Same sex marriage

On 24 June 2011, the New York legislature voted to legalize same-sex marriage.  Following suit, on 26 June, the Metropolitan Community Church of Metro Baguio hosted a mass same-sex marriage ceremony, preceding the 5th Baguio Lesbian, Gays, Bisexuals and Transgender Pride Parade.  The National Statistics Office has announced, however, that the Baguio marriages celebrated on 26 June in Baguio City have “no legal binding effect” and cannot be registered in the NSO.

Previously, in 2006, Senator Rodolfo Biazon  and his son, Representative Rozano Biazon, filed bills to amend the Philippine Family Code to explicitly provide that a “marriage” must take place between  a natural-born male and a natural-born female.  Senator Miriam Defensor Santiago also filed a bill which seeks to expressly bar local recognition of same-sex marriages celebrated abroad.

As is the case in several other jurisdictions, the Philippine legal framework does not recognize marriages between persons of the same gender.  The Family Code defines marriage as 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.”  (Emphasis supplied.)  In Silverio vs. Republic (G.R. No. 174689,  19 October 2007), a man who had undergone sex reassignment surgery (i.e., a “male-to-female post-operative transsexual,” as described by the Supreme Court) sought to change his name and gender  in his birth certificate to reflect what (s)he believed was his(her) true sexual identity.  Through Justice Renato Corona, the Supreme Court denied the petition, and held—

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.  Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant.  Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent.  The words “sex,” “male” and “female” as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary.  In this connection, sex is defined as “the sum of peculiarities of structure and function that distinguish a male from a female” or “the distinction between male and female.”  Female is “the sex that produces ova or bears young” and male is “the sex that has organs to produce spermatozoa for fertilizing ova.”  Thus, the words “male” and “female” in everyday understanding do not include persons who have undergone sex reassignment.  Furthermore, “words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary.”  Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term “sex” as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category “female.”  For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.  Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

[Allowing a post-operative male-to-female transsexual to change the entries in his birth certificate to correspond to that of a female] will have serious and wide-ranging legal and public policy consequences … [M]arriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.  One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.  To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations.  It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).  Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others.  These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

(Citations omitted; emphasis supplied.)

Notably, however, it might be argued that the legal obstacles to recognition of same-sex marriages lie only on a statutory and not a Constitutional level.  The Constitution does state that “[t]he State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution” (Article II, Section 12) and that “[m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State” (Article XV, Section 2), but does not define what is and is not constitutive of a “marriage” from a legal standpoint.  For example, it could be argued that simply amending the Family Code to define marriage as a special contract of permanent union “between two persons” (without distinction as to gender) does not violate the Constitution and would be sufficient to allow legal recognition to same-sex marriages (and also avoid the impression that the issue is limited to persons who wish to undergo sex reassignment surgery).  (Of course, a progressive thinker might argue that the definition should be further amended to allow marriages among “two or more persons,” but that is a separate issue for another day.)

The Supreme Court seems inclined to think that the policy changes may take place on a statutory level—in Silverio, the Court observed that “[i]n our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment,” and recognized that “there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts.”

Any move to so amend the Philippine legal framework will provoke widespread discussion and, in all likelihood, strong opposition from the more conservative sectors of society, such as the Roman Catholic Church.  Only time will tell if the Philippine Congress will follow in the footsteps of other jurisdictions (e.g., New York and the United Kingdom) and enact legislation allowing same-sex marriages.  Until then, unions between persons of the same gender will continue to be denied recognition under Philippine law.

(Philbert wishes to thank Archibald S. Ramos for his help in preparing this post.)