G.R. No.

190582 - ANG LADLAD LGBT PARTY represented herein by its

Chair Danton Remoto, petitioner v. COMMISSION ON
ELECTIONS, respondent.

Promulgated:
April 8, 2010

x--------------------------------------------------x

SEPARATE CONCURRING OPINION

PUNO, C.J.:

I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice

Mariano C. del Castillo. Nonetheless, I respectfully submit this separate opinion to
underscore some points that I deem significant.

FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run

afoul of the non-establishment clause[1] of the Constitution. There was cypher
effort on the part of the COMELEC to couch its reasoning in legal much less
constitutional terms, as it denied Ang Ladlads petition for registration as a sectoral
party principally on the ground that it tolerates immorality which offends religious
(i.e., Christian[2] and Muslim[3]) beliefs. To be sure, the COMELECs ruling is
completely antithetical to the fundamental rule that [t]he public morality expressed
in the law is necessarily secular[,] for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it
sanctions.[4] As we explained in Estrada v. Escritor,[5] the requirement of an
articulable and discernible secular purpose is meant to give flesh to the
constitutional policy of full religious freedom for all, viz.:

Religion also dictates "how we ought to live" for the nature of religion is not just
to know, but often, to act in accordance with man's "views of his relations to His
Creator." But the Establishment Clause puts a negative bar against establishment
of this morality arising from one religion or the other, and implies the affirmative
"establishment" of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the "war of all sects
against all"; the establishment of a secular public moral order is the social
contract produced by religious truce.
 Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers, or "public
morals" in the Revised Penal Code, or "morals" in the New Civil Code, or "moral
character" in the Constitution, the distinction between public and secular morality
on the one hand, and religious morality, on the other, should be kept in mind. The
morality referred to in the law is public and necessarily secular, not religious as
the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some
might regard as religious programs or agenda. The non-believers would therefore
be compelled to conform to a standard of conduct buttressed by a religious belief,
i.e., to a "compelled religion;" anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or
endorse that belief and thereby also tacitly disapprove contrary religious or non-
religious views that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of
religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.[6] (citations omitted and italics supplied)

Consequently, the assailed resolutions of the COMELEC are violative of the

constitutional directive that no religious test shall be required for the exercise of
civil or political rights.[7] Ang Ladlads right of political participation was unduly
infringed when the COMELEC, swayed by the private biases and personal
prejudices of its constituent members, arrogated unto itself the role of a religious
court or worse, a morality police.

The COMELEC attempts to disengage itself from this excessive

entanglement[8] with religion by arguing that we cannot ignore our strict religious
upbringing, whether Christian or Muslim[9] since the moral precepts espoused by
[these] religions have slipped into society and are now publicly accepted moral
norms.[10] However, as correctly observed by Mr. Justice del Castillo,
the Philippines has not seen fit to disparage homosexual conduct as to actually
criminalize it. Indeed, even if the State has legislated to this effect, the law is
vulnerable to constitutional attack on privacy grounds.[11] These alleged generally
accepted public morals have not, in reality, crossed over from the religious to the
secular sphere.
 Some people may find homosexuality and bisexuality deviant, odious, and
offensive. Nevertheless, private discrimination, however unfounded, cannot be
attributed or ascribed to the State. Mr. Justice Kennedy, speaking for the United
States (U.S.) Supreme Court in the landmark case of Lawrence v.
Texas,[12] opined:

It must be acknowledged, of course, that the Court in Bowers was making the
broader point that for centuries there have been powerful voices to condemn
homosexual conduct as immoral. The condemnation has been shaped by religious
beliefs, conceptions of right and acceptable behavior, and respect for the
traditional family. For many persons these are not trivial concerns but profound
and deep convictions accepted as ethical and moral principles to which they aspire
and which thus determine the course of their lives. These considerations do not
answer the question before us, however. The issue is whether the majority may
use the power of the State to enforce these views on the whole society through
operation of the law. Our obligation is to define the liberty of all, not to mandate
our own moral code.[13]

SECOND. The COMELEC capitalized on Ang Ladlads definition of the term

sexual orientation,[14] as well as its citation of the number of Filipino men who
have sex with men,[15] as basis for the declaration that the party espouses and
advocates sexual immorality. This position, however, would deny homosexual
and bisexual individuals a fundamental element of personal identity and a
legitimate exercise of personal liberty. For, the ability to [independently] define
ones identity that is central to any concept of liberty cannot truly be exercised in a
vacuum; we all depend on the emotional enrichment from close ties with
others.[16] As Mr. Justice Blackmun so eloquently said in his stinging dissent
in Bowers v. Hardwick[17] (overturned by the United States Supreme Court
seventeen years later in Lawrence v. Texas[18]):

Only the most willful blindness could obscure the fact that sexual intimacy
is a sensitive, key relationship of human existence, central to family life,
community welfare, and the development of human personality[.][19] The fact that
individuals define themselves in a significant way through their intimate sexual
relationships with others suggests, in a Nation as diverse as ours, that there may
be many right ways of conducting those relationships, and that much of the
richness of a relationship will come from the freedom an individual has to choose
the form and nature of these intensely personal bonds.[20]

