You are on page 1of 10

REPUBLIC OF THE PHILIPPINES

Polytechnic University of the Philippines


COLLEGE OF LAW
Sta. Mesa, Manila

576 U.S. ___ (2015) June 26, 2015

OBERGEFELL vs. HODGES

1. The United States Supreme Court, in a vote of 5-4,


reversed the earlier decision of the Sixth Circuit Court of
Appeals. It declared that same sex-marriage bans are a
violation of the Fourteenth Amendment’s Due process and
Equal Protection Clauses. It required all states to grant same
sex-marriages and should recognize same sex-marriages
granted in other states. The majority opinion of the court and
the dissenting opinions of the four dissenting justices applied
the modes of interpretation to come up with the reason behind
their stance on the case.

The majority opinion of the court, which was penned by


Justice Anthony Kennedy, was joined by Justices Ruth Bader
Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena
Kagan. It explained that the liberty sought by petitioners is
afforded to them by the US Constitution under the Due
Process and Equal Protection clauses of the Fourteenth
Amendment and thus, must enjoy this constitutional right as
being enjoyed by other people. The Justices used the sixth
approach in interpreting the texts of the constitutional
provisions, the search for meaning through a deliberately
eclectic combination of the other five modes of interpretation.
We can notice that textualism and reliance on stare decisis
came to play major roles in coming up with the majority
opinion.

Under the Due Process Clause of the Fourteenth


Amendment of the US Constitution, no State shall “deprive
any person of life, liberty, or property, without due process of
law.” The fundamental liberties protected by this Clause
include most of the rights enumerated in their Bill of Rights. 1
They examined the words of it and came up that the
identification and protection of fundamental rights is an
enduring part of the judicial duty in interpreting their
Constitution.

1
p.10, Opinion of the Court
Reaction Paper Page 2 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

The principle of stare decisis was evidently used through


the discussion of several landmark cases. In Maynard v. Hill,
125 U. S. 190, 211 (1888), the court explained that marriage
is “the foundation of the family and of society, without which
there would be neither civilization nor progress”, in Loving v.
Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on
interracial unions, a unanimous Court held marriage is “one of
the vital personal rights essential to the orderly pursuit of
happiness by free men.” The Court reaffirmed that holding in
Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the
right to marry was burdened by a law prohibiting fathers who
were behind on child support from marrying. The Court again
applied this principle in Turner v. Safley, 482 U. S. 78, 95
(1987), which held the right to marry was abridged by
regulations limiting the privilege of prison inmates to marry.
Over time and in other contexts, the Court has reiterated that
the right to marry is fundamental under the Due Process
Clause. Applying these established tenets, the Court has long
held the right to marry is protected by the Constitution. 2

The right for marriage of same-sex couples is not literally


stated in the US Constitution. However, as it is presumed that
the words in which the constitutional provisions were written,
it expresses the objectives that the Constitution seeks to
attain. In the case, the Court, in assessing whether the force
and rationale of its cases apply to same-sex couples, it stated
that they must respect the basic reasons why the right to
marry has been long protected. This analysis compelled the
conclusion that same-sex couples may exercise the right to
marry. They also stated that marriage is adapting to the
changes brought by the status quo that affects its aspects
once viewed as essential. These new insights have
strengthened, not weakened, the institution . They came up
with four principles and traditions that discussed and
demonstrated the reasons why marriage is fundamental under
the Constitution:3

(1) The first principle stated that the nature of marriage is


that, through its enduring bond, two persons together can find
other freedoms, such as expression, intimacy, and spirituality.
This is true for all persons, whatever their sexual orientation.
(2) A second principle in this Court’s jurisprudence is that
the right to marry is fundamental because it supports a two-
2
p.11, Opinion of the Court
3
p. 12-18, Opinion of the Court
Reaction Paper Page 3 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

