SUPREME COURT OF THE REPUBLIC OF THE PHILIPPINES THE SUPREME COURT (EN BANC) MANILA, PHILIPPINES
DE LA SALLE LIPA COLLEGE OF LAW PHILOSOPHY OF LAW MOOT COURT COMPETITION
THE CASE CONCERNING THE VALIDITY AND LEGALITY OF THE AMENDMENT OF THE FAMILY CODE OF THE PHILIPPINES ALLOWING SAME-SEX MARRIAGE (PETITIONER) v. SOLICITOR GENERAL (RESPONDENT)
FIRST DRAFT
--------------------------------------MEMORIAL FOR THE RESPONDENT --------------------------------------
November 26, 2016
QUESTIONS PRESENTED
I. Whether or not the amended family code allowing same-sex marriage violates the definition of ‘marriage’ as used in the 1987 Constitution, Article XV, Section 2.
II. Whether or not the amended family code allowing adoption among same-sex couples is in accordance with the concept of ‘family’ as used in the 1987 Constitution, Article XV.
III. Whether or not the amended family code allowing same-sex marriage is in accordance with the International Law.
IV. Whether or not the amended family code is violative of Natural Law and Divine Law
PLEADINGS AND AUTHORITIES
"The Family Code provides that the “nature, consequences, and incidents of marriage are governed by law and not subject to stipulation," but this does not go as far as reaching into the choices of intimacy inherent in human relations. These choices form part of autonomy, protected by the liberty and human dignity clauses. Human dignity includes our choices of association, and we are as free to associate and identify as we are free not to associate or identify” - Justice Marvic Leonen Mallilin vs. Jamesolamin, G.R. No. 192718, February 18, 2015.
“We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral vi ews of one part of the community to exclude from consideration the values of other members of the community." - Justice Mariano del Castillo
Ang Ladlad LGBT' Party vs. Commission on Elections, G.R. No.190582, April 8, 2010
I. THE AMENDED FAMILY CODE ALLOWING SAME-SEX MARRIAGE VIOLATES THE DEFINITION OF ‘MARRIAGE’ AS USED IN THE 1987 CONSTITUTION, ARTICLE XV, SECTION 2 a. The amended family code allowing same-sex marriage does not violate the definition of ‘marriage’ as used in the 1987 Constitution,
Article XV, Section 2. Article XV, Section 2 provides that “ Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” The Constitution does not establish the parameters of state protection of marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it. (Antonio v. Reyes, G.R. No. 155800, March 10, 2006) The Latin maxim “ubi lex non distinguit nec nos distinguere debemos” which in English translation means, “where the law does not
distinguish, courts should not distinguish” shall be applied with regard to the definition of marriage provided in the Constitution. Since it does not exclusively define marriage strictly between a man and a woman, such definition shall not be construed as to be exclusive and limited. Defining marriage as a stable heterosexual relationship to same-sex relationships is within the plenary powers of the legislature. Therefore, the amended Family Code which allows same-sex marriage does not violate the definition of marriage provided in Section 2, Art. XV of the 1987 Constitution.
II. THE AMENDED FAMILY CODE ALLOWING ADOPTION AMONG SAME-SEX COUPLES IS IN ACCORDANCE WITH THE CONCEPT OF ‘FAMILY’ AS USED IN THE 1987 CONSTITUTION, ARTICLE XV.
