Amicus Curiae

Same-sex marriage and its legal hindrance in the Philippines

Kate Aubrey G. Hojilla

June 15, 2017

Leading lawyer, judge, and writer Justice Robert A. Jackson once said: “[f]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Touching the very heart of the existing order is the issue on same-sex marriage or -- more accurately -- unions. US-based Pew Research Center noted that the number of governments which consider granting legal recognition to same-sex marriage are growing. Around two dozen countries, mostly in Europe and the Americas, already allow same-sex marriage. However, as of date, a marriage or union between two Filipino citizens of the same sex is not legally recognized in the Philippines.


The issue once again found its way to national relevance after President Rodrigo Duterte’s pronouncement. Reversing his 2016 campaign promise to support legislation allowing same-sex marriage, President Duterte said that while he has no issue with anyone’s sexuality, he believes that marriage should only be between a man and a woman. He anchors this statement on Philippine laws, particularly Executive Order No. 209, otherwise known as “The Family Code of the Philippines,” which governs the law on marriage.

While President Duterte’s change of stance was widely criticized by rights groups, it was welcomed by the Roman Catholic Church, from which staunch opposition against same-sex marriage largely comes. Philippines is known as Asia’s bastion of Roman Catholicism and this heavily explains the church’s political influence over more than 80% of the population who are its members.

The Family Code defines marriage as “a special contract of permanent union between a man and a woman.” It further provides as one of the essential requisites that the contracting parties “must be a male and a female.” It thus clearly prohibits same-sex couples from entering into a contract of marriage. The same law mentions homosexuality and lesbianism, but only as grounds to annul a marriage or to allow legal separation.

However, the 1987 Philippine Constitution, the supreme law of the land, neither discriminates nor prohibits same-sex marriage. It provided only for the significance of marriage, such that marriage, “as an inviolable social institution, is the foundation of the family and shall be protected by the State.”

Thus, there is no impediment against legalizing same-sex marriage in the Philippines. However, there needs to be an enabling law redefining, and changing the parties who may contract, marriage.

Bills protecting the lesbian, gay, bisexual, transgender (LGBT) community, which include the legalization of same-sex civil marriage, are not among those which the House of Representatives prioritizes. As early as 18 years ago, a bill legalizing same-sex marriage was filed by former Representative Etta Rosales, but it never progressed from first reading. The same counterpart measure was sponsored by Senator Risa Hontiveros last year but it only also reached as far as first reading. Numerous anti-discrimination proposals have been served on the table but none of which was a success.

A country report initiated by the United Nations Development Program highlighted the fact that while the Philippines is a signatory to many relevant international covenants promoting human rights, the rights of the LGBT community are not always supported by the state.

It is a fact that same-sex activity is not criminalized in the Philippines and sexual orientation is mentioned in various laws. However, national legislation is bereft of anti-discriminatory laws which allow the LGBT community to fully exercise their fundamental rights to equality and non-discrimination. Though there are victories in the form of ordinances passed by local government units, such as Quezon City, Angeles, Cebu, Bacolod, and Davao, addressing discrimination against the LGBT community, there is not much to revel in terms of the latter’s opportunities to build a family.

Without marriage, same-sex couples suffer from substantially lesser rights compared to heterosexual couples. There are legal issues involving the former’s adoption and custody of children, hospital and prison visitation rights, management and transfer of properties, medical and burial decisions, and entitlement to insurance proceeds. Same-sex couples resort to certain legal, albeit limited, approaches to legitimize their union -- adoption, which is allowed if done by a single LGBT person; business partnership, to jointly own properties; and a special power of attorney, to name a few.

In the landmark case of Ang Ladlad LGBT Party v. COMELEC, no less than the highest court of the land recognizes “that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.”

Same-sex marriage is an issue that is still heavily debated upon. Grounds raised against it range from moral to legal. However, the legal impediment against same-sex marriage can be cured by legislation. There is no absolute prohibition against legitimizing -- at least, civilly -- unions between two Filipinos of the same sex. Hence, it is legally feasible for the legislative branch of the government -- the Congress and the Senate -- to enact a law which legalizes same-sex marriage in the Philippines.

Our freedom to differ and, ultimately, our freedom to choose must not be limited by existing laws, especially when there is nothing that prohibits legislation accommodating legitimate calls for equality, which the Constitution itself enshrines.