SC issues guidelines on same-sex marriage oral arguments

Ina Reformina, ABS-CBN News

Posted at Jun 15 2018 05:57 PM

MANILA - The Supreme Court (SC) has issued guidelines on the scheduled oral arguments on Tuesday, June 19, on a petition that seeks to allow same-sex marriage in the Philippines.

The petition was filed in May 2015 by lawyer Jesus Nicardo Falcis III, who described himself in the pleading as "an open and self-identified homosexual.”

Falcis urged the high court to declare as unconstitutional Articles 1 and 2 of Executive Order (EO) No. 209, the Family Code of the Philippines, which "define and limit marriage as between man and woman." 

Named respondents in the case were the Civil Registrar General while petitioners-in-intervention include LGBTS Christian Church Inc, Reverend Crescencio "Ceejay" Agbayani Jr., Marlon Felipe and Maria Arlyn "Sugar" Ibanez. Lawyer Fernando Perito is, meanwhile, an intervenor.

In a four-page advisory, the high court gave each of the parties 20 minutes to argue their case before the SC en banc. 

After each presentation, the justices would be given the "privilege to ask any question on any relevant matter or require submission of any document necessary for an enlightened resolution of this case."

The parties are directed to argue on the following issues (quoted verbatim from the advisory): 

- Whether or not the petition and/or the petition in intervention is properly the subject of the exercise of the Court's power of judicial review;

- Whether or not the right to marry and the right to choose whom to marry are cognates of the right to life and liberty;

- Whether or not the limitation of civil marriage to opposite-sex couples is a valid exercise of police power;

- Whether or not limiting civil marriages to opposite-sex couples violates the equal protection clause;

- Whether or not denying same-sex couples the right to marry amounts to a denial of their right to life and/or liberty without due process of law;

- Whether or not sex-based conceptions of marriage violate religious freedom;

- Whether or not a determination that Articles 1 and 2 of the Family Code are unconstitutional must necessarily carry with it the conclusion that Articles 46(4) and 55(6) in the Family Code (re: homosexuality and lesbianism as grounds for annulment and legal separation) are also unconstitutional; and

- Whether or not the parties are entitled to the reliefs prayed for.


Falcis argued that the assailed provisions in EO No. 209 violate homosexuals' right "to found a family" as protected under Section 3 (1) of the 1987 Constitution.

He also said these provisions "deprive [him] and other homosexuals the right to liberty without substantive due process of law" and "deny them the equal protection of the laws."

He further argued that the subject provisions cause lesbian and gay Filipinos to be "relegated to 2nd class citizens." 

"The 1987 Philippine Constitution does not define marriage solely as between man and woman... The right of individuals, homosexual or heterosexual, to choose the person he or she wants to have a relationship with and consequently have that relationship legally recognized with all concomitant rights and obligations is a private decision for individuals to make, not the state," the petition read.

Limiting the definition of marriage between man and woman is grave abuse of discretion, argued Falcis, based on the following grounds:

- the 1987 Constitution does not define marriage as between man and woman; 

- the Family Code does not require married individuals to procreate or have the ability to procreate;

- homosexuals are not ordinarily impotent, and not prohibited by law to adopt;

- heterosexuals are no better parents than homosexuals;

- gay individuals are human beings who can love another person just like straight individuals; and 

- both gay and straight couples can enter into long-term relationships, and have the same chances of breaking up. 

Falcis also urged the high court to void Articles 46 (4) and 55 (6) of the Family Code "which mention lesbianism or homosexuality as grounds for annulment and legal separation."

"Petitioner has grown up in a society where same-sex relationships [are] impaired because of the law's normative impact. Petitioner's ability to find and enter into long-term monogamous same-sex relationships is impaired because of the absence of a legal incentive for gay individuals to seek such relationship.”

The petition urged the SC to direct the Civil Registrar General to stop the enforcement of the questioned provisions against homosexual couples in processing applications for and in issuing marriage licenses. 



In its comment filed on March 29, 2016, the Office of the Solicitor General (OSG) sought the dismissal of the petition, arguing that Falcis has no legal standing to question Articles 1, 2, 46 (4), and 55 (6) of the Family Code since he failed to show an “injury in fact,” and failed to show that he represents a class “who may have been injured by the absence of a law recognizing same-sex marriages.” 

The OSG explained that the petition is a mere request for an advisory opinion since there is no case or controversy that needs the high court’s intervention. Under Rule 3 of the Internal Rules of the Supreme Court pertaining to the Exercise of Judicial Functions, the high court is barred from issuing advisory opinions.

“The Court cannot issue advisory opinions on the state and meaning of laws, or take cognizance of moot and academic questions, subject only to notable exceptions involving constitutional issues,” the provision states. 

The OSG said Falcis has made no attempt to provide any factual basis for triggering the exercise of the high court’s expanded and/or traditional jurisdictions.

“For the [SC] to indulge petitioner would be an attempt at abstraction,” the OSG said.

It also argued that Falcis failed to implead Congress, which should have been a respondent in the case being “an indispensable party in this case because the petition’s cause of action is directed against a legislative policy.” 

The OSG said that the separation of powers between the judiciary and legislature must be upheld and as a co-equal branch of government, Congress must be given an opportunity to participate in the proceedings. 

The OSG also alleged Falcis committed an error in impleading the Civil Registrar General since he did not state how the latter could have acted in grave abuse of discretion pertaining to applications for a marriage license. 

It further stressed that the petition challenges the Family Code and not any act of the Civil Registrar General. 

Apart from these alleged infirmities, Falcis should have respected the hierarchy of courts and filed his petition before the lower courts, the OSG stressed. 

It further said Falcis should have sought a writ of mandamus which would have compelled the recognition of same-sex marriage in the event the high court ruled in his favor.