By Rey Panaligan
Solicitor General, Jose Calida asked the Supreme Court (SC) on Tuesday to dismiss the petition to allow same-sex marriage in the country.
“The case now is whether or not the State will allow marriage between the same sex and our position is no because it is against the Constitution and the Family Code,” Calida stressed during the resumption of the oral arguments on the petition.
“The Office of the Solicitor General (OSG) has always been of the position that the pursuit of happiness is everyone’s birthright. Same-sex couples can live happily together. But they cannot demand that the State recognize same-sex marriages because the Constitution simply does not allow such unions,” Calida said.
Arguing for the government against same-sex marriage, Calida said that based on constitutional construction “marriage is a union between a man and a woman.”
“The definition of marriage adopted by the drafters of our Constitution is guided by teachings of history and recognition of the traditions that underlie our society — marriage, as traditionally conceived in the Philippines, has always been between a man and a woman,” he said.
At the same time, Calida stressed that “while the right to marry is recognized as a cognate of the fundamental rights to life and liberty, Article XV (of the Constitution) limits this right by making it clear that marriage may only be between a man and a woman.”
Last week, the case was argued by its main petitioner, lawyer Jesus Nicardo M. Falcis III, a self-confessed gay, who wanted the SC to declare unconstitutional Articles 1 and 2 of the Family Code that “violate petitioner’s constitutionally protected right to due process and equal protection, right to decisional privacy, and right to found a family in accordance with religious convictions.
Falcis emphasized that to allow marriage of same-sex couples is a matter of “valuing their dignity.”
“The Family Code limited the definition of marriage by itself without due regard to constitutional provisions about right to marry in relation with equal protection clause,” he lamented.
He told the SC that portions of Articles 4.6 (4) and 55 (6) which mentions lesbianism or homosexuality as ground for annulment of marriage and legal separation should be nullified for being unconstitutional.
He said the 1949 Civil Code of the Philippines did not define and limit marriage as between man and woman.
He pointed out it was only in 1987 when then President Corazon C. Aquino issued Executive Order 209, now known as the Family Code, that repealed Articles 52, 53, and 54 of the Civil Code and “thus changing and limiting the definition of marriage as between man and woman.”
He stressed that “limiting the definition of marriage as between man and woman is, on its face, a grave abuse of discretion because the 1987 Constitution does not define marriage solely as between man and woman, and the Family Code does not require married individuals to procreate or have the ability to procreate.”
“Limiting civil marriage and rights that go with it to heterosexuals violate the Constitutionally-guaranteed provisions on equal treatment, undue interference to liberty rights and marital autonomy,” he said.
He added that there is compelling interest for LGBT (lesbian, gay, bisexual, transgender) 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 stressed.
He said limiting marriage between a man and a woman is a grave abuse of discretion because 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.
“Heterosexuals are no better parents than homosexuals just as homosexuals aren’t necessarily worse parents than heterosexuals,” he said.
At the start of yesterday’s debate, Calida said that even on technical grounds the Falcis petition and the intervention filed by a group should be dismissed outright.
He said Falcis has no legal standing to seek relief from the SC because he (Falcis) has not proven that his right was impaired by the prohibition on same-sex marriage.
“Falcis failed to allege an actual case or controversy. 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,” Calida said.
On lack of legal standing, he said: “Falcis has not shown that the implementation of Articles 1 and 2 of the Family Code causes any direct injury to his rights. He also did not state any particular act committed that will impair any of his rights.”
Calida suggested that Falcis and his group should go to Congress and seek a constitutional amendment that would allow same-sex marriage.
“Until the Constitution is changed, they have no cause to complain. Petitioners should lobby for a constitutional amendment redefining marriage to include same-sex,” he stressed.