In a variety of circumstances we have recognized that a necessary

corollary of giving individuals freedom to choose how to conduct their lives is
acceptance of the fact that different individuals will make different choices. For
 example, in holding that the clearly important state interest in public education
should give way to a competing claim by the Amish to the effect that extended
formal schooling threatened their way of life, the Court declared: There can be no
assumption that today's majority is right and the Amish and others like them are
wrong. A way of life that is odd or even erratic but interferes with no rights or
interests of others is not to be condemned because it is different.[21] The Court
claims that its decision today merely refuses to recognize a fundamental right to
engage in homosexual sodomy; what the Court really has refused to recognize
is the fundamental interest all individuals have in controlling the nature of their
intimate associations with others. (italics supplied)

It has been said that freedom extends beyond spatial bounds.[22] Liberty presumes
an autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct.[23] These matters, involving the most intimate and
personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by the due process
clause.[24] At the heart of liberty is the right to define ones own concept of
existence, of meaning, of the universe, and of the mystery of human life. [25] Beliefs
about these matters could not define the attributes of personhood were they formed
under compulsion of the State.[26] Lawrence v. Texas[27] is again instructive:

To say that the issue in Bowers was simply the right to engage in certain
sexual conduct demeans the claim the individual put forward, just as it would
demean a married couple were it to be said marriage is simply about the right to
have sexual intercourse. The laws involved in Bowers and here are, to be sure,
statutes that purport to do no more than prohibit a particular sexual act. Their
penalties and purposes, though, have more far-reaching consequences, touching
upon the most private human conduct, sexual behavior, and in the most private of
places, the home. The statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the liberty of
persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a

court, to define the meaning of the relationship or to set its boundaries absent
injury to a person or abuse of an institution the law protects. It suffices for us to
acknowledge that adults may choose to enter upon this relationship in the
confines of their homes and their own private lives and still retain their dignity as
free persons. When sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is
more enduring. The liberty protected by the Constitution allows homosexual
persons the right to make this choice. (italics supplied)
THIRD. The ponencia of Mr. Justice del Castillo refused to characterize
homosexuals and bisexuals as a class in themselves for purposes of the equal
protection clause. Accordingly, it struck down the assailed Resolutions using the
most liberal basis of judicial scrutiny, the rational basis test, according to which
government need only show that the challenged classification is rationally related
to serving a legitimate state interest.

I humbly submit, however, that a classification based on gender or sexual

orientation is a quasi-suspect classification, as to trigger a heightened level of
review.

Preliminarily, in our jurisdiction, the standard and analysis of equal

protection challenges in the main have followed the rational basis test, coupled
with a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.[28] However, Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas,[29] carved out an exception to this general rule, such that
prejudice to persons accorded special protection by the Constitution requires
stricter judicial scrutiny than mere rationality, viz.:

Congress retains its wide discretion in providing for a valid classification, and its
policies should be accorded recognition and respect by the courts of justice except
when they run afoul of the Constitution. The deference stops where the
classification violates a fundamental right, or prejudices persons accorded
special protection by the Constitution. When these violations arise, this Court
must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations.
Rational basis should not suffice. (citations omitted and italics supplied)
Considering thus that labor enjoys such special and protected status under
our fundamental law, the Court ruled in favor of the Central Bank Employees
Association, [Link] this wise:

While R.A. No. 7653 started as a valid measure well within the
legislature's power, we hold that the enactment of subsequent laws exempting all
rank-and-file employees of other GFIs leeched all validity out of the challenged
proviso.

xxxx

According to petitioner, the last proviso of Section 15(c), Article II of

R.A. No. 7653 is also violative of the equal protection clause because after it was
enacted, the charters of the GSIS, LBP, DBP and SSS were also amended, but the
personnel of the latter GFIs were all exempted from the coverage of the SSL.
Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file
are also discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted
in 1993, Congress also undertook the amendment of the charters of the GSIS,
LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz.:

xxxx

It is noteworthy, as petitioner points out, that the subsequent charters of

the seven other GFIs share this common proviso: a blanket exemption of all their
employees from the coverage of the SSL, expressly or impliedly...

xxxx

The abovementioned subsequent enactments, however, constitute

significant changes in circumstance that considerably alter the reasonability of the
continued operation of the last proviso of Section 15(c), Article II of Republic Act
No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the
scrutiny relates to the constitutionality of the classification albeit made indirectly
as a consequence of the passage of eight other laws between the rank-and-file of
the BSP and the seven other GFIs. The classification must not only be reasonable,
but must also apply equally to all members of the class. The proviso may be fair
on its face and impartial in appearance but it cannot be grossly discriminatory in
its operation, so as practically to make unjust distinctions between persons who
are without differences.

