restrain any act of grave abuse of discretion
amounting to lad or excess of jurisdiction by any branch or
instrumentality of the Governm ent, even if the latter does not exercise
judicial, quasi:fudicial or ministerial functions. This application is
expressly authorized by d1e text of the second paragraph of Section 1,
supra.
14. .Petitioner submits that the requisites for this Court's exercise of
the power of judicial review exist, whether under the traditional or expanded
concept.
16. Petitioner submils that the instant petition falls under the third
(3'.i) classification pointed out by.Justice Brion.
17. Assuming ;ffguendo that the instant petition does not fall under
the expanded power of judicial review, Petitioner submit-; that the requisites
for judicial re'view still exists even under the traditional power of judicial
reV1ew.
' Ibid.
0
' Ibid.
" 'Na-Aeon vs. People of the Phili ppines, C.R. o . 164.575, December 6, 20()().
20. Petitioner submiL'> that a µrima facie case of grave abuse of
discretion exists in the passage of Articles 1 and 2 of the Family Code.
Limiting the definition of marriage as between man and woman is, on its face,
a grave abuse of discretion because of the following facts:
2. Transcendental Importance
22. Lesbian ai1d gay Filipinos, who are citizens just as much as
straight Filipinos, are releg<1ted to 2""-class citizens. The United Nations
Development Programn~e and the l Tnited States Agency for International
D evelopment identified the -elfocts of the unequal treatment of lesbian, gay,
bisexual, and transgender (hereafrer referred to as "LGBT") Filipinos in our
marital laws and said:
" UNDP, USAID (201 4). Being LGBT in Asia: The Philippin·es Country Report
Bangkok.
''Motives for entering Ji1to ;1 marriage are varied and
complex. The SCJ.te does not and cannot dictate on the Jund of
life that a couple chooses to lead. Any attempt to regulate their
lifestyle would go into Uie realm of their right to privr2cy and
would raise serious constitutional questions. The right to m adtal
pdvacv allows married ccuples to structure their marn"ages in
almost any way they sec fit, to live together or live apart, to have
children or no ch1ldren, Lo love one another or not, and so on. 1119
25. Lastly, Petitioner suhmilc; t1·1at the instant petition raises an issue
of transcendental importance to the nation because of the millions of LGBT
Filipinos all over the country who are deprived from marrying the one they
want or the one they love. They are discouraged and stigmatized from
pursuing same-sex relationships to begin with. Those who pursue same-sex
relationships despite the stigma are deprived of the bundle of rights that flow
from a legal recognition of a couple's relationship - visitation and custody
rights, property and successional righl'i, and other privileges accorded to
opposite-sex relationships.
26. Assuming arguendo that tl1e instant petition does not invoke tl1is
Honorable Court's expanded power of'juclicial review, Petitioner submits that
the requisites for the exercise oJ' the traditional power of judicial review exist.
(2) the person challeng1i1g the act must have the st;wd1ng
to question the validity of d1e sul?/ect act or issuance; od1erwise
stated, he must ha.ve a personal and subst.a.ntial interest in the
case such that he has susra1i1ed, or will sustain, direct iJ?fury as a
result ofits enforcement;
09
Republic of the Philippines vs. Albios, C.R. No. 198780, October 16, 20Ia.
(4) the issue o{constitutionality must be the very ii> mota
olthe case. " 20
28. Petitioner submit'i that there is an actual case calling for the
exercise of judicial power. Citing the case of Pimentel vs. Aguirre, this
H onorable Court reiterated that:
'° 13iraogo vs. Philippine Trut11 Com mis~~:on , C .R. Nos. 192935, December 7, 2010.
" La Bugal-B'Ja;m Tribal Association, Inc. vs. Ramos, C.R. No. 127882, December l,
2004.
"'Araullo vs. Aquino, C.R. No. 209287, July l , 20 14.
32. Petitioner suhmiLs that the question of constitutionaliLy has been
raised at the earliest opportu11ity. 'This Honorable Court explained that raising
a constitutional issue at the earliest opportunity:
34. Petitioner submits that the issue of constitutionality is the very !is
m ota of the instant petition. This H onorable Court explained that lis mota
means:
36. Petitioner suhmiL'i that the Family Code is facially invalid and
may be facially challenged. '!~his Honorable Court has said that:
" Scmmo vs. Gallant Maritime Sci vice~, Inc., C.R. o. 167614, March 24, 2009.
