persuasive essay about same sex marriage in the philippines

Philippine Legal Research

Analysis on the Legality and Applicability on the Integration of Same-Sex Marriage in the Philippine Legal System

Chapter I – Background of the Study

In the Philippine legal system, marriage is defined as a special contract of permanent union between a man and a woman entered into in accordance with the law. It is the foundation of the family whose nature, consequences and incidents are governed by law.1 This definition has been the roots of all arguments, debates and controversies because of the acceptance of the Filipinos to the rise of LGBT community or the “third-sex” society and the raising of the issue on equal protection clause and their equal right to marry, and conjugal rights.

Same sex marriage is the practice of marriage between two people of the same gender. Although same-sex marriage has been regulated through law, religion, and custom in most countries of the world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other. In the late twentieth century, debates about the legalization of same-sex marriage around the world has been publicly noticeable in view of the strong opposition of Christianity as they consider it as morally wrong. On one hand, some scholars, have argued that same-sex unions were recognized by the Roman Catholic Church in medieval Europe, although others have disputed this claim. Scholars and the general public became increasingly interested in the issue during the late 20th century, a period when attitudes toward homosexuality and laws regulating homosexual behavior were liberalized, particularly in western Europe and the United States. In the year 2000, as research shows, Netherlands granted religious rites of marriage and legal recognition to Lesbian, Gay, Bisexual, and Transgender (LGBT) Community. In light of its decision, 20 other countries namely Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), Portugal (2010), Denmark (2012), Brazil (2013), England and Wales (2013), France (2013) New Zealand (2013), Uruguay (2013), Luxembourg (2014), Scotland (2014), Finland (2015) Ireland (2015) and United States of America (2015) legalized marriage for same sex couples.2 Though few more countries are in the process of assessing legitimizing same sex marriage, still, majority of these countries doesn’t recognized reformation of marriage in their Constitution, and this include the Philippines.            

The Philippines is a predominantly Christian country, from which morality and Christianity has always been an influence in the society. This has been the core reason why being a conservative individual matters for Filipino, especially one that involves marriage. As a matter of discussion, there are house bills regarding same sex marriage has been introduced in the Philippine laws , to wit: House Bill No. 6595, House Bill No. 3179. In 2011, there was a bill filed to amend Article 26 of the Philippine Family Code, to prohibit “forbidden marriages.” Specifically, this sought to bar the Philippines from recognizing same-sex marriages contracted overseas. However, these bills did not advance.

Several of gay rights organization has been fighting their rights contending that marriage is a human right based on love and not on two sets of genitalia. Ladlad Partylist, a leading LGBT political party in the Philippines has been advocating that the legalization of same sex unions would laid down anti-discrimination and would grant them the equal protection as provided in the Constitution.            

This issue on same sex marriage once again revives its national relevance after President Duterte’s pronouncement, reversing his campaign to support the legislation allowing same-sex marriage, saying that marriage should always be only between a man and a woman. While the Family Code has been clear on its definition on marriage, however, some lawyers and scholars believe that the Constitution, the supreme law of the land, neither discriminates, nor prohibits same-sex marriage. Hence, this analysis.

This research study aims to analyze the nuances of the law regarding marriage and the possibility of approving same sex marriage based on different jurisprudence, the Family Code and the Constitution.

B. Importance of the Study

Marriage in the Philippines is one of the most important features that was granted by our Constitution from which some rights springs up to. It constitutes legal benefits, such as the right for common and conjugal properties, and marital obligations, parental authority and ownership. Moreover, it constitutes equality beyond the realm of married life. This study will enlighten not only the researchers, but also the readers, on what is the legal standing of same sex couples to fight for their right in cognizance with our laws. Moreover, the study will create an impact to the scholars of the law regarding the legalization of same sex marriage in the Philippines.

C. Statement of the Problem            

The always debated topic of same sex marriage is on the LGBT’s continuous fight against discrimination and inequality. In light of United States, an allied country of the Philippines, that recently recognized gay marriage throughout the 50 states of America, were the hopes of Philippines’ LGBT’s plea of approving the constitutionality of same sex marriage. Its adoption in the United States clearly made a huge mark of change in their constitution especially in the sense of rights and benefits in the eyes of the law. This research papers aims to answer the following in its legal sense; 1. Does Same-sex marriage violates the definition of marriage in the Family Code? 2. Is same- sex marriage Constitutional? 3. Does the legalization of same-sex marriage upholds the rights of the LGBT community on right to property, life and liberty? 4. Does the legalization of same sex marriage upholds the equal protection clause of the Constitution?

D. Scope and Limitation of the Study

The study is concerned with the Same Sex Marriage issue in the Philippines – if such is a legal right that LGBT community deserve to have. It also touches on the importance of marriage, its benefits and definition in terms used by the Philippine Laws, the advantage it can make in the country and its significance to the rights of LGBTs. The study mainly spotlights the constitutionality of legalizing same sex marriage in the Philippines comprising LGBT rights against inequality and discrimination and how it contradicts to the definition of marriage in the Family Code. Facts contained herein are limited to secondary data such as news articles, books, international and local literatures and internet web sources released by educational institutions, academes and authors of law.  The data collected from the secondary data serves only as representative and not to generalize as whole, to provide insights for future policy making and research directions. Nevertheless, the study may still be a turning point for the general public.

Chapter II – Review of Related Literature

We are originally from an Asian country which has not yet opened to the same sex marriage. But, we have been given the chance to study in a developed country and see how the world is opening its gate to welcome different people from different suffers. 1

The Philippines is a country whose belief in marriage is mostly in lined with morals and cultural aspects where a majority of its principles were taught through Christianity. Marriage, as stated in Art. 1 of the FC, is a special contract of permanent union between a man and a woman…. It’s clearly stipulated in the mentioned provision that only a man and a woman can enter into a valid marriage ceremony. However, other countries viewed marriage as a legal right and not merely a privilege.

