TITLE: SAME-SEX MARRIAGE IN THE PHILIPPINES

I. Overview

According to the 2013 research of the Public Radio International, an American public

radio organization, the Philippines ranked as number 10 in the 20 most gay-friendly countries

in the world. Surprisingly, the United States of America is not included given that 37 out of its

50 states allow same-sex marriage. This fact is noteworthy considering that some of the

Philippine laws such as the Civil Code was based from the laws in the United States and several

American jurisprudences were also used by the Supreme Court in their rulings.

Pew Research Center, an American study group, noted that there is a growing number

of governments which consider granting legal recognition to same-sex marriage in the world.

As of 2018, same-sex marriage is already performed and recognized by law (nationwide or in

some jurisdictions) in countries such as Argentina, Australia, Belgium, Brazil, Canada,

Colombia, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta,

Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, the

United Kingdom, the United States, and Uruguay. Most of these countries are from Europe,

North America and South America.

In Asia, Israel and Armenia recognize same-sex marriages validly performed abroad.

Israel recognizes unregistered cohabitation for same-sex couples. Several cities in Japan,

Taiwan and Cambodia provide same-sex couples with some limited rights and benefits,

including hospital visitation rights. In Hong Kong, the same-sex partners of residents can

receive spousal visas. The most recent development is in Taiwan, becoming the very first
nation in Asia to legalize same sex marriage, following a Constitutional Court

ruling, legalizing same-sex marriage by May 24, 2019 according to the Los Angeles Times.

This is a sad reality in one of the most LGBT-friendly country in the world where

neither same-sex marriage nor civil union for same-sex couples are not recognized by law.

II. Introduction

The observance of basic human rights is more than just a mandate from international

human rights advocates. It is considered a recognized right protected by none other than the

Constitution itself. This is outlined in Article III, otherwise known as the Bill of Rights which

provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of the laws.

Article 13 of the Constitution also mandates Congress to give priority to the enactment

of legislations to promote and protect human rights and dignity as well as the creation of the

Commission on Human Rights, an independent constitutional commission which enjoys fiscal

autonomy from the three branches of the government.

It is also notable that the Philippines is a signatory of many international human rights

conventions such as the International Convention on Civil and Political Rights, Universal

Declaration of Human Rights, and the Convention on the Elimination of All Forms of

Discrimination Against Women.

Laws in the Philippines put emphasis on the sanctity of marriage as the foundation of

the family, the basic unit of society as can be found in the 1987 Philippine Constitution which
describes marriage as an inviolable social institution, is the foundation of the family and

shall be protected by the State.

This constitutional definition is further expounded by Article 52a of the Civil Code,

which defines marriage as not a mere contract but an inviolable social institution. Its

nature, consequences and incidents are governed by law and not subject to stipulation,

except that the marriage settlements may to a certain extent fix the property relations

during the marriage.

However, when the Family Code of the Philippines took effect in August 3, 1988, it

repealed the Civil Code’s definition of marriage, repealing it with a definition in Article 1,

which provides that marriage is a special contract 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. As one of the essential requisites of marriage in the

Family Code, it is explicitly provided that marriage can only be performed with a man and a

woman as its contracting parties.

Although there is no law which prohibits the legalization of same-sex marriage in the

Philippines, there is still a need for the legislature to enact a law redefining, and changing the

parties who may contract marriage. This has been the clamor of the members of the Lesbian,

Gay, Bisexual, Transgender (LGBT) community, who have been fighting for equality of

rights. Our legislators’ support for same-sex marriage can be traced almost two decades ago

when former House Representative Etta Rosales from the Akbayan party-list filed a House
Bill for the legalization of same-sex marriage during the 12th Session of Congress which was

subsequently re-filed in the succeeding session. Representative Rosales filed it again for the

third time as House Bill 634 in May 10, 2005. The senate version of this bill was filed by

Senators Bong Revilla and Miriam Defensor-Santiago in 2004 but later ended up in limbo. In

2016, a counterpart measure was sponsored by Senator Risa Hontiveros but it only also

reached as far as first reading.

