REPUBLIC OF THE PHILIPPINES

SUPREME COURT OF THE REPUBLIC OF THE

PHILIPPINES

______________________________________________________

PETITION REGARDING THE CONSTITUTIONALITY OF ARTICLES 1 & 2 OF THE FAMILY

CODE OF THE PHILIPPINES (E.O. 209)

LEGAL REPRESENTATIVE FOR THE PETITIONER SAVE ONLY TRUE MARRIAGE

COUNSELS:

AGUILAR, KATHLEEN
SOCRATES, JUAN PABLO
I. Background of the Case

Republic Act No. 386, otherwise known as the "Civil Code of the Philippines" (the "Civil
Code") was approved by the then President of the Philippines on June 18, 1949, and took
effect in 1950. Certain provisions of the Civil Code did not define and limit marriage as
between a man and a woman, to wit:

“Article 52. Marriage is not a mere contract but an inviolable social

institution. Its nature, consequences and incidents are governed by
law and not subject to stipulation, except that the marriage
settlements may to a certain extent fix the property relations during
the marriage. (n)”

Article 53. No marriage shall be solemnized unless all these

requisites are complied with:

(1) Legal capacity of the contracting parties;

(2) Their consent, freely given;

(3) Authority of the person performing the marriage; and

(4) A marriage license, except in a marriage of exceptional character

(Sec. 1a, Art. 3613).

Article 54. Any male of the age of sixteen years or upwards, and any
female of the age of fourteen years or upwards, not under any of the
impediments mentioned in Articles 80 to 84, may contract marriage.
(2)”1

However, when Executive Order No. 209, otherwise known as the Family Code, was issued
on July 6, 1987, and took effect on August 3, 1988, the definition of marriage as between a
man and a woman was changed and limited. The above-mentioned provisions in the Civil
Code were repealed by Articles 1 and 2 of the Family Code which state that: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. (52a)

1
CIVIL CODE, art. 52-54.
 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.
(53a)”2

The case at bar involves octogenarian lovers, who wanted to get married before they die. In
order to grant her father’s wish, Georgina, the city mayor, ordered the issuance of a
marriage license and hopes to solemnize the marriage of her father, Ramon, and his lover,
Fredo. The said issuance of the marriage license is being questioned by Save Only True
Marriage Coalition arguing that it is a violation of the Family Code. The Court issued a TRO
and has now called the parties to oral arguments.

II. Issues

The issues being litigated and subject of the oral arguments are as follows:

I. Does Articles 1 and 2 of the Family Code violate the due process clause of the
constitution?

II. Does Articles 1 and 2 of the Family Code violate the equal protection clause of the
constitution?

III. Do same sex couples have a constitutional right to marriage based on the right to
privacy or other constitutional right?

I. Articles 1 &2 of the Family Code are not Violative of the Due Process and
Equal Protection Clauses of the Bill of Rights

Two grave issues call for resolution at present. One relates to the view that Articles
1 and 2 of Executive Order 209, otherwise known as the Family Code of the Philippines, are
violative of the due process clause of the Philippine Bill of Rights. The other is with respect
to the position that the same provisions are violative of the principle of equal protection,
likewise safeguarded by our Bill of Rights.

Since the ultimate test in weighing the arguments of the conflicting positions is
whether or not the subject Family Code provisions are constitutional, there is no better
starting point than the 1987 Philippine Constitution itself.

2
FAM. CODE, art. 1-2.
 Article XV of the Constitution, as its very title suggests, is an article entirely
dedicated to the notion of “the Family”. Found under this article are four sections, some of
which highlight the rights accorded to the family and the State’s commitment in promoting
such rights. 

Most pertinent for purposes of our discussion are the first two sections. Section 1
provides, “[t]he State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.”
Subsequently, section 2 defines marriage thus--”[m]arriage, as an inviolable social
institution, is the foundation of the family and shall be protected by the State.”

It is our contention, your Honors, that any discussion relating to the concept of
marriage, if it seeks to be faithful to the Constitution, should have its foundations rooted in
this very framework that the fundamental law of the land lays down. In two successive
provisions, the Constitution essentially defines marriage as the foundation of the family,
and the family as the foundation of the nation. It is on this basis that the State takes it upon
itself to preserve this institution by according it special rights and by committing itself to
the protection of these rights. Moreover, it is in pursuance of such policies that Congress
enacted the Family Code of the Philippines. 