person union unlike any other in its importance to the


committed individuals. The right to marry thus dignifies
couples who “wish to define themselves by their commitment
to each other.” Marriage responds to the universal fear that a
lonely person might call out only to find no one there. It offers
the hope of companionship and understanding and assurance
that while both still live there will be someone to care for the
other. As the Court held in Lawrence v. Texas, 538 U.S. 558,
575, same-sex couples have the same right as opposite-sex
couples to enjoy intimate association. Lawrence invalidated
laws that made same-sex intimacy a criminal act. And it
acknowledged that “when sexuality finds overt expression in
intimate conduct with another person, the conduct can be but
one element in a personal bond that is more enduring.”
(3) A third basis for protecting the right to marry is that it
safeguards children and families and thus draws meaning
from related rights of childrearing, procreation, and education.
The Court has recognized these connections by describing the
varied rights as a unified whole: “[T]he right to ‘marry,
establish a home and bring up children’ is a central part of the
liberty protected by the Due Process Clause.” As all parties
agree, many same-sex couples provide loving and nurturing
homes to their children, whether biological or adopted. And
hundreds of thousands of children are presently being raised
by such couples. Most States have allowed gays and lesbians
to adopt, either as individuals or as couples, and many
adopted and foster children have same-sex parents. This
provides powerful confirmation from the law itself that gays
and lesbians can create loving, supportive families. Excluding
same-sex couples from marriage thus conflicts with a central
premise of the right to marry. Without the recognition,
stability, and predictability marriage offers, their children
suffer the stigma of knowing their families are somehow lesser.
They also suffer the significant material costs of being raised
by unmarried parents, relegated through no fault of their own
to a more difficult and uncertain family life. That is not to say
the right to marry is less meaningful for those who do not or
cannot have children. An ability, desire, or promise to
procreate is not and has not been a prerequisite for a valid
marriage in any State.
(4) Fourth and finally, this Court’s cases and the Nation’s
traditions make clear that marriage is a keystone of our social
order. There is no difference between same- and opposite-sex
couples with respect to this principle. Yet by virtue of their
exclusion from that institution, same-sex couples are denied
Reaction Paper Page 4 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

the constellation of benefits that the States have linked to


marriage. This harm results in more than just material
burdens. Same-sex couples are consigned to an instability
many opposite-sex couples would deem intolerable in their
own lives. As the State itself makes marriage all the more
precious by the significance it attaches to it, exclusion from
that status has the effect of teaching that gays and lesbians
are unequal in important respects. It demeans gays and
lesbians for the State to lock them out of a central institution
of the Nation’s society. Same-sex couples, too, may aspire to
the transcendent purposes of marriage and seek fulfillment in
its highest meaning.

The right to marry is fundamental as a matter of history


and tradition, but rights come not from ancient sources alone.
They rise, too, from a better informed understanding of how
constitutional imperatives define a liberty that remains urgent
in our own era. Many who deem same-sex marriage to be
wrong reach that conclusion based on decent and honorable
religious or philosophical premises, and neither they nor their
beliefs are disparaged here. It stated: “There can be no doubt
that restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal
Protection Clause.” With this link to equal protection the Court
proceeded to hold the prohibition offended central precepts of
liberty: “To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in
these statutes, classifications so directly subversive of the
principle of equality at the heart of the Fourteenth
Amendment, is surely to deprive all the State’s citizens of
liberty without due process of law.” The reasons why marriage
is a fundamental right became more clear and compelling from
a full awareness and understanding of the hurt that resulted
from laws barring interracial unions.

These considerations lead to the conclusion that the right


to marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment, couples of the same-
sex may not be deprived of that right and that liberty.

The Court thus held that same-sex couples may exercise


the fundamental right to marry. The dispositive portion of the
majority opinion reads, “xxx They ask for equal dignity in
Reaction Paper Page 5 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

the eyes of the law. The Constitution grants them that


right. The judgment of the Court of Appeals for the Sixth
Circuit is reversed. It is so ordered.xxx”4

Clearly, the rules of the last approach were satisfied in


the majority opinion. The following are the several rules in
reading the Constitution under this mode5; (1)it is assumed
that the words in which the constitutional provisions are
couched to express the objective sought to be attained, (2) the
words are to be given their ordinary meaning except where
technical terms are employed in which case, the latter
meaning prevails, (3) it’s language as much as possible should
be understood in the sense they have in common use and, (4)
The texts of the provision to be construed compels the
acceptance and negates the power of the courts to alter it, on
the premise that the framers and the people mean what they
say.