III. Statement of the Problem

Given the statutory limitation imposed by the Family Code for parties contracting

marriage, same-sex couples are not recognized and given the same rights and privileges as

same sex couples. This prompted the researcher to delve into the legality and Constitutionality

aspect of same-sex marriage by examining applicable provisions and jurisprudence. At the

end of the study, the following question shall be answered:

Should same-sex marriage be legalized in the Philippines?

IV. Objective or Significance of the Study

There are only few studies regarding the subject matter of same-sex marriage in the

Philippines. Although this topic has been a topic of countless debates, there are only very

limited legal research on this topic. This is partly due to the lack of legislations protecting

LGBT rights where these studies can be anchored from. This study would contribute to a more

extensive body of knowledge to guide students in their future researches and legislators as

they craft more bills advocating same-sex marriage.

 LGBT rights are also human rights. The observance of human rights in the Filipino’s daily

lives is essential to achieve and maintain peace, justice and harmony in the country. Thus,

more studies on LGBT rights would increase advocates who would promote the protection of

the rights of the LGBT members. Increased awareness would also eventually result in the

reduction of discrimination of LGBT members in the Philippines. This means that every

Filipino would be empowered regardless of their sexual identity and orientation in the

performance of their role in nation building.

V. Scope and Limitations of the Study

This study is limited to the discussion of same-sex marriage that will be performed within

the territorial jurisdiction of the Philippines. In this research, same-sex marriage or gay

marriage refers to the matrimony of homosexual couples, which include gay and lesbian

couples. Although this study would primarily utilize Philippine laws and jurisprudence, it

would also incorporate facts, laws and jurisprudence from other countries where same-sex

marriage is legalized. This study would not include civil union of same-sex marriage which is

considered by many as an interim measure before the adoption of same-sex marriage for unity

and coherence of the topic. However, this is also mentioned in the purview of the research.

The researcher also has limited sources of laws and jurisprudence in the Philippines, given

that same-sex marriage is considered illegal based on the essential requisites laid down by the

Family Code.

VI. Conceptual Framework

A. Arguments Against Same-sex Marriage

Issue on Morality

Philippines is known as Asia’s bastion of Roman Catholicism. This explains

the Church’s political influence since 80% of the population are its members. The

Roman Catholic Church is considered as one of the major religious institutions

which opposes same-sex marriage in the Philippines.

In December 2017, Catholic Church leaders expressed their objection to

President Rodrigo’s proposal to legalize same sex marriage. Bishop Arturo Bastes

of Sorsogon claimed in a statement that the Catholic Church should never allow

and approve of same sex marriage as he called on Filipinos to never allow it.

According to Bishop Bastes stated that the main purpose of its opposition is

procreation of children and building a loving family, the basic unit of domestic

church, which is of course impossible in same sex marriage. The Philippine Council

of Evangelical Churches (PCEC) also expressed their objection to same sex

marriage. PCEC said that union between the same sex directly contradicts a central

teaching of Islam and Christianity, that is marriage is only between a man and a

woman.

This conservative view of the Church and its members is a great factor as

to why same-sex marriage is deemed immoral or sinful by the Roman Catholic

Church since time immemorial.

Requires a Rigorous Process

 According to Supreme Court Associate Justice Marvic Leonen during the

oral arguments on same-sex marriage in June 19, 2018, in other countries where

same-sex marriage is legalized, battles were won only after a rigorous political

process, such as tackling it in parliament first, and having thorough consultations

with other institutions like the Church. He also expressed his concern that the

country’s political infrastructure may not yet be ready for Atty. Jesus Falcis III’s

same-sex marriage petition in the Supreme Court. He also said that there’s even a

risk that the Supreme Court – the justices and the staff lawyers – may not

understand yet the nuances of sex, gender, gender identity, gender expression and

sexual orientation. He believes that the public is not ready to accept and understand

the nuances. If the public is not ready to accept and understand the nuances, then

they may commit a mistake and such mistake might be permanent. Furthermore,

the legalization of same-sex marriage may entail a very intimate reading of the

Constitution.

