FAR EASTERN UNIVERSITY

INSTITUTE OF LAW

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STA. MARIA CUP 2018

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SAME-SEX MARRIAGE SHOULD BE LEGALIZED

MEMORIAL FOR THE RESPONDENT

JD104

TABLE OF CONTENTS
Page 1 of 13
INDEX OF AUTHORITIES ……………………………………………….. 3

SUMMARY OF FACTS………………………............................................ 4

SUMMARY OF PLEADINGS …………………………….………...…….. 6

PLEADINGS

1. There is a substantial distinction between same sex marriage and heterosexual

marriage

…………………………………………………………………………….7

2. Marriage is not a fundamental right …………………….........................7

3. State’s reasonable interest is procreation

…………………………………………………………………..................9

4. Same sex marriage is a political question

…………………………………………………………………..................10

Page 2 of 13
 INDEX OF AUTHORITIES

A. LAWS AND INTERNATIONAL TREATIES

NUMBER TITLE

1 THE 1987 CONSTITUTION OF THE PHILIPPINES

2 THE FAMILY CODE OF THE PHILIPPINES

B. JOURNAL ARTICLES AND JURISPRUDENCE

NUMBER TITLE
1 Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535
2 Molina v CA, 268 SCRA 198

3 Baker v Nelson, 291 Minn. 310

4 Berkeley Journal of Gender, Law &

Justice, 2006
5 Engendered Equality: Probing the
Right to Marry in Light of Obergefell
v. Hodges and Constitutional
Freedoms and Limitations, Ateneo
Law Journal
6 Baehr v Lewin 852 P.2d 44, 48 (Haw.
1993)
7 Obergefell v Hodges 576 US

Page 3 of 13
 SUMMARY OF FACTS

SAME-SEX MARRIAGE AND THE EQUAL PROTECTION CLAUSE

Marriage as a union between man and woman is an institution which

uniquely involves the rearing of children in order to form a family, a principle

which has been established as early as the book of Genesis [1]. Even in our own

jurisprudence, it has been stated that “Interpretations given by the National

Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while

not controlling or decisive, should be given great respect by our courts” [2]. The

assertion stating that the right to marry is a fundamental right without regard to the

contracting party’s sex has no legal basis. The equal protection clause is not

violated by the state’s classification of individuals who are allowed to marry [3].

SAME-SEX MARRIAGE IS NOT A FUNDAMENTAL RIGHT

As marriage is institution which has been historically regulated and

recognized at the state level, acceptance of same-sex marriage has been grounded on

state-specific laws, with no international jurisprudence specifically mandating that

same-sex marriage is a legal right. In the United States jurisprudence, the fact that

same-sex marriage is only guaranteed on a state-to-state basis shows that the federal

laws only accept the same upon lex loci. Same-sex marriage has been regarded as

Page 4 of 13
“successful” mostly on a state per state level where advocates had a long and stable

history of advocacy, rather than on a federal or constitutional level [4].

SAME-SEX MARRIAGE AND THE FAMILY CODE

Following fundamental right principles, the Family Code of the Philippines

Likewise State that:

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;
and
• (2) Consent freely given in the presence of the solemnizing officer.

It can be ascertained from the Family Code itself that contracting parties must be

a male and a female, providing emphasis that our laws provide that contracting

marriages by parties of the same-sex is not covered under our laws on persons and

family relations. The same is not contrary to our Constitution in terms of the equal

protection clause which states that:

Section 1. 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. (Art. 3, 1987
Constitution)

Page 5 of 13
 SUMMARY OF PLEADINGS

I. There is a substantial distinction between same sex marriage and heterosexual

marriage

II. Marriage is not a fundamental right

III. State’s reasonable interest is procreation

IV. Same sex marriage is a political question

Page 6 of 13
 PLEADINGS

I. There is a substantial distinction between same sex marriage and

heterosexual marriage

Our Constitution establishes that "the State recognizes the sanctity of family

life and shall protect and strengthen the family as a basic autonomous social

institution" [5]. Within the same section, the Constitution furthermore asserts that "

it shall equally protect the life of the mother and the life of the unborn from

conception", establishing the fact that the term "family life" is meant to signify a

relationship wherein "mother" is a distinct personality from the "father". As

corollary to this, "family" members then are therefore must be clearly

distinguishable from each other (i.e. father, mother, child).

II. Marriage is not a fundamental right

By definition, the equal protection clause aims to provide all persons the right

and the same access to the courts and the law and to be treated equally with the same

procedural and substantive rights. In our Constitution, this is asserted in Article III

of the 1987 Constitution:

Section 1. 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.

(Art. 3, 1987 Constitution)

Page 7 of 13
 There is no part of the provisions on the equal protection clause that implies

or warrants a violation of the same by merely identifying the people who are allowed

to marry nor is it an explicit violation of the same to assign criteria by which

marriage can be contracted. In our Family code, marriages such as those between

direct ascendants and descendants as well as other arrangements against morals and

public policy are not allowed by law. These, however, have not been subjected to

scrutiny despite operating on the same level as the ban on same-sex marriage.

