MANILA, Philippines –  The Supreme Court’s “deference” to Congress on the issue of same-sex unions “dooms marriage equality” in the country, according to a paper published by the University of the Philippines (UP) College of Law.

UP Law uploaded the paper – “Finding Fault: Marriage Equality, Judicial Deference, and Falcis,” authored by constitutional law professor Dan Gatmaytan  – on Monday, June 29, as Pride month drew to a close.

“If history is any indication, then deferring to Congress dooms marriage equality. The constitutionality of the definition of family under Philippine law will remain unresolved,” said the paper.

The paper criticized the 2019 decision of the High Court to junk the same-sex marriage petition filed by young lawyer Jesus Falcis, on the basis of procedural flaws such as violation of the hierarchy of courts and the lack of a legal standing by the petitioner.

“(The decision) in my view is not the proper exercise of judicial review but an abdication of its function as a Court,” said Gatmaytan.

Gatmaytan said that the inaction of Congress on bills protecting the LGBTQ+ community has given Filipinos “no reason to believe that this attitude will change in the near future.”

The earliest version of the sexual orientation and gender identity or expression bill, more commonly known as the anti-discrimination bill or the SOGIE equality bill, was filed 20 years ago, or in 2000.

Deference to Congress

The SC ruling gave a sliver of hope to advocates when it said that “from its plain text, the Constitution does not define, or restrict, marriage on the basis of sex, gender, sexual orientation, or gender identity or expression.”

But the 113-page ponencia written by Associate Justice Marvic Leonen had a general tone of deference to Congress, saying that declaring provisions in the Family Code that restrict the definition of marriage to between a man and a woman only may disturb a barrage of gender-specific laws.

The decision said that these were “matters of policy…properly left to government organs that are better equipped in framing them.”

“The Supreme Court would rather have Congress redefine marriage to accommodate the LGBTQ+ community. This is a Congress that had many opportunities to amend the Family Code since the early 1990s, but has failed to do so,” said Gatmaytan.

The SC ruling also slammed Falcis’ procedural lapses, and his supposed failure to back his petition with studies and substantiated facts on how lack the lack of marriage equality would affect the LGBTQ+ community.

Addressing this, Gatmaytan said in his paper: “With all due respect, the only empirical question that needs an answer was whether the rights of the minority are being impinged by the lack of access to enter into a marriage contract. The Court does not need to be an expert in other social sciences to answer this.”

‘Unwilling’

The Supreme Court also faulted Falcis for not applying for a marriage license first, so that his denial could be cited as direct injury from alleged unconstitutional provisions of the Family Code.

Gatmaytan called this kind of reasoning a “skillful demonstration of mastery of procedural rules.”

“Do they really have to apply for a license and be denied? My view is that it is the fact that the Family Code precludes a future of civil inclusion for the LGBTQI+ community that creates the controversy,” said Gatmaytan.

“The Court’s decision boils down to a simple truth: the Supreme Court is unwilling to rule on the constitutionality of the definition of marriage,” he added.

‘Inevitable’

Calling marriage equality “the single most important family law issue to emerge in recent years,” Gatmaytan said categorically that Articles 1 and 2 of the Family Code are unconstitutional, and in an effect, the same goes for Articles 46 (4) and 55 (6). 

Articles 1 and 2 are the provisions that restrict the definition of marriage as between a man and woman only, while Articles 46(4) and 55(6) cite homosexuality as basis for annulment and legal separation.

“No one will be harmed by striking down the discriminatory definition of marriage in the Family Code…. Recognizing LGBTQI marriages will not affect heterosexual marriages—they will remain valid and the parties will not lose any rights or benefits from the State. No one will be compelled to marry against their will,” said Gatmaytan.

A concurring vote to Leonen’s ponencia, retired justice Francis Jardeleza said “the pursuit (and maybe, ultimate acceptance) of the idea of marriage equality need not end here.”

Gatmaytan said the junking of Falcis’ petition was just a “setback.”

Someone, “some time in the near future,” can file a “procedurally pristine” same-sex marriage petition before the Supreme Court.

“When that moment comes, the Supreme Court will promulgate a ruling striking down the definition of marriage as a blatant violation of the due process clause. That ruling is inevitable,” said Gatmaytan.

But Gatmaytan highlighted the importance that this must come from the Supreme Court.

“Congress is a populist branch. It operates on the framework of majority preferences which are unlikely to champion the cause of the minority. Consistent with my framework, it was incumbent upon the Supreme Court to check blocks to the exercise of civil exclusion, and to remove them,” said Gatmaytan. – Rappler.com