Who would push for marriage equality in Philippine courts?

READER’S POST | By JESUS FALCIS

A week ago, the United States Supreme Court heard oral arguments on the constitutionality of Proposition 8, a California initiative amending the state constitution in 2008, and the Defense of the Marriage Act (DOMA), a federal law passed in 1996. Both laws restrict marriage to a man and a woman.

In the Philippines, the Family Code, issued by President Corazon Aquino in 1987 when she still had legislative powers, defines marriage as a special contract of permanent union between a man and a woman. However, the Constitution defines marriage merely as an inviolable social institution and as the foundation of the family.

During the oral arguments in the United States, advocates of marriage equality argued that Prop 8 and DOMA were unconstitutional because there is no substantial distinction between heterosexual marriages and homosexual marriages in furthering the state’s interest. They argued that the purpose of marriage is not pro-creative, as the Christian lobby argues, since sterile opposite-sex couples and couples who do not have children are allowed to marry. They invoked the Equal Protection clause.

The Philippine Constitution has a similar clause under Article III Section 1 of the Bill of Rights. It states that “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.” The Philippine Supreme Court has adopted a four-fold test in determining the validity of laws under this Equal Protection clause. The classification must (1) rest on substantial distinction, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class.

Thus, laws that restrict marriage between a man and a woman create two classifications: opposite-sex couples and same-sex couples. It must be remembered that same-sex relationships are not prohibited by law, since that would be unconstitutional for violating the right to privacy and liberty. Since gay couples are free to enter into a relationship, it must be asked why they are not free to marry.

A decision from the US Supreme Court striking down gay marriage bans, which might come out around June or July, will only help a similar case in the Philippines. Local politicians and religious groups would be hard-pressed to find a legitimate government interest to ban gays from marrying, as has been shown by the oral arguments in the United States. There, the Justices have asked skeptical questions about pro-creation being the state’s interest in regulating marriage.

Justice Elena Kagan even pointed out that the passage of DOMA was driven by an animus, or intent to discriminate, against gays. She read out loud in session a portion of the House Report, which said that DOMA was meant to reflect the Congress’s “collective moral judgment and to express moral disapproval of homosexuality.”

But while legal arguments against gay marriage bans in the Philippines are easy to make and would be highly persuasive, the country is still far away from a Prop 8 or DOMA debate. For Philippine courts to have an opportunity to strike down the Family Code for being unconstitutional, there must be an actual case or controversy.

There would have to be a gay couple brave and willing enough to put themselves in the limelight. The said couple would have to apply for a marriage license at the Civil Registrar, be denied such application, then hire a lawyer, file a case, and be exposed to intense media and public scrutiny– perhaps even be featured in a Catholic poster called “Team Beki”.

Any takers?

Readers may indicate their wish to contribute posts in the blog’s comment section.

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3 thoughts on “Who would push for marriage equality in Philippine courts?”

  1. I’m wondering what is the advantage of marriage anyway, when cast against the disadvantage of a lifetime contract with no easy way out, other than lying and saying one’s spouse is a lunatic. Well, yes the kids carry the tag of “illegitimate” which costs them some benefits and gains them some sneers from the uppities. But many of the poor kids of the Philippines are illegitimate, and their fathers have fled leaving no support whatsoever. They get by. Tell me again why marriage is even a state-recognized institution. In the US a verbal contract is as good as a written one. So if I say, “darling, I’m with you for life”, hey, that’s a contract, eh? God doesn’t require public profession. He requires honesty of heart and commitment of mind. I say end marriage as a state-recognized institution. I am for free love as a partner to free speech.

    Thanks for provoking these thoughts.

  2. The word marriage carries a lot of baggage. If, without using the word marriage, one asks why Mr and Mr or Ms and Ms cannot avail of all the legal rights of Mr and Mrs, the inequality and religious/moral bias will be more obvious. Ask for legal recognition of the partnership or union, that will put homosexual unions on equal footing with heterosexual unions. Never mind what it is called.

  3. @mister societyofhonor

    I think it’s still important for the state to recognize marriage so as to regulate long-term commitments. Of course, there needs to be divorce as well. The state needs to regulate marriage, whether monogamous or polygamous (because we allow Sharia law in the Philippines for Muslims), to promote stability and commitment in these relationships.

    While legal benefits can be de-coupled from marriage, the state still has an interest for marriages to be stable because a marital relationship is a basic unit of society that is self-sufficient and a mutual safety net, which relieves the state of some burden. If the spouses have a child, then a more compelling interest exists in promoting the stability and commitment of a marital relationship.

    Research has shown that stable, committed and long-term monogamous relationships (not sure about polygamy) are healthy and beneficial for the individual spouses, and their child if any. Marriage discourages infidelity and rent-seeking behavior from individuals, whether promiscuous and unfaithful males or females.

    @mister buencamino

    Yes, I wholeheartedly agree. It would be like the situation of blacks during Segregation. There’s no such thing as separate but equal. Homosexuals cannot have a separate institution similar to marriage and be said to be treated equally.

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