Stated differently, the second level of inquiry deals with the following
questions: Given that Congress chose to exempt other GFIs (aside the BSP) from
the coverage of the SSL, can the exclusion of the rank-and-file employees of the
BSP stand constitutional scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other GFIs? Is Congress' power to
classify so unbridled as to sanction unequal and discriminatory treatment, simply
because the inequity manifested itself, not instantly through a single overt act, but
gradually and progressively, through seven separate acts of Congress? Is the right
to equal protection of the law bounded in time and space that: (a) the right can
only be invoked against a classification made directly and deliberately, as
opposed to a discrimination that arises indirectly, or as a consequence of several
other acts; and (b) is the legal analysis confined to determining the validity within
the parameters of the statute or ordinance (where the inclusion or exclusion is
articulated), thereby proscribing any evaluation vis--vis the grouping, or the lack
thereof, among several similar enactments made over a period of time?
 In this second level of scrutiny, the inequality of treatment cannot be
justified on the mere assertion that each exemption (granted to the seven other
GFIs) rests "on a policy determination by the legislature." All legislative
enactments necessarily rest on a policy determination even those that have been
declared to contravene the Constitution. Verily, if this could serve as a magic
wand to sustain the validity of a statute, then no due process and equal protection
challenges would ever prosper. There is nothing inherently sacrosanct in a policy
determination made by Congress or by the Executive; it cannot run riot and
overrun the ramparts of protection of the Constitution.

xxxx

In the case at bar, it is precisely the fact that as regards the exemption from
the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-
and-file so as to justify the exemption which BSP rank-and-file employees were
denied (not to mention the anomaly of the SEC getting one). The distinction made
by the law is not only superficial, but also arbitrary. It is not based on substantial
distinctions that make real differences between the BSP rank-and-file and the
seven other GFIs.

xxxx

The disparity of treatment between BSP rank-and-file and the rank-and-

file of the other seven GFIs definitely bears the unmistakable badge of invidious
discrimination no one can, with candor and fairness, deny the discriminatory
character of the subsequent blanket and total exemption of the seven other GFIs
from the SSL when such was withheld from the BSP. Alikes are being treated as
unalikes without any rational basis.

xxxx

Thus, the two-tier analysis made in the case at bar of the challenged
provision, and its conclusion of unconstitutionality by subsequent operation, are
in cadence and in consonance with the progressive trend of other jurisdictions and
in international law. There should be no hesitation in using the equal protection
clause as a major cutting edge to eliminate every conceivable irrational
discrimination in our society. Indeed, the social justice imperatives in the
Constitution, coupled with the special status and protection afforded to labor,
compel this approach.

Apropos the special protection afforded to labor under our Constitution

and international law, we held in International School Alliance of Educators v.
Quisumbing:

That public policy abhors inequality and discrimination is

beyond contention. Our Constitution and laws reflect the policy
against these evils. The Constitution in the Article on Social
Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance the
right of all people to human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of the Civil Code
requires every person, "in the exercise of his rights and in the
performance of his duties, [to] act with justice, give everyone his
due, and observe honesty and good faith."

International law, which springs from general principles of

law, likewise proscribes discrimination. General principles of law
include principles of equity, i.e., the general principles of fairness
and justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial
Discrimination, the Convention against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination
in Respect of Employment and Occupation all embody the general
principle against discrimination, the very antithesis of fairness and
justice. The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.

In the workplace, where the relations between capital and

labor are often skewed in favor of capital, inequality and
discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled

to "humane conditions of work." These conditions are not
restricted to the physical workplace the factory, the office or the
field but include as well the manner by which employers treat their
employees.

The Constitution also directs the State to promote "equality

of employment opportunities for all." Similarly, the Labor Code
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the
spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment.

xxx xxx xxx

Notably, the International Covenant on Economic, Social,

and Cultural Rights, in Article 7 thereof, provides:
 The States Parties to the present Covenant
recognize the right of everyone to the enjoyment of
just and [favorable] conditions of work, which
ensure, in particular:

a. Remuneration which provides all workers,

as a minimum, with:

i. Fair wages and equal remuneration

for work of equal value without
distinction of any kind, in particular
women being guaranteed conditions
of work not inferior to those enjoyed
by men, with equal pay for equal
work;

xxx xxx xxx

The foregoing provisions impregnably institutionalize in

this jurisdiction the long honored legal truism of "equal pay for
equal work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar
conditions, should be paid similar salaries.

xxxx

Under most circumstances, the Court will exercise judicial restraint in

deciding questions of constitutionality, recognizing the broad discretion given to
Congress in exercising its legislative power. Judicial scrutiny would be based on
the "rational basis" test, and the legislative discretion would be given deferential
treatment.

But if the challenge to the statute is premised on the denial of a

fundamental right, or the perpetuation of prejudice against persons favored by the
Constitution with special protection, judicial scrutiny ought to be more strict. A
weak and watered down view would call for the abdication of this Court's solemn
duty to strike down any law repugnant to the Constitution and the rights it
enshrines. This is true whether the actor committing the unconstitutional act is a
private person or the government itself or one of its instrumentalities. Oppressive
acts will be struck down regardless of the character or nature of the actor.