The amendments to the Family Code related to the freedom of same-sex couples to adopt a child and make the said child as their own, in fact and in law, is in accord with the spirit of the 1987 Constitutional provision defining a family. Viewed as the foundation of the nation that shall strengthen its solidarity and actively promote its total development, a family serves as the basic and the most important institution making a society. As quoted from Associate Justice Bienvenido Reyes in the decision of the Supreme Court of the Philippines in the case of Quiao vs. Quiao, it is in a family where children are molded either to become useful citizens of the country or troublemakers in the community. Allowing more individuals to have the privilege of adopting a child, including qualified same-sex couples, would probably help in achieving the real purpose of marriage. III. WHETHER OR NOT THE AMENDED FAMILY CODE ALLOWING SAME-SEX MARRIAGE IS IN ACCORDANCE WITH THE INTERNATIONAL LAW. A. Pacta Sunt Servanda
Pacta sunt servanda is a fundamental maxim of international law that requires the parties to keep their agreement in good faith. It bears pointing out that the pacta sunt servanda principle has become part of the law of the land through the incorporation clause found under Section 2, Article II of the 1987 Philippine Constitution. It states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations."1 The time-honored international principle of pacta sunt servanda demands the performance in good faith of treaty obligations on the part of the states that enter into the agreement. Every treaty in force is binding upon the parties, and obligations under the treaty must be performed by them in good faith.2 More importantly, treaties have the force and effect of law in the Philippine jurisdiction.3 B. International Covenant on Civil and Political Rights (ICCPR)
One of the treaties which the Philippines is a signatory is the International Covenant on Civil and Political Rights (ICCPR). The treaty is adopted by the United Nations General Assembly on the 16th of December 1966, and had been in force from the 23rd of March 1976. It commits the State-Parties to respect the civil as well as the political rights of individuals, which includes the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and fair trial. On the 23rd of October 1986, the Philippines ratified the International Covenant on Civil and Political Rights. As a signatory to the Covenant, the Philippines is obligated under international law and the 1987 Constitution to protect the inherent dignity and human rights of all its citizens.4 Principle of equality The principle of equality requires that any recognition with respect to the formal relationship available under the law to couples of the opposite sex should also be available to couples of the same sex. Hence, civil marriage shall be deemed to be included. Equality is a key human rights principle. It is set out in Article 26 of the ICCPR, which states that all people ‘ are equal before the law and are entitled without any discrimination to the equal protection of the law. ’ In addition, Article 2 of the ICCPR requires State Parties to ensure all individuals are to enjoy the rights set out in the ICCPR without any discrimination. Notably, Article 26 is broader in scope than Article 2(1) because it is a ‘stand-alone’ right which 1
Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212 (2000)
2
Vienna Convention on the Law on Treaties (1969), Art. 26.
3
Luna v. Court of Appeals, G.R. No. 100374-75, 27 November 1992, 216 SCRA 107, 111-112. 4
MVRS Publications, Inc v. Islamic Da'wah Council Of The Philippines, Inc., G.R. No. 135306, 28 January 2003
forbids discrimination in any law and in any field regulated by public authorities, even if those laws do not relate to a right specifically mentioned in the ICCPR. The right to equality before the law guarantees equality with regard to the enforcement of the law. The right to the equal protection of the law without discrimination is directed at the legislature and requires State Parties to prohibit and take action against it. Article 26 of the ICCPR does not specifically mention ‘sexual orientation’ or ‘sexuality’ in the prohibited grounds of discrimination. However, the phrase ‘other status’ has been interpreted to include ‘sexual orientation’. The United Nations Human Rights Committee (Human Rights Committee) has emphasized the obligation on all parties to the ICCPR to provide ‘effective protection’ against discrimination based on sexual orientation. Interpretation of the right to marry in relation to its preamble In interpreting the right to marry, and whether its scope could extend to same-sex couples, it is important to take note of the preamble of the ICCPR and the maxim of non-discrimination which is enunciated both as a stand-alone human right and as part of the right to marry. The preamble provides that the purpose of the ICCPR is to recognize ‘the inherent dignity and ... the equal and inalienable rights of all members of the human family’. https://sydney.edu.au/law/slr/slr_36/slr36_4/SLRv36n4GerberTaySifri s.pdf B. Universal Declaration Of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of what many people believe to be the rights to which all human beings are inherently entitled.5
The Right to Marriage Article XVI of the Universal Declaration of Human Rights (UDHR) states, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution” 5
"The Universal Declaration of Human Rights". un.org.
