Falcis III v. Civil Registrar Oral Arguments - J Leonen Interpellation

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- - - - - - - - - - - - - - - - - - Jesus Nicardo M. Falcis III, ) Petitioner, ) ) v. ) ) Civil Registrar-General, ) Respondent, ) - - - - - - - - - - - - - - - - - - -

G.R. No. 217910

Tuesday, June 19, 2018 Interpellation by Justice Marvic Mario Victor F. Leonen

Falcis III v. Civil Registrar-General — — Oral Arguments……………………………………………………………………………………………… Oral Arguments………………………………………………………………………………………………2 Interpellation by J. Leonen

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JUSTICE LEONEN:

Atty. Falcis, can you take the podium. MR. FALCIS FALCIS III: III:

Your Honor. JUSTICE LEONEN:

I see that you are now properly attired for the court. MR. FALCIS FALCIS III: III:

Yes, your Honor. JUSTICE LEONEN:

And, of course, I hope you learned your lesson from the preliminary conference. MR. FALCIS FALCIS III: III:


Now, you realize of course that this is a very dangerous case that you brought. It’s dangerous to the movement that you apparently seem to have brought here, whether or not they had consent, because you are now going to put squarely for this court, the Supreme Court of this Republic, an issue which will require a very intimate reading of the provisions of the Constitution. You’re aware of that? MR. FALCIS FALCIS III: III:


You’re also aware that in many jurisdictions, before same-sex marriage was brought to their Supreme Courts, the United States included, Europe, Australia, that there were a lot of political battles that were waged in political forums such as their parliaments, their congresses, their churches, their corporations, et cetera. Correct? MR. FALCIS FALCIS III: III:

Yes, your Honor.


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JUSTICE LEONEN:

And in this particular case, do you think that the movement now — — the feminist movement here in the this country, the LGBT movement here in this country, and the movements that are simply asking for recognition of various identities — are that the political maturity of both the movement and the institutions of law are now ready to accept the nuances of your arguments? MR. FALCIS FALCIS III: III:

Your Honors, movement.

if

we

may

explain

about

the

JUSTICE LEONEN:

Not the movement. I am just asking whether you think that the political infrastructure is already there. MR. FALCIS FALCIS III: III:

Yes, your Honor. We do. JUSTICE LEONEN:

And in all cases where same-sex marriage have been argued in any court in this planet, they have always gone up against a patriarchy, correct? MR. FALCIS FALCIS III: III:


Heteronormativity, correct? MR. FALCIS FALCIS III: III:


And maybe in some instances, like some countries in Europe and perhaps even in the Philippines, the dominance of religious faiths and religious morality. Is that not correct? MR. FALCIS FALCIS III: III:

Yes, your Honor.


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JUSTICE LEONEN:

Yes. And you realize of course that your arguments of intimacy or your arguments of choice of intimate relations will be taken into consideration in the context of that, let us say, a cultural hegemony. Is that not correct? MR. FALCIS FALCIS III: III:

Yes, your Honor. If we may add that it will also be considered under the constitutional hegemony. JUSTICE LEONEN:

Well, there is no such thing as constitutional hegemony, if you know what hegemony really means. And then on the other hand, that cases such as this require a very clear understanding of certain concepts. For example, the difference between sex, whether assigned or re-assigned, gender identity, gender expression, and of course sexual orientation. I will just cover four of those later on. But you are of course, by bringing this case, you are trusting that this Supreme Court and of course the various infrastructures in our chambers — — our staff, our our lawyers — — understand understand the various nuance of between sex, gender, gender identity, gender expression and sexual orientation. Correct? MR. FALCIS FALCIS III: III:

Your Honor... JUSTICE LEONEN:

Because if the court, if the public, is not ready to accept the nuances or to understand these nuances, then we may commit a mistake and such a mistake might be permanent in terms of the very everyday intimate relations and the clamor for status of various people that are represented by the movement that is seated at your back. Correct? MR. FALCIS FALCIS III: III:

With your Honor’s Honor’s indulgence, the political infrastructure, the petitioners are of the belief that some Supreme Court decisions...


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JUSTICE LEONEN:

Not the political infrastructure, but the understanding of this issue must be so nuanced because, as I said, do you realize that we are... you are going up against a very powerful heteronormative culture in this country? MR. FALCIS FALCIS III: III:

Yes, your Honor.

JUSTICE LEONEN:

Yes. And I hope you are ready for that. MR. FALCIS FALCIS III: III:


Yes. And we will see. Okay. Now, and you trust that this court has the openness to listen, correct? MR. FALCIS FALCIS III: III:


Notwithstanding our own various relations. Is that not correct?

intimate

MR. FALCIS FALCIS III: III:


That it will not creep into our understanding of the legal issues that are involved.

MR. FALCIS FALCIS III: III:

Your Honor, yes. JUSTICE LEONEN:

Yes. Okay. So, and of course you understand that whatever ruling this court gives — — whether or not whether to grant your petition and for whatever purpose or whatever reason — — is not a reflection of how is

Falcis III v. Civil Registrar-General — Oral Arguments………………………………………………………………………………………………6 Interpellation by J. Leonen

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we regard those that are wishing to have samesex relationships or who have different identity — gender identity — as ours. MR. FALCIS III:


And, therefore, that you trust that this court, on this issue, is going to simply rule on the merits of the constitution, its provisions, as well as the context, the proper constitutional interpretative methodology that we think is appropriate. Is that not correct? MR. FALCIS III:

We trust this court so much, your Honor. JUSTICE LEONEN:

Yes. Really? So much? So much... MR. FALCIS III:


...that you are willing to accept a denial of your petition later on, just in case? MR. FALCIS III:

That is the consequence of Honor, and our rule of law.

democracy,

your

JUSTICE LEONEN:

Well, that’s a good attitude to take because there are some that have been defeated by this court that give other reasons other than trusting the interpretation of this court. Okay. Also, you realize that it is your burden to prove to this court the unconstitutionality of the provisions that you have cited, as well as the interference, abridgement, or denial of the constitutional rights of yourself and of your client. You carry the burden. Is that not correct?