In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive
 higher compensation packages that are competitive with the industry, while the
poorer, low-salaried employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are paid the
strictly regimented rates of the SSL while employees higher in rank possessing
higher and better education and opportunities for career advancement are given
higher compensation packages to entice them to stay. Considering that majority,
if not all, the rank-and-file employees consist of people whose status and rank in
life are less and limited, especially in terms of job marketability, it is they and not
the officers who have the real economic and financial need for the adjustment.
This is in accord with the policy of the Constitution "to free the people from
poverty, provide adequate social services, extend to them a decent standard of
living, and improve the quality of life for all." Any act of Congress that runs
counter to this constitutional desideratum deserves strict scrutiny by this Court
before it can pass muster. (citations omitted and italics supplied)

Corollarily, American case law provides that a state action questioned on

equal protection grounds is subject to one of three levels of judicial scrutiny. The
level of review, on a sliding scale basis, varies with the type of classification
utilized and the nature of the right affected.[30]

If a legislative classification disadvantages a suspect class or impinges upon

the exercise of a fundamental right, then the courts will employ strict scrutiny and
the statute must fall unless the government can demonstrate that the classification
has been precisely tailored to serve a compelling governmental interest. [31] Over
the years, the United States Supreme Court has determined that suspect classes for
equal protection purposes include classifications based on race, religion, alienage,
national origin, and ancestry.[32]The underlying rationale of this theory is that
where legislation affects discrete and insular minorities, the presumption of
constitutionality fades because traditional political processes may have broken
down.[33] In such a case, the State bears a heavy burden of justification, and the
government action will be closely scrutinized in light of its asserted purpose.[34]

On the other hand, if the classification, while not facially invidious,

nonetheless gives rise to recurring constitutional difficulties, or if a classification
disadvantages a quasi-suspect class, it will be treated under intermediate or
heightened review.[35] To survive intermediate scrutiny, the law must not only
further an important governmental interest and be substantially related to that
interest, but the justification for the classification must be genuine and must not
depend on broad generalizations.[36] Noteworthy, and of special interest to us in
this case, quasi-suspect classes include classifications based on gender or
illegitimacy.[37]
 If neither strict nor intermediate scrutiny is appropriate, then the statute will
be tested for mere rationality.[38] This is a relatively relaxed standard reflecting the
Courts awareness that the drawing of lines which creates distinctions is peculiarly
a legislative task and an unavoidable one.[39] The presumption is in favor of the
classification, of the reasonableness and fairness of state action, and of legitimate
grounds of distinction, if any such grounds exist, on which the State acted.[40]

Instead of adopting a rigid formula to determine whether certain legislative

classifications warrant more demanding constitutional analysis, the United States
Supreme Court has looked to four factors,[41] thus:

(1) The history of invidious discrimination against the class burdened by the
legislation;[42]

(2) Whether the characteristics that distinguish the class indicate a typical
class member's ability to contribute to society;[43]

(3) Whether the distinguishing characteristic is immutable or beyond the

class members' control;[44] and

(4) The political power of the subject class.[45]

These factors, it must be emphasized, are not constitutive essential

elements of a suspect or quasi-suspect class, as to individually demand a certain
weight.[46] The U.S. Supreme Court has applied the four factors in a flexible
manner; it has neither required, nor even discussed, every factor in every
case.[47] Indeed, no single talisman can define those groups likely to be the target of
classifications offensive to the equal protection clause and therefore warranting
heightened or strict scrutiny; experience, not abstract logic, must be the primary
guide.[48]

In any event, the first two factors history of intentional discrimination and
relationship of classifying characteristic to a person's ability to contribute have
always been present when heightened scrutiny has been applied.[49] They have been
critical to the analysis and could be considered as prerequisites to concluding a
group is a suspect or quasi-suspect class.[50] However, the last two factors
immutability of the characteristic and political powerlessness of the group are
considered simply to supplement the analysis as a means to discern whether a need
for heightened scrutiny exists.[51]

Guided by this framework, and considering further that classifications based

on sex or gender albeit on a male/female, man/woman basis have been previously
held to trigger heightened scrutiny, I respectfully submit that classification on the
basis of sexual orientation (i.e., homosexuality and/or bisexuality) is a quasi-
suspect classification that prompts intermediate review.

The first consideration is whether homosexuals have suffered a history of

purposeful unequal treatment because of their sexual orientation.[52] One cannot, in
good faith, dispute that gay and lesbian persons historically have been, and
continue to be, the target of purposeful and pernicious discrimination due solely to
their sexual orientation.[53]Paragraphs 6 and 7 of Ang Ladlads Petition for
Registration for party-list accreditation in fact state:

6. There have been documented cases of discrimination and violence perpetuated

against the LGBT Community, among which are:

(a) Effeminate or gay youths being beaten up by their parents and/or

guardians to make them conform to standard gender norms of behavior;
(b) Fathers and/or guardians who allow their daughters who are butch
lesbians to be raped[, so as] to cure them into becoming straight women;
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and
choirs because of their identity;
(d) Effeminate youths and masculine young women are refused admission
from (sic) certain schools, are suspended or are automatically put on
probation;
(e) Denial of jobs, promotions, trainings and other work benefits once ones
sexual orientation and gender identity is (sic) revealed;
(f) Consensual partnerships or relationships by gays and lesbians who are
already of age, are broken up by their parents or guardians using the
[A]nti-kidnapping [L]aw;
(g) Pray-overs, exorcisms, and other religious cures are performed on gays
and lesbians to reform them;
(h) Young gays and lesbians are forcibly subjected to psychiatric counseling
and therapy to cure them[,] despite the de-listing (sic) of homosexuality
and lesbianism as a mental disorder by the American Psychiatric
Association;
(i) Transgenders, or individuals who were born mail but who self-identity as
women and dress as such, are denied entry or services in certain
restaurants and establishments; and
 (j) Several murders from the years 2003-3006 were committed against gay
men, but were not acknowledged by police as hate crimes or violent acts
of bigotry.