"CongTessman Garcia vs. Executive Secretary, C .R. No. 157584, Apri12, 20W.
" Romualdez vs. Commission on Elections, G.R. No. 167011, December 11 , 2008.
37. In the case of Imbong vs. Ochoa, this Honorable Court
reiterated the rule in Romualclez saying:
:39. Petitioner s1,1bm;Ls that the violation of the right to privacy has
been recognized by this H onorable Court as a right that triggers a facial
challenge. In Ople vs. Torres, thi.- Honorable Court said:
"" Imbongvs. Executive Secreta1y Ochoa, C.R . .'o. 2048 19, April 8, 2014..
"' Opie vs. Torres, C.R. No. 12768.'i, July 23, 1998.
v.
LEGAL ARGUMENTS
A.
B.
c.
DISCUSSION
40. Petitioner ~ubmi ts that applying the strict scrutiny test, Articles 1
and 2 of the Family Code is unconstitutional because there is no rational
nexus between the means of limiting marriage to opposite-sex couples and the
compelling state interest of protecting marriage as the foundation of the
family.
"' While Lighl Corporation vs. CiLy o r I:mila, G.R No. 122846,January 20, 2009.
"The apphca/Jon of the stn'ct scrotinv analvsis to
petitJoners' daims lbr provi51on;J/ relief warrants the inevit;1ble
conclus1on that the tn"rd court cannot deny provisional relie f to
the party alleging a prima lane case alleging government
infringement on the n~ht to Hee expression without hearing Ii-om
the infiinger the cause why its actions should be sust;11ned
provisionally. Such acts of infringement are presump/J.velv
uncons/Jtutional, thus Lhe trial court cannot deny provisional
relief outright since to do so would lead to the sustena'on of a
presumpa'vely unconstJtutional act. It would be necesswyfor the
infringer to appear in court and somehow rebut against the
presumption ofunconstJtu/Jonalitv for the trial court to deny the
1i1junctive relief sought for 1n cases where there is a pnina
lac1e case esta.blish1i1g Lhe infringement of the right to kee
expre.\~s·1on. H 'l'J
"Newsounds Broadcasling N elwork Inc. vs. Dy, C.R. No. 170270 & 179411, April 2,
200~).
"' City of' M<mila vs. Laguio,Jr., C.R. No. 1181 27, April 12, 2005.
" Seel.ion 2, Article XV slates: "Marriage, as <Ul inviolable social inslitulion, is the
l'oundalion 01' 1.he fmnily and shall be prolcclecl b y Lhc State."
" Association of' Small Landowners vs. Secrelary of Agrarian Reform, C.R. No. 78742, July
14, 1989.
46. Even though a compelling state interest exists, Petitioner submits
that the provisions of t:he Family Code limiting marriage as between a man
and a woman is not necessary to achieve such interest. To emphasize, the
state interest is the protection of marriage as the foundation of the family and
no t the protection of heterosexual relationships per se.
49. Aside from tl1e ability to fo und and constitute a fan1ily, Petitioner
submits that homosexuals jusl like heterosexuals can fulfill the essential
marital obligations laid 'do\\;n by the Family Code, as identified by this
H onorable Court in the case of Republic vs. Court of Appeals85 , namely:
·" Black's Law Dictionary 2"' l·:dition Online, http:// thelawdjctionan1.ord family/, last
accessed on May 18, 2015.
" Merriam-\Vebsler Dictionary, http://www.merriam-webster.com/dictionarvlfamily, last
accessed on May 18, 20 15.
"' Republic vs. Courl of Appeals and M~lina, C.R. o. 108763, February 13, l ~)97.
"" ArLicle 68 of the Family Code.
" ArLicle 69 of the Family Code.
" Article 70 of the Family Code.
50. Petiti.oner subm its that homosexuals can fulfill the essential
marital obligations regardless whether it is as between the spouses or as
between the pa.rents and their children.
52. Petitioner is aware that this Honorable Court has stated that
procreation is one of the essential marital obligations under the Family Code
in the case of Chi Ming T soi vs. Court of' Appeals, where it stated:
"' Chi Ming T soi vs. Courl of Appeals, G.R. o. 11 9190, January 16, 1997.
