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Our Family Code, which took effect in 1988, 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."
While the Family Code was passed because "experience under the (old Civil) Code as well as pervasive changes and developments have necessitated revision of its provisions on marriage and family relations to bring them closer to Filipino customs, values and ideals and reflect contemporary trends and conditions," the Code not only failed to address same-sex marriage, but in fact prohibited it by allowing only heterosexual marriage.
At this time and age, is this statutory limitation on marriage unconstitutional?
In the hierarchy of our laws, the Constitution is supreme. Any inferior law or provision thereof, such as the Family Code, must not violate or go beyond its mandate. Neither is the Constitution a dead-letter document. One of my favorite jurists, former United States Associate Justice William J. Brennan, Jr. said: "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."
On issues relating to marriage, one of the "current problems" and the "current needs" testing the limits of the Constitution is the desire of a minority group, the LGBT community, to be given the same treatment in their relationship as those accorded to heterosexual unions.
Two of the great principles in our Constitution affected by this concern are enshrined in Section 2 Article 14 - which states that "marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State" - and in Section 1 of Article 3, which is known as the Bill of Right's "due process and equal protection clause." It provides that "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."
Textually, the constitutional provision on marriage is neutral. It does not say that only heterosexuals can get married. It was only the Family Code's codifiers, following the conventional concept in marriage, who limited it to heterosexual marriage. This is not necessarily bad as it reflected the traditional union that has benefited and still benefits the society.
But our Congress, with its plenary legislative powers, can always change the law by adding same-sex marriage as another acceptable legal union. Since the Constitution is neutral and does not make any limitation as to sex, making such an amendment will textually be within its ambit. It is a principle that when the Constitution does not distinguish, we should not distinguish. The question now is: are our legislators broad-minded enough to amend the law? Or should the matter be finally decided by the Supreme Court?
This brings us to the other "great principle" of our Constitution: the "due process and equal protection clause." Our Supreme Court can always take cognizance of issues involving this great principle. This is exactly the same principle partly provided in the US Constitution's 14th amendment forming the basis of the US Supreme Court's decision in allowing same sex marriage.
In Obergefell v. Hodges, the US Supreme Court said that, "in recognizing the equal protection clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unchallenged and unnoticed." The Supreme Court added that, through the years, laws involving, directly or indirectly, the rights of gays and lesbians, have proven to provide a dynamic of "demeaning their existence and control of their destiny" and unwarrantedly deprive them of benefits given to heterosexual relationship, which is a fundamental inequality that is unacceptable.
The point of the LGBT community, according to the landmark-decision of the US Supreme Court, is to be understood that they also respect the institution of marriage. They "respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."
The Philippines must take a serious look again at our 27 year-old Family Code excluding same-sex marriage. Is there already a consciousness among Filipinos or at least certain sectors that there can be a union acceptable other than that of man and woman? Is there a need also to protect the values and ideals of gays and lesbians who constitute a minority in our society? Is it not that the purpose of any law is to protect minorities who may be exploited or abused by the majority? Considering that there seems to be an unstoppable trend around the world to recognize same-sex-marriage, is it time for its recognition to bring family relations "to reflect contemporary trends and conditions" which, anyway, is one of the moving-inspiration of the Family Code?
If the answers to all these queries sway you towards a positive reply, then that is the start. Change may be truly inevitable and it is just a matter of time.
It could be that changing the usual marital paradigm may not in fact be destroying tradition, but profoundly improving it, rooted as it is in the basic truth that gays and lesbians are as much rights-holders as any heterosexual or "straight" person and that they have the right to lay claim on marriage. Making the institution of marriage more inclusive could strengthen it while it becomes more accessible to people who decide to commit themselves to love one another.
x x x."
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