United States of America (2015)

In 2015,  the US Supreme Court ruled  same-sex marriage bans are unconstitutional and  the Republic of Ireland became the first country in the world  to legalize same-sex marriage by popular vote following a country-wide referendum. However, while stigma against LGBT communities is certainly lessening in some countries, many states continue to criminalize same-sex sexual contact under the threat of imprisonment or even death. 2

Ireland (2015)

On May 22, 2015, Catholic-majority Ireland became the first country to legalize same-sex marriage through a popular referendum. More than six-in-ten Irish voters (62%) voted “yes” to amend the Constitution of Ireland to say that “marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

While some Catholic Church leaders opposed the change, Dublin Archbishop Diarmuid Martin wrote a commentary in The Irish Times newspaper before the referendum, saying that he would not tell people how to vote and that he had “no wish to stuff my religious views down other people’s throats.” Irish Prime Minister Enda Kenny supported the “yes” campaign. 3

Finland (2015)

Same-sex marriage will become legal in Finland starting in 2017. The Finnish Parliament approved a bill legalizing same-sex unions in November 2014, and Finland’s president, Sauli Niinistö, signed the measure into law in February 2015. The bill started out as a “citizens’ initiative” – a public petition with a reported 167,000 signatures.

Finland becomes the last of the five Nordic countries to legalize same-sex marriage, joining Denmark, Iceland, Norway and Sweden. 3

Scotland (2014)

On Feb. 4, 2014, the Scottish Parliament voted overwhelmingly to approve legislation legalizing same-sex marriage. In addition to allowing same-sex couples to wed, the measure gives churches and other religious groups the option of deciding whether or not they want to conduct such marriages. The two largest churches in Scotland – the Church of Scotland and the Roman Catholic Church – oppose same-sex marriage and lobbied against the bill.

The law took effect and same-sex couples began marrying in Scotland in December 2014. 3

Belgium (2003)

Beginning in 1998, the Belgian parliament offered limited rights to same-sex couples through registered partnerships. Same-sex couples could register with a city clerk and formally assume joint responsibility for a household. Five years later, in January 2003, the Belgian parliament legalized same-sex marriage, giving gay and lesbian couples the same tax and inheritance rights as heterosexual couples.

Support for the law came from both the Flemish-speaking North and the French-speaking South, and the law generated surprisingly little controversy across the country. The long-dominant Christian Democratic Party, traditionally allied with the Catholic Church, was out of power when the parliament passed the measure.

The 2003 law allowed the marriages of Belgian same-sex couples and recognized as married those from other countries where same-sex marriage was legal. Those provisions were broadened in 2004 to allow any same-sex couple to marry as long as one member of the couple had lived in Belgium for at least three months. In 2006, the parliament also granted same-sex partners the right to adopt children. 3

Colombia (2016)

On April 28, 2016, Colombia became the fourth country in Catholic-majority South America to legalize same-sex marriage, following Argentina, Uruguay and Brazil. The country’s Constitutional Court, by a 6-3 vote, ruled that that “all people are free to choose independently to start a family in keeping with their sexual orientation … receiving equal treatment under the constitution and the law,” according to the wire service Agence France-Presse. 3

Though these countries already accepted the marriage between couples who have the same gender, still, a majority of the countries around the world doesn’t recognize such.

Chapter III – Methodology

This chapter describes the research method of the study, the strategy of the researchers in gathering the data needed, and its correlation in the pre-existing phenomenon.

This study is purely research in its approach. The researchers aim to analyze the possibility in integrating same-sex marriage law in the Philippine law by taking into consideration the laws of other countries recognizing same-sex marriage, and the researchers will discuss its constitutionality and applicability with regard to the provisions in the New Civil Code and the rights reserved for the LGBT community inscribed for all humans in our Constitution.

This study applied the descriptive method of research, a fact-finding research which involves adequate and accurate interpretation if findings. The purpose of using the descriptive method is to describe the nature of a condition, as it takes place during the time of the study and to explore the causes. The researchers opted to use this kind of research considering the need to acquire first-hand informations from primary sources, such as laws, jurisprudences, and codes, and at the same time to formulate rational and sound discussions and recommendations for this study.

• Glance at Stance of Other Countries Recognizing Same Sex- Marriage

The researchers first took a step in reviewing the different kinds of laws concerning same-sex marriage from different country;

Leading lawyer, judge, and writer Justice Robert A. Jackson once said: freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Netherlands is the very first state that recognized Same Sex Marriages. According to the reports of statistics in Netherlands, the number of homosexual and lesbian couples living together totalled 57 thousand in 2010 where in 14,813 of them had same sex marriage, in which 7,522 were female and 7,291 were male. One in three couples had their relationships officially registered and nearly 11 thousand couples were married and more than 61 thousand had registered partnerships.There have been 1,078 same sex divorces, 734 (two-thirds) of them by female couples. The title of married partners for same sex couples gave them the advantage of building their own family. One of this is the automatic joint parental authority over common children only in the following circumstances:

1.For gay marriage, a consent from the mother of the child is needed;

2.For lesbian marriage, a mother must be one of the couple

In addition, they also extend the right of adoption for same-sex couples.  Article 277 of Civil Code of Netherlands provided that they allow adoptions, except Intercountry adoptions, of same-sex partners (whether married, registered as partners, or neither) of their civil status or gender-combination, as long as the partners have lived together for three years. This rights made equal treatment between different-sex couples and same-sex couples in terms of privileges in having children. The discrimination of capacity of raising a child by same-sex couples diminishes, and has been proven to have nothing different from how different-couples raises their child. In regards to their properties and debts, under their Private laws, each partner are considered to have joint property and considered joint debt. As for property taxes and income taxes, the couple may also take advantage of lower tax rates in certain circumstances which depends on their monthly earnings and salary as individuals. Article 5 of Wet Inkomstenbelasting 2001 provided income tax legislation which assumes that when there is 4% profit on savings and investments, a 30% tax is imposed on this 4% profit. The fact that a relationship can result in a lower property tax follows, no tax is imposed over the first circa EUR 19.000 owned. This changes in marriage, in which registered partnership or informal cohabitation, such amount can be doubled for one of the partners if the other partner is willing to forgo that tax-free threshold. If the latter owns less than circa EUR 19.000, this will result in a lower tax for the couple as a whole. Same-sex couples are also entitled with other legal consequences that different-sex couples have. Among these are entitlement of statutory protection against other partner violence and abuse, legality of organ donation to partner, legally obtaining citizenship of foreign partners and their residence permit with restrictions, and even with testamentary succession. They have also raised the Anti-Discrimination Legislation which prerogative is to prohibit discrimination on many grounds, including sexualorientation and civil status against employers and service providers.  According to the text of Article 7, almost all forms of commercial, professional or public provision of services are covered, including services provided by institutions in the field of housing, welfare, health care, culture and education.