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MR. FALCIS III:

Yes, your Honor. With the indulgence of your Honor... JUSTICE LEONEN:

Yes, so you carry the burden and you have to go through four levels. In accordance with how the pleadings have been filed, there are now four obstacles that you have to hurdle, some of which, of course, you have raised. The others were joined as the Solicitor General filed its comment and its supplemental comment. The first one is justiciability. Correct? MR. FALCIS III:


Because as far as the first petition was concerned... That was filed by you, is it not correct? MR. FALCIS III:


And you do correct?

not

have

a

partner.

Is

that

not

MR. FALCIS III:

I do not have a partner. JUSTICE LEONEN:

And yet you claim that there is an abridgement of your right to marry. Is that not correct? MR. FALCIS III:


And there was an intervention, but the intervention carried the experience of a couple that tried to get a marriage license. Is that not correct?


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MR. FALCIS III:


By the way, just so we can put a face to the parties, are the intervenors, which you also represent, here present? MR. FALCIS III:


Can you kindly ask them to stand up so that we can identify them. Okay. There’s three. MR. FALCIS III:

Petitioners Cresencio Agbayani and Marlon Felipe and Maria Sugar Ibañez, but her partner wishes to remain anonymous. JUSTICE LEONEN:

Okay. We will respect that. Thank you. I thought you were going to talk about polyamory. But not yet. Okay. MR. FALCIS III:

No. No, you Honor.

JUSTICE LEONEN:

Not yet. Although I will have certain questions in relation to that at a certain point. Okay. And a bit serious question later on. Okay. So, justiciability is something that you will hurdle and I think that you are very well-aware of the issues that were raised in relation to justiciability. The second thing that you have to hurdle is the nature of this right to marry. On the one hand, you claim, the petitioners claim, that it is a fundamental and constitutional right. On the other, the Solicitor General takes the position that it is a right, yes, but it is a statutory construct, which means that the right to marry may be there, but it needs to be clarified in


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congress rather than in the court. Is that an accurate portrayal of the issue? MR. FALCIS III:

Yes, your honor. JUSTICE LEONEN:

Yes. And, of course, the SolGen takes also a dangerous position for your side because it actually argues that the constitutional provision which says ‘marriage founds a family’ only refers to a male and a female, an oppositesex relation. That is the other position that the SolGen is doing, correct? MR. FALCIS III:


And if this court adopts that second position, then even same-sex relationships will no longer be a political question. It will not be able to pass any bill in the House or in the Senate because the Supreme Court might say, if it agrees with part of the argument of the SolGen, that marriage is only for same-sex couples constitutionally. Is that not correct? That’s the risk you’re taking. MR. FALCIS III:

Yes, your Honor. However, we have certain qualifications if that would happen, your Honor. JUSTICE LEONEN:

Okay, that’s why I said this is a very dangerous case for your movement. Okay. Third is even though there is such a thing as an inherent constitutional fundamental right to marry, that you will have to show clearly and convincingly to this court that it breaches any one of the constitutional limitations of government — the first one being due process, the second one being equal protection, and the third one being religious freedoms. Is that not correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Yes. And in terms of religious freedom, just to be clear, your argument is your right to express a religious belief is violated by the provisions on marriage. Correct? MR. FALCIS III:


It is not taking a position that the provisions on marriage found in our Civil Code entrenches or establishes a religious belief. MR. FALCIS III:

No, your Honor. That is not... JUSTICE LEONEN:

So, it’s just the... only free expression not non-establishment. MR. FALCIS III:

Free expression, your Honor, in relation... as especially... as well in Article... JUSTICE LEONEN:

And, therefore, some of the words or some of the sentences which could be interpreted in this regard in some of the peti... in the petitionfor-intervention, especially, on non... on the non-establishment violation is not correct. We are limiting ourselves to freedom... to the freedom to express one’s religion. Is that not correct? MR. FALCIS III:

Yes, your honor. There is no argument on nonestablishment. JUSTICE LEONEN:

Okay. That’s the third. And finally, considering that there are many heterosexual couples that have actually taken the vows of marriage, you are now asking the court in your prayer in your pleadings to declare as null and void the provisions which


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actually allow heterosexual couples to marry. Is that not correct? MR. FALCIS III:

With the indulgence of this court, we would like to qualify that prayer, your Honor, or relief. JUSTICE LEONEN:

Because if that is done so, then you are therefore saying that you want to dictate a kind of intimate relations also on others. MR. FALCIS III:

No, your Honor. JUSTICE LEONEN:

So, what is your prayer? MR. FALCIS III:

The prayer of the petitions, your Honor, initially says that... to declare Articles 1 and 2 of the Family Code as null and void. However, we also prayed for other just and equitable reliefs, which we are of the position that in relation with Republic v. Manalo, that there is an alternative option for this court in the exercise of its expanded power of judicial review to... in the light that... that provision... JUSTICE LEONEN:

Wait a minute. You’re saying or you’re claiming that the proper reading of Republic v. Manalo under the ponencia of Justice Peralta is that there is an alternative to finding... there is an alternative consequence to a finding that a provision is unconstitutional. Normally, if a provision is unconstitutional, it is void ab initio. MR. FALCIS III:


And you are now saying that the court has created new jurisprudence in Republic v. Manalo that when you find a provision to be unconstitutional, that it can be valid?


