Requisites on marriage

Family code: MARRIAGE

Chapter 1. Requisites of Marriage

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)

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; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

Code of Muslim Personal Laws

Article 16. Capacity to contract marriage.

(1) Any Muslim male at least fifteen years of age and any Muslim female of the age of
puberty or upwards and not suffering from any impediment under the provisions of this
Code may contract marriage. A female is presumed to have attained puberty upon
reaching the age of fifteen.

(2) However, the Shari'a District Court may, upon petition of a proper wali, order the
solemnization of the marriage of a female who though less than fifteen but not below
twelve years of age, has attained puberty.

(3) Marriage through a wali by a minor below the prescribed ages shall be regarded as
betrothal and may be annulled upon the petition of either party within four years after
attaining the age of puberty, provided no voluntary cohabitation has taken place and the
wali who contracted the marriage was other than the father or paternal grandfather.

Article 17. Marriage ceremony. No particular form of marriage ceremony is required but the ijab
and the gabul in marriage shall be declared publicly in the presence of the person solemnizing
the marriage and two competent witnesses. This declaration shall be set forth in an instrument
in triplicate, signed or marked by the contracting parties and said witnesses, and attested by the
person solemnizing the marriage. One copy shall be given to the contracting parties and
another sent to the Circuit Registrar by the solemnizing officer who shall keep the third.

Article 18. Authority to solemnize marriage. Marriage may be solemnized:

(a) By the proper wali of the woman to be wedded;

(b) Upon authority of the proper wali, by any person who is competent under Muslim law
to solemnize marriage; or
 (c) By the judge of the Shari'a District Court of Shari'a Circuit Court or any person
designated by the judge, should the proper wali refuse without justifiable reason, to
authorize the solemnization.

Article 2 of 1987 constitution

Section 22. The State recognizes and promotes the rights of indigenous cultural communities
within the framework of national unity and development.
Article XIV of 1987 constitution
Section 17. The State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions. It shall consider
these rights in the formulation of national plans and policies.
RA 8371 (The Indigenous Peoples Rights Act of 1997)

SECTION 2.            Declaration of State Policies. — The State shall recognize and promote all
the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder
enumerated within the framework of the Constitution:

a)              The State shall recognize and promote the rights of ICCs/IPs within the framework of
national unity and development;

b)              The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure
their economic, social and cultural well being and shall recognize the applicability of customary
laws governing property rights or relations in determining the ownership and extent of ancestral
domain;

c)              The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and
develop their cultures, traditions and institutions. It shall consider these rights in the formulation
of national laws and policies;

d)              The State shall guarantee that members of the ICCs/IPs regardless of sex, shall
equally enjoy the full measure of human rights and freedoms without distinction or
discrimination;

e)              The State shall take measures, with the participation of the ICCs/IPs concerned, to
protect their rights and guarantee respect for their cultural integrity, and to ensure that members
of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws
and regulations grant to other members of the population; and

f)               The State recognizes its obligations to respond to the strong expression of the
ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the direction of
education, health, as well as other services of ICCs/IPs, in order to render such services more
responsive to the needs and desires of these communities.

Towards these ends, the State shall institute and establish the necessary mechanisms to
enforce and guarantee the realization of these rights, taking into consideration their customs,
traditions, values, beliefs, interests and institutions, and to adopt and implement measures to
protect their rights to their ancestral domains.

Cultural Integrity

SECTION 29.         Protection of Indigenous Culture, Traditions and Institutions. — The State
shall respect, recognize and protect the right of ICCs/IPs to preserve and protect their culture,
traditions and institutions. It shall consider these rights in the formulation and application of
national plans and policies.

SECTION 30.         Educational Systems. — The State shall provide equal access to various
cultural opportunities to the ICCs/IPs through the educational system, public or private cultural
entities, scholarships, grants and other incentives without prejudice to their right to establish and
control their educational systems and institutions by providing education in their own language,
in a manner appropriate to their cultural methods of teaching and learning. Indigenous
children/youth shall have the right to all levels and forms of education of the State.

SECTION 31.         Recognition of Cultural Diversity. — The State shall endeavor to have the
dignity and diversity of the cultures, traditions, histories and aspirations of the ICCs/IPs
appropriately reflected in all forms of education, public information and cultural-educational
exchange. Consequently, the State shall take effective measures, in consultation with ICCs/IPs
concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding
and good relations among ICCs/IPs and all segments of society. Furthermore, the Government
shall take effective measures to ensure that the State-owned media duly reflect indigenous
cultural diversity. The State shall likewise ensure the participation of appropriate indigenous
leaders in schools, communities and international cooperative undertakings like festivals,
conferences, seminars and workshops to promote and enhance their distinctive heritage and
values.

SECTION 32.         Community Intellectual Rights. — ICCs/IPs have the right to practice and
revitalize their own cultural traditions and customs. The State shall preserve, protect and
develop the past, present and future manifestations of their cultures as well as the right to the
restitution of cultural, intellectual, religious, and spiritual property taken without their free and
prior informed consent or in violation of their laws, traditions and customs.

1. Essential Requisites
a. Legal Capacity

Rules of court

RULE 103
 Change of Name

Section 1. Venue. — A person desiring to change his name shall present the petition to the
Court of First Instance of the province in which he resides, or, in the City of Manila, to the
Juvenile and Domestic Relations Court.

Section 2. Contents of petition. — A petition for change of name shall be signed and verified by
the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is
filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

Section 3. Order for hearing. — If the petition filed is sufficient in form and substance, the court,
by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof,
and shall direct that a copy of the order be published before the hearing at least once a week for
three (3) successive weeks in some newspaper of general circulation published in the province,
as the court shall deem best. The date set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) month after the last publication of the notice.

Section 4. Hearing. — Any interested person may appear at the hearing and oppose the
petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the
Government of the Republic.

Section 5. Judgment. — Upon satisfactory proof in open court on the date fixed in the order that
such order has been published as directed and that the allegations of the petition are true, the
court shall, if proper and reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of the petition.

Section 6. Service of judgment. — Judgments or orders rendered in connection with this rule
shall be furnished the civil registrar of the municipality or city where the court issuing the same
is situated, who shall forthwith enter the same in the civil register.

RULE 108

Cancellation Or Correction Of Entries In The Civil Registry

Section 1. Who may file petition. — Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a
verified petition for the cancellation or correction of any entry relating thereto, with the Court of
First Instance of the province where the corresponding civil registry is located.

Section 2. Entries subject to cancellation or correction. — Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births: (b) marriage; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.