Same-sex marriages has also been long recognized in Canada. Statistics show that of the 72,880 same-sex couples counted in Canada last year, 24,370 of them were married – more than three times the number of married same-sex couples enumerated in 2006. Same-sex couples in general grew in number by just 61 per cent over the same period. That said, marriage brings material benefits, including legal protections, tax advantages and workplace benefits. It can also bestow “cultural legibility,” said Catungal, a journalist.

The only firm conclusion to be drawn from these studies shows inexistence of negative impacts of passage of same-sex marriage in Netherlands and Canada. Purely, equality is the main concern raised by  both states to finally approve the petition of same-sex couples towards a legal recognition of marriage. Both may have experienced flurry of gay marriage lawsuits, debates and arguments due to divided hearts of legislators and citizens in the subject of same-sex marriage, yet what prevails was shown to be in favor of the prayer of the majority. The immediate effects of law amendments has been outdone in the long run, following social, economic and legal changes in the society.

B. Same Sex Marriage in the Philippine Context

Philippines has a strong and ongoing debate of legality of marriage towards same-sex couples. The religious principles, culture and social acceptance, and marriage provisions of the Family Code of the Philippines were the main hindrances that dismisses the petition of LGBT community in the country of making same-sex couple relationships legal in the eyes of law. As of now, the Philippines does not recognize same-sex relationships or same-sex marriages between its citizens. The Family Code defines marriage as “a special contract of permanent union between a man and a woman.” It further provides as one of the essential requisites that the contracting parties “must be a male and a female.” It thus clearly prohibits same-sex couples from entering into a contract of marriage. The same law mentions homosexuality and lesbianism, but only as grounds to annul a marriage or to allow legal separation. From this provision, it is thus clear that the law on marriage only allows marriage between a man and a woman, not man and a man nor a woman and a woman. Moreover, article 2 of the Family Code that it is one of the legal impediments in a marriage which makes it void ab initio. Article 26 discusses marriages that where they were validly celebrated is also recognized as valid in our country. This provision is with certain exceptions, such when the marriage is against public policy. Same-sex marriage is considered as marriage against public policy, hence considered as invalid in our country.

However, the 1987 Philippine Constitution, the supreme law of the land, neither discriminates nor prohibits same-sex marriage. It provided only for the significance of marriage, such that marriage, “as an inviolable social institution, is the foundation of the family and shall be protected by the State.” This is what most lawmakers contend. The constitution as the fundamental law of the land where all laws must bow down to, does not even prohibit same sex marriage. Thus, there is no impediment against legalizing same-sex marriage in the Philippines.

Chapter IV – Results and Discussions

From the foregoing discussions in the preceding article and based from different researches on laws and jurisprudence, it was shown that there is no impediment in legalizing same-sex marriage in the Philippines. If we based it on the provisions of the Civil Code, it is clear that marriage between two same-sexed people is a legal impediment and is abominable in this state. However, the Constitution, being the supreme law of the land, wherein all laws should agree with, should prevail, support and protect the equality of every individual to life, liberty and property, does not inhibit the said conduct. Hence, it is highly probable to implement a law to allow same-sex marriage and to give the LGBT community to all privilege that a married person could have.

However, there needs to be an enabling law redefining, and changing the parties who may contract, marriage. LGBT community still contends that they felt bereft of anti-discriminatory laws. In 2001, an anti-discrimination bill banning discrimination based on sexual orientation was unanimously approved by the House but it was stalled in the Senate, and ultimately died. A country report initiated by the United Nations Development Program highlighted the fact that while the Philippines is a signatory to many relevant international covenants promoting human rights, the rights of the LGBT community are not always supported by the state. Without marriage, same-sex couples suffer from substantially lesser rights compared to heterosexual couples. There are legal issues involving the former’s adoption and custody of children, hospital and prison visitation rights, management and transfer of properties, medical and burial decisions, and entitlement to insurance proceeds. Same-sex couples resort to certain legal, albeit limited, approaches to legitimize their union — adoption, which is allowed if done by a single LGBT person; business partnership, to jointly own properties; and a special power of attorney, to name a few.

Same-sex marriage is an issue that is still heavily debated upon. Grounds raised against it range from moral to legal. However, the legal impediment against same-sex marriage can be cured by legislation. There is no absolute prohibition against legitimizing — at least, civilly — unions between two Filipinos of the same sex. Hence, it is legally feasible for the legislative branch of the government — the Congress and the Senate — to enact a law which legalizes same-sex marriage in the Philippines.

Chapter V – Conclusion and recommendation

The researchers, therefore finds that same sex marriage is only beneficial to the citizens of same-sex relationship. Although a lot of Filipino citizen willingly accept the relationship of same sex couples, the probability that same sex marriage will be allowed here in the Philippines is for now highly impossible. One main reason is that, the Philippines is a Catholic country and legalizing same sex marriage weakens and contradicts the teachings as well as the doctrines of the Church which defines marriage as a union between a man and a woman. Another reason is that it would ruin the concept of a family. In a normal set up, a family is composed of a father, a mother and a child or children. Father Marcos Gonzales once said, “the Church says that homosexuals should be treated with love and respect but redefining the natural and divine institution of marriage is simply something we are not able to do.” On the bright side, the Philippines is not closing its doors for the changes that may happen in the near future. Especially that the Filipino citizens always go with what we call is “uso” or trending.