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MR. FALCIS III:

No, your Honor. What petitioners are saying that our interpretation of this court’s guide in Republic v. Manalo is that... JUSTICE LEONEN:

So in essence you are asking the court to find or to found new jurisprudence in relation to situations like yours. MR. FALCIS III:

No, you Honor. We are only asking for a statutory interpretation that was applied in Republic v. Manalo that versus two interpretations that would lead to a finding of a finding of unconstitutionality, the court found... the court adopted a liberal interpretation, did not declare Article 26 paragraph 2 as unconstitutional. But because the constitution is deemed written into the Family Code as well, interpreted it in light of the equal protection clause. JUSTICE LEONEN:

As a matter of fact, this was also mentioned in a concurring opinion in Garcia v. Drilon. Is that not correct? That was on battered men and the possibility that in a future case, and not in that case, that there can be a man, a biological male, who will file or ask that they be protected under VAWC. But it was just a concurring opinion. Is that not correct? MR. FALCIS III:

Yes, your honor. JUSTICE LEONEN:

So your claim now is that it has found unanimity in the court in Republic v. Manalo. Well not really unanimity, there was a dissent in Republic v. Manalo. Correct? MR. FALCIS III:


How many dissents were there in the Republic... in that case?


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MR. FALCIS III:

One joined by two justices, your Honor. JUSTICE LEONEN:

Who dissented? Because you were mentioning names of justices a while ago, so I think you are a very astute observer of the court. MR. FALCIS III:

I would not claim, your Honor, that, but to answer the original question, the dissenting opinion was by Justice Caguioa joined by Justice Bernabe and Justice Del Castillo. JUSTICE LEONEN:

It was a very well-reasoned out decision, almost convincing to the majority. Was that not correct? MR. FALCIS III:


Yes. Okay. Now, before we proceed and just to be very clear about this. You mentioned an American case. What is this American case? MR. FALCIS III:

I mentioned two American cases I think, your Honor. JUSTICE LEONEN:

Under the pen of the American justice Kennedy. You mentioned that case. MR. FALCIS III:

The case of Obergefell v. Hodges, your Honor. JUSTICE LEONEN:

Yes. Now, just to be clear. What is the status of American cases to this Supreme Court? MR. FALCIS III:

Your Honor, it’s only persuasive.


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JUSTICE LEONEN:

As persuasive as jurisprudence of South Africa, of Nairobi, or Papua New Guinea, or Europe, or the European Court of Human Rights. Is that not correct? MR. FALCIS III:


Yes. Insofar as we are concerned, precedent. Is that not correct?

it

is

not

MR. FALCIS III:


Because the truth is, that the provisions that they were interpreting may have had similarity in terms of the text that we find in our constitution, but we have extra provisions in the 1987 Constitution. Is that not correct? MR. FALCIS III:


That relates to your case. Is that not correct? MR. FALCIS III:


For example? MR. FALCIS III:

Article 15, the right to found a family in accordance their religious convictions, the nature and the characteristic of marriage as an inviolable social institution that serves as the foundation of the family, and Article 2, your Honor, in relation with the declaration that family life... the state should respect the sanctity of family life.


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JUSTICE LEONEN:

So are you claiming that.... Well, in that case that you mentioned in the United States, reading it casually, one of the debates between the majority and the minority — that was 5-4 decision... MR. FALCIS III:


One of the debates was whether it was correct to find an inchoate, invisible, substantive right to marry included within the provision that is similar to our due process clause. Was that not correct? In fact, the Chief Justice Roberts there, Alito, and several others were saying while they may not disagree with samesex marriage, it is for them something that must be statutorily constructed. Is that not true? MR. FALCIS III:

Yes, Your Honor. JUSTICE LEONEN:

So, the debate there was whether in fact there was a right to marry as a fundamental constitutional right. Was that not correct? MR. FALCIS III:


Yes. But they did not have Article 5, correct? Article 15 that we have now, correct? MR. FALCIS III:


And in Article 15, Section 2, it says that marriage, as an inviolable social institution, is the foundation of a family and shall be protected by the State. Is that not correct?


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MR. FALCIS III:


So, in essence, can you not say or is it your position that the right to marry is in the Philippines, under the 1987 Constitution, not in the United States, not in Europe, but in the Philippines, that marriage is a right? MR. FALCIS III:

A constitutional right. Yes, your Honor. JUSTICE LEONEN:

Because it says the foundation of a family and shall be protected by the State. Is that not correct? MR. FALCIS III:


Yes. It is this right to marry that can be implied from Section 2. Is that not correct? MR. FALCIS III:


Okay. And there family, correct?

is

also

a

right

to

found

a

MR. FALCIS III:


Article 15, Section 3, the right of spouses to found a family. Is that not correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Yes. And, therefore, to found a family requires, according to Section 2, marriage, as an inviolable social institution. Correct? MR. FALCIS III:


Yes. So did you not say that the question as to whether or not there is an inherent, substantive, fundamental constitutional right to marry is already answered by Article 15? MR. FALCIS III:


There is no other way to read Article 15. From your point of view. MR. FALCIS III:

Your Honor, we are guided by the decision in Antonio v. Reyes that it is a right and the legislature may... JUSTICE LEONEN:

No, but it did handle the question of whether the right to marry is a constitutional right. MR. FALCIS III:


As a matter of fact, you are correct that the first case that actually did so was Republic v. Manalo. Correct? MR. FALCIS III:


Where it was very clear from the ponencia that it is a fundamental constitutional right. Correct?