"' Republic Acl No . 8552 or t11c Domcslic Adoption Act of 1998.
" Republic Act No. 8043 or the Inter Adoption Acl of 1995.
"Gualbcrlo vs. Gualberlo V, G.R lo. 154994,June 28, 2005.
56. Thus, Petitioner submits that homosexuals and same-sex couples
DO NOT and CANNOT HARM the institution of marriage. In fact,
homosexuals and sam \ -sex. couples can serve to f01ward the State's
compelling interest in protecting and strengthening the family as a basic
autonomo us social institution. "' Consequently, there is NO NECESSITY to
limit marriage as between a man and a woman to protect and strengthen the
family. There is actually a necessity to allow same-sex marriage.
58. Petitioner submits that applying the strict scrutiny test, Articles 1
and 2 of the Family Code are unconstitutional because the classification of
same-sex and opposite-sex couples is not necessary to achieve a compelling
state interest of protecting marriage as the foundation of the family.
" Section 12, Article II st.ales: ,''The Stale recognizes the sanctity of family life and shall
prol.ecl ;md strengthen I.he family as ;1 basic aulonomous social institution."
"Congress retains its wide discretion in providing for a
valid classification. and its policies should be accorded
recognition and respect by the courts ofjustice except when diey
run afoul of die Constitution. The deference stops where the
classification violates a fundamental right, or preiudices persons
accorded special protection bv the Constitution. Vfiflen these
violations arise, thi'i Court must discharge its primary role as the
vanguard of constitutional guaranties, and require a stricter and
more exacting adhercnf'e to constitulional limitatJons. Rational
11
basis should not suflice. "
"171e Court has 1i1 a way f(;und the strict scrudny stand;ud,
an American constJtutional construct, useful in determimil/J" the
constitutionality of Jar:~<; diat tend to target a class of thing:'i or
persons. According· to du:> st;mdard, a legislative classification
that impermissibly 1i1lederes w1d1 the exercise of' fundam ental
right or operates to die peculiar class disadvant;Jge of a suspect
class is presumed unconsbtutional. The burden is on die
government to prove tJ1at d1e class1/jcalion is necessaiy to aclueve
a compelling sta.Le 1i1tcrest and that 1t is the least restrictive means
to protect such 1ntere.st. "1.1
" Central Bank Employees Association, Inc. vs. Bcu1gko Sentral ng Pilipin<ts, G.R. No.
148208, December 15, 2004. ·
"Scrrrmo vs. Gallant Maritime Services, Inc., C.R. No. 1676 14, March 24., 2009.
''Instead ofadopai1g a rigid !Ormula to determine whether
cert.ain legislative clas.Hfications warrant more demanding
constitutional analJ~'ii'i, the United St.ates Supreme Court has
looked to four facton~ thw:
65. Former Chief Justice Puno, looking into the four factors, found
that state action singling out homosexuals or homosexuality warrant a
heightened judicial scrutir.y. Looking into the first factor, he finds:
"' Ang Ladlad LGBT Parly vs. Colllmission on l~lcclions, Separate Concurring O pinion of
Chier.Justice Puno, C.R. o.l ~J0.5 8 2, Ajiril 8, 20 10.
(c) Eflenni1ate /FIJ~s· and butch lesbians a.re kicked
out of school, NCO.c,~ and choirs because at U1eir
identity;
66. Moving into the second facto r, former Chief Justice Puno finds
that homosexuality is not related or relevant to a person's ability to contribute
Lo society.
" Ibid.
pre;judice and ;mtljJathy" 1s no less applicable to ga.y
persons. (italics supplied)
67. Going further into the third factor, former Chief J ustice P uno
finds that ho mosexuality is s<'> central to the identity of gays and lesbians that
to penalize persons for it would be ahhorrent.
'" Ibid.
not the type of' human /Jwt diat allows courts to relax their
standard of review hecause die barrier is tempora1y or
susceptJb1e f ''j 1e; p' . '" ·"
l to se11-
68. Finally, looking into the fo urth factor, former Chief.I ustice Puno
lincls that lesbians and gays are a ~mall and insular minority.
69. Former Chi~f J Listice Puno concludes that state action classif)1ing
ho1nosexuals or individuals on the basis of sexual orientation is a quasi-
suspect classification that requi res intermediate review.
