Same-sex marriage up for oral arguments at SC

Kristine Joy Patag - Philstar.com
Same-sex marriage up for oral arguments at SC
Jesus Falcis III, in 2015, filed a 31-page Petition for Certiorari and Prohibition against provisions of the Family Code of the Philippines. He asked the SC to declare as unconstitutional Articles 1 and 2 of The Family Code of the Philippines.
Michael Rebuyas, file

MANILA, Philippines — It took more than three years for the petition filed by Jesus Falcis III for the Supreme Court to set oral arguments on his petition questioning limiting marriage to being a union of a man and a woman.

On Tuesday, June 19, the Supreme Court will hear arguments on his plea to allow the union of same-sex couples in the Philippines.

Although 26 countres now recognize same-sex marriages, it is a different story in the Philippines, where a majority identifies as Catholic. 

Falcis' plea is the first petition challenging the constitutionality of the Family Code of the Philippines, which defines what the state will recognize as a marriage.

READ: Petitioner: No intention to force churches to perform same-sex unions

On the legislative front, just last year, the LGBT community scored a victory as the anti-discrimination bill hurdled the House of the Representatives, with a vote of 198-0-0.

The Sexual Orientation and Gender Identity and Expression (SOGIE) bill prohibits the discrimination on the basis of sexual orientation, gender identity or expression.

On Tuesday, the LGBT community and its allies will face another battle to push for their rights. This time, it is at the highest court in the country.

What the petition says

Falcis, in 2015, filed a 31-page Petition for Certiorari and Prohibition against provisions of the Family Code of the Philippines. He asked the SC to declare as unconstitutional Articles 1 and 2 of the Family Code, which was issued as Executive Order 209 by President Corazon Aquino in 1987.

Article 1. Marriage is a special contact 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 contacting parties who must be male and a female

He claimed that the two provisions deprive LGBTs of their right to due process and to equal protection, the right to decisional and marital privacy, and the right to found a family "in accordance with their religious or irreligious convictions."

The lawyer also argued that the Philippine Constitution “does not define marriage solely as between man and woman.”

Falcis argued that homosexuals “can fulfill the essential marital obligations laid down by the Family Code,” as it does not require married individuals to procreate or have the ability to procreate.

What the Petition-for-Intervention says

The LGBTS (Lesbian, Gay, Bisexual, Transgender and Straight) Christian Church, through Rev. Cresencio Agbayani and Marlon Felipe, sought to become parties in the case.

The LGBTS Church, through Agbayani, performs the “Rite of Holy Union between lesbian and gay couples since 2012. As a party to the case, it stressed: “Religious organizations that conduct opposite-sex marriage ceremonies can register the same at the local civil registrar while the LGBTS Church cannot.”

On Aug. 3, 2015, the petitioners applied for a marriage license but were denied.

The denial, they said, “gave rise to an actual case—with the petitioners demanding their rights under the constitution and the government implementing the Family Code, part of which contravene constitutionally protected rights.”

“Petitioners have a right to equal protection of the laws and the right to found a family in accordance with their religious convictions as protected by the Constitution.”

What the Office of the Solicitor General says

The government’s primary legal counsel office—then led by Florin Hilbay—said that Falcis’ petition should be junked due to “its jurisdictional defects.”

The OSG argued that Falcis lacks legal standing in the case and failed to “demonstrate any ‘injury in fact’ from the operation of the Family Code.”

The solicitor general also pointed out that the petition is a challenge to legislative policy, but Congress was not named as a respondent.

“The principle of separation of powers and interdepartmental courtesy among coordinate and co-equal branches of government compel the Honorable Court to, at the very least, give Congress the opportunity to participate in the proceedings and present its side of the controversy,” the comment read.

The OSG also asserted that the determination of capacity to enter into contracts falls upon the sphere of the legislative branch, and not the Judiciary.

“Whether by negligence or ignorance, petitioner has failed to seek judicial review of a definitionally-fundamental aspect of marriage as we know it today without impleading the institution of government responsible for that policy,” the OSG added.

The OSG also stressed that the Civil Code “only allows heterosexual marriage.”

“Parties who are legally capacitated to contract marriage under Article 54, in relation to Article 53 of the Civil Code are “male...and...female,” not “male or females,” the comment further read.

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