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MR. FALCIS III:


Or was it only a fundamental right? MR. FALCIS III:

A fundamental right, your Honor. JUSTICE LEONEN:

Or did it say constitutional? Of course, you quoted my separate opinion in your... as quote in your pleading, but a separate opinion is always a separate opinion, carried only by a single justice who is always hopeful that in a future case it will be adopted. But of course, we are looking at the majority. In Republic v. Manalo, are you sure that the court consciously said that it was a fundamental constitutional right? MR. FALCIS III:

Your Honors, if I may quote, the case says, ‘Fundamental rights whose infringement leads to strict scrutiny are those basic liberties explicitly or implicitly guaranteed in the constitution. It includes the right of procreation, the right to marry.’ JUSTICE LEONEN:

Okay. So, the right to marry is there, already acknowledged. Correct? MR. FALCIS III:


Yes. Now, let us make a distinction between the concept of marriage. Okay. One can only love through marriage. Is that true? MR. FALCIS III:

No, your Honor.


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JUSTICE LEONEN:

So it’s Correct?

possible

to

love

without

marriage.

MR. FALCIS III:


Yes. One can have sexual relations only through marriage. MR. FALCIS III:


I mean it’s physically impossible to have sexual relations unless you are married. True or false? MR. FALCIS III:

False, your Honor. JUSTICE LEONEN:

Yes. Is it illegal outside marriage?

to

have

sexual

relations

MR. FALCIS III:

According to our public morality, your Honor, No. JUSTICE LEONEN:

No, not public morality. I’m asking about legality. I am not a priest. Therefore, my question is, is it illegal? MR. FALCIS III:

Yes, it’s illegal. JUSTICE LEONEN:

Sex outside of marriage? Oh my god, we have lots of criminals.


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MR. FALCIS III:

It is not illegal, your Honor. I only mentioned public morality, your Honor, to refer to secular... JUSTICE LEONEN:

That by the way is not an admission, but in any case, it was a question. Okay. In any case, so, is it illegal to have sex outside of marriage? MR. FALCIS III:


Is it illegal marriage?

to

have

a

child

outside

of

MR. FALCIS III:


Is it illegal to have co-ownership outside of marriage? MR. FALCIS III:


Is it.... So, therefore, it’s possible to love, to promise, to commit, to found a family outside marriage. MR. FALCIS III:

To serve as a foundation of their family, your Honor, no. JUSTICE LEONEN:

That is not my question. My question was, is it possible to love, to promise, to commit, to have children, to have intimate relations outside of marriage? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Is it possible to outside of marriage?

have

property

relations

MR. FALCIS III:


Yes. So what’s the problem? MR. FALCIS III:

Your Honor, the Family Code... JUSTICE LEONEN:

Because your claim is, and if I may examine your arguments very carefully, that you are deprived of your right to intimacy, that you are deprived of your right to choice, that you are deprived of your right to have intimate sexual expression because of the prohibition that you cannot marry. MR. FALCIS III:

Your Honors, with the court’s indulgence, the petition did not argue that without marriage the LGBT people could not consummate intimate sexual relationships, your Honor. We are only of the submission that without marriage, we lose access to a bundle of legal rights and obligations that will help serve as the foundation of their family, your Honor. JUSTICE LEONEN:

So your claim is that marriage produces a legal status different from... let’s unpack it a little bit more. Your claim is that marriage creates a social and cultural status —let’s forget about the legal first — as social and cultural status which is not granted to the possibility of intimate relations among samesex couples. MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Really? But if the couple is out, they can have friends that understand that they are together. Is that not correct? MR. FALCIS III:


In fact, I know of a lot of same-sex relationships that outlasts married relationships among heterosexual couples. MR. FALCIS III:


So it’s possible. There is social recognition already. Correct? MR. FALCIS III:


And among the families of same-sex couples, if they are out and if there is acceptance, then there is also a recognition that there can be some relations that are created by two strangers when they pronounce themselves as being together. Is that not correct? MR. FALCIS III:

There can be a relationship, yes, your Honor, but it is not a legal relationship. JUSTICE LEONEN:

A legal relationship. So, it’s illegal? MR. FALCIS III:

No, your Honor. It is not recognized. JUSTICE LEONEN:

Not recognized. What is this with recognition? What is it that is added by the legal recognition of marriage?


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MR. FALCIS III:

The legal recognition of same-sex relationships under marriage would allow them to access numerous rights and obligations, your Honor, like the right to make decisions for their partner in the event of a medical accident where one person is in comatose. In the status quo, your Honor, they cannot assert and demand by right to be in the hospital and make decisions for their partner. Or they cannot inherit or they cannot claim SSS, GSIS benefits, your Honor. JUSTICE LEONEN:

Let’s look through that a little bit more. Is it not possible to delegate, to create a will, and in the will, actually state that another person shall have arrangements, or shall make the arrangements with respect to a decedent? MR. FALCIS III:

Yes, your Honor. However, the... JUSTICE LEONEN:

In fact, the recent case of Valiño v. Adriano said that. Except that in that particular case, there was no will. And, therefore, it was granted to the legitimate spouse in accordance with the law.

MR. FALCIS III:

Yes, your Honor.

Honor,

and

not

the

mistress,

your

JUSTICE LEONEN:

Okay. So, it is possible by contractual relations for a couple in intimate relations to actually construct the kind of relationship that they want. MR. FALCIS III:

Yes, your Honor. However... JUSTICE LEONEN:

So, isn’t this better than marriage?