In the dissenting opinion of Chief Justice John Roberts,


which was joined by Justices Antoine Scalia and Clarence
Thomas, he noticeably used the mode of originalism, making
emphasis in looking deeper at the intent of the framers of their
constitution with respect to the essence of marriage. He
discussed that the Constitution protects a right to marry and
requires States to apply their marriage laws equally. But
“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.”

According to him, this universal definition of marriage as


the union of a man and a woman is no historical coincidence. 6
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.

4
p. 28, Opinion of the Court
5
Dan Gatmaytan, Legal Method Essentials, pp. 47-48
6
p.4, Roberts, C. J., Dissenting Opinion
Reaction Paper Page 6 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

There is no doubt that the intent of the framers of their


Constitution is to protect marriage as a right and ensure that
all states abide with it. However, as there is no provision in the
constitution solely for marriage, the framers thereby entrusted
the States with “the whole subject of the domestic relations of
husband and wife.”7 Clearly, history dictates that marriage as
stated above should only be between opposite sexes. According
to him, procreation is the chief end of marriage. Therefore, for
the good of children and society, sexual relations that can lead
to procreation should occur only between a man and a woman
committed to a lasting bond. This made marriage as the
fundamental institution in the society and binds the states
together.

In the end, he urged the Americans who are favoring


the expansion of marriage, by all means, to celebrate the
achievement of a desired goal, the opportunity for a new
expression of commitment to a partner and the availability of
new benefits. But do not celebrate the Constitution.

In the dissenting opinion of Justice Scalia with whom,


Justice Thomas joined, the context of textualism and
originalism is the center of his discussion. He opened his
opinion by stating that because of the “liberties” created by the
court through their claimed power to create liberties, the
people are being robbed of the most important liberty, the
power to govern themselves. His opinion is centered in the
importance of the intent of the Constitution towards marriage.
He stated that when the Fourteenth Amendment was ratified
in 1868, every State limited marriage to one man and one
woman, and no one doubted the constitutionality of doing so.
And that argument resolved these cases.8

He also contended that they have no basis for striking


down a practice that is not expressly prohibited by the
Fourteenth Amendment’s text, and that bears the
endorsement of a long tradition of open, widespread, and
unchallenged use dating back to the Amendment’s ratification.

Justice Thomas also gave value to the originalism in


his dissenting opinion, in which Justice Scalia joined. The
important of the intent of the framers of their Constitution was
7
p.6, Roberts, C. J., Dissenting Opinion
8
p.4, Scalia J., Dissenting Opinion
Reaction Paper Page 7 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

given due importance with respect to the meaning of liberty.


He stated that since well before 1787, liberty has been
understood as freedom from government action, not enti-
tlement to government benefits. The authors of their
constitution created it to preserve that understanding of
liberty. He argued that the majority opinion in of “liberty” is
entirely different on what the framers are intended and sought
for the people. It rejected the idea captured in their
Declaration of Independence; that human dignity is innate and
suggests instead that it comes from the Government. This
distortion of the Constitution not only ignores the text, it
inverts the relationship between the individual and the state
inour Republic and he ultimately disagreed with the majority’s
inversion of the original meaning of liberty and conclude that
it will likely cause collateral damage to other aspects of “our
constitutional order that protect liberty.”9

Lastly, Justice Alito, with whom Justice Scalia and


Justice Thomas joined, also used the context of textualism in
expounding the meaning of the provisions in this case,
particularly with that of “liberty” that paved the way to
marriage.