III. State’s reasonable interest is procreation

It was stated in Article 1 Section of the Family Code states that:

Marriage is a special contract of permanent union between a man and a woman

entered into in accordance with the 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 the code.

There is a strong intrinsic connection between marriage and procreation.

The sexual communion of a man and a woman creates a real biological union. When

they commit to share their lives on all levels of their being that would be fulfilled by

cooperatively procreating and rearing children, then the biological unity established

Page 8 of 13
and renewed in sexual intercourse is the beginning or embodiment of that

community we know as marriage.

Sexual acts of individuals of same sex can perform on each other, however,

cannot establish the bodily foundation for the multi-leveled union, which include

biological, emotional, rational, volitional, that marriage distinctively is.

Biologically, a single agent of a single action which is created by marriage is

extended and naturally fulfilled by procreating and rearing children together.

As provided in United Nations, family is the basic cornerstone of the

community. They play an important role as agents of socialization and means of

preserving and transmitting cultural values. In families, the members are

individually honed, trained and provided with education in order to invest in their

future which acts a vital resource for the society’s development. The specific

functions of families include establishing emotional, economic and social bonds

between spouses, providing a framework for procreation and sexual relations

between spouses as well as protecting its family members.

Thus it was highlighted in the case of CHI MING TSOI vs. COURT OF

APPEALS that one of the essential marital obligations under the Family Code is to

“To procreate children based on the universal principle that procreation of children

through sexual cooperation is the basic end of marriage."

Page 9 of 13
Procreation allows to create members of the society that will bring change and

growth to the country. The support from their family enables them to create

individuals that will be the key to bringing innovation and modernization to the

country.

IV. Same sex marriage is a political question

Same-sex marriage is a volatile political issue rather than a constitutional

right.

In Baehr v Lewin 852 P.2d 44, 48 (Haw. 1993), it has been stated that failure

to recognize same-sex marriage is not a violation of fundamental principles of liberty

and justice. Rather than a fundamental right, it is a political question. Marriage is

viewed as a social arrangement which hinges on political, financial, and religious

considerations [6].

Following the argument that marriage is defined only as a statutory right, it is

therefore not within the power of the Court to subject the petition to judicial review.

The requisites of a valid judicial review compel that (1) there be an actual case or

controversy, and (2) the said should be raised by a party whose right has been

substantially and materially impaired. The rules on justiciability shall be strictly

construed, and unless there be an actual controversy, it remains a question of policy

of the legislature that the Court’s wisdom cannot replace.

Page 10 of 13
 While it can be argued that the 1987 Constitution does not define marriage

and only states it as an “inviolable social institution” and that it “is the foundation of

the family and shall be protected by the State,” (Philippine Constitution, Art. XV,

par. 2) it is implemented through the Family Code of the Philippines, wherein the

framers expressly require that parties to a marriage be a male and a female. (Family

Code, Articles 1 and 2) This statutory proscription retains its validity absent an actual

controversy that alleges an impingement to his or her right.

As to the recognition of same-sex marriages, in Obergefell v Hodges, US

Supreme Court Chief Justice John Roberts stated in his dissenting opinion that the

[US] “Constitution does not enact any one theory of marriage,” and went to on to

opine that people are free to expand its definition to include same-sex couples, or to

retain its historic definition.

It is clear that in the Philippine state of law, the definition of marriage vis-à-

vis the right to marry presently applies to heterosexual couples. However, the

Obergefell, and various laws and judgments in other parts of the world allowing

same-sex marriages have demonstrated that this definition may not stay the same

[7]. What this representation impleads is that as reasoned out by the US Chief

Justice, “[the] Court is not a legislature.” Whether or not the current changes in

Filipino customs, values, and ideals have rendered the right to marry ripe for a shift

in policy, it is the ambit of the Congress, and not the Courts, to take such lead.

Page 11 of 13
 PRAYER/CONCLUSION

WHEREFORE, limiting marriage to parties of a different sex, on top of other

considerations as provided by law, is not in violation of the Constitution nor does it

violate international principles of equal protection. Substantial distinction is

necessary in order to foster the preservation of the sanctity of family life and to

identify the obligations of the State towards it, which is essential for the attainment

of the common good. Thus, we move pray for the preservation of marriage as an

institution contracted by parties who must be exclusively between a man and a

woman.

Page 12 of 13
[1] Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535
[2] Molina v CA, 268 SCRA 198
[3] Baker v Nelson, 291 Minn. 310
[4] Berkeley Journal of Gender, Law & Justice, 2006
[5] Section 12, Article II Philippine Constitution
[6] Engendered Equality: Probing the Right to Marry in Light of Obergefell v. Hodges
and Constitutional Freedoms and Limitations, Ateneo Law Journal
Engendered Equality: Probing the Right to Marry in Light of Obergefell v. Hodges
[7]
and Constitutional Freedoms and Limitations, Ateneo Law Journal

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