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?

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