7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as
a young gay person in the Philippines, he was subjected to a variety of sexual
abuse and violence, including repeated rapes[,] which he could not report to [the]
police [or speak of] to his own parents.

Accordingly, this history of discrimination suggests that any legislative

burden placed on lesbian and gay people as a class is more likely than others to
reflect deep-seated prejudice rather than legislative rationality in pursuit of some
legitimate objective.[54]

A second relevant consideration is whether the character-in-issue is related

to the persons ability to contribute to society.[55] Heightened scrutiny is applied
when the classification bears no relationship to this ability; the existence of this
factor indicates the classification is likely based on irrelevant stereotypes and
prejudice.[56] Insofar as sexual orientation is concerned, it is gainful to repair
to Kerrigan v. Commissioner of Public Health,[57] viz.:

The defendants also concede that sexual orientation bears no relation to a

person's ability to participate in or contribute to society, a fact that many courts
have acknowledged, as well. x x x If homosexuals were afflicted with some sort
of impediment to their ability to perform and to contribute to society, the entire
phenomenon of staying in the [c]loset and of coming out would not exist; their
impediment would betray their status. x x x In this critical respect, gay persons
stand in stark contrast to other groups that have been denied suspect or quasi-
suspect class recognition, despite a history of discrimination, because the
distinguishing characteristics of those groups adversely affect their ability or
capacity to perform certain functions or to discharge certain responsibilities in
society.[58]

Unlike the characteristics unique to those groups, however, homosexuality

bears no relation at all to [an] individual's ability to contribute fully to
society.[59] Indeed, because an individual's homosexual orientation implies no
impairment in judgment, stability, reliability or general social or vocational
capabilities;[60] the observation of the United States Supreme Court that race,
alienage and national origin -all suspect classes entitled to the highest level of
constitutional protection- are so seldom relevant to the achievement of any
legitimate state interest that laws grounded in such considerations are deemed to
reflect prejudice and antipathy[61] is no less applicable to gay persons. (italics
supplied)
Clearly, homosexual orientation is no more relevant to a person's ability to perform
and contribute to society than is heterosexual orientation.[62]

A third factor that courts have considered in determining whether the members of a
class are entitled to heightened protection for equal protection purposes is whether
the attribute or characteristic that distinguishes them is immutable or otherwise
beyond their control.[63] Of course, the characteristic that distinguishes gay persons
from others and qualifies them for recognition as a distinct and discrete group is
the characteristic that historically has resulted in their social and legal ostracism,
namely, their attraction to persons of the same sex.[64]

Immutability is a factor in determining the appropriate level of scrutiny because

the inability of a person to change a characteristic that is used to justify different
treatment makes the discrimination violative of the rather basic concept of our
system that legal burdens should bear some relationship to individual
responsibility.[65] However, the constitutional relevance of the immutability factor
is not reserved to those instances in which the trait defining the burdened class is
absolutely impossible to change.[66] That is, the immutability prong of the
suspectness inquiry surely is satisfied when the identifying trait is so central to a
person's identity that it would be abhorrent for government to penalize a person for
refusing to change [it].[67]

Prescinding from these premises, it is not appropriate to require a person to

repudiate or change his or her sexual orientation in order to avoid discriminatory
treatment, because a person's sexual orientation is so integral an aspect of one's
identity.[68] Consequently, because sexual orientation may be altered [if at all] only
at the expense of significant damage to the individuals sense of self, classifications
based thereon are no less entitled to consideration as a suspect or quasi-suspect
class than any other group that has been deemed to exhibit an immutable
characteristic.[69] Stated differently, sexual orientation is not the type of human trait
that allows courts to relax their standard of review because the barrier is temporary
or susceptible to self-help.[70]

The final factor that bears consideration is whether the group is a minority or
politically powerless.[71] However, the political powerlessness factor of the level-
of-scrutiny inquiry does not require a showing of absolute political
powerlessness.[72] Rather, the touchstone of the analysis should be whether the
group lacks sufficient political strength to bring a prompt end to the prejudice and
discrimination through traditional political means.[73]

Applying this standard, it would not be difficult to conclude that gay persons
are entitled to heightened constitutional protection despite some recent political
progress.[74]The discrimination that they have suffered has been so pervasive and
severe even though their sexual orientation has no bearing at all on their ability to
contribute to or perform in society that it is highly unlikely that legislative
enactments alone will suffice to eliminate that discrimination.[75] Furthermore,
insofar as the LGBT community plays a role in the political process, it is apparent
that their numbers reflect their status as a small and insular minority. [76]