Section 3. Parties. — When cancellation or correction of an entry in the civil register is sought,
the civil registrar and all persons who have or claim any interest which would be affected
thereby shall be made parties to the proceeding.

Section 4. Notice and publication. — Upon the filing of the petition, the court shall, by an order,
fix the time and place for the hearing of the same, and cause reasonable notice thereof to be
given to the persons named in the petition. The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a newspaper of general circulation in the
province.

Section 5. Opposition. — The civil registrar and any person having or claiming any interest
under the entry whose cancellation or correction is sought may, within fifteen (15) days from
notice of the petition, or from the last date of publication of such notice, file his opposition
thereto.

Section 6. Expediting proceedings. — The court in which the proceeding is brought may make
orders expediting the proceedings, and may also grant preliminary injunction for the
preservation of the rights of the parties pending such proceedings.

Section 7. Order. — After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the judgment
shall be served upon the civil registrar concerned who shall annotated the same in his record.

Sections 2 to 7, RA 9048

SECTION 2. Definition of Terms - As used in this Act, the following terms shall mean:

1. "City or Municipal civil registrar" refers to the head of the local civil registry office of the
city or municipality, as the case may be, who is appointed as such by the city or municipal
mayor in accordance with the provisions of existing laws.
2. "Petitioner" refers to a natural person filing the petition and who has direct and personal
interest in the correction of a clerical or typographical error in an entry or change of first
name or nickname in the civil register.
3. "Clerical or typographical error" refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That no
correction must involve the change of nationality, age, status or sex of the petitioner.
4. "Civil Register" refers to the various registry books and related certificates and documents
kept in the archives of the local civil registry offices, Philippine Consulates and of the Office
of the Civil Registrar General.
5. "Civil registrar general" refers to the Administrator of the National Statistics Office which
is the agency mandated to carry out and administer the provision of laws on civil
registration.
 6. "First name" refers to a name or nickname given to a person which may consist of one or
more names in addition to the middle and last names.

SECTION 3. Who May File the Petition and Where. -  Any person having direct and personal
interest in the correction of a clerical or typographical error in an entry and/or change of first
name or nickname in the civil register may file, in person, a verified petition with the local civil
registry office of the city or municipality where the record being sought to be corrected or
changed is kept.

           In case the petitioner has already migrated to another place in the country and it would
not be practical for such party, in terms of transportation expenses, time and effort to appear in
person before the local civil registrar keeping the documents to be corrected or changed, the
petition may be filed, in person, with the local civil registrar of the place where the interested
party is presently residing or domiciled. The two (2) local civil registrars concerned will then
communicate to facilitate the processing of the petition.

           Citizens of the Philippines who are presently residing or domiciled in foreign countries
may file their petition, in person, with the nearest Philippine Consulates.

          The petitions filed with the city or municipal civil registrar or the consul general shall be
processed in accordance with this Act and its implementing rules and regulations.

          All petitions for the clerical or typographical errors and/or change of first names or
nicknames may be availed of only once.

SECTION 4. Grounds for Change of First Name or Nickname. - The petition for change of
first name or nickname may be allowed in any of the following cases:

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce.
2. The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that by that first name or nickname in the
community: or
3. The change will avoid confusion.

SECTION 5. Form and Contents of the Petition. -  The petition shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by the law to administer oaths.
The affidavit shall set forth facts necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall
state the particular erroneous entry or entries, which are sought to be corrected and/or the
change sought to be made.

          The petition shall be supported with the following documents:

1. A certified true machine copy of the certificate or of the page of the registry book containing
the entry or entries sought to be corrected or changed.
2. At least two (2) public or private documents showing the correct entry or entries upon which
the correction or change shall be based; and
3. Other documents which the petitioner or the city or municipal civil registrar or the consul
general may consider relevant and necessary for the approval of the petition.
          In case of change of first name or nickname, the petition shall likewise be supported with
the documents mentioned in the immediately preceding paragraph. In addition, the petition shall
be published at least once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from the appropriate law
enforcement agencies that he has no pending case or no criminal record.

          The petition and its supporting papers shall be filed in three (3) copies to be distributed as
follows: first copy to the concerned city or municipal civil registrar, or the consul general; second
copy to the Office of the Civil Registrar General; and third copy to the petitioner.

SECTION 6. Duties of the City or Municipal Civil Registrar or the Consul General. - The
city or municipal civil registrar or the consul general to whom the petition is presented shall
examine the petition and its supporting documents. He shall post the petition in a conspicuous
place provided for that purpose for ten (10) consecutive days after he finds the petition and its
supporting documents sufficient in form and substance.

          The city or municipal civil registrar or the consul general shall act on the petition and shall
render a decision not later than five (5) working days after the completion of the posting and/or
publication requirement. He shall transmit a copy of his decision together with the records of the
proceedings to the Office of the Civil Registrar General within five (5) working days from the
date of the decision.

SECTION 7. Duties and Powers of the Civil Registrar General. -  The civil registrar general
shall, within ten (10) working days from receipt of the decision granting a petition, exercise the
power to impugn such decision by way of an objection based on the following grounds:

1. The error is not clerical or typographical;

2. The correction of an entry or entries in the civil register is substantial or controversial as it
affects the civil status of a person; or
3. The basis used in changing the first name or nickname of a person does not fall under
SECTION 4.

          The civil registrar general shall immediately notify the city or municipal civil registrar or the
consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or
municipal civil registrar or the consul general shall notify the petitioner of such action.

          The petitioner may seek reconsideration with the civil registrar general or file the
appropriate petition with the proper court.

          If the civil registrar general fails to exercise his power to impugn the decision of the city or
municipal civil registrar or of the consul general within the period prescribed herein, such
decision shall become final and executory.

         Where the petition is denied by the city or municipal civil registrar or the consul general,
the petitioner may either appeal the decision to the civil registrar general or file the appropriate
petition with the proper court.
Cases:

Jones v. Hallahan

Annotate this Case

501 S.W.2d 588 (1973)

Marjorie JONES et al., Appellants, v. James HALLAHAN, Clerk of the Jefferson County Court,
Appellee.

Court of Appeals of Kentucky.

November 9, 1973.

*589 David Kaplan, Stuart L. Lyon, Louisville, for appellants.

J. Bruce Miller, Louisville, for appellee.

VANCE, Commissioner.

The appellants, each of whom is a female person, seek review of a judgment of the Jefferson
Circuit Court which held that they were not entitled to have issued to them a license to marry
each other.

