Same-sex civil unions: unconstitutional

Former UP Law dean Pacifico Agabin recently emphasized that prohibiting same-sex marriage
violates equal protection and the right to privacy. Agabin reacted to a lecture by retired justice
Jose Vitug to senior judges, where Vitug opined that the Philippines is unlikely to follow the
global trend recognizing same-sex marriages, but that there might be a need to recognize
property relations among same-sex couples. But Agabin is right, and even a seemingly
reasonable start with economic relationships is outmoded and no longer a valid framework for
discussion.
The synod of Catholic bishops draft statement (since rephrased) recently made global headlines
by proposing that homosexuals have gifts and qualities to offer to the Christian community,
and that the Church must be accepting and valuing their sexual orientation, without
compromising Catholic doctrine, offer a place of fellowship and respect how same-sex unions
are a valuable support in the life of these persons. This was nothing short of an earthquake
and a stunning change. Further, we confront the brutal murder of transgender Filipino Jennifer
Laude, allegedly by a US Marine. We face another aspect of the same question of human dignity
as we reflect whether Jennifer should be called she or he and whether certain news editors
were exploitative in using her voluptuous bikini picture on the front page.
Agabin is no less than a synod of bishops. In his last major Supreme Court appearance, Senior
Associate Justice Antonio Carpio mistakenly addressed him as Justice, Justice Marvic Leonen
expressed hope that he would do justice to his classes under Agabin, and Chief Justice Ma.
Lourdes Sereno tried to cite Agabins own lectures against him. His unequivocal statement to our
judicial leaders is thus no less an earthquake.
A mere 10 years ago, I was studying the Massachusetts Goodridge decision in Prof. Elizabeth
Pangalangans class, the first US state (and sixth global) decision in favor of same-sex marriage.
It obliquely pronounced marriage as a set of economic benefits such as tax exemptions.
Goodridge stopped short of stating that same-sex marriages must be allowed, accepting civil
unions or some other recognized partnership that is not marriage so long as homosexuals
received the same economic benefits.
Human rights philosophers quickly concluded that this is a hollow trick, one that begins from the
premise that love has no legal meaning. In 2003, a year before Goodridge, the Lawrence v. Texas
decision affirmed that the right to privacy protects homosexual sex. This was not merely privacy
behind closed doors but decisional privacy, or the right to make fundamental life decisions
without government interference. This crucial distinction emphasized the inherent human dignity
in the chosen relationship that contextualized the private acts beyond the acts themselves. My
professor Laurence Tribe filed a key Lawrence amicus brief and later summarized in the Harvard
Law Review: Its not the sodomy. Its the relationship! (Tribe is the revered constitutional
litigator who taught US President Barack Obama and Chief Justice John Roberts and Inquirer
publisher Raul Pangalangan, sort of like the Agabin of the United States.)

A primacy on publicly recognizing this dignity, not Goodridges legal acrobatics, is now the
mainstream argument for same-sex marriage. The US Supreme Court nullified the Defense of
Marriage Act in 2013, concluding: The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity. By seeking to displace this
protection and treating those persons as living in marriages less respected than others, the federal
statute is in violation of the Fifth Amendment. Funny enough, after years of intense legal
debate, the most compelling conclusion from Agabin, Tribe and the US Supreme Court is that
simple word dignity. Law at the highest level is as simple as it is profound.
Even funnier, no intellectual, legal argument has gained traction against the simple word.
Religious objections are out of bounds. Abstract claims of morality fail against an invocation of a
human right. Inability to procreate is irrelevant as infertile heterosexuals are allowed to marry
and several US states allow first cousins to marry if the union would be infertile. The latest
argument was that same-sex marriages must be prohibited to protect children. Last September,
Judge Richard Posner threw this out, as allowing same-sex couples to marry can only avoid
stigmatizing and harming the children they adopt. Note how each such argument fails to address
dignity.
Agabin stopped short of spelling out that the legal acrobatics have fallen away in the modern
debate and suggestions to begin with property relationships or civil unions intentionally miss
the point. The state of the law is simply that if each of us is able to look a LGBT Filipino in the
eye and say that he or she is a second-class citizen capable only of second-class human
relationships that deserve only second-class legal recognition, then we have an unassailable legal
basis to exclude LGBT Filipinos from marriage. If not, then our society is due for an honest
conversation on human dignity.
Between Agabin and Pope Francis, the conversation may well come sooner than later.
Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) published Marriage
Through Another Lens: Weighing the Validity of Same-Sex Marriages By Applying Arguments to
Bisexuals and Transsexuals (81 PHIL. L.J. 789 (2006)) and Articulating the Complete
Philippine Right to Privacy, 82(4) PHIL. L.J. 78 (2008)).
Read more: http://opinion.inquirer.net/79496/same-sex-civil-unionsunconstitutional#ixzz3LZIzITkQ
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