Prospects and Impediments of Same-Sex Marriage in the Philippines

Pope Francis surprised many lay people when he declared through "Fiducia Supplicans" that Catholic priests can now bless same-sex couples. While same-sex couples welcomed this development, the Pope was lambasted for changing Roman Catholic Church doctrines by allegedly paving the way for the eventual recognition of same-sex unions.

In response to the criticisms, some clergy steadfastly maintained that the Church's position remains unchanged – same-sex marriage is still not recognized. They asserted that the Pope's declaration is in harmony with Church teachings, emphasizing its role in guiding vulnerable individuals toward the morally righteous path.

Despite the growing global acceptance of same-sex marriage, the situation in the Philippines remains complex. Currently, a total of 35 countries have legalized same-sex marriage around the world. However, in the Philippines, attempts to legalize same-sex marriage are still pending. In the present 19th Congress, two bills were filed to legalize same-sex unions, but these proposals faced heavy opposition, raising doubt on their potential to become law.

This resistance is not a recent development. In 2007, the Supreme Court in Silverio v. Republic would have permitted same-sex marriage had it granted Rommel Silverio’s petition to change his first name and sex in his birth certificate after undergoing sex reassignment surgery in Thailand so he could marry his foreign fiancé.

In denying Silverio’s petition, the Supreme Court reasoned that there is no law allowing the change of entries in the birth certificate because of sex alteration. Thus, the Supreme Court correctly deferred to Congress the task of creating a same-sex marriage law.

Inspired by the United States Supreme Court's Obergefell v. Hodges ruling in 2015, Atty. Jesus Nicardo Falcis III questioned the constitutionality of Articles 1 and 2 of the Family Code for violation of his right to due process and equal protection, as well as his right to decisional and marital privacy.

Without ruling on the substantive issues, the Supreme Court denied the petition of Atty. Falcis III on procedural grounds. The Supreme Court explained that the issue was not ripe for judicial determination there being no actual controversy and the petitioner lacked legal standing.

Notwithstanding the dismissal of the petition, the Supreme Court stated by way of obiter dictum that the Constitution’s text does not restrict homosexual unions. Based on this opinion, the Supreme Court impliedly stated that the Constitution allows same-sex marriage because there is no constitutional provision that prohibits it.

It may be surmised that the Court’s opinion somehow gave a green light for Congress to enact a same-sex marriage law, impliedly assuring the latter of its validity. However, the ruling in Falcis that same-sex couples may have the right to marry is an obiter dictum because the decision did not establish any binding precedent as no substantive issue was decided therein.

Even so, the intent of the framers cannot be disregarded when the plain text of the Constitution is ambiguous. The issue of same-sex relationships was foremost on the minds of the framers when they deliberated on the meaning of family and marriage. When Commissioner Maria Teresa Nieva was asked to clarify what marriage meant, she explained that the accepted definition of marriage is the union of a man and a woman.

At one point, Commissioner Gregorio J. Tingson remarked that in the United States and other places, there is sympathy towards defining family to include an effeminate man living with another man. Commissioner Bernardo M. Villegas emphatically explained to Commissioner Tingson that both natural law and religious values affirm that a normal family relationship is between man and woman.

An analytical reading of the 1987 Constitution and the records of the 1986 Constitutional Commission unequivocally reveals that marriage is a union between a man and a woman only. The case of Chi Ming Tsoi v. Court of Appeals reinforces this point where the Court averred that one of the essential marital obligations under the Family Code is to procreate children since sexual cooperation is the basic end of a marriage.

On the surface, the prospect of legalizing same-sex marriage is a matter of political will between the legislative and executive branches. However, this political will cannot supersede the Constitution’s supremacy. Considering that heterosexual marriage is the intent of the framers, it stands to reason that no same-sex marriage law may be formally recognized in the country until the 1987 Constitution is amended or revised.

Aware of the challenges, the LGBTQ+ community in the Philippines has been resilient in advocating for their rights. The struggle for recognition, however, requires navigating a delicate balance between pushing for legal reforms and respecting diverse perspectives.

Introducing same-sex marriage in the Philippines is undeniably complex. Overcoming these challenges requires an inclusive approach that respects the fundamental principles of diversity, equality, and human rights without undermining public policy and public morals.

Indeed, enacting a same-sex marriage law will have to go through the eye of a needle. Amid the formidable impediments, one thing is quite certain: Our differences do not stem from the issues that divide us but from our failure to recognize, accept, and celebrate those differences.