AFTER three years, the Supreme Court (SC) gave proponents of same-sex marriage the opportunity to defend their position at Tuesday’s oral arguments on the petition seeking to legalize marriage of homosexual couples in the country.
Lawyer Jesus Nicardo Falcis III, who admitted being gay, filed the controversial petition for certiorari and prohibition seeking the lifting of the prohibitions on same-sex marriage for being unconstitutional.
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 marriage and the rights that go with it to heterosexuals violates 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 noted that the Office of the Solicitor General , in its comment to the petition, also failed to cite any compelling state interest to limit marriage as only between a man and a woman.
On the other hand, 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.
During interpellation, Associate Justice Marvic Leonen described the petition as “a very dangerous case” as the issue would require the SC to make “a very intimate reading of the provisions of the Constitution.”
Leonen also noted that in other countries in the United States, Europe and Australia such as the United States, the issue of same-sex marriage has 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 religions.
“We are going up against a very powerful heteronormative culture in this country,” Leonen pointed out.
Meanwhile, Associate Justice Teresita Leonardo-De Castro said 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.”
To which De Castro followed up with another question: “If they come to court and there is no law to guide judges, how will the judges decide?”
In their petition, 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 petitioner 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.