Supreme Court: Same-sex marriage an issue better resolved by Congress

Lian Buan

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Supreme Court: Same-sex marriage an issue better resolved by Congress
The 113-page ponencia lists a barrage of gender-specific laws that may be disturbed by ruling same-sex marriage as legal, and says these may be matters of policy better left to legislation

MANILA, Philippines – Not this case, not now, and maybe not the Supreme Court.

That is the general tenor of the 113-page ponencia of Associate Justice Marvic Leonen in the Supreme Court’s unanimous ruling to dismiss a same-sex marriage petition based on procedural flaws. These include violating the hierarchy of courts and lack of a legal standing by the petitioner.

“The task of devising an arrangement where same-sex relations will earn state recognition is better left to Congress in order that it may thresh out the many issues that may arise,” said the ruling.

Leonen’s ponencia made it clear that it recognized the rights of the Lesbians, Gays, Bisexuals, Transgenders and Queers (LGBTQ+), but that invalidating Family Code provisions on who can marry may disturb a barrage of gender-specific laws in many Philippine statutes, such as taxation, family relations, labor, and even penal laws.

Those issues, the ponencia said, are “matters of policy…properly left to government organs that are better equipped in framing them.”

“The litany of provisions that we have just recounted are not even the entirety of laws relating to marriage. Petitioner would have this Court impliedly amend all such laws, through a mere declaration of unconstitutionality of only 2 articles in a single statute,” said the ponencia.

In his separate concurring opinion, Chief Justice Diosdado Peralta agreed: “It is not for this Court to write into the law purported rights when they are not expressly or by clear implication deemed available under the Fundamental Law. Same-sex marriage is a policy matter better left to the deliberations of the elected officials of the country.” (READ: Same-sex marriage: Flawed petition or unready Court?)

Do all same-sex couples want it?

The ruling said that marriage is an “enabling constraint” on two people, and that a married couple would be subjecting themselves to certain extents of regulation by the State.

Pointing that out, the ruling poses a profound question: do all same-sex couples want it?

“The claim for a state-sanctioned marriage for same-sex couples should come with the concomitant willingness to embrace these burdens, as well as submit to the State certain freedoms currently enjoyed outside the institution of marriage,” said the ruling.

“Yet, petitioner has miserably failed to show proof that he has obtained even the slightest measure of consent from the members of the community that he purports to represent, and that LGBTQI+ persons are unqualifiedly willing to conform to the State’s present construct of marriage,” it added.

The ruling said the petition “is not the case that presents the clearest actual factual backdrop to make the precise reasoned judgment our Constitution requires.”

“Perhaps, even before that actual case arrives, our democratically-elected representatives in Congress will have seen the wisdom of acting with dispatch to address the suffering of many of those who choose to love distinctively, uniquely but no less genuinely and passionately,” said the ruling. (READ: Fight for same-sex marriage in PH still alive despite Supreme Court ruling)

‘It need not end here’

In the ponencia, Leonen said that the Constitution did not explicitly limit marriage as being between a man and a woman only. As it passes the buck to Congress, the ponencia also slightly advocates for “accommodation” of LGBTQ+ interests.

“Lacking a manifestly restrictive textual definition of marriage, the Constitution is capable of accommodating a contemporaneous understanding of sexual orientation, gender identity and expression, and sex characteristics (SOGIESC). The plain text and meaning of our constitutional provisions do not prohibit SOGIESC,” read the ponencia.

The ruling junked the petition filed by young, openly gay lawyer Jesus Falcis III, for having no legal standing as Falcis has never applied for – nor been denied – a marriage license. Falcis was eventually able to get intervenors who are same-sex couples who have actually been denied a marriage license.

This was not enough for the Supreme Court because the petition impleaded the Civil Registrar General – the government official tasked with issuing marriage licenses – yet the High Court said the prayer of the petition did not match the respondent.

“Despite impleading respondent Civil Registrar General and asserting that they have a fundamental right to marry their partners, petitioners-intervenors never saw it proper – whether as the principal or supplemental relief – to seek a writ of mandamus compelling respondent civil registrar general to issue marriage licenses to them,” said the ruling.

The ruling said the interventions were “an ill-conceived attempt to prop up a thin and underdeveloped petition,” just one of the many criticisms of Falcis and his petition found all over the ruling.

Retired associate justice Francis Jardeleza noted how the United States Supreme Court arrived at a ruling in favor of same-sex marriage only after years of resolving small, but crucially-related, cases in the lower courts.

“The pursuit (and maybe, ultimate acceptance) of the idea of marriage equality need not end here,” said Jardeleza.

“Rather, zealous fealty to the Constitution’s strictures on case and controversy and the hierarchy of courts should give the idea of marriage equality a sporting chance to be, in time, vigorously and properly presented to the Court,” said Jardeleza.

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.