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MR. FALCIS III:

For some people, your Honor, yes. JUSTICE LEONEN:

Yes. I mean for marriage, you are given a package deal. As a matter of fact, that marriage even has that provision that the only way that you can get out of marriage, are... one of the ways is this provision on Article 36, psychological incapacity. And according to this court, the dominant view is that Republic v. Molina still applies. And in same-sex couples, you can package a civil union. You can actually create the relationship amongst yourselves, getting bits and pieces from the law. Isn’t that a more advantageous relationship? It has more freedom. It has more choices. And without the burdens of a married state. MR. FALCIS III:

With the court’s indulgence, your Honor, we submit that it depends on the person what kind of recognition or contractual relationship they would want to have with the person. And some may want to have a relationship outside marriage and get expensive lawyers to create those contractual relationships. Some may want the right to marry which comes as a package deal... JUSTICE LEONEN:

I think we have to be careful about stereotyping. Not all lawyers are expensive. I mean I’m looking at you. For example, you are a public interest lawyer, I suppose, doing a lot of work. I think you were also counsel for SPARK, if I’m not a ..., this curfew case, among others, decided by Justice Perlas-Bernabe in a unanimous decision of this court. So, we have to be careful because that will color emotionally the decisions in this case. There are available lawyers, even paralegals, that can help same-sex couples actually create a civil union. And that civil union can have all the rights provided by law, carefully constructed in order to be able to have, you know, the best possible world. Isn’t that more powerful, more liberating of one’s agency? MR. FALCIS III:

Your Honors, petitioners are of the submission that not all legal rights may be....


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JUSTICE LEONEN:

In other words, even within the LGBT movement, there is debate whether marriage equality is already gender equality, correct? MR. FALCIS III:


That gender equality can be achieved even much more without marriage equality. There is some that take that kind of position. Is that not correct? MR. FALCIS III:


Yes. So, now, what is your argument now? So, you can create your own relationship. You can have a civil union, do not call it marriage. Or... Well, you will not have... or you can create your own relationship with the in-laws or the other relations of the other party. Is that not correct? MR. FALCIS III:

Your Honors, petitioners may concede that there are some legal aspects that we can access without marriage with expensive or not expensive lawyers, but this would simply put is in an unequal footing, your Honors, as second-class citizens because other couples do not need to go through those legal maze to access those rights... JUSTICE LEONEN:

What I’m asking you, Atty. Falcis, is aren’t people — heterosexual couples — that go into marriage more second-class than what you can create? MR. FALCIS III:

No, your Honors.


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JUSTICE LEONEN:

Because it’s a... well, it’s pre-packaged set of law. In fact, if you trace that law, it comes from the Spanish Civil Code. Okay, the Partidas and then the Nueva Recopilacion and coming from the Fuero Juzgo before, correct. And it instilled the patriarchy. In fact, there are still vestiges now of patriarchy in that particular Civil Code. And there are a lot of limitations. It is not culturally created. It’s not endogenous within our system. Can you imagine, same-sex couples now can make their own civil union. Correct? MR. FALCIS III:

Yes, your Honor, in a limited sense. JUSTICE LEONEN:

The ideal of some legal scholars which is to challenge even the constitutionality of marriage as a burden into their freedoms is now available to same-sex couples. MR. FALCIS III:

Yes, your Honor, but that is not by choice, your Honors. The same-sex couples do not have the choice to opt out of marriage because we are not even allowed to opt in. JUSTICE LEONEN:

Is it accurate that you are arguing to get into a situation which is more limited? MR. FALCIS III:

Your Honors, there are some situations that would be limited under marriage, but there are other situations that are... JUSTICE LEONEN:

But you see, Atty. Falcis, that was not clear in your pleadings. And perhaps you make that clear when you file your memoranda. What exactly in marriage — that status of marriage? So, the status of marriage creates a bundle of rights and obligations, but the rights and obligations can also be fixed by contractual obligations. Is that not correct? And because it can be fixed by contractual relations, you can actually create a little bit more perfect


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civil union. In fact, you can even say in your contract that we will stay together for ten years. After ten years, it’s renewable. Correct? That cannot be done by heterosexual couples wanting to marry. But if that is your belief, then it can be established in that kind of an arrangement. Correct? You may say not conjugal partnership or absolute community. You will specify the details of the co-ownership or the common ownership that you have of the properties that you have. You will say that everything that I made is mine; everything that you make, because you’re richer, therefore, will be shared by us. That’s more egalitarian. Correct? That’s not in the Civil Code, right? MR. FALCIS III:


And you can say that you can create property relations prior to committing to each other and you can amend it after two years while inside the relations. Whereas in marriage, when is the only time that you can create a property relations? MR. FALCIS III:

In a pre-nuptial agreement, your Honor. JUSTICE LEONEN:

Pre-nuptial. After you get married, you cannot change the property relations. Is that not correct? MR. FALCIS III:


So, are you now saying that it is a limitation on your freedom rather than a... I mean... Do you agree with me that marriage limits the freedom of same-sex couples? MR. FALCIS III:

With this court’s indulgence, your Honor, there are contracts and stipulations that will not be allowed unless you are married because they will be contrary to laws such as the compulsory


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portion of one’s inheritance or SSS and GSIS benefits, which can only go to a spouse, your Honor, and the next kin after that, your Honor. JUSTICE LEONEN:

Let’s follow that through. The legitime, correct? Compulsory portion of your inheritance, right? But if it’s a same-sex couple, who should have that? And can you not provide in the will that the same amount that should been a compulsory... the compulsory share of the spouse is now with your partner? MR. FALCIS III:

Your Honors, we don’t think that would be allowed because if same-sex marriage is not recognized, the compulsory, the portion... JUSTICE LEONEN:

Can we do spouse?

just

disinherit

The

children?

The

MR. FALCIS III:

Your Honors, in the simple understanding of counsel, your Honors, there are two portions to a legitime, the free portion and the compulsory portion. Where a person may freely give to any one the free portion, the compulsory portion is given to a list of people by succession and without... JUSTICE LEONEN:

And yes, the list of persons includes legitimate spouse. But if the same-sex couple does not have a legitimate spouse, correct? MR. FALCIS III:


Because there descendants.

is

MR. FALCIS III:

Yes, your Honor.

no

one.

