Highlights from the oral arguments on same-sex marriage
MANILA, Philippines — In May 2015, Jesus Falcis III was a new lawyer when he went to the Supreme Court to pave the way for same-sex marriages in the country.
It took more than three years for his petition to be put on the Supreme Court's agende—for oral arguments no less.
Falcis' petition is a first: As an openly gay lawyer, he said that provisions in the Family Code of the Philippines impede his, and other LGBTs right to due process and 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 SC held a two days of hours-long hearings on Falcis’ petition, on July 19 and 26. The parties are ordered to file their respective memoranda 30 days from June 26.
READ: Calida: Falcis' petition for same-sex marriage lacks merit
Here is a rundown of some of the points discussed in the oral arguments on Falcis' historic petition:
Legal standing
Solicitor General Jose Calida, in his opening statement, pointed out that Falcis, as a petitioner, cannot claim “undue injury” since he has not applied for and has not been denied a marriage license himself.
In his opening statement, Calida said: “Falcis failed to allege an actual case or controversy.”
Under Article VIII of the 1987 Constitution, the Supreme Court is vested with the judicial power to “settle actual controversies involving the rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction.”
He merely argued in his petition that his ability to settle down and have a companion for life, is impaired because of the absence of a legal incentive for homosexuals to seek such relationship.
Associate Justice Lucas Bersamin, interpellating Falcis, raised: "What we need is an actual case and controversy and that requires an adverse party, and yet you say nothing has been denied to you by the respondent [government], so where would this adverseness come from?"
Falcis, for his part, said that while he admittedly has not filed a marriage license application, he insists that: “The right to marry is individual in nature, where it allows people to may or may not marry.”
“That is the injury that I suffer...that as a Filipino, I do not have because I am attracted to the same sex and...I do not have the right to may or may not marry as other people situated in the Philippines,” he told the high court justices.
What the Constitution says
More than three years since Falcis filed his petition, he had a chance to personally argue his case before the SC magistrates. In his opening statement, he said: “Nothing in Article XV [Family] or other provisions of the constitution limits the definition of marriage as between a man and a woman.”
Article XV provides:
Section 1: The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
Associate Justice Marvic Leonen zeroed in on this in the arguments. Quizzing Calida, he asked: “What is the harm in allowing them (homosexual couples) to marry?”
Calida rebutted: “The harm is that the constitution and our laws do not sanction such marriage.” The solicitor general also stressed that it has been a “tradition” that marriage should be between a man and a woman.
But Leonen then asked if the very letter of the constitution state that marriage should only be between opposite sexes.
The solicitor general later softened his stance and conceded: “It does not say in such language.”
He, however, added that he will expound on his reply to Leonen’s questions in his memorandum.
Transcendental importance
SC justices have said that they are inclined to dismiss Falcis’ petition due to points raised by their colleagues, one of the most glaring of which is his lack of legal standing in the case.
Associate Justice Francis Jardeleza did not mince his words, while questioning Falcis: “I think you are in great peril that your case will be dismissed.”
Bersamin during his interpellation said: “You have a very strong argument but you have no case. That is my point.”
But Falcis invoked “transcendental importance” in his petition. He cited that his petition is significant o the nation because of the millions of LGBT Filipinos all over the country who are "deprived from marrying the one they want or the one they love.”
Calida however argued that even before the court can weigh in on the importance of the case, it should first discuss procedural issues.
But Leonen argued that transcendental importance is an exception to justiciablity. He cited the case of the Reproductive Health law, which had no implementing rules and regulations when it was brought to court and therefore, no “injury” was cited in the petition.
“Yet the court ... went on to make a ruling on the RH issues,” Leonen pointed out.
READ: Leonen asks: Is there harm in letting same-sex couples marry?
Civil unions
On the legislative front, House Speaker Pantaleon Alvarez’s (Davao del Norte) bill seeking the recognition of same-sex unions was pending at the House Committee on Women and Gender Equality as of May 18.
Leonen mentioned civil unions in his interpellation of Falcis. He asked why Falcis was pushing for the State’s recognition of marriage if same-sex couples are allowed to enter into “contractual relations.”
Falcis said there are “contracts and stipulations that will not be allowed unless you are married because they are contrary to law.” He said insurance inheritances from Social Security System and Government Service Insurance System can only be given to a spouse or next of kin.
READ: LGBTs lose 'bundle of rights' without marriage, Falcis tells SC
Acting Chief Justice Antonio Carpio for his part said that same-sex unions are constitutional.
During his interpellation of Calida, he said: “Supposing those agreements are now embodied in a law, would that be constitutional? Of course, because even without the law, that would be constitutional, correct?”
These contracts may involve burial and inheritance decisions, he said. He said that under the law, the said agreements are constitutional.
Calida agreed with Carpio’s view.
“We don’t call it a marriage, we call it a union,” Carpio added.
Calida then added: “As long as the rose does not smell like a rose, then there’s no problem.”
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