The right to marry is a protected right as may be met in the provisions of the Universal Declaration of Human Rights6. This treaty is binding upon the Philippines under the Constitution as provided in Section 2, Article II. This right, furthermore, was enunciated in an American case, Loving v. Virginia which held:
“(F)reedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men… Marriage is one of the basic civil rights of man, fundamental to our very existence and survival”7
It is settled that the right to marry is one of the fundamental rights of an individual as provided under the Universal Declaration of Human Rights and Convention for the Protection of Human Rights and Fundamental Freedom. And on these foregoing provisions, nobody shall be deprived of this right as guaranteed by no less than the Constitution. Furthermore, since the UDHR guarantees all men and women the right to marry, and does not explicitly provide that sexual orientation is an exception to the right, states that do not allow two men or two women to marry are acting in contrast to the Declaration’s language and intention.
Nondiscrimination Article II of the UDHR states “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In addition to arguably qualifying as both “sex” and “other opinion,” sexual orientation is implicitly included among the factors listed in the UDHR, because of the provision’s intentions; “Although the Universal Declaration of Human Rights and the other principal human rights instruments drafted by the United Nations do not explicitly mention sexual orientation or same- sex marriage, they have created a 6
G.A. res. 217A (III), U.N. Doc A/810, 71, Art. 16 (1) (1948): “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriages, during marriage and at its dissolution. 7 Loving v. Virginia, 388 U.S. 1, 12 (1967).
comprehensive body of human rights law that protects all people” (Green, 2010).
The State recognizes the Filipino family as the foundation of the nation. 8 As the foundation, every child’s need of a family shall always be given paramount consideration. In the modern society, where a number of children do not have their families to support them, the trend is to encourage adoption and every reasonable intendment should be sustained to promote the objective of marriage. 9 Adoption is geared more towards the promotion of the welfare of the child and enhancement of his opportunities for a useful and happy life. 10 It is not the bureaucratic technicalities but the interest of the child that should be the principal criterion in adoption cases. 11 To reiterate, it is not the bureaucratic technicalities but the interest of the child that should be the principal criterion in adoption cases. 12 With the provisions in the amended law which allowed the adoption of couples herein above identified, the technicalities were brushed off paving the way to give more importance to the interests of the child. Allowing same-sex couples to adopt would rightly serve the purpose of marriage and adoption itself. Generally, the purpose of adoption is to establish a relationship of paternity and filiation where none existed before.13 Also, the amended Family Code likewise upholds that the interest and welfare of the child to be adopted should be the paramount consideration. It is also the policy of the State to ensure that whenever every family’s efforts prove insufficient and no appropriate placement or adoption within 8
Const., Art. XV, Sec. 1 Santos, et al., vs. Aranzanso, et al., No. L-23828, 16 SCRA 344, February 28, 1966. 10 Daoang vs. Municipal Judge of San Nicolas, Ilocos Norte, No. L-34568, 159 SCRA 369, March 28, 1988. 11 De Tavera vs. Cacdac, Jr., No. L-76290, 167 SCRA 636, November 23, 1988. 12 Id. 13 In the matter of the Adoption of the minors Maria Lualhati Magpayo and Amada Magpayo. Clyde E. Mcgee vs. Republic of the Philippines, G.R. No. L-5387, April 27, 1954 9
the child's extended family is available, adoption by an unrelated person be considered.14 To be emphasized in the previous statement is that adoption is considered for a person unrelated to a child. It is not actually and expressly provided that adoption is limited to heterosexual couples. In all matters relating to the care, custody and adoption of a child, his interest shall be the paramount consideration in accordance with the tenets set forth in the international law.15 These international laws and declarations include United Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption.16 The Philippines adopts these generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.17
IV. THE AMENDMENT OF THE FAMILY CODE IS CONSISTENT WITH THE PRINCIPLES OF NATURAL LAW
A) Same-sex marriage as a tool of inclusion in the Society. Perceptions of homosexuality have dramatically changed over the past decades. ( For an overview of this evolution in the American context, see MICHEAL KLARMAN, FROM THE CLOSET TO THE ALTAR. COURTS, BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE (Oxford University Press. 2013). Raquel Platero, Outstanding challenges in a post-equality era: The same-sex marriage and gender identity laws in Spain, 21 INTERNATIONAL JOURNAL OF IBERIAN STUDIES 41(2008). at 41 These include the ‘normalizations of sexual identities other than heterosexuality ( arguing that ‘Lately, sexual minorities have been normalised’).
