Discussion Guest: Judge Drillon

SC thumbs down same-sex marriage case ‘with finality’

PNA | January 6, 2020

The Supreme Court (SC) has denied “with finality” a motion for reconsideration on its previous decision
junking same sex marriage petition in the Philippines.

In a notice sent to reporters on Monday, the SC through Clerk of Court Edgar Aricheta ordered that
entry of judgment be made on the suit filed by lawyer Jesus Nicardo M. Falcis III and the LGBTS Christian
Church Inc. against the Civil Registrar-General.

The High Court said the motion for partial reconsideration on the SC’s September 3, 2019 decision was
“denied with finality," noting that "no substantial arguments were presented to warrant the reversal of
the questioned decision".

"No further pleadings or motions will be entertained," the SC added.

In its September 3 verdict, the SC en banc unanimously dismissed the petition filed by Falcis, citing lack
of legal standing to initiate the petition as well as for failing to comply with the principle of hierarchy of
courts.

In a historic first, the Supreme Court tackled same-sex marriage in oral arguments last June 19, 2018
because one young, gutsy, gay lawyer thought this was a battle better fought in the Court, not in
Congress.

In May 2015, only two months after he passed the Philippine Bar, Jesus Falcis III filed a petition seeking
to legalize same-sex marriage in this predominantly Catholic country.

The Falcis petition seeks to declare as unconstitutional the provisions in the Family Code that limit a
marriage to a man and woman only, supposedly because they violate the constitutional right to equal
protection of laws.

"The Court's decision dismissed Falcis' petition on account of his lack of standing, violating the principle
of hierarchy of courts, and failing to raise an actual, justiciable controversy," SC's spokesperson Brian
Keith Hosaka said.

"The Court clarified that it is only through the existence of actual facts and real adversarial presentations
that this Court can fully weigh the implications and consequences of its pronouncements," Hosaka said.

Falcis, a young and openly gay lawyer, filed the petition against the Civil Registrar General, the public
official in the position to deny a marriage license to gay couples. But Falcis himself was not seeking
marriage.

Falcis later got gay couple Ceejay Agbayani and Marlon Felipe as intervenors in the petition. Agbayani
and Felipe want to get married and are in fact married under Agbayani's LGBT Chirstian Church. Their
marriage is not recognized by the State.

The Supreme Court also held Falcis and his co-counsels Darwin Angeles, Keisha Trina Guangko, and
Cristopher Ryan Maranan liable for indirect contempt.

"To forget the bare rudiments of court procedure and decorum – or worse, to purport to know them,
but really, only to exploit them by way of propaganda – and then, to jump headlong into the taxing
endeavor of constitutional litigation is a contemptuous betrayal of the high standards of the legal
profession," Hosaka said, quoting the en banc.

Guide to the Supreme Court oral arguments on same-sex marriage

These are the provisions of the Family Code in question:

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.
Article 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.

These are the provisions in the Constitution that the petition alleges to have been violated by the
aforementioned:

Section 1, Article III: No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.

Section 3(1), Article XV: The State shall defend the right of spouses to found a family in accordance with
their religious convictions and the demands of responsible parenthood

1. Should the petition be subject to the Court’s power of judicial review?

Petition: Yes, because “Articles 1 and 2 of the Family Code trigger a strict judicial scrutiny because it
violates the fundamental rights to decisional and marital privacy and because it created a suspect
classification.”

State: No, because “the legal definition of marriage between a man and a woman is a policy issue within
the authority of Congress, not the Courts, to decide.”

The OSG also added that the petition was defective because it did not implead Congress, the body that
makes laws, and the body that passed the assailed Family Code.

2. What do the laws say?

Petition: The passing of the Family Code provisions limiting marriage to a man and a woman only
constitute grave abuse of discretion because the Constitution did not define marriage as solely between
a man and a woman. (The Family Code was signed into law on July 6, 1987, or 6 months after the
Constitution was ratified in February that year.)