Appellants contend that the failure of the clerk to issue the license deprived them of three basic
constitutional rights, namely, the right to marry; the right of association; and the right to free
exercise of religion. They also contend that the refusal subjects them to cruel and unusual
punishment.

The sections of Kentucky statutes relating to marriage do not include a definition of that term. It
must therefore be defined according to common usage.

Webster's New International Dictionary, Second Edition, defines marriage as follows:

"A state of being married, or being united to a person or persons of the opposite sex as
husband or wife; also, the mutual relation of husband and wife; wedlock; abstractly, the
institution whereby men and women are joined in a special kind of social and legal dependence,
for the purpose of founding and maintaining a family."

The Century Dictionary and Encyclopedia defines marriage as:

"The legal union of a man with a woman for life; the state or condition of being married; the legal
relation of spouses to each other; wedlock; the formal declaration or contract by which a man
and a woman join in wedlock."

Black's Law Dictionary, Fourth Edition, defines marriage as:

"The civil status, condition or relation of one man and one woman united in law for life, for the
discharge to each other and the community of the duties legally incumbent upon those whose
association is founded on the distinction of sex."

Kentucky statutes do not specifically prohibit marriage between persons of the same sex[1] nor
do they authorize the issuance of a marriage license to such persons.

Marriage was a custom long before the state commenced to issue licenses for that purpose. For
a time the records of marriage were kept by the church. Some states even now recognize a
common-law marriage which has neither the benefit of license nor clergy. In all cases, however,
marriage has always been considered as the union of a man and a woman and we have been
presented with no authority to the contrary.

It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or
the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by
their own incapability of entering into a marriage as that term is defined.

A license to enter into a status or a relationship which the parties are incapable of achieving is a
nullity. If the appellants had concealed from the clerk the fact that they were of the same sex
and he had issued a license to them and a ceremony had been performed, the resulting
relationship would not constitute a marriage.

This is a case of first impression in Kentucky. To our knowledge, only two other states have
considered the question and both of them have reached the same result that we reach in this
opinion. Baker *590 v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed for
want of a substantial federal question, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65; Anonymous
v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499.

Baker v. Nelson considered many of the constitutional issues raised by the appellants here and
decided them adversely to appellants. In our view, however, no constitutional issue is involved.
We find no constitutional sanction or protection of the right of marriage between persons of the
same sex.

The claim of religious freedom cannot be extended to make the professed doctrines superior to
the law of the land and in effect to permit every citizen to become a law unto himself. Reynolds
v. United States, 98 U.S. 145. We do not consider the refusal to issue the license a punishment.

In substance, the relationship proposed by the appellants does not authorize the issuance of a
marriage license because what they propose is not a marriage.

The judgment is affirmed.

Goodridge v. Dep't of Pub. Health - 440 Mass. 309, 798 N.E.2d 941 (2003)

RULE:

A ban on marriage between same-sex couples works a deep and scarring hardship on a very
real segment of the community for no rational reason. The absence of any reasonable
relationship between, on the one hand, an absolute disqualification of same-sex couples who
wish to enter into civil marriage and, on the other, protection of public health, safety, or general
welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons
who are (or who are believed to be) homosexual. The Constitution cannot control such
prejudices but neither can it tolerate them. Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect. Limiting the protections, benefits, and
obligations of civil marriage to opposite-sex couples violates the basic premises of individual
liberty and equality under law protected by the Massachusetts Constitution.

FACTS:

The applicants could not obtain marriage licenses because same-sex marriages were not
recognized. The state supreme court held Mass. Gen. Laws ch. 207, the marriage licensing
statute, did not permit same-sex couples to marry. Denials of the applicants' attempts to marry
involved individual liberty and equality safeguards of the Massachusetts Constitution, protecting
freedom from unwarranted government intrusion into protected areas of life and freedom to
partake in state benefits. Under the equality and liberty guarantees, regulatory authority had to
be rationally related to a permissible legislative purpose.

ISSUE:

Do government actions that bars same-sex couples from civil marriage constitute a legitimate
exercise of the State's authority to regulate conduct?

ANSWER:

No.
CONCLUSION:

The court rejected the argument suggested by the department, and elaborated by some amici,
that expanding the institution of civil marriage in Massachusetts to include same-sex couples
will lead to interstate conflict. We would not presume to dictate how another State should
respond to today's decision. But neither should considerations of comity prevent us from
according Massachusetts residents the full measure of protection available under the
Massachusetts Constitution. The genius of the Federal system is that each State's Constitution
has vitality specific to its own traditions, and that, subject to the minimum requirements of
the Fourteenth Amendment, each State is free to address difficult issues of individual liberty in
the manner its own Constitution demands.

Furthermore, the court construes that civil marriage to mean the voluntary union of two persons
as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs'
constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships.
It advances the two legitimate State interests the department has identified: providing a stable
setting for child rearing and conserving State resources. It leaves intact the Legislature's broad
discretion to regulate marriage.

United States v. Windsor

Primary tabs
LII note: The U.S. Supreme Court has now decided United States v. Windsor.

 civil rights

 equal protection

 Fifth Amendment

 Same-sex marriage

 Defense of Marriage Act

 DOMA

Court below: 
United States Court of Appeals for the Second Circuit
Edith Windsor and Thea Spyer married in Toronto in 2007 where same-sex marriages were
legal. At the time of Spyer’s death, the state of New York recognized the couple’s marriage.
However, the IRS denied Windsor use of a spousal estate tax exception on the ground that,
under the Defense of Marriage Act (“DOMA”), the federal government did not recognize same-
sex marriages for the purpose of federal benefits. The Supreme Court is now being asked to
decide DOMA’s Constitutionality. The Obama Administration is not defending DOMA, so a
Bipartisan Legal Advisory Group (“BLAG”) from the House of Representatives is doing so,
arguing that DOMA is rationally related to the legitimate government objective of providing a
uniform definition of marriage for federal benefits purposes. The Obama administration counters
that the use of sexual orientation to decide who gets benefits is a suspect classification that
deserves higher scrutiny. Under that level of higher scrutiny, the Obama administration argues
that DOMA is impermissible. This case can affect what role the federal government can play in
defining marriage and who in the federal government can defend the government’s laws. Not
only could this case provide large tax savings to Ms. Windsor herself, but it can also make
federal benefits available to other same-sex couples who are legally married under the laws of
their state.