It is therefore respectfully submitted that any state action singling lesbians,

gays, bisexuals and trans-genders out for disparate treatment is subject to
heightened judicial scrutiny to ensure that it is not the product of historical
prejudice and stereotyping.[77]

In this case, the assailed Resolutions of the COMELEC unmistakably fail the
intermediate level of review. Regrettably, they betray no more than bigotry and
intolerance; they raise the inevitable inference that the disadvantage imposed is
born of animosity toward the class of persons affected[78] (that is, lesbian, gay,
bisexual and trans-gendered individuals). In our constitutional system, status-based
classification undertaken for its own sake cannot survive.[79]

FOURTH. It has been suggested that the LGBT community cannot participate in
the party-list system because it is not a marginalized and underrepresented sector
enumerated either in the Constitution[80] or Republic Act No. (RA)
7941.[81] However, this position is belied by our ruling in Ang Bagong Bayani-
OFW Labor Party v. COMELEC,[82] where we clearly held that the enumeration
of marginalized and underrepresented sectors in RA 7941 is not exclusive.

I likewise see no logical or factual obstacle to classifying the members of the

LGBT community as marginalized and underrepresented, considering their long
history (and indeed, ongoing narrative) of persecution, discrimination, and
pathos. In my humble view, marginalization for purposes of party-list
representation encompasses social marginalization as well. To hold otherwise is
tantamount to trivializing socially marginalized groups as mere passive recipients
of the States benevolence and denying them the right to participate directly [in the
mainstream of representative democracy] in the enactment of laws designed to
benefit them.[83] The party-list system could not have been conceptualized to
perpetuate this injustice.

Accordingly, I vote to grant the petition.