The researchers recommend that the citizen of the Philippines reading this to consider the disadvantages and advantages of the adoption of same sex marriage. The legislators should also make the definition of marriage and equal rights in our constitution clear to avoid confusion and conflict involving the rights and privileges of the people. It should also be followed by the proper interpretation of the judiciary.

References :

Sta. Maria, Melencio S., “Persons and Family Law”

Other Countries Where Same-Sex Marriage is Legal. Retrieved from https://www.theweek.co.uk/lgbt-rights/97859/countries-where-gay-marriage-is-legal

The State of LGBT Human Rights Worldwide. Retrieved from https://www.amnestyusa.org/the-state-of-lgbt-rights-worldwide/

Philstar (2018). Palace: Too Soon For Same-Sex Marriage in the Philippines. Retrieved from https://www.philstar.com/headlines/2018/06/21/1826671/palace-too-soon-same-sex-marriage-philippines

Tan, Rebecca ( 2017). In the fight for gay marriage in the Philippines, Duterte could be an unlikely ally. Retrieved from https://www.washingtonpost.com/news/worldviews/wp/2018/06/19/in-the-fight-for-gay-marriage-in-the-philippines-duterte-could-be-an-unlikely-ally/?noredirect=on&utm_term=.01bdea9ad0ed

Thoreson, Ryan (2018). Philippine Supreme Court Considers Same-Sex Marriage. Retrieved from https://www.hrw.org/news/2018/06/19/philippine-supreme-court-considers-same-sex-marriage

Hojilla, Kate Aubrey (2017). Same-sex marriage and its legal hindrance in the Philippines. Retrieved from http://www.accralaw.com/publications/same-sex-marriage-and-its-legal-hindrance-philippines-0

Nussbaum, Martha (2009). A Right to Marry? Same-sex Marriage and Constitutional Law. Retrieved from https://www.dissentmagazine.org/article/a-right-to-marry-same-sex-marriage-and-constitutional-law

Encyclopaedia Britannica. Same-Sex Marriage. Retrieved from

https://www.britannica.com/topic/same-sex-marriage

(2018). Should Homosexual Marriage be Legalized?. Retrieved from https://www.lawteacher.net/free-law-essays/family-law/should-homosexual-marriage-be-legalized-law-essay.php

(2018). Same-Sex Marriage, Civil Unions, and Domestic Partnerships. Retrieved from

(2015). Same-Sex Marriage Laws. Retrieved  from http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx

(2018).  Chronology of Same-sex Marriage Bills Introduced into the federal parliament. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/Quick_Guides/SSMarriageBills

Researchers:

Allyanna Patrisha T. Magbanua

Crystine Senadre

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Published by Jocelle Batapa Sigue

ATTY. JOCELLE BATAPA-SIGUE • Named as one of The Outstanding Women in Nation’s Service of the Philippines or TOWNS for 2016 in the field of Information and Communications Technology or ICT • Positions: Past Vice President (2018) and Past President (2010-2012) and Past Trustee (2013-2017) of the National ICT Confederation of the Philippines or NICP • Founder, Former President and Current Executive Director of the Bacolod-Negros Occidental Federation for ICT or BNEFIT • Served for 3 terms as councilor of Bacolod City • Chosen as one of Asia Society Top Ten Philippines 21 Young Leaders in 2009 • Chosen as the Eisenhower Fellow of the Philippines in 2012 • Awarded as Philippine Individual Contributor of the Year during the International ICT Awards given by the Canadian Chamber of Commerce and Industry in the Philippines View all posts by Jocelle Batapa Sigue

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Your guide to the Supreme Court oral arguments on same-sex marriage

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This is AI generated summarization, which may have errors. For context, always refer to the full article.

MANILA, Philippines – In May 2015, only two months after he passed the Philippine Bar, Jesus Falcis III  filed a petition seeking to legalize same-sex marriage in this predominantly Catholic country.

The petition was the first of its kind.

Marriage equality is typically fought in Congress, and for years, the Philippine Lesbian, Gay, Bisexual, Transgender (LGBT) movement has lobbied for the enactment of an anti-discrimination law and not a law on same-sex marriage.

The strategy was apparently to wage one battle at a time. Once the proposed anti-discrimination law is passed, then same-sex marriage would follow.

Yet, here we are now.

In a historic first, the Supreme Court will tackle same-sex marriage in oral arguments on Tuesday, June 19, because one young, gutsy, gay lawyer thought this was a battle better fought in the Court, not in Congress.

“Mauuna pa tayo sa mga ibang issues sa Pilipinas, at mauuna pa tayo sa ibang bansa sa Asian region na medyo conservative  (We will be ahead of other issues in the Philippines, and we will be ahead of other countries in the Asian region that are conservative),” Falcis said, referring to the oral arguments.

However, “it is not that soon,” the lawyer said. It took the Supreme Court 3 years to schedule his petition for oral arguments. (READ:  SC applicants agree with U.S ruling favoring baker in gay wedding cake case )

It has certainly been a long time coming for petitioner-intervenor Ceejay Agbayani, pastor of an LGBT Christian Church, who has been marrying same-sex couples for years, though their marriages are not recognized by the State.

Agbayani is “married” to partner of 12 years Marlon Felipe. The pastor is 44 years old.

“Nanghihina na ako, akala ko hindi ko maaabot ang araw na ito  (I’m getting weak, I thought that I wouldn’t live long enough to see this day),” Agbayani said.

He and Felipe intervened in the Falcis petition to boost its legal standing. The couple’s application for a marriage license was denied, making personalities with an actual stake in the case.

Agbayani said he sought out Falcis when he heard in 2015 that the young lawyer had filed a petition.

“Sabi ko, thank Jesus! I love Jesus, both Jesus the attorney and the historical Jesus. Finally, this guy, whom I’ve never met, meron din siyang pagnanasa for marriage equality, eh ang kulang lang namin, actually, attorney. Noon pa man gusto na naming magKorte Supreme pero wala kaming attorney,” Agbayani said.