Questions as Framed for the Court by the Parties 

Section 3 of DOMAdefines the term “marriage” for all purposes under federal law, including the
provision of federal benefits, as “only a legal union between one man and one woman as
husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the
opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of
the laws as applied to persons of the same sex who are legally married under the laws of their
state.
In addition to the question presented by the petition, the parties are directed to brief and argue
the following questions: whether the executive branch’s agreement with the court below
that DOMA is unconstitutional deprives this court of jurisdiction to decide this case; and whether
the BLAG has Article III standing in this case.

 [Question(s) presented]
 [Issue(s)]
 [Facts]
 [Discussion]
 [Analysis]

Issue
The substantive issue is whether Section 3 of the Defense of Marriage Act violates the right
to equal protection of same-sex couples who are legally married under state law. The
procedural issue is whether the Supreme Court has jurisdiction over this case in light of the
executive branch’s refusal to defend the law in court.
top
Facts
Edith Windsor and Thea Clara Spyer first met in New York City in 1963. Having been in a
committed long-term relationship, they registered as domestic partners in New York in 1993, the
year such partnership status became available. In light of Spyer’s long-term suffering caused by
multiple sclerosis and a heart condition, the couple decided to formally wed in Canada in 2007.
Spyer passed away in February 2009, leaving Windsor as her widow and sole executor of the
estate.
Their marriage was recognized by New York state law but, upon Spyer’s death, Windsor was
denied a spousal deduction for her federal estate taxes under a federal law. This provision
allows such a deduction when property passes from the decedent to the surviving spouse.
However, DOMA’s Section 3 states that for the purposes of federal law the words “marriage”
and “spouse” refer only to legal unions between one man and one woman. ,
Because of this definition, when Spyer left her estate to Windsor, the federal government
imposed $363,053 in taxes on Spyer’s estate. Had the government recognized their marriage,
the estate would have qualified for the spousal exemption and Windsor would not have had to
pay any taxes. Windsor commenced this suit seeking a full refund of the federal estate tax and a
declaration that DOMA’s Section 3 is unconstitutional under the equal protection clause of the
Fifth Amendment.
At that time, the government’s position was that DOMA must be defended. However, the
President and the Attorney General eventually changed positions and announced that they
would no longer defend DOMA in court. Accordingly, under the direction of House Speaker John
Boehner (R-Ohio), BLAG has taken up defense of DOMA. After the United States District Court
for the Southern District of New York ruled in favor of Windsor on summary judgment, the
Second Circuit Court of Appeals affirmed.
top

Discussion
The Obama Administration argues Section 3, which defines marriage as between one man and
one woman, is unconstitutional under the equal protection clause and advocates for heightened
scrutiny of laws discriminating on the basis of sexual orientation. BLAG argues that the Court
should apply the lowest level of scrutiny, rational basis review, because the lesbian, gay,
bisexual, and transgender (“LGBT”) community is not a protected class. .
Since all parties agree the Supreme Court has jurisdiction, the Court appointed an amica
curiae to argue against jurisdiction. The amica curiae argues there is no injury to Congress if
DOMA is overturned, that BLAG violates the separation of powers, and that no Article
III controversy exists.

DOMA’s Effects on the Economy

DOMA supporters claim the law will save the federal government money by limiting tax savings
and avoiding Social Security and other payments to same-sex spouses. According to
BLAG,upholding DOMA is in the best financial interests of the government because recognizing
same-sex marriages would have a negative net impact on the federal budget. BLAG argues that
while the negative effects cannot accurately be calculated, the uncertain economic effects of
overturning DOMA are worrisome enough.
278 businesses are opposed to DOMA and argue the law is another form of government
regulation burdening businesses, inevitably leading to the waste of resources. Businesses are
required to treat employees with same-sex spouses as legally married under state law, but as
single persons under federal laws, which creates a burden for employers by forcing them to
discriminate against same-sex couples when administering healthcare plans and other benefits.
The companies also argue that forced discrimination causes strained employer-employee
relationships to the detriment of their businesses.

The Social Implications of DOMA

BLAG argues DOMA serves a federal interest by preserving traditional marriage to encourage
responsible procreation. Proponents of DOMA believe marriage is about bringing together men
and women so children can have mothers and fathers—parents with differentiated roles that are
not interchangeable. BLAG claims responsible procreation is at the heart of society’s interest in
regulating marriage because of the inextricable link between marriage and children.
Those opposed to DOMA argue it is bad social policy and claim that all Americans—regardless
of their sexual orientation—deserve the rights afforded to their peers because all are
contributing members of society. They also argue that burdens placed on members of the LGBT
community are based on harmful stereotypes with no basis in the individuals’ abilities.

Federalism Concerns
Proponents of DOMA claim the law protects states’ sovereignty and neither creates a federalism
problem nor hinders state autonomy. DOMA ensures states can independently decide to refuse
same-sex marriages because DOMA allows each state to define marriage for itself under state
law, and does not allow any state’s definition to eclipse another’s.
Those opposed to DOMA claim Congress disregarded federalism concerns, even as legislators
in Congress championed states’ rights. Although the policy was born from conservative states’
concern that they might be forced to recognize same-sex marriages from other states,
opponents argue DOMA interferes with states’ rights by hampering some states’ decisions to
treat all of their citizens equally. State sovereignty, they argue, is impeded by the federal
government’s definition of marriage, instead of leaving the definition up to the individual states.

Jurisdictional Issues
If the Court rules that it does not have jurisdiction because of the Obama administration’s
decision not to defend DOMA, the Second Circuit’s ruling would remain in place
and DOMA would be considered unconstitutional and unenforceable in the states within the
Second Circuit. DOMA would remain in force in circuits which have not ruled it unconstitutional,
which would allow a future case to be appealed to the Supreme Court for which there is
jurisdiction. If the Court holds that there is a lack of jurisdiction, then it will not decide the
constitutionality of DOMA.
top
Analysis