In the present petition, the respondents argue that Articles 1 and 2 of the Family
Code, for limiting the parties to a marriage to one man and one woman, violate the due
process and equal protection clauses of our Bill of Rights.

Substantive due process, as has been reiterated in numerous Supreme Court

decisions, is a question of whether a law has a valid governmental objective, and whether
the means it employs are reasonably related to the accomplishment of such purpose and
are not duly oppressive. 

Both nature and reason vindicate the wisdom of the framers of the Code. From the
ancient primitive societies up to our present digital age, influenced though it may have
been by the varied and often irreconcilable philosophies that have emerged since the
advent of modernity, the reality of our biological lives remains fundamentally the same:
each person is born to a father and a mother, and in an ideal situation, is reared by them in
a loving and caring environment, and is equipped by them to face the stresses and
challenges that may come their way as they journey through life. 

Such is our notion of the family. This notion arises neither from religious bigotry,
nor as an ideological claim, but as a fact of nature that, whether we accept it or not,
continuously shapes and is shaped by our lives as individuals, as communities, and as a
society. This view of the family and the life of each person as intrinsically a product of a
conjugal union between a man and a woman is precisely what impels the Constitution to
raise the family to the level of a “social institution.” Indeed, without the union between the
opposite sexes, no life can be generated anew, in which case, there will be no society to
speak of. 
 This, in turn, sheds light on the special treatment by the law of the marital union. To
borrow the words of the Family Code itself, marriage is not only a contract, but rather a
“special contract entered into in accordance with law for the establishment of conjugal and
family life.” Furthermore, its “nature, consequences, and incidents are governed by law and
not subject to stipulation”. 

A comparison of the definitions of marriage under the Family Code (Art. 1) and the
Constitution (Art. XV, Sec. 1) reveals a pattern consistent between the two-- both
apparently establish a direct link between marriage and the family. It is conceded that the
Constitution itself does not explicitly speak of marriage as a union with a view to
reproduction. What it does make mention of, however, is the fact that marriage is “the
foundation of the family.”  Section 3, paragraph 3 of the same article makes reference to
children and their right to assistance and protection from different types of harm. 

These references, albeit indirectly, embody on the textual level the concept of
marriage that is contemplated by the members of the Constitutional Commission--one that
is not much different from what the framers of the Family Code had contemplated; i.e., the
concept of marriage as a union that serves as the fundamental binding chain of the
institution of the family—-an institution that is not like any other institution, because, in its
very basic concept, it is sustained both by natural ties, mutual dependence as well as by the
conscious choice of its members to work towards its betterment. Such ties continuously
sustain the interrelationship of the spouses and their children, giving rise to a solid
relational structure that makes possible any community life, thus making the same
naturally indispensable for the survival of the whole of society. 

One may note, in addition, that at the time the Constitution was ratified, there was
no same-sex marriage to speak of in our country--hence, it is but logical to assume that the
marriage contemplated by the Framers pertained to marriage as traditionally understood.

To summarize, it is here argued that the conjugal view of marriage--i.e., as a “union

of a man and a woman who make a permanent and exclusive commitment to each other of
the type that is naturally fulfilled by bearing and rearing children together” 3--is, on the one
hand, the reasonable premise of the provisions of the Constitution protecting the family as
a social institution, and on the other hand, a valid governmental objective justifying Articles
1 & 2 of the Family Code’s restriction of marriage to one man and one woman. 

It has been argued that limiting marriage to one man and one woman is unnecessary
and as such violates the second requirement of due process--namely, that the means
employed by the statute must be reasonably related to the purpose it seeks to accomplish.
Such an argument fails to convince. Not only is limiting marriage to one man and one
woman reasonably related to the objective of protecting the institution upon which the

3
Girgis, Sherif and George, Robert and Anderson, Ryan T., What is Marriage? (November 23, 2012). Harvard
Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at
SSRN: https://ssrn.com/abstract=1722155
society is founded. Rather, it constitutes the very essence of the unique relationship that
the law seeks to protect.  And this leads me to my next point.

The position is taken that limiting marriage to one man and one woman is violative
of equal protection, as it denies homosexual couples the right to marry. This argument is
best addressed by returning to the special and social nature of marriage. 