Affects Child Growth and Development

The legalization of same-sex marriage may affect a person’s early

childhood. Gender roles is more challenging to assume especially the biological

and physical aspects. For example, if a boy grows up with two women, with the

other one playing the role of the father or both plays the role of mothers, father

image will be lacking and the couple cannot answer questions typically asked by

boys to fathers, say, the physical changes in the body. Same goes for girls living

with two-male parents. This can also lead to gender role confusion for the child.
 Understanding these changes is a way of support a parent can show to their child

during their developmental years. There is also a greater possibility that a child of

a same-sex couple can be a victim of bullying especially from children of

heterosexual couples. In worst case scenarios, this may also lead to physical

violence on the part of the child being bullied.

B. Arguments In Favor of Same-sex Marriage

Promotes Equal Protection of Rights

As outlined in the equal protection clause in the 1987 Constitution, the

fundamental law of the land prohibits discrimination based on factors such as gender.

The legalization of same-sex marriage gives same-sex couples same opportunity when

it comes to health care, finances and taxes. Currently, two people cohabitating and in a

homosexual relationship living as couples are not given the security and protection of

what both have them earned and saved. If a partner dies, the surviving partner does not

have the right to the property under the name of the deceased even if both of them have

paid for the property. With the legalization of same-sex marriage, they are now

considered by the state they live in as legally married. They now can enjoy tax

reductions given to heterosexual married couples and are entitled to become heirs to

their spouses.

Homosexual relationships are also the same with heterosexual relationships

when it comes to the mistakes or abuses that can happen between the partners.

However, unlike heterosexual married couples, same-sex couples cannot file for
adultery, divorce and infidelity. With the legalization of same-sex marriage,

homosexual couples can now file for divorce and sue their partners with adultery or

infidelity.

Lessens Stigma and Discrimination of the Society

In predominantly Catholic Philippines, it is safe to say that legalizing same-sex

marriage is truly a struggle. The Philippines’ Roman Catholic Church, and other

denominations like the Iglesia Ni Cristo, have consistently made known their

opposition to homosexual relationships as presented in the following tables:

 The legalization of same-sex marriage can also reduce discrimination and stigma

on homosexuals because making the marriage legal gives same-sex couples the

affirmation that they are accepted not only by society but also the state. There have

been cases about discrimination of homosexuals as well as crime committed against

them such as the murder case of Jennifer Laude, a transgender which once again

ignited the legislators in the passing of an anti-discrimination bill. If this happens, no

one would be discriminated from marrying his or her partner because of sexual

orientation.

Towards a More Efficient Adoption Process

Once same-sex marriage is legalized, the adoption process would also be improved

to accommodate same-sex couples adopting their child. With the legalization, same-

sex couples can now adopt children just as heterosexual couples can without
 undergoing a tedious and lengthy procedure. Same-sex couples would also be given

options such as in vitro fertilization or by getting surrogate mothers or sperm donors.

VII. Conclusion or Recommendation

One’s stand in the issue of same-sex marriage would largely depend on a person’s

view on this controversial issue of morality. Up to this time, there are still many

obstacles that the legalization of same-sex marriage face. It may take decades or even

longer for the public to support this issue.

On the other hand, Atty. Jesus Falcis III petition in the Supreme Court for same-

sex marriage may be considered as a step closer towards achieving this goal, even if the

petition was denied, citing that he failed to allege an actual case or controversy.

However, the fact that it reached the Supreme Court is already milestone not just for the

LGBT community, but also for the Filipinos.

Despite the great challenges and obstacles of the legalization of same-sex marriage,

the researcher believes that there is no better time to start the change than today. With a

hope that same-sex couple would voice out their concerns and fight for their rights just

like in the US landmark case Baehr vs. Lewin, where same-sex partners Ninia Baehr and

Filipina American Genora Dancel sued for marriage equality and started the outcry for

same-sex marriage in Hawaii and in the entire United States.

The legalization of same-sex marriage would also depend on the Legislature to pass

a law or an amendment to allow marriage of same-sex couples. Without this, the

Supreme Court does not have the power to adjudicate the legality of same-sex marriages.

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