Level of Scrutiny
The Obama administration, arguing on behalf of the United States, takes the position that
DOMA’s Section 3 is unconstitutional. The United States advocates for applying heightened
scrutiny, which requires a more rigorous justification for laws that use suspect or semi-suspect
classifications including race or gender. The United States is arguing that classifications based
on sexual orientation should also be subject to heightened scrutiny, which requires the
government to show that the classification is substantially related to an important government
objective.
According to the United States and Windsor, classifications based on sexual orientation fit all
four of the factors the Court has identified to trigger heightened scrutiny. First, the United States
points out gay and lesbian people have been subject to a history of discrimination, including a
history of criminal prosecutions for the private and consensual sexual conduct, and other
discrimination in employment, immigration, hate crimes, child custody, police enforcement, and
voter referenda. Windsor notes that much of this discrimination has come from the government
itself. Second, sexual orientation is not related to the ability of people to perform or contribute to
society, so the government cannot legitimately take sexual orientation into account for
classification purposes.
Third, sexual orientation is a discernible characteristic that distinguishes gay and lesbian people
as a discrete minority group. The United States contends the distinguishing characteristic need
not be immutable or obvious if the characteristic is a distinguishing characteristic. The United
States and Windsor point to scientific consensus that sexual orientation is not a voluntary choice
for the vast majority of people.
Fourth, the United States contends that gay and lesbian people are both a minority and
politically powerless. While the United States does mention success for same-sex marriage
initiatives in three states this past November, the United States argues it is more appropriate to
look at the longer history of same-sex marriage initiatives where voters have barred same-sex
marriage through amendments to state constitutions. . Windsor also asserts he political power
of gay and lesbian people today is less than that of women when they were granted status as a
semi-suspect class.
BLAG argues that the Court should apply rational basis review to DOMA. . BLAG points out that
the Court will apply one of three levels of scrutiny to equal protection cases ranging from
heightened scrutiny to rational basis, which requires the government to provide a rational
justification for using a particular classification in a law. When considering issues where sexual
orientation was used as a classification in the past, the Court has not specified the level of
scrutiny but appeared to apply rational basis review.
BLAG contends the lower court was wrong to apply heightened scrutiny to DOMA In BLAG’s
view, none of the four factors that would qualify a class for suspect treatment are adequate in
this case. Instead, BLAG sees gay and lesbian people as having political power, including the
support on the issue of same-sex marriage from the President, Vice-President, and the
Democratic Party. Additionally, popular support for same-sex marriage has increased
dramatically enjoying support from 53% of Americans, which has resulted in successful ballot
measures, and in BLAG’s view undercutting the argument that heightened scrutiny is
necessary. . BLAG also notes that it has been over 40 years since the Court has decided a new
group should be considered a suspect or semi-suspect class, demonstrating the Court is weary
of adding to the very limited list of groups that trigger higher levels of scrutiny.
Whether DOMA Should Survive Review on the Merits
Under the rational basis standard of review, the government needs to demonstrate a legitimate
purpose for using the suspect classification, which in this case would be classifying same-sex
marriage differently from traditional opposite-sex marriage. BLAG argues that the legitimate
purpose Congress advanced is a uniform national definition of marriage to ensure couples in
different states will be treated the same. Allowing different definitions of marriage would,
according to BLAG, allow for the possibility that a same-sex couple’s federal benefits status
would change if they moved from one state to another.
BLAG also points to the historical prevalence of marriage being defined as between a man and
a woman as a reason why DOMA’s definition is rational. Furthermore, BLAG asserts the fact
that states have been able to define marriage for the purposes of defining federal benefits in the
past does not mean that the Constitution forbids Congress from defining marriage for the
purposes of federal benefits. BLAG argues that DOMA merely preserves the ability of each
sovereign, including each state and the federal government, to define marriage as the sovereign
sees fit. Additionally, BLAG says DOMA was an attempt to prevent the federal definition of
marriage from changing over time. A single, consistent definition of marriage would prevent
more expansive definitions of marriage that could increase the costs of implementing federal
benefits based on marital status. Finally, BLAG argues it was rational to pick a traditional
definition of marriage because Congress believed there could be uncertain social consequences
if it allowed a definition of marriage that had not been tested in many societies.
On the other side, the United States argues that DOMA is a violation of the Equal Protection
Clause of the Fifth Amendment. The United States contends DOMA’s Section 3 requires that
same-sex couples who are married under their states’ law be treated differently from a similarly
situated opposite-sex couple and lead to inequality. To demonstrate this inequality, the United
States points to a variety of situations where federal benefits can be denied to same-sex
spouses including certain Social Security and pension benefits, military service benefits for
spouses, and particularly the $363,000 estate tax reduction that is denied to a same-sex spouse
at issue in the case presently before the court.
Next, the United States does not believe tradition alone can justify discrimination. Furthermore,
DOMA does not prevent states from allowing same-sex marriage, which provides a weak
connection between the stated goal of preserving traditional marriage and what DOMA actually
achieves.
Additionally, the United States dismisses the justification of supporting Congress’ general
interest in defending the institution of traditional marriage as lacking a sound basis. The
legislative record does not contain evidence that denying federal benefits to same-sex couples
would encourage responsible procreation or child-rearing. The United States also rejects the
sovereign’s choice argument because sovereign’s choice does not allow the federal government
to violate Equal Protection. Finally, the United States refutes fiscal savings as a justification for
DOMA because the federal government cannot single out a group for exclusion to save money.
If the Court does not apply a heightened standard of review, the United States would not
challenge DOMA’s Constitutionality under a deferential form of rational review. The government
does reference past Supreme Court decisions Romer v. Evans and Lawrence v. Texas which
suggested a more searching version of rational review could invalidate laws involving
discrimination based on sexual orientation, but a more searching rational review would make
DOMA unconstitutional for the same reasons as under heightened security.
Unlike the United States, Windsor argues that Congress did not act rationally or carefully when
enacting DOMA. DOMA is very sweeping, affecting thousands of federal benefits rather than
carefully addressing a specific problem. Also, DOMA departs from the traditional understanding
of how the federal government treats a state recognized marriage.

Role of Federal Government in Defining Marriage

The Court could place special importance on the fact that this is a federal law about marriage,
an issue that has traditionally been left to the states, as both the United States and Windsor
argue. BLAG contends that Congress was acting within its sovereign authority and other groups
support DOMA as being allowed under the “Necessary and Proper” clause, which is an
expansive provision of the Constitution allowing the government an un-enumerated power so
long as that power is necessary and proper to an enumerated power, which in this case is the
federal government’s power to tax.
Federal Scholars argue that DOMA is not necessary and proper for Congress to carry out any
enumerated power as DOMA affects many different kinds of benefits, not just benefits related to
the power of the purse. DOMA could therefore be found to be improper as a new, sweeping
expansion of Congressional power without requiring the Court to decide whether classifications
based on sexual orientation were suspect.

