Summary: Group 6 Memoranda

Subject: Same-Sex Marriage Moot Court Exercise Save Only True Marriage Coalition
et. al vs Civil Registrar-General

STATEMENT OF THE CASE

Same-sex marriage is not a threat to the nation. Forwarding better laws such as what the
defendants seek, is not limited to the betterment of the LGBTQ community, but of the
Philippines as a whole. To push for same-sex marriage is to raise a generation of loving Filipino
children who will soon be leaders of an accepting and all-loving community. The LGBT
Alliance deserves to participate in the development of society.

STATEMENT OF FACTS

Article 2 of the Family Code states that no marriage shall be valid unless the essential
requisites of legal capacity of the contracting parties who must be male and female is met. As
introduced by then-Senator Miriam Defensor, “Family Code, Article 26 expressly provides that,
except for marriages prohibited under Articles 35 (1), (4), (5), and (6), 36, 37, and 38, marriages
solemnized abroad and are valid there as such, are recognized as right here. As a general rule, the
Philippines follow the lex loci celebrationis rule. For this reason, as she stipulated, “same-sex
marriages legally celebrated abroad would be considered valid here since Article 26 does not
include the requirement that the parties have to be a man and a woman.” With this, she submitted
Senate Bill No. 1276 seeking for the amendment of Artcile 26 to remove the misleading
presumption related to validity of the same-sex marriage in the Philippines. In the explanatory
note of the said Senate Bill, she stated that “Marriage is a union founded on the distinction of
sex. The contracting parties must be of different sex, in fact, a requirement under the provisions
on legal capacity. Article 26 is a misleading presumption until society changes attitude while
exhibiting compassion for same-sex relationships.”

On July 12, 2022, Senator Robin Padilla introduced, “An Act of Institutionalizing Civil
Unions of Same-Sex Couples, Establishing Their Rights And Obligations, And For Their Other
Purposes”.

Whereas, it was stated that, Philippine law affirms that every person has the right to equal
protection before the law and while the 1987 Constitution does not explicitly mention Sexual
Orientation, Gender Identity, Gender Expression and Sex Characteristics (SOGIESC), it does not
prohibit or exclude civil partnership or unions of same-sex couples.

As of December 2021, “same-sex marriage or civil unions, if not both, have been
legalized in 31 countries and territories through either legislation or court decisions. The
Philippines, however, still lacks legislative measures to afford equal rights and privileges for
same-sex couples that are enjoyed by different-sex couples.”

The Congress recently passed an amendment to the definition of marriage on the Family
Code to include marriage between males, females and transexuals.
 Save Only True Marriage Coalition had gone to the Supreme Court to question the
issuance of a marriage license on the basis of such action being a violation of the Family Code.
The Supreme Court then issued a temporary restraining order and directed the parties to submit
memoranda before the oral arguments on the issue of unconstitutionality of the amendment to the
Family Code that allowed same sex marriages.

ARGUMENTS

I. Philippines Should Accept Same-Sex Relationship, Same-Sex Marriage.

The Philippines is known to be more tolerant of people who are of the same-sex, transgender,
and bisexual, according to Pew Research Center. However, the opposite is that the acceptance
has not been translated to legislation that would allow the same gender to get married.

As expressly criticized by the community here in the Philippines, allowing same-sex marriage
would enable the LGBTQ community of such to marry the person they love and would
strengthen everyone’s rights and beliefs. From the human rights perspective, broadening civil
marriage to couples of the same sex will demonstrate respect for the fundamental rights of
equality and non-discrimination.

The domestic legal effects of civil partnership and marriage are almost identical, there are
significant differences in terms of national and international recognition. A specific form of legal
discrimination caused by the ban on same-sex marriage is discrimination against married
transexual people in the provision of legal gender recognition.

Same-sex couples cannot enjoy the same things that married straight couples do including
adopting children, labor benefits and privileges, tax exemptions, consenting medical procedures,
visitation rights, and such.

II. How does the different culture see Same-Sex Marriage?

The marriage between two people of the same-sexis hotly contested argument and issue in the
society. Countries and territories around the world have different religious characteristic, cultural
beliefs, cultural policies, and social awareness, so they also have different steps on taking same-
sex marriage.A lot of people still has an apprehensive view about same-sex marriage because it
is not part of an old habit, and old routine that human society is used to calling tradition, and
culture. Tradition is created by people, to serve, and not to bind and control people. No one can
infringe someone’s right. LGBTQ and Homosexual people are not strangers to the community.
They work and contribute to society like anyone else, but suffer from many disadvantages and
prejudices. Morality or moral standards is the system of rules and requirements for human
behavior, which establishes common views and concepts about justice and injustice. At this time,
a part of society believes that marriage between two people of the same sex can degrade moral
values and change traditional values.
III. How do the different religions welcome Same-Sex Marriage?

Philippines is composed of various churches and religions but mostly of Christian faith. Pope
Francis who is responsible for unifying Catholicism's voice and centralizing its doctrine, who by
faith we believer as representation of Jesus here on Earth said : "Homosexual people have a right
to be in a family," he said in the film, “Francesco” directed by Evgeny Afineevsky . "They are
children of God and have a right to a family. Nobody should be thrown out or made miserable
over it. It is manifestation that he’s in favor of same sex marriage.

Because of exclusivity of marriage to only men and women, there were Christian sects that were
founded by a LGBT member whose faith is anchored to what they believed was gender equality
but still in line with Christian faith. This is a manifestation that they are working hard to create a
safe place for them to practice . They are also Filipino’s whom the law should protect and
govern. The law should also give them what they are asking.

IV. The old definition limiting marriage to heterosexual couples violates the equal protection
clause of the Constitution.

The old definition limiting marriage to heterosexual couples violates the equal protection clause
of the Constitution. Based on Article III Section 1 of the Bill of Rights, 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. The liberty and freedom to marry has been granted to
heterosexuals since time memorial however the same liberty and freedom is deprived to same
sex couples. Depriving same sex couples to marry due on an unsupported basis is a clear
violation of the equal protection clause of the constitution.

The Court’s ruling on the case of Ichong v. Hernandez states that equal protection “merely
requires that all persons shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced.” The Court further said that the fundamental right of
equal protection of the laws is subject to reasonable classification. And in order for a
classification to be valid, it must meet the following requirements (1) rest on substantial
distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions
only, and (4) apply equally to all members of the same class. One reason for creating a different
class for same sex couples compared to heterosexual couples is the latter’s ability to procreate.
However, by using procreation as a basis for separating same sex couples from heterosexual
couples on the right to marriage would mean that even heterosexual couples who fail to procreate
must also be deprived of the same right. Also with the advent of technology, limiting procreation
to heterosexual couples is no longer appropriate. With medical advancement to procreation such
as in vitro fertilization and even surrogacy, this would allow even same sex couples to procreate.

With this, the same sex couple should be afforded equal protection of the law with the same
benefits granted to heterosexual couples who had the same liberty to enter into the marriage.