Similarly, the marriage provisions in the 1949 Civil Code did not limit marriages to a man and a woman
only.

Here is the pertinent Civil Code provision:

Article 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years
or upwards, not under any of the impediments mentioned in Articles 80 to 84, may contract marriage.

State: “The Civil Code only allows heterosexual marriage.”

The OSG said that the use of the word “and” in Article 54 – any male aged 16 years or upwards AND any
female of the age 14 years or upward – means marriage was limited to a male and female, not male or
female.

The OSG added that Title V and VI of the Civil Code mentions a “husband and wife” which further
bolsters the claim that the Civil Code “only sanctions heterosexual marriage.”

3. Did Philippine laws intend marriage for procreation?

Petition: No. Articles 2 and 3 of the Family Code “do not require married individuals to procreate or
have the ability to procreate.”

Article 45(5) of the Family Code lists as a ground for annulment if either party “is incapable of
consummating the marriage with the other, and such incapacity continues and appears to be incurable.”
The petition said this is impotency.

“Homosexuals ordinarily are not impotent…because they are ordinarily not sterile,” the petition said,
meaning homosexuals have the capacity to consummate the marriage.

On the issue of whether they can procreate, the petition said they are not prohibited by Philippine laws
to adopt children. It cited a Supreme Court ruling that sided with a lesbian mother in a custody battle,
saing that “sexual preference or moral laxity alone does not prove parental neglect or incompetence.”
State: Yes. “This state and societal interest to encourage procreation in a stable environment of a
traditional family had been the reason for limiting marriage between a man and a woman, and in effect,
creating a classification between couples that may avail of the special contract of marriage, and those
that cannot.”

The OSG also cites Articles 46 and 55 of the Family Code, which count homosexuality as legal grounds
for annulment.

Article 46(4): Any of the following circumstances shall constitute fraud referred to in Number 3 of the
preceding Article: Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism
existing at the time of the marriage.

Article 55(6): A petition for legal separation may be filed on any of the following grounds: Lesbianism or
homosexuality of the respondent

For the petitioner, if Articles 2 and 3 should be declared unconstitutional, then Articles 46 and 55 shall
also be declared unconstitutional.

The OSG disagreed, saying that the provisions gave importance to conjugal intimacy which is “after all,
the means for procreation of children and establishing a family.”

It cited an SC ruling which voided a marriage based on the wife’s complaint that the husband was not
having sex with her.

The ruling said: "To procreate children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage. Constant non- fulfillment of this obligation will
finally destroy the integrity or wholeness of the marriage.”

4. Does limiting marriage to men and women only violate Section 3(1), Article XV of the Constitution?

Petition: Section 3(1), Article XV says the State shall defend the right of spouses to found a family in
accordance with their religious convictions and the demands of responsible parenthood.

The petition argues that there are individuals who belong to religious denominations that believe in
same-sex marriage. Therefore, their right to found a family in accordance with their religious convictions
is violated.

State: Petitioners cannot invoke Section 3(1), Article XV because it is not a self-executory right.

A self-executory right is one which does not need an enabling law to enforce. In general principles, a
person cannot invoke a law that is a non-self executory right to void another law which may be
inconsistent with it.

The OSG cited a past SC ruling which says Section 3(1), Article XV are non-self executory and are “mere
statements and principles and policies.”

The OSG also said that according to the deliberations of the 1986 Constitutional Commission, Section
3(1), Article XV was meant to direct Congress to enact laws that will “further its policy for the Filipino
family, while prohibiting it from interfering with the number of children that couples may beget.”
“It does not provide for a self-executory right that may be made the legal basis of petitioners' alleged
inequality,” the OSG said.

The OSG said that allowing same-sex marriage will complicate other gender specific laws in marriages,
like how a husband's decision will prevail in disagrement over a community property, and how a wife is
assumed to have better abilities to raise a child of tender age, or the classification of adultery and
concubinage.