Whether Jurisdictional Concerns Should Prevent the Court From a Decision on the
Merits
Before reaching a decision on the merits, the court could decide that this case is not properly
before the Court and remand it for further proceedings because the Obama administration has
chosen to enforce, but not defend, DOMA. Members of the House of Repetitive have chosen to
defend DOMA on behalf of the government as BLAG. BLAG, the Obama administration, and
Windsor all agree that with BLAG defending DOMA and the executive branch enforcing DOMA,
there is still a live controversy for the Supreme Court to decide. Windsor has a cause of action
against the United States government for the recovery of the tax refund. While Windsor admits
she may not have a separate claim against BLAG, BLAG’s participation ensures that the issues
are fully argued and the issues are sharpened for the Court.
In order to get the alternative view, the Court appointed an amica curiae to argue against the
Court’s jurisdiction over Windsor’s case because of the procedural posture. The amica
curiae argues that BLAG lacks standing because there is no injury to Congress if DOMA is
overturned; members of Congress do not have a personal stake in this litigation. Also, one
house of Congress, or in this case a subsection of one house, cannot assert an injury for
Congress as a whole. The amica curiae also contends that in defending DOMA, BLAG would be
performing an executive act that violates separation of power principles. The amica
curiae further argues that the Executive Branch’s appeal to the judgment of the Second Circuit
does not create a “case or controversy” required under Article III for the Supreme Court to
decide an issue.
top

Conclusion
In this case, the Supreme Court will determine the Constitutionality of Section 3 of DOMA.
Windsor argues that DOMA is unconstitutional as it tramples on her right to equal
protection under the Fifth Amendment. BLAG argues that DOMA is constitutional and the law
should undergo minimal scrutiny under a rational basis test because sexual orientation is not a
historically protected class. The Court’s decision may uphold the federal government’s definition
of marriage as between one man and one woman, which would continue to allow for each state
to decide for itself whether to recognize same-sex unions in its own state and those from other
states. Alternatively, the Court may go so far as to fully overturn DOMA and require that each
state legally recognize same-sex marriages, which would allow for spouses of same-sex
partners to receive a plethora of federal benefits they are currently denied.

G.R. No. 174689             October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male
and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming
from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices
said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and
slit open. Out came two human beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and counseling with regard to a person’s
sex? May a person successfully petition for a change of name and sex appearing in the birth
certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the
change of his first name and sex in his birth certificate in the Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio
Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as
"Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was
registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and
acts as a female" and that he had always identified himself with girls since childhood.1 Feeling
trapped in a man’s body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation. His attempts to
transform himself to a "woman" culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino
Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then
sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and
his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the
order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to

the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his
American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions
read:

Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in
consonance with the principles of justice and equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his
own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to
anybody or the community in granting the petition. On the contrary, granting the petition
would bring the much-awaited happiness on the part of the petitioner and her [fiancé]
and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present
petition despite due notice and publication thereof. Even the State, through the [OSG]
has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the
Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of
 [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and
petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in
the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It
ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of
either name or sex in the certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and
sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth
records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became
entitled to the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1
of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First

Name or Nickname. – No entry in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over applications for change of first name is
now primarily lodged with the aforementioned administrative officers. The intent and effect of the
law is to exclude the change of first name from the coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until
and unless an administrative petition for change of name is first filed and subsequently
denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the
remedy and the proceedings regulating change of first name are primarily administrative in
nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change
of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the
community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter one’s legal capacity or civil
status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may
only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable
cause or any compelling reason justifying such change.19 In addition, he must show that he will
be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name
was not within that court’s primary jurisdiction as the petition should have been filed with the
local civil registrar concerned, assuming it could be legally done. It was an improper remedy
because the proper remedy was administrative, that is, that provided under RA 9048. It was
also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had no merit since the use of his
true and official name does not prejudice him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of
Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a legal issue and the
court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial
order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The correction or change of such matters can
now be made through administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such
errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx       xxx       xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other
existing record or records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner. (emphasis
supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure is
Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.25 However, no reasonable interpretation of the provision can justify
the conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to
change means "to replace something with something else of the same kind or with something
that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name and sex, were all correct. No correction
is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as
births, marriages, naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name).
These acts, events and judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws.
In contrast, sex reassignment is not among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of
capacities and incapacities) of a person in view of his age, nationality and his family
membership.27

The status of a person in law includes all his personal qualities and relations, more or
less permanent in nature, not ordinarily terminable at his own will, such as his
being legitimate or illegitimate, or his being married or not. The comprehensive
term status… include such matters as the beginning and end of legal personality,
capacity to have rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s
legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed
by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects.
This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or

midwife in attendance at the birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a birth in the civil register.
Such declaration shall be exempt from documentary stamp tax and shall be sent to the
local civil registrar not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a)
date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and
religion of parents or, in case the father is not known, of the mother alone; (d) civil status
 of parents; (e) place where the infant was born; and (f) such other data as may be
required in the regulations to be issued.

xxx       xxx       xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed
at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth
attendant (the physician or midwife) by examining the genitals of the infant. Considering that
there is no law legally recognizing sex reassignment, the determination of a person’s sex made
at the time of his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary
meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as
used in the Civil Register Law and laws concerning the civil registry (and even all other laws)
should therefore be understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure
and function that distinguish a male from a female"32 or "the distinction between male and
female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in
everyday understanding do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time a well-known meaning
are presumed to have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that the term "sex" as used then is
something alterable through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance
through the intervention of modern surgery, no law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the
Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of
justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice
to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first
step towards his eventual marriage to his male fiancé. However, marriage, one of the most
sacred social institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the contracting parties who must
be a male and a female.38 To grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of
a man with another man who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply particularly to women such
as the provisions of the Labor Code on employment of women,39 certain felonies under the
Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131
of the Rules of Court,41 among others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a
license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret
the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine
what guidelines should govern the recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case where the claims asserted are
statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction
or change of entries in the civil registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be observed. If the legislature intends
to confer on a person who has undergone sex reassignment the privilege to change his name
and sex to conform with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to
fashion a law on that matter, or on anything else. The Court cannot enact a law where no law
exists. It can only apply or interpret the written word of its co-equal branch of government,
Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment
and [the] realization of their dreams." No argument about that. The Court recognizes that there
are people whose preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed an ordeal. However,
the remedies petitioner seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

In Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 531 U.S. 872, 148 L. Ed.
2d 119, 121 S. Ct. 174 (2000), a transsexual, now called Christie, who was born a man but had
undergone sex reassignment surgery, brought a medical malpractice suit under Texas' wrongful
death statute as a surviving spouse of a male patient.
The doctor who was sued filed a motion for summary judgment, asserting that Christie was a
male and, therefore, could not be the surviving spouse of another man. The trial court granted
summary judgment to the doctor, and Christie appealed.

