Your guide to the Supreme Court oral arguments on same-sex marriage

Lian Buan

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Your guide to the Supreme Court oral arguments on same-sex marriage
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

MANILA, Philippines – 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 petition was the first of its kind.

Marriage equality is typically fought in Congress, and for years, the Philippine Lesbian, Gay, Bisexual, Transgender (LGBT) movement has lobbied for the enactment of an anti-discrimination law and not a law on same-sex marriage.

The strategy was apparently to wage one battle at a time. Once the proposed anti-discrimination law is passed, then same-sex marriage would follow.

Yet, here we are now.

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

“Mauuna pa tayo sa mga ibang issues sa Pilipinas, at mauuna pa tayo sa ibang bansa sa Asian region na medyo conservative (We will be ahead of other issues in the Philippines, and we will be ahead of other countries in the Asian region that are conservative),” Falcis said, referring to the oral arguments.

However, “it is not that soon,” the lawyer said. It took the Supreme Court 3 years to schedule his petition for oral arguments. (READ: SC applicants agree with U.S ruling favoring baker in gay wedding cake case)

It has certainly been a long time coming for petitioner-intervenor Ceejay Agbayani, pastor of an LGBT Christian Church, who has been marrying same-sex couples for years, though their marriages are not recognized by the State.

Agbayani is “married” to partner of 12 years Marlon Felipe. The pastor is 44 years old.

“Nanghihina na ako, akala ko hindi ko maaabot ang araw na ito (I’m getting weak, I thought that I wouldn’t live long enough to see this day),” Agbayani said.

He and Felipe intervened in the Falcis petition to boost its legal standing. The couple’s application for a marriage license was denied, making personalities with an actual stake in the case.

Agbayani said he sought out Falcis when he heard in 2015 that the young lawyer had filed a petition.

“Sabi ko, thank Jesus! I love Jesus, both Jesus the attorney and the historical Jesus. Finally, this guy, whom I’ve never met, meron din siyang pagnanasa for marriage equality, eh ang kulang lang namin, actually, attorney. Noon pa man gusto na naming magKorte Supreme pero wala kaming attorney,” Agbayani said.

(I said, thank you Jesus! I love Jesus, both Jesus the attorney and the historical Jesus. Finally, this guy, whom I’ve never met, he also wants marriage equality. The only thing we lacked then was a lawyer. We have always wanted to go to the Supreme Court, but we didn’t have a lawyer.) 

At 31, Falcis is one of the youngest lawyers to ever face oral arguments before the Supreme Court. He will have his most-awaited day in Court on June 19. The Office of the Solicitor General (OSG) will represent the State.

Here is your guide to the oral arguments:

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.”

A suspect classification happens when a class of individuals is discriminated against. In legal principles, suspect classification should be subject to strict Court scrutiny.

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 the equal protection clause?

Petition: Yes, because the classification does not rest on substantial distinction.

To explain, equal protection clause will not apply if these 4 conditions are satisfied:

  1. It must rest on substantial distinctions
  2. It must be germane to the purposes of law
  3. It must not be limited to existing conditions only
  4. It must apply equally to all members of the same class

There is substantial distinction if it can be justified why a certain class is treated differently. The petition said there is no substantial distinction between same sex couples and opposite sex couples.

If it’s their inability to procreate, the petition asks: Why are old heterosexual couples who are sterile and cannot procreate allowed to marry?

State: No, equal protection clause will not apply because the second condition was met, which is that it is germane or relevant to the purposes of the law.

The OSG goes back to the issue of procreation, and argued that procreation was among the main purposes of limiting marriage between a man and a woman only.

“While societal views of marriage as well as methods for procreation may be arguably changing since then, the laws that these norms initiated are slow to follow suit. The remedy for this perceived lethargy, however, lies with Congress, and not with the judiciary,” the OSG said.

5. 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 like Agbayani, individuals belonging to religious denominations 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.

For the petitioners, marriage equality will be worth all the trouble. “I am a Filipino, give us this right, we are not different, we are part of this country too,” Agbayani said.

Oral arguments will start 2 pm on Tuesday, June 19. – 

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.