The

next

one

is


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JUSTICE LEONEN:

And if the same-sex couples adopt, singly or together, then there is that descendant. Correct? MR. FALCIS III:

Your Honors, we don’t think LGBT couples can jointly adopt under our present... JUSTICE LEONEN:

So that is one. MR. FALCIS III:


So, the solution there is to change the law on adoption. MR. FALCIS III:


It’s to change the law on marriage? MR. FALCIS III:

If by changing, your Honor, it means going to congress, we so... JUSTICE LEONEN:

Why is changing the law on marriage more urgent rather than attacking other laws? I’m aware that there is an organ donation law that when a spouse dies, according to this law, that it is the legitimate spouse that decides whether the organs of the decedent can be donated. Okay. I’m aware of that. That’s a single provision that may be amended by congress. And you know in the process, Atty. Falcis, as you amend bits and pieces of other laws, you create an understanding of the nuances of gender identity, sexual orientation, gender and sex amongst our political leaders. Who knows that at some point there can be legislation rather than relying on the Supreme Court to actually give you that right.


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MR. FALCIS III:

Your Honors, with the simple... JUSTICE LEONEN:

The political acceptance by the majority is stronger than a decision of this court. We are unelected. We can be changed. We can be subject of quo warranto for that matter and the SolGen is there looking at me very intently. So I am not sure what his intentions are. But the point there, counsel, is that this is an unelected majority, an unelected institution. Shouldn’t it be stronger that culturally we get acceptance of things which are the vestiges of our heteronormative world and patriarchy so that it becomes stronger? MR. FALCIS III:

Your Honor, with this court’s indulgence, while it may be desirable for the question of sex, sexuality, gender identity to pass through congress, in the case of Philippine Blooming Mills, this court has said that fundamental rights are not subject to popular elections or to the wills — to the will — of congress, your Honor. Fundamental rights are and should be enjoyed by all. JUSTICE LEONEN:

Yes, but can you imagine the danger? This court can say that the right to contract...the right to... the right of contract is a fundamental right and can you imagine what that will do in terms of social justice. If we are to be free in terms of what is dictating what is inside that concept of autonomy protected by the due process clause then as much as we can be liberal to progressive movements, we can also be liberal to nonprogressive movements. Is that not correct? MR. FALCIS III:


And you do not want the power to an institution that does not have political accountability. Is that not correct?


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There may be rallies that are conducted outside of our halls in Padre Faura; there may be newspaper articles that come out; there may be social media that attack each on of us, put is in memes, et cetera; but our sworn duty is not to be popular. Our sworn duty is to interpret the provision of the law. Is that not correct? MR. FALCIS III:


Yes. So, what is it in marriage? Is this... is there really inequality in terms of the interpretation of that status? MR. FALCIS III:

Yes, your Honor. We are of the submission that the Family Code limited the definition of marriage by itself without due regard to the constitutional provisions about the right to marry in relation with the equal protection clause and other provisions of the constitution. JUSTICE LEONEN:

So, you do not agree that for opposite-sex couples, when they choose the right of marriage.... By the way, can opposite-sex couples, a man and a woman or a woman and a man, may they opt not to marry? MR. FALCIS III:


So, the right to marry is mandatory, compulsory duty.

really

not

a

MR. FALCIS III:


In other words, nobody can compel you to marry, right?


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MR. FALCIS III:


Especially if we do not have a partner, correct? That would be the height of cruelty, right? Yes. So, it is a privilege. It is an option. MR. FALCIS III:


And, therefore, even opposite-sex couples, or heterosexual couples, may opt not to marry. Is that not correct? MR. FALCIS III:


Yes. So, my question is this. Why is there an insistence that same-sex couples can also be marry considering that there are many ways by which the civil union can also be reconstructed? MR. FALCIS III:

Our submission, your Honor, is that heterosexual couples may or may not marry, but LGBT couples do not have the same choices to may marry or nor marry, your Honors. And as Filipinos, as taxpayers, as human beings with dignity, the constitution requires that their rights be guaranteed as well. JUSTICE LEONEN:

Can a same-sex couple have families? MR. FALCIS III:


Can it be a loving family environment? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Can it be a loving family environment without marriage? MR. FALCIS III:


Can that family become an autonomous unit in our body-politic such that it provides the foundation of a society because of its loving atmosphere? MR. FALCIS III:

Yes, your Honor, subject to certain stigma or inequality... JUSTICE LEONEN:

Do you need a marriage certificate in order that that family contributes to society? MR. FALCIS III:


So, that family can be as strong as a family of heterosexual couples that get married. Is that not correct? MR. FALCIS III:

In their...your Honor, in their own private sphere, maybe in their houses, your Honor, but when they go out or deal with the government or with state agents or instrumentalities, that relationship or loving family will not be given the same priority or rights or benefits, your Honor. JUSTICE LEONEN:

Okay. Is marriage only for procreation? MR. FALCIS III:

No, your Honor.


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JUSTICE LEONEN:

Is the compelling state interest in protecting marriage because it legitimizes procreation? MR. FALCIS III:

Your Honors, we are of the submission that procreation cannot be and is not the compelling state interest. JUSTICE LEONEN:

I am aware of course that the Catholic doctrine, if I’m not mistaken in my Catholic schools, is that marriage, one of the primary functions is procreation. But that’s religion. MR. FALCIS III:


Yes. And you can marry at the age of seventy. Is that not correct? Is it a disqualification that senior citizens cannot get married? MR. FALCIS III:


Overqualification? MR. FALCIS III:


No. So, correct?

senior

citizens

may

get

married,

MR. FALCIS III:


But biologically they cannot have an offspring, correct?