He concluded that it is not what States should do


about same-sex marriage but whether the Constitution
answers that question for them and it does not, according to
him. The Constitution, as he discussed, leaves that question
to be decided by the people of each State. 10 The Constitution
says nothing about a right to same-sex marriage, but the
Court holds that the term “liberty” in the Due Process Clause
of the Fourteenth Amendment encompasses this right. In his
words, “Our Nation was founded upon the principle that every
person has the unalienable right to liberty, but liberty is a
term of many meanings. For classical liberals, it may include
economic rights now limited by government regulation. For
social democrats, it may include the right to a variety of
government benefits. For today’s majority, it has a distinctively
postmodern meaning.”11 This understanding of marriage,
which focuses almost entirely on the happiness of persons
who choose to marry, is shared by many people today, but it is
not the traditional one. For millennia, marriage was

9
p.2, Thomas J., Dissenting Opinion
10
p.2, Alito J., Dissenting Opinion
11
Ibid
Reaction Paper Page 8 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

inextricably linked to the one thing that only an opposite-sex


couple can do: procreate.

Clearly, he emphasized that marriage is only for


opposite sexes, because process of procreation can only be
achieved when opposite sexes unite to form the basis of family
which is marriage. This is within the intention of the framers
of their constitution, which is to preserve the basic institution
of American Society.

2. While the petitioners in the above-mentioned case


were successful in their appeal to the US Supreme Court,
under Philippine law system, it will never prosper.

While there is no expressed provision in the Philippine


Constitution about the exclusivity of marriage among opposite
sexes, it is expressly provided under Article 1 of the Family
Code12, which reads;

Art. 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.

Based on the above-mentioned article, marriage is a


special contract of permanent union between a man and a
woman. It is the fundamental rule that governs the family law
system in our country. It rules over all citizens of the
Philippines and within the scope of its territorial jurisdiction.
The marriage by the same-sex in our country would be deemed
contrary to public policy, customs and public order. The end
fruit of marriage which is procreation can only be achieved by
the opposite sexes. Although there are attempts in Congress to
pass a same-sex marriage law, all are unsuccessful as of date.

We are living in a period of history where change is


inevitable and almost all nations are adapting to what is being
12
Executive Act No. 209, “THE FAMILY CODE OF THE PHILIPPINES”, July 6, 1987
Reaction Paper Page 9 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

offered as new by present hegemonies and same-sex marriage


is one of them. But, in our country, we are governed by a
system of laws and not a system of men. It is safe to say thatit
indeed will not prosper.

Article 2 of the Family Code also supports this notion;

Art. 2. No marriage shall be valid, unless


these essential requisites are present:
(1) Legal capacity of the contracting parties who
must be a male and a female. xxx

It is one of the legal capacities mentioned in the Article 2


of our Family Code, the absence of which will render the
marriage void ab initio. So, if we are going to apply the
decision, it will be rendered a violation of this provision of the
Family Code.

It is also the duty of the state to protect marriage. It is


the institution that is the center of the family. Section 2 of
Article XV provides;

SECTION 2. Marriage, as an inviolable social


institution, is the foundation of the family
and shall be protected by the State.

Marriage is the glue that binds the family together.


Without marriage, there is no family. It is also the duty of the
state to protect family as the basic autonomous social
institution. Article II, Section 12 of the 1987 Constitution
provides;

SECTION 12. The State recognizes the


sanctity of family life and shall protect and
strengthen the family as a basic autonomous
social institution. xxx

With that being said, it is noteworthy that the state puts


family in the center of the society. It is the bond which ties the
thousands of islands in the Philippine Archipelago as one
nation and without family; we will have no nation as it is
today. Marriage meanwhile is what makes a family, a family.
Family and marriage are intertwined with each other.
Reaction Paper Page 10 of 10
Obergefell v. Hodges
576 U.S. ___ (2015) June 26, 2015
x----------------------------------------x

In contemplating the intention of the framers of our


Constitution, the protection of the family is one of the most
important facets of it. We can notice that a whole article
(Article XV) of the Constitution was put in place to make
emphasis on its importance.

Based on the above-mentioned arguments, judgment is


hereby rendered declaring the decision of the US Supreme
Court UNCONSTITUTIONAL in applying 1987 Philippine
Constitution and contrary to law with respect to the Family
Code of the Philippines. Decision of the Sixth Circuit Court of
Appeals REAFFIRMED. Petition DENIED.