(I said, thank you Jesus! I love Jesus, both Jesus the attorney and the historical Jesus. Finally, this guy, whom I’ve never met, he also wants marriage equality. The only thing we lacked then was a lawyer. We have always wanted to go to the Supreme Court, but we didn’t have a lawyer.) 

At 31, Falcis is one of the youngest lawyers to ever face oral arguments before the Supreme Court. He will have his most-awaited day in Court on June 19. The Office of the Solicitor General (OSG) will represent the State.

Here is your guide to the oral arguments:

These are the provisions of the Family Code in question:

Article 1: 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.

Article 2: No marriage shall be valid, unless these essential requisites are present:  (1) Legal capacity of the contracting parties who must be a male and a female  

These are the provisions in the Constitution that the petition alleges to have been violated by the aforementioned:

Section 1, Article III:  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.

  Section 3(1), Article XV: The State shall defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood

1. Should the petition be subject to the Court’s power of judicial review?

Petition: Yes, because “Articles 1 and 2 of the Family Code trigger a strict judicial scrutiny because it violates the fundamental rights to decisional and marital privacy and because it created a suspect classification.”

A suspect classification happens when a class of individuals is discriminated against. In legal principles, suspect classification should be subject to strict Court scrutiny.

State: No, because “the legal definition of marriage between a man and a woman is a policy issue within the authority of Congress, not the Courts, to decide.”

The OSG also added that the petition was defective because it did not implead  Congress, the body that makes laws, and the body that passed the assailed Family Code.

2. What do the laws say?

Petition: The passing of the Family Code provisions limiting marriage to a man and a woman only constitute grave abuse of discretion because the Constitution did not define marriage as solely between a man and a woman. (The Family Code was signed into law on July 6, 1987, or 6 months after the Constitution was ratified in February that year.)

Similarly, the marriage provisions in the 1949 Civil Code did not limit marriages to a man and a woman only.

Here is the pertinent Civil Code provision:

Article 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years or upwards, not under any of the impediments mentioned in Articles 80 to 84, may contract marriage.  

State: “The Civil Code only allows heterosexual marriage.”

The OSG said that the use of the word “and” in Article 54 – any male aged 16 years or upwards AND any female of the age 14 years or upward – means marriage was limited to a male and female, not male or female.

The OSG added that Title V and VI of the Civil Code mentions a “husband and wife” which further bolsters the claim that the Civil Code “only sanctions heterosexual marriage.”

3. Did Philippine laws intend marriage for procreation?

Petition: No. Articles 2 and 3 of the Family Code “do not require married individuals to procreate or have the ability to procreate.”

Article 45(5) of the Family Code lists as a ground for annulment if either party “is incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable.” The petition said this is impotency.

“Homosexuals ordinarily are not impotent…because they are ordinarily not sterile,” the petition said, meaning homosexuals have the capacity to consummate the marriage.

On the issue of whether they can procreate, the petition said they are not prohibited by Philippine laws to adopt children. It cited a Supreme Court ruling that sided with a lesbian mother in a custody battle, saing that “sexual preference or moral laxity alone does not prove parental neglect or incompetence.”

State: Yes. “This state and societal interest to encourage procreation in a stable environment of a traditional family had been the reason for limiting marriage between a man and a woman, and in effect, creating a classification between couples that may avail of the special contract of marriage, and those that cannot.”

The OSG also cites Articles 46 and 55 of the Family Code, which count homosexuality as legal grounds for annulment.

Article 46(4): Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

Article 55(6): A petition for legal separation may be filed on any of the following grounds: Lesbianism or homosexuality of the respondent

For the petitioner, if Articles 2 and 3 should be declared unconstitutional, then Articles 46 and 55 shall also be declared unconstitutional.

The OSG disagreed, saying that the provisions gave importance to conjugal intimacy which is “after all, the means for procreation of children and establishing a family.”

It cited an SC ruling which voided a marriage based on the wife’s complaint that the husband was not having sex with her.

The ruling said: “To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage. Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage.”

4. Does limiting marriage to men and women only violate the equal protection clause?

Petition: Yes, because the classification does not rest on substantial distinction.

To explain, equal protection clause will not apply if these 4 conditions are satisfied:

• It must rest on substantial distinctions
• It must be germane to the purposes of law
• It must not be limited to existing conditions only
• It must apply equally to all members of the same class

There is substantial distinction if it can be justified why a certain class is treated differently. The petition said there is no substantial distinction between same sex couples and opposite sex couples.

If it’s their inability to procreate, the petition asks: Why are old heterosexual couples who are sterile and cannot procreate allowed to marry?

State: No, equal protection clause will not apply because the second condition was met, which is that it is germane or relevant to the purposes of the law.

The OSG goes back to the issue of procreation, and argued that procreation was among the main purposes of limiting marriage between a man and a woman only.

“While societal views of marriage as well as methods for procreation may be arguably changing since then, the laws that these norms initiated are slow to follow suit. The remedy for this perceived lethargy, however, lies with Congress, and not with the judiciary,” the OSG said.

5. Does limiting marriage to men and women only violate Section 3(1), Article XV of the Constitution?

Petition: Section 3(1), Article XV says the State shall defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood.

The petition argues that like Agbayani, individuals belonging to religious denominations believe in same-sex marriage. Therefore, their right to found a family in accordance with their religious convictions is violated.

State: Petitioners cannot invoke Section 3(1), Article XV because it is not a self-executory right.  

A self-executory right is one which does not need an enabling law to enforce. In general principles, a person cannot invoke a law that is a non-self executory right to void another law which may be inconsistent with it.

The OSG cited a past SC ruling which says Section 3(1), Article XV are non-self executory and are “mere statements and principles and policies.”

The OSG also said that according to the deliberations of the 1986 Constitutional Commission, Section 3(1), Article XV was meant to direct Congress to enact laws that will “further its policy for the Filipino family, while prohibiting it from interfering with the number of children that couples may beget.”

“It does not provide for a self-executory right that may be made the legal basis of petitioners’ alleged inequality,” the OSG said.  