When the law sought to accord special treatment to marriage, it accorded special
treatment to a relationship that has pre-existed the law itself. The State saw the
indispensable value of the relationship between the opposite sexes, a relationship that has
brought forth and raised families and generations of human beings, who in turn start their
own respective families thus providing continuity to the life of society. It is not as though
the state invented the idea of marriage and decided that the parties thereto be restricted to
a man and woman. On the contrary, the heterosexual marital union is a union that has
existed from the earliest beginning, has persisted across time and cultures, has witnessed
and played an active role in the rise and fall of civilisations, and at present continues to
form part of the reality of our individual and collective existence. The state wisely saw the
grandeur and force of this specific type of relationship and therefore looked for ways to
preserve it.

It is precisely this precious and unique relationship of a man and a woman,

“valuable in itself” but is even made doubly significant  by its “inherent orientation to the
bearing and rearing of children”4 that the law celebrates and treats with special interest. In
this regard, the marital union, a central characteristic of which is that it is between a man
and a woman, is sui generis, a class of its own. 

The principle of equal protection does not require that all persons, things or
situations be treated in the same way, but only that like should be treated alike. Hence it
admits of reasonable distinctions.  In this regard, we respectfully argue that a heterosexual
union, in its natural orientation towards child-bearing and rearing, and by virtue of the
powerful and cohesive kind of institution such as the family that only this kind of union is
capable of giving rise to (a fact attested to by natural, historical and sociological evidence
which all form part of our common knowledge, and which Congress has every right to rely
on), is reasonably distinct from a homosexual relationship.

The monogamous heterosexual marital union contemplated in the Family Code is a

relationship that, by virtue of its unique and intrinsic characteristics, must not be lumped
together with other types of relationships, such as the relationship between work-fellows,
between basketball teammates, and, most relevantly in the case at bar, between two people
of the same sex who insist that their romantic feelings for each other and their commitment
to stay together are sufficient to put them in the same position as a man and a woman in
conjugal union.

4
Id., at 246
 In conclusion, while the law does not specifically require procreation for a union to
be considered marriage, it is only with respect to the natural capacity of a marital union to
generate and rear life, that the notion of marriage can be understood as a foundation of a
family, and through the latter, a foundation of a nation. It is precisely this nature of the
family that prompts the government to protect the marital union of a man and a woman by
giving it rights not otherwise available to other types of relationships. By limiting marriage
to a man and a woman, the state does not curtail other people’s freedom to enter into
whatever forms of union they may want, whether it be the union of best friends, of
committed political comrades, and, yes, even of two people of the same sex who have
romantic feelings for each other. 

Why Congress should not likewise provide the same special treatment to these
other types of relationships as it accords to the heterosexual marital union is a political
question, and is best left to legislative wisdom. Suffice it to say that neither statute nor the
Constitution mandates that these other forms of relationships likewise fall within the
concept of marriage, which the Constitution clearly defines as the foundation of the family,
and therefore, of the nation.

II. Same-sex couples do not have a constitutional right to marriage based on the right
to privacy or other constitutional right.

The right to privacy is one of the most controversial areas of constitutional

adjudication. 5 In the Philippines, the right to privacy is enshrined in the Philippine
Constitution, laws, and jurisprudence. In the US, there has been a conflict over how much
freedom the U.S. Constitution affords individuals in private, consensual sexual conduct. 6 In
the U.S. case of Bowers v. Hardwick7, this conflict was addressed by the Supreme Court.
Petitioner Michael Hardwick was observed by a Georgia police officer while engaging in the
act of consensual homosexual sodomy with another adult in the bedroom of his home. After
being charged with violating a Georgia statute that criminalized sodomy, Hardwick sued
Georgia for infringing upon his right to privacy. The U.S. Supreme Court held that
consensual intimate actions of adult homosexuals were not protected by the right to
privacy.

In recent US cases, however, the Supreme Court has expanded the scope of activities
protected as privacy rights.8 The Court has labeled activities such as choosing a spouse,
using contraceptives, and bearing children as privacy rights, and therefore has granted
them protection under the United States Constitution. 9 In the case of Griswold v.
Connecticut10, the Court held that marriage exists within a "zone of privacy," meaning, state