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MR. FALCIS III:


So, marriage right?

is

not

for

procreation

simply,

MR. FALCIS III:

As it stands now in our laws, yes, your Honor. JUSTICE LEONEN:

Yes. What about the protection of tradition? Is that a compelling state interest? MR. FALCIS III:

Your Honors, petitioners are of the submission that that cannot be compelling state interest given that we are... JUSTICE LEONEN:

Would you agree with me that the law on marriage have changed through the years? MR. FALCIS III:


Would you agree with me that there was a time that a married woman cannot contract without the consent of the husband? MR. FALCIS III:


Would you agree with me that there was a time when we almost had a similar situation like coverture? In other words, the woman loses her identity. Is that not correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

And those changed, correct? MR. FALCIS III:


So, if there is a compelling state interest to protect tradition, then we should not have changed our marriage laws. Correct? MR. FALCIS III:


But is that couple?

applicable

for

the

sexes

of

the

MR. FALCIS III:

Your Honors, we are of the submission that if... even...even by going by tradition, your Honors, there were LGBT couples who were alive during the time that our constitution was ratified and were already living together and had a loving relationship, your Honor. Even in pre-colonial times, your Honor, based on tradition, but because they were erased after colonization... JUSTICE LEONEN:

In fact, correct?

we

have

the

concept

of

a

babaylan,

MR. FALCIS III:


What is a babaylan? MR. FALCIS III:

A babaylan, your Honor, according to scholars if I recall correctly, is a person who can access two sexes or genders and sometimes they can perform rituals that heal people because of their different ability to access both sexes, your Honor.


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JUSTICE LEONEN:

Okay. And the babylan, therefore, can have a male partner although he or she would consider herself as with the sexual orientation wanting male partners. Correct? MR. FALCIS III:

Yes, your Honor. There is this scholar in the University of the Philippines by the name of Neil Garcia and we obtained his permission to quote him. He has a paper that says that there were babaylans that had male partners. JUSTICE LEONEN:

In view of the comment of the SolGen, the Solicitor General, tracing the history of marriage, I would guess that in your memoranda you would like to cover your own take of herstory or history of marriage, correct? MR. FALCIS III:


Yes and I hope that it will be very clear that in certain instances, the history of marriage cannot only be the statutory provisions because statutory are impositions on cultures that are evolving, correct? MR. FALCIS III:


Therefore, you might want to cover that in your memoranda. But, by the way, can same -sex couples procreate? MR. FALCIS III:

Technically, your Honors, with the advent of... JUSTICE LEONEN:

Yes, technically.


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MR. FALCIS III:

With the advent of science, with their DNAs together, they cannot, but individually, with surrogacy or an actual donor... JUSTICE LEONEN:

Yes, there are various technologies available in order to be able to have an offspring where the DNA comes from either, correct? MR. FALCIS III:


By the way, these reproductive technologies, are they available to heterosexual couples? MR. FALCIS III:


Yes, also available to them. And it is not because they have availed of that technology that the children are not their children. Is that not correct? MR. FALCIS III:


They become their children only because they are married, correct? MR. FALCIS III:


They become legitimate children because they are married, correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Yes, but in such cases where, for example, one of the members of that heterosexual couple discovers that it wants to be more authentic with respect to its gender identity, or maybe not even gender identity, it’s sexual orientation, and therefore annuls or divorces the marriage and chooses another partner, that is more attuned with his authentic sexual orientation, then it is possible to make arrangements with that non-traditional arrangement, correct? MR. FALCIS III:


Does that not destroy the family? MR. FALCIS III:

Your Honors, under our system of laws, it is only because there are absence of laws that recognize such situations that that create that situation... JUSTICE LEONEN:

Do broken families destroy family? MR. FALCIS III:

A broken family, your Honor, yes. Unfortunately, for some people is a... JUSTICE LEONEN:

In fact, when the husband and wife separate and not file annulment, sometimes they become more cordial. Is that not correct? MR. FALCIS III:

Sometimes, your Honor. JUSTICE LEONEN:

Because they’re more cordial, the atmosphere of the households, be they one or two, becomes more cordial for the children. Is that not correct?


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MR. FALCIS III:


Yes. And the claim that a family with a male and a female, a mother and a father, is the only one that assures the protection of the family may not be accurate. Is that not correct? MR. FALCIS III:

Yes, your Honor. It’s not accurate. JUSTICE LEONEN:

Because there can be non-traditional relationships where you have a second family, but everybody gets together fine. Is that not correct? MR. FALCIS III:

Your Honors, when... JUSTICE LEONEN:

Does the constitution family? MR. FALCIS III:


It just says it’s a strong autonomous political unit. Is that not correct? MR. FALCIS III:


I’m sorry, social unit. Is that not correct? MR. FALCIS III:


Yes, probably you can also cover that in your memoranda. You see, when a judge has a relation


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within the fourth degree of consanguinity and affinity, that judge has to recuse. MR. FALCIS III:


And that’s in our Implementing Rules and Regulations, Internal Rules and Regulations of the Supreme Court, correct? MR. FALCIS III:


And that correct?

is

also

among

judges.

Is

that

not

MR. FALCIS III:


So, in terms of judges who are... who have... sexually oriented towards the same sex, this will not apply, correct? MR. FALCIS III:


They will not have to mandatorily inhibit because according to the law now, there is no consanguinity or affinity because they can never be legally married. Correct? MR. FALCIS III:


So, there are these consequences of having a married state. Correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

It may be more difficult, it may be more constraining, but it’s the choice of the individual to choose such an arrangement. Is that not correct? MR. FALCIS III:


Yes. Okay. And in some cases where there are same-sex couples, the roles — cultural roles or legal roles — of the in-laws, the cousins, may not be recognized. Correct? MR. FALCIS III:


Because one of the functions of marriage as a legal status is to actually bring the families of two strangers together. Is that not correct? MR. FALCIS III:


And, therefore, from there create a larger clan, which will later on become bigger and bigger, which would then be the foundation of the... our politics. Is that not correct? MR. FALCIS III:


And by not allowing marriage to same-sex couples, therefore, it disenfranchises their citizenship in that regard. Is that not correct? MR. FALCIS III:


How come?