The OSG said that allowing same-sex marriage will complicate other gender specific laws in marriages, like how a husband’s decision will prevail in disagrement over a community property, and how a wife is assumed to have better abilities to raise a child of tender age, or the classification of adultery and concubinage.

For the petitioners, marriage equality will be worth all the trouble. “I am a Filipino, give us this right, we are not different, we are part of this country too,” Agbayani said.

Oral arguments will start 2 pm on Tuesday, June 19. – Rappler.com  

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The best argument against same-sex marriage

FILIPINOS, SPORTING #LoveWins hashtags and slapping rainbows onto their Facebook profile pictures, have been swept up in the euphoria over the US Supreme Court decision declaring same-sex marriage a fundamental human right. Law professors are heartened to see Justice Anthony Kennedy’s poetic Obergefell decision shared in social media. However, we must also read the powerful dissents and ask why we might prefer that our unelected justices decide this sensitive issue instead of our elected legislators.

Inquirer 2bu quoted teenagers opining that anyone with the capacity to love deserves to have his/her chosen relationship validated. Obergefell’s logic is equally simple. Forget “substantive due process,” “decisional privacy” and “equal protection.” It takes the simple premise that human liberty necessarily goes beyond physical liberty, and includes an unwritten right to make fundamental life choices. Choosing a life partner is one such fundamental choice and the decision of two people to formalize their relationship must be accorded utmost dignity.

The typical arguments against this simple idea are so intellectually discredited that Obergefell no longer discussed them. (My Philippine Law Journal article “Marriage through another lens,” 81 PHIL. L.J. 789 [2006], tried applying them to bisexual and transgender Filipinos.)

One cannot solely invoke religious doctrine, even if thinly veiled as secular “morality.” Religious groups may confront this issue but not impose their choices on others. Their often vindictive tone contrasts sharply with Kennedy’s, and increasingly alienates millennials who revel in individuality. Those criticized as religious zealots should at least strive to be up-to-date, more sophisticated religious zealots.

The most common argument, procreation, is also the easiest to refute. Philippine Family Code author Judge Alicia Sempio-Diy wrote: “The [Code] Committee believes that marriage … may also be only for companionship, as when parties past the age of procreation still get married.”

Another argument reduces marriage to a series of economic benefits and suggests a “domestic partnership” system to govern same-sex couples’ property and other rights. This parallels having separate schools for white and black children and claiming they are equal because both have schools. It implies that some relationships so lack dignity that they must be called something else.

Protecting the “traditional” definition of marriage is too subjective. Obergefell reminds that traditional definitions evolve and once prohibited interracial and accepted arranged marriages, and “it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

Recent last-ditch arguments alleged harm to children. No party to Obergefell contested that same-sex couples may build nurturing families after adopting or tapping medical advances to produce babies with related DNA. Prohibiting same-sex marriage harms children by making such families unstable, as only one parent may legally adopt and have rights in relation to a child.

With all these discredited, the Obergefell dissents simply raised that marriage is so central a social institution that it is better redefined by democratic process than unelected judges. Proponents may consider opponents homophobic, bigoted, narrow-minded religious zealots, but none of these disqualifies one from being a citizen. Chief Justice John Roberts argued that proponents should have relied on how popular opinion was rapidly shifting in their favor than ending all debate by court order.

Justice Antonin Scalia decried how the US Constitution was turned into a “fortune cookie” in a “judicial Putsch” that declared a radical unwritten right. Roberts cautioned that the first cases to use similar doctrine upheld slavery and struck down labor regulations in the name of laissez faire economics. Although invoking human rights is not subject to an election, it is wise to consult society in defining these, and Obergefell stressed the lengthy public debates the United States experienced at every level.

One thus asks why an instant judicial solution is more appealing than backing Akbayan Rep. Barry Gutierrez’s proposed same-sex marriage bill. The Philippines has not had serious public debate given how we recently focused on reproductive health, and our high court has not even explicitly recognized “decisional privacy.” Further, the petition to legalize same-sex marriage recently filed at our high court is blatantly deficient.

The petition (like the anti-RH petitions) does not even identify a client. There is no actual Filipino same-sex couple, unlike the real Mr. Obergefell who sought to be named the spouse on his partner’s death certificate after their deathbed wedding. This violates the most basic rule that judicial power may only be used in an “actual case” and the high court should have instantly thrown out the no-case petition (like the anti-RH petitions). The petition also has glaring errors (like the anti-RH petitions). It invoked the Philippine privacy decision Ople vs Torres, which involved information in government databases and has nothing to do with the “decisional privacy” of US same-sex marriage debates. Even liberals should be hard-pressed to support this lest they be intellectually inconsistent and validate the anti-RH petitions’ worst features.

Any citizen lacking the patience to back Gutierrez’s bill has every right to short-circuit democracy by seeking an order from unelected judges. One hopes our high court insists that it be sought properly.

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Same Sex Marriage Debate: Reasons For and Against

Homosexual relationships are increasingly gaining acceptance in other countries, but are still banned in the Philippines. Some explain that the traditional marital set-up defines the fundamental, cross-cultural institution that healthily provides ‘normal parents’ to children.

Same-sex marriage advocates however argue that legalizing same-sex unions would be good not only for gay people, but also for society as a whole, since society fundamentally supports loving relationships regardless of the people’s gender orientations and preferences.

So generally speaking, should same-sex marriage be legalized?

These are some of the reasons used by those who propose the legalization of same sex marriage:

1. Same-sex marriage does not hurt the society or anyone in particular. Denying this form of marriage is a case of minority discrimination.

2. A legalized same sex marriage can be a big help to orphanages. Same sex partners’ inability to procreate would probably bring them to adopting orphans.

3. Today, homosexuality is already an accepted lifestyle. Many productive and highly-respected people in the society (such as leaders, filmmakers, and other artists) belong to the gay community. It’s about time to positively sanction their relationships.