5
Langin, Daniel Joseph. Bowers v. Hardwick, Iowa Law Review 72 IOWA L. REV. 1443 (1986-1987).
6
Thornburgh v. American College of Obstetricians & Gynecologists, 106 S. Ct. 21 2184-85 (1986).
7
Bowers v. Hardwick, 478 U.S. 186 (1986).
8
Thornburgh v. American College of Obstetricians & Gynecologists, 106 S. Ct. 21 2184-85 (1986).
9
Langin, Daniel Joseph. Bowers v. Hardwick, Iowa Law Review 72 IOWA L. REV. 1443 (1986-1987).
10
Griswold v. Connecticut, 381 U.S. 479 (1965).
intrusion to enforce moral choices is prohibited. In Loving v. Virginia 11, it was concluded
that social norms may not be used by courts or legislatures as the rationale for state
interference with private decision-making about whom to marry. In light of these
precedents, refusal to allow same-sex marriage seems, at first glance, inconsistent to
jurisprudence. The right of privacy has never been free from normative values, and the
state has never relinquished its right to intrude into private decision-making in order to
prevent what the dominant society views as harm. 12 Marriage continues to be viewed as the
"unspecifiable bedrock of society," 13 and remains invested with the emotional force
attached to norms of morality. The courts, as legitimate protectors of an institution whose
traditional status is essential "to ensure civilized society”, recognize that the right to
privacy is "private" only insofar as it does not too radically disrupt or threaten
contemporary social values, including those of moral rectitude. Same-sex marriage, unlike
the use of contraceptives, unlike miscegenation, and even more than sodomy, is perceived
as profoundly threatening to the very institution in whose name "privacy" was originally
enshrined. Until what is "private" is no longer determined by reference to tradition, deeply
rooted prejudice, and normative notions of morality, the courts must continue to reject
same-sex marriage.

To further the claim that same-sex couples do not have a constitutional right to
marriage based on the right to privacy or other constitutional right, it is important to note
that the Supreme Court recognizes that the right to privacy, like all other rights, is not
absolute.14 Assuming arguendo that sexual relations between same-sex couples may be
protected by right to privacy, this do not extend to same-sex marriages because of legal
requisites provided by the Family Code regarding the validity of marriage. Article 1 and
Article 2 of the said Code provide:

“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. (52a)

Art. 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

11
Loving v. Virginia, 388 U.S. 1 (1967).
12
Schwarzschild, Hannah, Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly. Berkeley Women’s
Law Journal.
13
Schwarzschild, Hannah, Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly. Berkeley Women’s
Law Journal.
14
Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977).
 (2) Consent freely given in the presence of the solemnizing
officer. (53a)”15

This definition of marriage excludes same-sex marriages. This limitation, however,

is within the valid exercise of police power. Police power has been defined as the “power of
government, inherent in every sovereign, and cannot be limited.” 16 Police power may be
exercised as long as the activity or the property sought to be regulated has some relevance
to the public welfare and has an overriding state interest. 17

The state's interest in preserving the tradition and history of marriage in the
country overrides religious freedom. Philippines, being a predominantly Catholic nation,
regards marriage as between a man and a woman. Although the Constitution is silent on
the issue of same-sex marriage, when the intent of its framers is considered, as what
statutory construction dictates, it can clearly be seen that the definition of marriage under
the Family Code is reflective of the concept of marriage contemplated under the
Constitution. According to Bernardo Villegas, a member of the Constitutional Commission
that drafted the 1987 Constitution, when they deliberated on the meaning of family and
marriage, they did not fail to consider same-sex relationships, and while there was
empathy for this sector of society, “both natural law and religious values affirm that the
normal family relationship is between man and woman. 18 In fact, framers of the
Constitution voted 34, and 4 abstentions, that the marriage referred in the Constitution is
as between a man and a woman.19

IV. Conclusion

Same-sex couples do not have a constitutional right to marriage based on the right
to privacy or other constitutional right. The provisions of the Family Code, in relation to the
Constitution, clearly established that within our laws, marriage is between a man and a
woman.

15
FAM. CODE, art. 1-2.
16
U.S. v. Pompeya, G.R. No. L-10255, 253-254, August 6, 1915.
17
U.S. v. Pompeya, G.R. No. L-10255, 253-254, August 6, 1915.
18
Caliwan, Christopher Lloyd, SolGen asks SC to dismiss petition to allow same-sex marriage in PH. Philippine News Agency,
available at https://www.pna.gov.ph/articles/1039572.
19
Caliwan, Christopher Lloyd, SolGen asks SC to dismiss petition to allow same-sex marriage in PH. Philippine News Agency,
available at https://www.pna.gov.ph/articles/1039572.