Christie had a name and sex change made on her birth certificate during pendency of the suit.
During the surgical procedures, Christie's penis, scrotum, and testicles were removed, and a
vagina and labia were constructed. Christie also had breast construction surgery. One of
Christie's doctors testified that Christie "has the capacity to function sexually as a female" after
the surgery. 9 S.W.3d at 225. Doctors testified that medically Christie was a woman.

Christie married a man by the name of Jonathon in 1989, approximately 9 or 10 years after sex
reassignment surgery. The two lived together until Jonathon's death in 1996, after which time
Christie filed suit against Jonathon's doctor. In Christie's affidavit, Christie asserted that
Jonathon knew about Christie's background and sex reassignment surgery.

The court in Littleton stated that in Texas, marriage must be between two parties of the opposite
sex. 9 S.W.3d at 225. Further, in order for Christie to sue under the wrongful death statute in
Texas, Christie must be the surviving spouse. 9 S.W.3d at 225. Thus, if Christie was a man,
summary judgment would be appropriate. After a brief review of what transsexualism is, the
court next examined the case law in this area. The court discussed Corbett and the case of
Anonymous v. Anonymous, 67 Misc. 2d 982, 325 N.Y.S.2d 499 (1971). The court also
referenced such cases as M.T. v. J.T., In re Ladrach, and K. v. Health Division. Littleton, 9
S.W.3d at 227-29.

After a review of the case law, the court concluded that Christie was a male as a matter of law.
9 S.W.3d at 231. The court noted that this was an issue of first impression in Texas. 9 S.W.3d at
230. In line with previous cases, the court stated: "It is for the legislature, should it choose to do
so, to determine what guidelines should govern the recognition of marriages involving
transsexuals. . . . It would be intellectually impossible for this court to write a protocol for when
transsexuals would be recognized as having successfully changed their sex." 9 S.W.3d at 230.

While Christie argued that amputation was "'a pretty important step,'" the court, while agreeing,
explained that it had "no authority to fashion a new law on transsexuals, or anything else. We
cannot make law when no law exists: we can only interpret the written word of our sister branch
of government, the legislature." 9 S.W.3d at 230.

Thus, the court found that even though surgery and hormones can make a transsexual male
look like a woman, including female genitalia, and in Christie's case, even breasts, transsexual
medicine does not create the internal sex organs of a woman (except for a man-made vaginal
canal). There is no womb, cervix, or ovaries in the post-operative transsexual female. The
chromosomes do not change. Biologically, the post-operative female is still a male. 9 S.W.3d at
230. Even though some doctors would consider Christie a female and some a male, the court
concluded: "Her female anatomy, however, is all man-made. The body that Christie inhabits is a
male body in all aspects other than what the physicians have supplied." 9 S.W.3d at 231.

The dissent in Littleton concluded that the matter could not be decided as a matter of law, that
there were genuine issues of material fact, and that therefore an affirmance of summary
judgment was precluded. The dissent noted that no law defined how a person's "gender" is to
be determined and that since the legislature had not addressed whether a transsexual may be
considered a surviving spouse under Texas law, the appellate court could not conclude that
judgment should be affirmed as a matter of law. 9 S.W.3d at 232-33 (Lopez, J., dissenting).

A petition for writ of certiorari of the Littleton holding was denied by the United States Supreme
Court on October 2, 2000.

In re Estate of Thomas Trevino Araquz III, No. 13-11-00-490-CV (2014

In re Estate of Thomas Araguz III, No. 13-11-00-490 CV (Feb. 13, 2004) Petitioner:
Respondent: Nature: Ponente: Valdez, CJ., Rodriguez, J. & Longoria, J.

Family Code court order where an applicant’s sex change is an acceptable proof to establish an
applicant’s identity and age, and thus eligibility to obtain a marriage license.

Facts:
After the death of Thomas Araguz III, a volunteer firefighter, in the line of duty, his mother, filed
a suit to declare his marriage to Nikki Araguz as void as a matter of law on the grounds that it
constituted same sex marriage which was prohibited in Texas. Nikki Araguz argued that even
she was born with male genitalia, she had undergone sex reassignment and completed all the
medical steps for transition into a female. She also got her name changed from “Justin
Graham Purdue” to “Nikki Paige Purdue” after the district court granted her petition for a
name change. She also filed an application in California to amend her birth certificate to reflect
the name change which was also granted. Nikki then obtained a driver’s license from Kansas
which states that she was female and used that license to obtain a Texas driver’s license with
the designation of female. She then presented said Texas driver’s license to the County Clerk to
obtain a marriage license which indicates that she is a woman. Aug. 23, 2008: Nikki and
Thomas got married and during that time, Nikki still had her male organs which Araguz was well
aware of. She cohabitated with Thomas until the latter’s death in 2010

Issue: -

W/N the marriage of Nikki Araguz to Thomas Araguz III was void

Held: Texas Constitution defines marriage as “union of one man and one woman”. Furthermore,
the Texas Family Code provides that “marriage between persons of the same sex or a civil
union is contrary to public policy of the state and is void in this state” and added that “a license
may not be issued for the marriage of persons of the same sex” In upholding the case of
Littleton which was used as basis of the arguments of Araguz’s mother, it should be taken into
consideration that it was decided in 1999, and the legal landscape has changed since then. In
2009, legislature amended the Family Code to add a court order related to an applicant’s “sex
change” as a form of acceptable proof to establish an applicant’s identity and age, and thus,
eligibility to obtain a marriage license. The legislature also clearly used the words “sex changed”
in a way that establishes that a person who has had sex change is eligible to marry a person of
the opposite sex such that the marriage is between one man and one woman, as set forth in the
Texas Constitution.

The Court holds that under Texas law, a valid marriage could exist between Nikki and Thomas
only if Nikki was a woman during their marriage, as set forth in the Texas Constitution. In sum,
the Court holds that Texas law recognizes that an individual who has had a “sex change” is
eligible to marry a person of the opposite sex. The trial court’s judgment in this case cannot be
affirmed based on Littleton because Littleton has been legislatively overruled.

