SC begins oral arguments on same-sex marriage

FILE: “Nothing in Article XV (The Family) or other provisions of the Constitution limits the definition of marriage as between a man and a woman. But something in the Constitution commands that marriage under the Family Code be extended to lesbian, gay, bisexual, or transgender couples,” Falcis told the justices. (Photo: Jesus Falcis/Facebook)

MANILA — The Supreme Court (SC) on Tuesday started the oral argument on the petition filed last May 2015 challenging the validity of provisions of the Family Code limiting marriage to heterosexual couples.

The petition originally filed by lawyer Jesus Nicardo Falcis III on May 18, 2015, seeking the lifting of the prohibitions on same-sex marriage for being unconstitutional.

Falcis III, who admitted to being gay, filed the controversial petition for certiorari and prohibition and he was joined in the petition by male couple Crescencio Agbayani and Marlon Felipe and a certain Sugar Ibanez and her partner.

During the oral argument, Falcis reiterated that portions of Articles 1 and 2 of the Family Code which defines and limits marriage as between “man and woman” and portions of Articles 4.6 (4) and 55 (6) which mentions lesbianism or homosexuality as grounds for annulment and legal separation of the Family Code should be nullified for being unconstitutional.

He explained that limiting civil marriages and rights that go with it to heterosexuals violate the Constitutionally-guaranteed provisions on equal treatment, undue interference to liberty rights and marital autonomy.

“Nothing in Article XV (The Family) or other provisions of the Constitution limits the definition of marriage as between a man and a woman. But something in the Constitution commands that marriage under the Family Code be extended to lesbian, gay, bisexual, or transgender couples,” Falcis told the justices.

Falcis argued that Articles 1 and 2 of the Family Code are unconstitutional as they deprive the petitioners of the right to marry without substantive due process, deny the petitioners of the equal protection of the laws, and violate the religious freedom of petitioners.

He then stated the case of Felipe and Agbayani who were deprived of their right to marry whom they loved and were accused of being immoral in his workplace and could not even show to people that he is not okay.

Falcis also gave an emphasis that there are two important right rights of every individual —decision to marry and decision of who to marry.

The lesbian-gay-bisexual-transgender (LGBT) community justified under the Constitution of Supremacy Article I and II is presumed as constitutional and stated that marriage is indeed a foundation to establish a conjugal and family life.

“Procreation is not a requirement before and after marriage” Falcis said.

During interpellation, Associate Justice Marvic Leonen described the petition as “a very dangerous case” as the issue would require the SC “a very intimate reading of the provisions of the Constitution.”

Leonen also noted that in other countries in the United States, Europe and Australia, the issue of same-sex marriage have resulted in “political battles” that were waged in parliaments, Congress, churches and other political venues.

Leonen further noted that the issue of same-sex marriage will likely face objection from dominant religious faiths.

“We are going up against a very powerful heteronormative culture in this country,” Leonen pointed out.

But Falcis insisted there is a compelling state interest for LGBT couples to be included in the institution of marriage.

“LGBT couples, with or without children, constitute a family and so should have access to marriage to serve as their foundation,” he explained.

Falcis maintained limiting marriage between a man and a woman is a grave abuse of discretion considering that the Constitution does not define marriage solely as between a man and a woman and that even the Family Code does not require married individuals to procreate or have the ability to procreate.

He also argued that “heterosexuals are no better parents than homosexuals just as homosexuals aren’t necessarily worse parents than heterosexuals.”

“There is no substantial distinction. Same-sex couples just like opposite-sex couples can and do establish a conjugal and family life,” he added.

Falcis cited the lumping of homosexuality or lesbianism with drug addiction as grounds for annulment or legal separation as a clear violation of equal protection clause of the Constitution since it associates LGBT as negative traits.

Associate Justice Teresita Leonardo-De Castro discussed the possibility that the implementation of some laws would be affected if same-sex marriage is allowed.

She specifically asked Falcis how the provisions of the Revised Penal Code on concubinage and adultery should apply in case of same-sex marriage.

Falcis answered :” It will still be sex specific but should highlight the fact that there are bisexuals in our community and some of them may still fall in that provision.

“If they come to court and there is no law to guide judges, how will the judges decide?,” De Castro asked.

Associate Justice Francis Jardeleza expressed strong opposition to the petition, who raised procedural issues and technicalities in Falcis’ decision to directly seek the high tribunal’s judicial intervention.

“I think you are in great peril that your case will be dismissed,” Jardeleza told Falcis during the oral arguments.

“I will be candid to you that at this point in time, I am more inclined to dismiss your case,” Jardaleza added.

Associate Justice Estela Perlas Bernabe questioned the propriety and necessity of the petition, pointing out that Falcis did not even claim that his individual right was violated by the prohibition on same sex marriage.

As pointed out by Associate Justice Lucas Bersamin, Jardeleza said Falcis, as the main petitioner, should have first raised the issue before the regional trial court in deference to the rule on the hierarchy of courts.

Meanwhile, Acting Chief Justice Antonio Carpio adjourned the proceedings and set the next oral arguments on June 26 at 2 p.m. where he directed Falcis and Solicitor General Jose Calida to return.

The petitioners also asked the SC to “prohibit the Civil Registrar-General from enforcing the aforementioned portions of Articles 1 and 2 of the Family Code in processing applications for and in issuing marriage licenses against homosexual couples.”

The petitioners argued that such limitations imposed by the almost three-decade-old Family Code favoring only opposite-sex marriages effectively repealed the 1949 Civil Code, which he stressed never made such a distinction.