4. Is not love the most important thing that should matter in marriage? Once same-sex marriage is legalized, the political and financial benefits that apply to man-woman marriages will also be enjoyed by genuinely loving gay couples.

Oppositely, those who take the traditional stance offer these reasons against same-sex marriage:

1. Same-sex union may traumatically confuse children especially about gender roles, procreation, and societal expectations. For children’s sake, same-sex marriage must be banned.

2. Though becoming rampant, gay lifestyle is not something to be encouraged as studies show that it leads to a much lower life expectancy, psychological disorders, and other personal and societal problems.

3. Same-sex union and building a family out of it are not biologically natural. Same-sex couples cannot naturally produce children through their union.

4. The proposal will weaken the sanctity, honor, and prestige of marriage as a fundamental institution. Same-sex marriage will destructively weaken many traditional family values that serve as fabrics of a stable society … continue reading

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• Same Sex Marriage Essay for Students

Introduction

The same-sex marriage has sparked both emotional and political clashes between supporters and opponents for years. Although it has been regulated through law and religion in many countries around the world, legal and social responses often range from celebration to criminalisation of the pair.

Essay No - 1

Marriage equality – importance of same sex union.

Back in 2018, the Supreme Court of India passed a watershed judgement that was ordained to go down the archives of the country’s history. In spite of the majoritarian prejudices prevalent in India directed towards the LGBT community, the apex court revoked the draconian and out-dated Section 377 of the Indian Penal Code. 

This Section, in typically vague and diplomatic terms, belittled homosexuality and criminalised intercourse that goes against the “laws of nature”. It was incorporated into the Indian Penal Code under the British Raj in 1861, and it took the Indian judiciary system 70 years since independence, to abrogate the law and decriminalise homosexuality. 

Nonetheless, the landmark decision was met with euphoria from its proponents, especially the activists who fought for the cause for more than a decade, wrangling with society and courts to attain equality in the eyes of the law. Even though a marriage equality essay is far from sight in a time when it is legal to marry the person one loves irrespective of their gender identity or sex, the decision by Supreme Court portends its occurrence. 

Equality in Marriage

Equality in marriage is an idea, which propagates that all marriages notwithstanding whether it is a Sapphic marriage or gay marriage or heterogeneous matrimony are equal and should enjoy similar rights and status in society.

Unfortunately, our society’s construct is such that we grow up with the idea that only a man and woman can be bound in matrimony. And while doing so, we overlook the multitudes of individuals that associate with different sexual preferences and gender identities. 

While the western world marches toward inclusive societies, where individuals are treated as equals irrespective of their sexuality or gender, we still are in the embryonic stages towards such acceptance. 

If one searches for same-sex marriage essay or statistics, one will find that support for marriage equality in countries like the USA hovers above 60%, a data presented by Pew Research Center. And if one were to rummage through the same statistics for India, it is a dismal 18%, according to a poll by Mood of the Nation (MOTN) in 2019.

Importance of Same-Sex Marriage

Because no change is appreciated until it contributes to the betterment of society in one way or another, proponents of an inclusive society have long contested its importance in same-gender marriage essays and discourses.

We are an overpopulated country and encouragement of marriage equality and an increase in same-sex matrimonies would lead to lower population growth. At the same time, it might witness a growth in adoptions of orphans, which is a significant move towards a holistic society. 

And last but not the least it would be an encouraging shift towards adherence to the laws of human rights, which dictates that no human should live under discrimination, fear, or oppression. 

The seeds of prejudice prevalent in our society, however, will not change overnight. Our traditions and social construct are vastly different from those of western societies. A change in mindset is a process that might take decades and even centuries. 

Nonetheless, the change should begin somewhere. And awareness that every human is equal and their preferences and choices about who they love and marry should not be a ground for discrimination is quintessential to that change. 

Essay No - 2

Same-gender marriage: a threat or blessing for the reunion of two people.

Marriage or wedlock is the cultural union of two people for a lifetime. Considered an integral part of one’s life, it involves both legal and social formalities performed by the two families in concern. Besides, it also comprises regulations and obligations to be followed by the spouses and their children as well as their immediate family members.

However, there have been instances where marriage equality essays have been spoken of by many. These are instances where marriage between couples of the same gender is considered inappropriate. Nevertheless, the global society is evolving and people are coming out of the closet more often than ever before.

How Does the World Perceive?

Most communities are becoming liberal in terms of being more accepting in nature. People by and large are taking a stand to abide by their sexuality. It is no more a matter of shame that has to be kept hidden or shut behind the doors.

Multiple same sex marriage essay has come up sighting the incidents where the couple were accepted by their respective families. In addition, the act of legalization of same-sex marriage has been going on since the past two decades with great vigour.

Countries like the Netherlands, Spain, and Belgium had legalised it in the wake of the 2000s, while other countries such as Canada, South Africa, and Norway followed suit in the upcoming years.

The marriage equality essay has been in the limelight because more people are opening up about the benefits and importance of such marriages in today’s world. The reasons that have fuelled such a dramatic change can be listed below as -

People can be themselves and do not have to try hard to get accepted for who they are.

They are proud of both their individuality as well as sexuality and do not have to wear a mask.

They can plan for the future instead of having to succumb to societal pressure.

Same-sex couples now have the opportunity to live with their loved ones happily, without having to take cover. 

The spread of the same gender marriage essay has been a saviour for many who were not aware of the changes that are taking place all around the world. It has not only made the LGBTQ community aware but also encouraged them to evaluate themselves and take the plunge to raise their voices too. They can now take a stand for themselves and feel relieved that they are not discriminated against anymore.

What is the Scope in the Future?

Although a significant part of the world including countries like Taiwan, Germany, USA, etc. have been able to match the steps with the advancing surrounding; there is still a section who has not. Even now, marriage equality essays and other online content create backlash.

Therefore, it is essential that more people come forward and join hands to the cause of being united in terms of accepting the bond between people. 

Essay No – 3

Same-sex marriage - the changing attitude of modern society.