Minimum Age of Marriage

Eigenmann v. Guerra, 5 C.A. Rep 836 (1964)
EIGENMANN V GUERRA5 CA Rep. 836 II May 11, 1964II AgustinSUBJECT:Eduardo
Eigenman action for annulment of marriage to Maryden Guerra.FACTS:1.Eigenmanwants an
annulment of his marriage to Maryden for the ff. reasons:a.Age–He was only 16 –20 y.o. at the
time of marriage, and there was no consent from his mother, Maria de Mesa.b.Forced–His own
consent the marriage was obtained via threat, intimidation, and force by Froilan
Guerra(Maryden’s dad).c.Invalid license–marriage license was obtained from a councilor of
Quezon City, who is not authorized to administer oaths; hence an invalid marriage license.
2.Guerramade the ff. counterclaims:a.False age–Eigenman represented himself to be over 21
y.o.b.Not forced–his mother was present during the marriage ceremony, and impliedlygave
consent to marriagec.No excuse–Eigenman should not excuse himself from marital obligations,
to the prejudice of Maryden and detriment of public interest; marriage as inviolable social
institution.3.Backgrounda.They met each other at Clover Theater, Manila as performers;
decided to marry.b.Feb 17, 1932. Filed applications for license with Local Civil Registrar,
Quezon City. Eigenman indicates he is 25 years, 8 months old, Bday. c.Nov 3, 1957. Parents of
parties discussed marriage at Maryden’s house.d.Nov 5, 1957. Marriage by Judge Prudencio
Encomienda, license 358036.e.They lived a week in M’s house, transferred to E’s house for 3-4
mos. 4.Lower Court dismissed the action; hence this appeal.
ISSUES:
1.WON a marriage in which one party is older than 16 but younger than 20 years old is valid.
2.WON the consent to a marriage by a parent or guardian must be in writing and under oath to
make such marriage valid.
RATIO:1.Re. age: E falsely represented his age, making defendants believe that he is of age to
marry without consents. He is now prevented by estoppel in trying to prove otherwise. (Art 1431
CC :through estoppel, an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying thereon.
b. If Court allows him to, it would be in bad faith and disregard of rules on fair play and honest
dealing.
2.Re. threat: court finds no reasonable and well-grounded fear of imminent and grave evil upon
appellant’s person or property.
a. Father said: Balia ko’y lumiligaw ka sa aking anak. Pag niloko mo iyan, mag-ingat ka.
b. Above is expected from concerned parents.
3.Re. license. The law declared null and void ab initio marriages that are WITHOUT license, AT
ALL.a.Licensed marriages are not invalidated by wrongfully obtained licenses, including lack of
authority of subscribing officer.b.Local civil registrar and solemnizing officer are not even
required to investigate marriage license.4.Re. consent:a.Article 61 CC: Males under 20 years
old and females less than 18 years old shall exhibit to the local registrar the consent to their
marriage by their father, mother, or guardian, or persons having legal charge over them. Such
consent shall be in writing under oath.
i. Article 61 pertains only to issuance of marriage license; not needed for validity of marriage
solemnized under license.
ii. Court considers licensed marriages valid, even though license, which was issued by
competent official, was improperly obtained or defective (in this case, defective because of false
representation of age).
b. Article 85 CC. Marriage may be annulled for the ff: Party who seeks annulment was 16 –20
years old (male) or 14 –18 years old (female); that marriage is solemnized without consent of
parent, guardian, etc.; unless,after attaining proper age, party freely cohabits with other as
husband and wife.
i. Article 85 declares as voidable marriage those that are solemnized without consent of the
parent, guardian, or person... authority.
ii. Thus, it is reasonable to infer that consent may be given in any form, including impliedly.

Consent Freely Given

Family Code
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab
initio, except as stated in Article 35 (2).

Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless
such marriages were contracted with either or both parties believing in good faith that
the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the
other; and
(6) Those subsequent marriages that are void under Article 53.

G.R. No. L-27972             October 31, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE SANTIAGO, defendant-appellant.

Fausto C. Cuizon for appellant.

Attorney-General Jaranilla for appellee.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the
Province of Nueva Ecija, finding the appellant, Felipe Santiago, guilty of the offense of rape and
sentencing him to undergo imprisonment for fourteen years, eight months and one
day, reclusion temporal, with the accessories prescribed by law, requiring him to endow the
offended party, Felicita Masilang, in the amount of P500, without subsidiary imprisonment in
case of insolvency, requiring him also to recognize and maintain, at P15 per month, the
offspring, if there should be any, as consequence of the rape, and requiring him further to pay
the costs.

The deceased wife of the appellant was the aunt of Felicita Masilang, aged 18, who was the
injured girl in this case. She is therefore appellant's niece by marriage, and she calls him uncle.
Both are residents of the municipality of Gapan, in the Province of Nueva Ecija. On November
23, 1926, the appellant asked Felicita, who was them about 18 years of age, to accompany him
across the river on some errand. The girl agreed and they went over the river together into the
municipality of San Leonardo. After crossing the river, the appellant conducted the girl to a place
about twenty paces from the highway where tall grass and other growth hid them public view. In
this spot the appellant manifested a desire to have sexual intercourse with the girl, but she
refused to give her consent, and he finally notwithstanding her resistance, accomplished his
purpose by force and against her will.

After the deed had been done the appellant conducted the girl to the house of his uncle, Agaton
Santiago, who lived not far away. They arrived here about 11 a. m., and remained for several
hours. In the course of the afternoon Agaton Santiago brought in a protestant minister who went
through the ceremony of marrying the couple. After this was over the appellant gave the girl a
few pesos and sent her home. Her father happened to be away that night, but upon his return
the next day, she told him what had happened, a this prosecution for rape was started.

The trial court found that the offense of rape had been committed, as above stated, and the
marriage ceremony was a mere ruse by which the appellant hoped to escape from the criminal
consequences of his act. We concur in this view of the case. The manner in which the appellant
death with the girl after the marriage, as well as before, shows that he had no bona
fide intention of making her his wife, and the ceremony cannot be considered binding on her
because of duress. The marriage was therefore void for lack of essential consent, and it
supplies no impediment to the prosecution of the wrongdoer.

The Attorney-General suggest that, in fixing the penalty, it would be proper to take into account
the aggravating circumstance that the offense was committed in an uninhabited place. But the
evidence fails to show beyond a reasonable doubt that crime was committed en despoblado.
The incident occurred only a few paces from the Manila North Road, and it appears that there
was an unoccupied house nearby to which the girl was taken and where food was procured
from Florentina Cuizon who lived not far away. It is the constant doctrine of the court that an
aggravating circumstance must be as clearly proved as any other element of the crime (U.
S. vs. Binayoh, 35 Phil., 23, 31; Albert, Law on Crimes, pp. 88-89); and we cannot feel certain,
upon the proof before us, that the place of the commission of this offense was remote enough
from habitation or possible aid to make appropriate the estimation of the aggravating
circumstance referred to. 1awph!l.net

The judgment appealed from is in accordance with law, and will be affirmed. So ordered, with
costs against the appellant.