76. Applying the strict scrutiny test, Petitioner submits that Articles 1
;me! 2 of the Family Code are. unconstitutional because the classiticalion is not
necesscu)' to achieve a compelliug state interest.
78. Assuming argu endo that strict scrutiny test is not applicable,
Petitioner submits that Articles 1 and 2 of the Family Code are still
unconstitutional because there is no substantial distinction between same-sex
and opposite-sex couples and the classification is not applied equally to all
members of the same class or individuals who cannot procreate.
80. Petitioner submiLc; that Articles 1 and 2 of the Family Code fail
the l " and 4.'i. requisites.
·" Biraogo vs. Philippine T ruth Commission , C.R. No. 192935, December 7, 20 10.
"' Article 68 of the Family Code.
·" Arlicle (i9 of the Family Code.
" Arlicle 70 of the Family Code.
C. THE FAMILY CODE, IN
DEFINING AND LIMITING
MARRIAGE AS BETWEEN MAN
AND WO.MAN, IS
UNCONSTITUTIONAL BECAUSE
IT VIOi.ATES SEC 30 ) A RT. XV OF
THE 1.987 PHILIPPINE
CONSTITUTION
84. Petitioner subm ils that Articles 1 and 2 of the Family Code a.re
contrary to Section 3(1) Article XV of the Constitution because it prohibits
same-sex couples from founding a family through the vehicle of marriage in
accordance with their religious convictions.
85. This H onorable Court has recognized Sec. 3(1) Art XV of the
Constitution as a source of rights specifically the right to marital privacy and
autonomy. In the case of Im bong vs. Ochoa, this Court said:
.. Irnbong vs. Executive Secretary Ochoa, G.R. No. 204819, April 8, 2014.
·" LCBTS CHRISTIAN CHURCH INC, accessed on May 18, 2015,
l111ps://!ghL~christianchurch . wordprcss.com/
'"' f,GBT Holy Union / 'vVcdd1i11:~· - Jllfc1ropohi;1n Commumiy Church, accessed on May
18, 20 15, hup://mccmb.webs.corn/ lghlholyunionweddings.htm
87. Same-sex weddings have been held by members· belonging to
such Christian denominatiom from Baguio City59 to Quezon City. 60 Such
religious weddings have been denied recognition under civil law unlike the
religious convictions of Catholics61 and Muslims.62
"' " I 0 couples exchange vows in Baguio's lirsl smne-sex wedding," The P/11/ipp1i1c St;u-,
accessed May 18, 2015, htt])://mvw.philslar.com/headlines/699582/10-couplcs-exch;mge-
vo1vs-baguios-first-same-sex-wedcli11g.
'° "Protest.;mt church performs same-sex weddings in PHL," GMA News Onlii1c, accessed
on Ma}1, 18 2015, http://www.gm;melwork.com/news/stoiy/224555/news/nalion/proleslantc
church-nerfonns-same-sex-weddings-in-phl
., Articles 1 and 2 of the Family Code of t11c Philippines.
"'Chapter Two Marriage (NIK.AH), Code of Muslim Personal Laws of the Philippines.
RELIEF
WHEREFORE, in light of all the foregoing, Petitioner respectfully
request<; that the H onorable Ccfurt grant the Petition for Certiorari and
Prohibition and decl<tre Articles 1 and 2 of the Family Code as
unconstitutional and, as a consequence, nullify Articles 46(4) and 55(6) of the
Family Code.
COPY FURNISHED:
CIVIL REGISTRAR-GENERAL
Public Respondent
3'.i Floor, NSO-CVEA Building
East Avenue, Diliman, Quezon City
VERIFICATION
AND
CERTIFICATION OF NON-FORUM SHOPPING
3. I have read the said pk:<lding and hereby aver that the allegations
therein are true and correct of my personal knowledge or based on authentic
records.
4. I have not commenced any other action or filed any claim involving
the same issues in any court, tribunal, or quasi-judicial agency and, to the best
of my knowledge, no such other action or claim is pending therein.
Doc. No.
Page No.I:
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ATTY.~~ tt:;Jz
Noldry Pubhc for ezon City. Until Dec. 31. 2015
Adm Molter NP· (2014·2015) / RoUNo. 31559
Serles of 20,JL ~TR O.R No. 055Msn 1.~'"" "r
VERIFIE'D DECLARATION