14
Domestic Adoption Act of 1998 Id. 16 Id. 17 Const., Art. II, Sec. 2 15
Individuals once looked at as being unworthy of humanity are now considered as humans of equal worth. Gays and lesbians are becoming full members of society, able to rely on all the protections of the law and benefits of citizenship. In the absence of marriage equality, homosexuals are not full citizens, as they remain excluded from an institution on the sole basis of their sexuality. Denying people in same sex relationships the option of marriage, when it is a course of action available to all other individuals, impairs freedom and dignity inherent in the substantive liberty guarantees of the Constitution. Gregori Scalia, Associate Justice of the Supreme Court states that “The conceptual core of the liberty clause pertains to an individual’s self determination, dignity or respect.” the California Supreme Court too relied on dignity to find that same-sex couples could no longer be excluded from the institution of marriage as it denies them ‘equal dignity and respect. The judgment that legalized same-sex marriage in Texas stated that the denial of marriage rights to gays and lesbians demeans their ‘dignity’ and ‘denies same-sex couples the benefits, dignity and value of celebrating marriage’. Exclusion of same-sex couples from the institution of marriage perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships, and offends the dignity of persons in same-sex relationships. ( Halpern v. Canada (2003), 65 O.R. 3d 161, para 2, 107)
B) Natural law is unclear and subject to disagr eement Some of the dictates of Natural Law are unclear and are subject to disagreement among reasonable people. As Francis Hutcheson explained, "When the strain of conversation and popular maxims have long represented certain actions or events as good, and others as evil; we find it difficult to break the association, even after our reason is convinced of the contrary. (1755)). (FRANCIS HUTCHESON, A SYSTEM OF MORAL PHILOSOPHY bk. 1, ch. 1, art. 8, p. 30 (A.M. Kelley 1968) Yet, the same might be said of the reactions of many to same-sex relationships, that the associations inculcated since childhood are affecting the ability to make a correct, unbiased moral judgment. Sometimes, it is not the historical moral teachings themselves but the method of applying those precepts that suggests discriminatory treatment. Thus, arguments based on historical religious and moral teachings may be used selectively to burden gays, lesbians, and bisexuals, but not others, even though the traditions themselves made no such distinction. Like choices concerning contraception, family relationships, procreation, and
childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.
C) The promotion of Morality The state has a legitimate interest in promoting morality. Even if the Natural Law is clear that same-sex marriages were impermissible, that would not establish that such unions were immoral, since there are a variety of moral systems of which Natural Law is but one example. To fully execute the Constitution’s promise of respect for individual selfdefinition, worth, and freedom, the state must also respect and validate public manifestations of personal identity. We must ensure that individuals are not publicly degraded for their self-defining attributes.
b. Allowing same-sex marriage under the Philippine law is in accordance with equal protection clause. Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. [City of Manila v. Laguio (2005) citing Ichong v. Hernandez (1957). People v. Cayat (68.Phil. 12, 18 (1939)) summarized early jurisprudence on equal protection thus: It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not equal protection of the laws is not violated by a legislation based on reasonable classification. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class. (Borgnis vs. Falk Co., 133 N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz ., 187.) For determining the reasonableness of classification, later jurisprudence has developed three kinds of test depending on the subject matter involved. The most demanding is the strict scrutiny test which requires the government to show that the alleged classification serves a
compelling state interest and that the classification is necessary to serve that interest.