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MR. FALCIS III:

Citizens of this republic, your Honor, they deserve the same rights and obligations or liabilities even as other citizens. And so if on the one hand, there are situations that will not create those bonds that lead to either inhibitions or liabilities, then there is inequality there, your Honor. JUSTICE LEONEN:

Okay, before I end, just to be clear, so that the terms are very clear. Sex and gender, what’s the difference? MR. FALCIS III:

Your Honors, based on the most understandings of the community...

recent

JUSTICE LEONEN:

Sex is biological. It is either assigned birth or it can be reassigned, correct?

at

MR. FALCIS III:

Unfortunately... JUSTICE LEONEN:

One can go through a sexual reassignment surgery in order to be able to change one’s biological sex. Correct? MR. FALCIS III:

Outside the possible.

law,

yes,

your

Honor.

That

is

JUSTICE LEONEN:

Meaning it’s illegal? MR. FALCIS III:

No, your Honors. JUSTICE LEONEN:

In this country, it’s illegal? Is it illegal to pierce one’s ear?


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MR. FALCIS III:


Is it illegal to do something with your body, like cut all of your hair? MR. FALCIS III:

No, your Honors. JUSTICE LEONEN:

It’s in fact fashionable. Correct? Yes. But it’s not illegal, therefore, as far as the Revised Penal Code says, to actually go through a sexual reassignment surgery, correct? MR. FALCIS III:

It is... JUSTICE LEONEN:

The only thing’s that’s illegal is suicide. I’m sorry, not suicide, assisting suicide. Because if it’s suicide and the person dies there is no accused already, correct? MR. FALCIS III:

Yes, your Honor. Just to clarify, your Honor, what I mean by it is not legal is that if one person changes their sex, except in the limited circumstance in Republic versus... JUSTICE LEONEN:

That’s the cultural, the legal aspect of it. I’, just clarifying the concept of sex, correct? MR. FALCIS III:


Sex is different from gender. Correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Gender refers to the cultural. Right? MR. FALCIS III:

It may either refer, your Honors, to expression or identity. JUSTICE LEONEN:

So, one says gender identity, it means the kinds of roles that you associate with yourself. Correct? MR. FALCIS III:


Whether you are biologically biologically female. Correct?

male

or

MR. FALCIS III:


The easiest way would be that if you are male and you choose pink, that doesn’t necessarily mean that your gender identity is that of female. Correct? MR. FALCIS III:


It’s just that you choose it. Correct? MR. FALCIS III:

That would be gender expression, your Honor. JUSTICE LEONEN:

Yes. So, this is gender identity, how you consider yourself in relation to society, in relation to your choices, correct? That’s gender identity.


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MR. FALCIS III:


And gender identity can either be binary or nonbinary. Is that not correct? MR. FALCIS III:

It can be either, yes, your Honor. JUSTICE LEONEN:

So, which means that you can either be boy or girl, male or female. That’s binary, correct? MR. FALCIS III:


Or you could opt not to choose any. My gender identity is asexual. My gender identity is talk to me further. It’s a conversational piece. Ask me questions and I will tell you my identity. Correct? MR. FALCIS III:


Yes. Okay, now, gender identity from gender expression. Correct?

is

different

MR. FALCIS III:


Because you may have a gender identity which society says you should act in this particular manner, but in certain instances, you’re a different person. You want to express yourself differently. Correct? MR. FALCIS III:

Yes, your Honor.


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JUSTICE LEONEN:

Like males that carry a muscled body that have earrings. Gender expression, correct? MR. FALCIS III:


Now, one way to express orientation, correct?

is

your

sexual

MR. FALCIS III:


Simplifying it. Just so that it’s clear. And, therefore, sexual orientation is who you want to have intimate relations with. Correct? MR. FALCIS III:


Gender identity is who you are. MR. FALCIS III:


Sexual orientation is who you want to go to bed with. MR. FALCIS III:

With the qualification, your Honors, that sexual orientation is not a choice. It is something that people just realize that they are attracted to a certain sex. JUSTICE LEONEN:

To simplify things, the law has made it that every male will all this kinds of gender identity and this sexual orientation. All females will have gender identity and sexual orientation. Correct? That’s how simplified the law is. Correct? And now you are challenging


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that simplification by actually saying that there can be exceptions. There can be a constitutional and fundamental right with respect to same sexes, but there are sexual orientation that they express is different. Correct? MR. FALCIS III:


Yes, because you are saying now that in the 1987 Constitution, when this was drafted, that was not yet a dominant view. That was not an accepted view, correct? In fact, right now, it may not be majoritarian view. It may not be the dominant view, but people operate their lives in accordance with that. Correct? MR. FALCIS III:


Okay. Is there a law that says that all males should choose blue? MR. FALCIS III:


Is there a law that says that homosexuality is a crime? MR. FALCIS III:


Is there are which says that having sex with the same sex is a crime? MR. FALCIS III:


Whether it’s male to male or female to female.


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MR. FALCIS III:

None, your Honor. JUSTICE LEONEN:

There is none. And, therefore, there is already some recognition that these things are not illegal and therefore people in the Philippines are free to live with that. Correct? MR. FALCIS III:


But there is a difficulty of outing themselves. In fact, as one of your petitioners, your peritioners-in-intervention, they opt to be anonymous for reasons which may be traced simply to an oppressive culture. Is that not correct? MR. FALCIS III:


There is no acceptance of who they are. Correct? MR. FALCIS III:


But what they should be allowed to do, by a constitution that understands freedom, is to have them accepted. Correct? MR. FALCIS III:


Because the constitution celebrates not respect for sameness, but our respect otherness. Is that not correct? MR. FALCIS III:

Yes, your Honor.

our for

Falcis III v. Civil Registrar Oral Arguments - J Leonen Interpellation

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