Most religions and cultures accept that marriage is not a trivial matter but is a key to the pursuit of happiness. However, they still openly criticise the practice of same-sex weddings. Fortunately, the stigma related to homophobia and LGBTQ community is slowly but surely lessening. Better education, introduction to different cultures, and an open mindset played a critical role in this development. 

Let’s discuss the changing attitude of today’s society and the benefits a culture might enjoy in this same-sex marriage essay.

The History of Same-Sex Marriage

During the mid-20 th century, historian Johann Jakob Bachofen and Lewis Henry Morgan made systematic analyses of the marriage and kinship habits in different cultures. They noted that most cultures expressed support towards a heteronormative form of marriage that revolves around union between opposite-sex partners. However, all these cultures practised some form of flexibility while following these ideals. 

Scholars like historian John Boswell often declared that same-sex unions were recognised in medieval Europe, but the most notable changes were introduced during the late 20 th century. 

An Accepting Society

A more stable society was created over the years, with a better understanding of each other and acceptance for the different. As the culture opened its arms to learn about others, it also learned about minority groups such as the LGBT community. Similar to racial equality, or the equality movement for women, growing acceptance of that community ultimately made the commune much more stable. 

Many consider that same-sex unity will only benefit the homosexual community. However, it leaves a much more profound impact on the overall society. To begin with, it will reduce homophobia by a significant margin. Acknowledging a homosexual relationship will also reduce hate crimes in countries like India. There are many research papers and marriage equality essays available that show how communities that allow an individual to choose their partner to enjoy a significantly less rate of crime. 

The Economic Boost

An unlikely benefit of same-sex marriage and a compassionate society towards homosexuals is the economic boost. For one, the wedding and marriage industry is the biggest beneficiary of same-sex marriage, as it increases their customer base by a significant margin. It also allows several business providers to service them, and helps the travel and tourism industry by boosting the number of honeymoon goers.

For example, businesses in New York enjoyed almost 260 million dollars boost within a year when same-sex marriage was legalised. Similar effects were also found in other countries.

Even though India still hasn’t shaken the stigma attached to a same-sex relationship, somewhat modern society is slowly learning to accept the diversity of human nature. With the help of the government, activists, and hundreds of individuals creating and posting blogs, same-gender marriage essays on the internet, society is gradually becoming an understanding and nurturing entity for everyone.

FAQs on Same Sex Marriage Essay for Students

1. Which countries have legalized same-sex marriage and when?

With the advancement in the thought process of people, many countries have passed laws in favor of same-sex marriage, thereby legalizing it in their countries. The first countries to legalize same-sex marriage before 2010 were the Netherlands who legalized it in 2001, Belgium legalized it in 2003, Canada and Spain legalized it in 2005, South Africa in 2006, Sweden and Norway in 2009 and Iceland, Argentina, and Portugal legalized same-sex marriage in 2010. Later on, Denmark legalised it in 2012, and countries like Uruguay, New Zealand, France, and Brazil in 2013, Ireland, Luxembourg, and the United States in 2015, Colombia in 2016,  Malta, Germany, and Finland in 2017, Australia in 2018 and Ecuador and Austria in 2019. The recent country to legalize same-sex marriage is the United Kingdom. Thus, now people have started accepting the idea of same-sex marriages across the world.

2. What is the importance of same-sex marriage and why should it be legalized?

As the world is progressing we all must understand that each one of us is a human being and before labelling us with our caste and love preference, we must learn to respect each other. In this progressing era as more people with same-sex preference are coming up it has become more important to accept and legalize same-sex marriage because of the following reasons:

It will give people a chance to be themselves and enjoy their own individuality.

It will make people understand that loving a person of the same sex is not wrong or abnormal.

It will teach people that it is better for people to spend their lives with someone they love and not with the person whom they don’t even like.

This will make this place a much happier space to be in.

It gives people with homosexuality a hope of a happy life.

3. What is the status of same-sex marriage in India?

Same-sex marriage in India is still not encouraged. In India, neither the laws are lenient nor the people are broad-minded to accept it happening around them. The legal and community barriers never give these people a chance to prove themselves. Indian society is not very welcoming to changes that are different from the customs and culture they have practised till now. Thus, any change in these cultural laws gives rise to an outburst of anger in the country which makes legalising these issues even more sensitive and challenging for the law. India still needs time to get accustomed to the concept of same-sex marriage. However, not knowing about the concept is a different thing, and completely opposing it is different, therefore, awareness about such issues is very necessary for the developing countries so that people can first understand the pros and cons of it and then either accept it or reject it. Not only in India, but in other countries also, the idea of same-sex marriage is not accepted because they think it is against their religion. People opposing the LGBTQ community to get the right to marry their lovers take away the very basic human right of such people. There has been a long-lasting war for the members of the LGBTQ community for their rights. Although there have been some positive results in recent years, for example, the end of Section 377, which criminalizes homosexuality. However, India still has a long way to go in terms of the LGBTQ community and their rights.

4. What approaches can be used to legalize same-sex marriage?

Same-sex marriage is currently not taken in kind words by the people but slowly and steadily the things are changing and people are able to change their perspective with respect to the LGBT community. Legalizing same-sex marriage in a country like India where a number of religions and customs are practiced is really difficult. Therefore, few approach switch can help legalize same-sex marriage without hurting any religion are that the existing laws are interpreted in such a way that they legalize same-sex marriage, LGBT can be regarded as a different community which has customs of its own that permits same-sex marriage, making amendments in the Act itself or all the religions can individually interpret their marriage laws in such a way that same-sex marriage becomes in accordance with their religion.

5. Briefly discuss your view on same-sex marriages?

Same-sex marriage refers to the marriage of the same sex which is similar to heterosexual marriages in terms of rituals and proceedings. Same-sex marriages should not be ashamed of and are justified because after all love knows no boundaries. The community must be made aware of this concept so that they can appreciate and celebrate the union of two loving souls without considering their gender. The community as a whole must attempt to legalize and accept same-sex marriage with respect to the laws, religion, and customs of the country. In the coming years, there is a ray of hope that same-sex marriages will also be celebrated just like normal marriages in India.