REYNATO S. PUNO
Chief Justice

[1]
Section 5, Article III of the 1987 Constitution states: No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
[2]
The November 11, 2009 Resolution of the COMELEC cited the following passage from the Bible to support its
holding: For this cause God gave them up into vile affections: for even their women did change the natural use into
that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust
one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of
their error which was meet. (Romans 1:26-27)
[3]
The November 11, 2009 Resolution of the COMELEC cited the following passages from the Koran to support its
holding:
For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond
bounds. (7:81)
And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in
sin and crime! (7.84)
He said: O my Lord! Help Thou me against people who do mischief! (29:30)
[4]
Estrada v. Escritor, 455 Phil. 411 (2003).
[5]
Id.
[6]
Id.
[7]
Section 5, Article III of the 1987 Constitution.
[8]
Lemon v. Kurtzman, 403 U.S. 602 (1971).
[9]
COMELECs Comment, p. 13.
[10]
Id.
[11]
See Lawrence v. Texas, 539 U.S. 558, 123 [Link]. 2472.
[12]
Id.
[13]
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 [Link]. 2791, 120 [Link].2d 674 (1992).
[14]
Ang Ladlad defined sexual orientation as a persons capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more
than one gender. (italics supplied)
[15]
Paragraph 24 of Ang Ladlads Petition for Registration stated, in relevant part: In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated at 670,000.
[16]
Roberts v. United States Jaycees, 468 U.S. 609, 104 [Link]. 3244, as cited in the Dissenting Opinion of Mr. Justice
Blackmun in Bowers v. Hardwick, infra.
[17]
478 U.S. 186, 106 [Link]. 2841.
[18]
Supra note 11.
[19]
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 [Link]. 2628, 2638, 37 [Link].2d 446 (1973); See also Carey v.
Population Services International, 431 U.S. 678, 685, 97 [Link]. 2010, 2016, 52 [Link].2d 675 (1977).
[20]
See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S.
438, 453, 92 [Link]. 1029, 1038, 31 [Link].2d 349 (1972); Roe v. Wade, 410 U.S., at 153, 93 [Link]., at 726.
[21]
Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 [Link]. 1526, 1537, 32 [Link].2d 15 (1972).
[22]
Lawrence v. Texas, supra note 11.
[23]
Id.
[24]
Planned Parenthood of Southeastern Pa. v. Casey, supra note 13.
[25]
Id.
[26]
Id.
[27]
Supra note 11.
[28]
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583 (2004).
[29]
Id.
[30]
Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504.
[31]
16B Am. Jur. 2d Constitutional Law 857, citing Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed. 2d 465
(1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794, 9 Ed. Law
Rep. 23 (1983); Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997); Baker v. City of Ottumwa, 560 N.W.2d
578 (Iowa 1997); Zempel v. Uninsured Employers' Fund, 282 Mont. 424, 938 P.2d 658 (1997); Hovland v. City of
Grand Forks, 1997 ND 95, 563 N.W.2d 384 (N.D. 1997).
[32]
Murray v. State of Louisiana, 2010 WL 334537. See Burlington N. R.R. Co. v. Ford, 112 [Link]. 2184, 2186
(1992) (holding classification based on religion is a suspect classification); Graham v. Richardson, 91 [Link]. 1848,
1852 (1971) (holding classification based on alienage is a suspect classification); Loving v. Virginia, 87 [Link]. 1817,
1823 (1967) (holding classification based on race is a suspect classification); Oyama v. California, 68 [Link]. 269,
274-74 (1948) (holding classification based on national origin is a suspect classification); Hirabayashi v. U.S., 63
[Link]. 1375 (1943) (holding classification based on ancestry is a suspect classification).
[33]
Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).
[34]
Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393 U.S. 385, 89
S. Ct. 557, 21 L. Ed. 2d 616 (1969); McLaughlin v. State of Fla., 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222
(1964).
[35]
Supra note 31.
[36]
United States v. Virginia, 518 U.S. 515, 533, 116 [Link]. 2264, 2275, 135 [Link].2d 735, 751 (1996).
[37]
Murray v. State of Louisiana, supra note 32. See Mississippi University for Women v. Hogan, 102 [Link]. 3331,
3336 (1982) (holding classifications based on gender calls for heightened standard of review); Trimble v. Gordon,
97 [Link]. 1459, 1463 (1977) (holding illegitimacy is a quasi-suspect classification).
[38]
Supra note 31.
[39]
Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513
(1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); Costner
v. U.S., 720 F.2d 539 (8th Cir. 1983).
[40]
Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Cornerstone Christian Schools v. University Interscholastic
League, 563 F.3d 127, 243 Ed. Law Rep. 609 (5th Cir. 2009); Independent Charities of America, Inc. v. State of
Minn., 82 F.3d 791 (8th Cir. 1996); Bah v. City of Atlanta, 103 F.3d 964 (11th Cir. 1997).
[41]
Varnum v. Brien, 763 N.W.2d 862 (2009) citing the following passage from Plyler v. Doe, 457 U.S. 202, 216,
102 [Link]. 2382, 2394, 72 [Link].2d 786, 799 (1982):
Several formulations might explain our treatment of certain classifications as suspect. Some
classifications are more likely than others to reflect deep-seated prejudice rather than legislative
rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is
easily recognized as incompatible with the constitutional understanding that each person is to be
judged individually and is entitled to equal justice under the law. Classifications treated as suspect
tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same
groups, have historically been relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process. The experience of our
Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response
to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment.
Legislation imposing special disabilities upon groups disfavored by virtue of circumstances
beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment
was designed to abolish.
[42]
See United States v. Virginia, 518 U.S. at 531-32, 116 [Link]. at 2274-75, 135 [Link].2d at 750 (observing long and
unfortunate history of sex discrimination (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 [Link]. 1764, 1769,
36 [Link].2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 [Link]. 2727,
2729, 91 [Link].2d 527, 533 (1986) (noting subject class had not been subjected to discrimination); City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432 at 443, 105 [Link]. at 3256, 87 [Link].2d at 332 (mentally retarded not victims of
continuing antipathy or prejudice); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 [Link]. 2562, 2567, 49 [Link].2d
520, 525 (1976) (considering history of purposeful unequal treatment (quoting San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 28, 93 [Link]. 1278, 1294, 36 [Link].2d 16, 40 (1973))).
[43]
See Cleburne Living Ctr., 473 U.S. at 440, 105 [Link]. at 3254, 87 [Link].2d at 320 (certain classifications merely
