Issue: Whether or not I’m in favor of same sex marriage.

Same-sex marriage, is the practice of marriage between two men or two women.1
Advocates fights for the right of all individuals the right to marry and unions. Different countries
in Europe and America adapted the concept.

ARGUMENTS

Meanwhile, here in the Philippines, one lawyer started its battle to defend the rights of
Lesbian, Gay, Bisexual and Transgender (LGBT) for equal protection of laws and asking the
constitutionality of the Family Code of the Philippines. Atty. Jesus Falcis III filed the petition in
2015. Supreme court approved the oral argument of the same sex-marriage petition that seeks to
invalidate the Articles 1 and 2 of the Family Code.

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

In 2018, the petitioner argued that there are limitations for two non-married couple. He
cited that if one of the couple was in the hospital and in comatose stage, the partner was not
granted the right to access Philhealth, GSIS, and SSS benefits. There are rights prohibited due to
legality and can only be attained through marriage. The intent of the petitioner is to widen the
rights and access of LGBT couples. He argued that the concept family as the smallest unit yet the
most powerful in the society can be attained by LGBTs.

Let me cite the important questions, answer of both petitioner and Supreme Court as
follows:
 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.”

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.”2

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.)

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.”

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

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

CONCLUSIONS

I focus on the petition filed by Atty. Jesus Falcis III since it discusses more on the
grounds of constitutionality of marriage and this is a current case filed before the supreme court
of the Philippines. I have a lot of realizations specially the citations of the provisions under the
Civil Code and constitution.

The procedure itself has been questioned by one of the Associate Justice. The petitioner
was advised to file the petition first before the Regional Trial Court. There should be a right that
was violated and injury caused to the petitioner. Putting Civil Registrar General as the defendant
found to be not right as it did not inflict injury to the petitioner. The hierarchy of court must be
followed and facts must be presented. The separate opinion on cases are just merely opinion
which the intention is for consideration in future cases but it does not mean that it will be part of
the judicial system or basis of jurisprudence.
 The petition should be subject to Congress authority not to Courts view. The petition to
legalize same sex marriage become more like a consultation or question since it did not go to the
proper body of government. Supreme Court does not have the power to amend the constitution or
the family code. Its primary function is to interpret or apply the law and jurisprudence. Congress
should be the right body of the government to legislate or pass bill. It was also emphasized that
the congress has pending bill regarding Civil Union.

The constitution did not specifically indicate about the sexes to qualify for marriage but
the main purpose of marriage, in my opinion, is to procreate. The state recognizes marriage to
encourage procreation for the benefit of the state to have balance in terms of inhabitants. Just
imagine if majority are homosexes couple? Will procreation will still be dominant? State will
have lesser labor force. Imbalance of population will have a huge impact to the state.

Though I understand the petition of Atty. Falcis in behalf of the LGBT community. The
intention is good for the benefit of the said community. It will help lessen the discrimination
against LGBT. It will help them to have better access to claims of their partners. Psychological
effect was also considered as the most impacting to their group. It will lessen the burden of
keeping or hiding their genders. As a norm, we can only see a man and woman contracting
marriage. The petitioner emphasized the they wanted to avoid depression in worst case scenario.
But insofar as the violation of rights is concerned, I do not see any rights that have been violated.
The rights given to all gender are equal. No law passed that will prohibit them from exercising
their personal rights.

The marriage is a union between man and a woman as emphasized by supreme court.
Historically and based on religious belief, it should only be between by a man and a woman. The
social norm will be twisted if it will be allowed in the Philippines. The Supreme Court said that
civil union is just around the corner and we don’t need to change the meaning of the marriage.

Succession and adoption was emphasized by the petitioner. He emphasized the

I stand against same sex marriage not because I’m a Roman Catholic by faith. I stand for
natural law which male is for female and female is for male. Definition and requirement for
Marriage under the Family Code is not unconstitutional since it only follows the natural law. The
culture and sanctity of the marriage should be preserve and protected at all times. If we are
promoting equality, then we should not seek for law to be enacted in favor of minority or as if we
are asking for us to be special and unique among all. The constitution itself promotes equal rights
for all.

1
https://www.britannica.com/topic/same-sex-marriage
2
https://www.rappler.com/nation/205106-supreme-court-same-sex-marriage-oral-arguments-guide