reflect prejudice and antipathy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 [Link]. 3331, 3336, 73
[Link].2d 1090, 1098 (1982) (Care must be taken in ascertain-ing whether the statutory objective itself reflects archaic
and stereotypic notions.); Murgia, 427 U.S. at 313, 96 [Link]. at 2566, 49 [Link].2d at 525 (considering whether aged
have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their
abilities); Frontiero, 411 U.S. at 686, 93 [Link]. at 1770, 36 [Link].2d at 591 (Brennan, J., plurality opinion) ([T]he sex
characteristic frequently bears no relation to ability to perform or contribute to society.).
[44]
Lyng, 477 U.S. at 638, 106 [Link]. at 2729, 91 [Link].2d at 533 (close relatives do not exhibit obvious, immutable,
or distinguishing characteristics that define them as a discrete group); Cleburne Living Ctr., 473 U.S. at 442, 105
[Link]. at 3255-56, 87 [Link].2d at 322 (mentally retarded people are different from other classes of people, immutably
so, in relevant respects); Plyler, 457 U.S. at 220, 102 [Link]. at 2396, 72 [Link].2d at 801 (children of illegal aliens,
unlike their parents, have legal characteristic[s] over which children can have little control); Mathews v. Lucas, 427
U.S. 495, 505, 96 [Link]. 2755, 2762, 49 [Link].2d 651, 660 (1976) (status of illegitimacy is, like race or national
origin, a characteristic determined by causes not within the control of the illegitimate individual); Frontiero, 411
U.S. at 686, 93 [Link]. at 1770, 36 [Link].2d at 591 (Brennan, J., plurality opinion) ([S]ex, like race and national origin,
is an immutable characteristic determined solely by the accident of birth....).
[45]
Lyng, 477 U.S. at 638, 106 [Link]. at 2729, 91 [Link].2d at 533 (close relatives of primary household are not a
minority or politically powerless); Cleburne Living Ctr., 473 U.S. at 445, 105 [Link]. at 3257, 87 [Link].2d at 324
(refusing to find that the mentally retarded are politically powerless); San Antonio Indep. Sch. Dist., 411 U.S. at 28,
93 [Link]. at 1294, 36 [Link].2d at 40 (considering whether minority and poor school children were relegated to such a
position of political powerlessness as to command extraordinary protection from the majoritarian political process).
[46]
Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407
(2008).
[47]
Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466 U.S. 429, 433-34, 104 [Link]. 1879, 1882-83, 80
[Link].2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 [Link].
2120, 2125 n. 11, 53 [Link].2d 63, 71 n. 11 (1977) (jettisoning immutability requirement and scrutinizing
classification of resident aliens closely despite aliens' voluntary status as residents); Mathews, 427 U.S. at 505-06,
96 [Link]. at 2762-63, 49 [Link].2d at 660-61 (according heightened scrutiny to classifications based on illegitimacy
despite mutability and political power of illegitimates); Murgia, 427 U.S. at 313-14, 96 [Link]. at 2567, 49 [Link].2d at
525 (omitting any reference to immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 [Link]. at 1292, 36
[Link].2d at 38 (omitting any reference to immutability); Frontiero, 411 U.S. at 685-88, 93 [Link]. at 1770-71, 36
[Link].2d at 591-92 (Brennan, J., plurality opinion) (scrutinizing classification based on gender closely despite
political power of women); Graham v. Richardson, 403 U.S. 365, 371-72, 91 [Link]. 1848, 1852, 29 [Link].2d 534,
541-42 (1971) (foregoing analysis of immutability); see also Lyng, 477 U.S. at 638, 106 [Link]. at 2729, 91 [Link].2d at
533 (referring to whether members of the class exhibit obvious, immutable, or distinguishing characteristics that
define them as a discrete group).
[48]
Concurring and Dissenting Opinion of Mr. Justice Thurgood Marshall in Cleburne v. Cleburne Living Center,
Inc., infra.
[49]
Varnum v. Brien, supra note 41.
[50]
Id.
[51]
Id.
[52]
Id.; Kerrigan v. Commissioner of Public Health, supra note 46.
[53]
Kerrigan v. Commissioner of Public Health, id.
[54]
Varnum v. Brien, supra note 41.
[55]
Id.
[56]
Id.
[57]
Supra note 46.
[58]
See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 442, 105 [Link]. 3249 (for purposes of federal
constitution, mental retardation is not quasi-suspect classification because, inter alia, it is undeniable ... that those
who are mentally retarded have a reduced ability to cope with and function in the everyday world); Massachusetts
Board of Retirement v. Murgia, 427 U.S. at 315, 96 [Link]. 2562 (age is not suspect classification because, inter alia,
physical ability generally declines with age); see also Gregory v. Ashcroft, 501 U.S. 452, 472, 111 [Link]. 2395, 115
[Link].2d 410 (1991) ([i]t is an unfortunate fact of life that physical [capacity] and mental capacity sometimes
diminish with age).
[59]
L. Tribe, American Constitutional Law (2d Ed. 1988) 16-33, p. 1616.
[60]
Jantz v. Muci, 759 [Link]. 1543, 1548 ([Link].1991) (quoting 1985 Resolution of the American Psychological
Association), 976 F.2d 623 (10th Cir.1992), cert. denied, 508 U.S. 952, 113 [Link]. 2445, 124 [Link].2d 662 (1993).
[61]
Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 440, 105 [Link]. 3249.
[62]
Kerrigan v. Commissioner of Public Health, supra note 46.
[63]
Id.
[64]
Id.
[65]
Varnum v. Brien, supra note 41.
[66]
Id.
[67]
Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.
[68]
Id. citing In re Marriage Cases, 183 P.3d at 442.
[69]
Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.
[70]
Id.
[71]
Kerrigan v. Commissioner of Public Health, supra note 46.
[72]
Varnum v. Brien, supra note 41, citing Kerrigan v. Commissioner of Public Health, supra note 46.
[73]
Id.
[74]
Kerrigan v. Commissioner of Public Health, supra note 46.
[75]
Id.
[76]
Id.
[77]
Id.
[78]
Romer v. Evans, 517 U.S. 620, 116 [Link]. 1620.
[79]
Id.
[80]
Section 5(2), Article VI of the 1987 Constitution states, in relevant part:
SECTION 5. x x x x
(2) The party-list representatives shall constitute twenty per centum of the total number
of representatives including those under the party list. For three consecutive terms after
the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector. (italics supplied)
[81]
On the other hand, Section 5 of RA 7941 provides:
SECTION 5. Registration. Any organized group of persons may register as a party, organization
or coalition for purposes of the party-list system by filing with the COMELEC not later than
ninety (90) days before the election a petition verified by its president or secretary stating its desire
to participate in the party-list system as a national, regional or sectoral party or organization or a
coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or
program of government, list of officers, coalition agreement and other relevant information as the
COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals. (italics supplied)
[82]
G.R. No. 147589, June 26, 2001, 359 SCRA 698.
[83]
Id.