The Best Argument Against Same-sex Marriage Is A Dangerous Argument

Oscar Tan dissected the case of Obergefell vs. Hodges, a US Supreme Court
decision finding that it is unconstitutional for marriage to be limited to a man and
a woman. He went on to say that most arguments against same-sex marriage are
discredited but one remaining argument is the best that the legalization of
same-sex marriage should undergo a democratic process rather than unelected
judges, quoting Chief Justice Roberts. (see: "The Best Argument Against Same-sex
Marriage" http://opinion.inquirer.net/86450/the-best-argument-against-same-sexmarriage)
The best argument is the least weak argument but it is still a weak argument.
More than that however, it is a dangerous argument.
The argument that same-sex marriage should be decided by a democratic process
such as the passing of a bill or a popular referendum is a weak argument because
it creates a false dichotomy. A false dichotomy is an argument that falsely creates
a distinction. Here, Chief Justice Roberts suggest that when the Supreme Court, a
group of unelected justices, decides whether or not the prohibition against samesex marriage is unconstitutional, their decision as a court is undemocratic while
the decision of the legislature is democratic. That is false.
The decision of the Supreme Court is no less democratic than the passing of a law.
This is because the Supreme Court decides the validity of a law based on the
Constitution. If a law violates the Constitution, the Supreme Court is empowered
to strike the law down. And who empowered the few unelected justices? The
people. The people themselves ratified the Constitution, which ordains a division
of powers and a system of checks and balance. Moreover, the people themselves
limited what they as the majority or their elected representatives can do when
they laid down the Bill of Rights, the part of the Constitution which lists the basic
and fundamental rights which no law can take away.
US Supreme Court Justice Robert Jackson once famously said, The very purpose
of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts. Ones right to life,
liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they
depend on the outcome of no elections.
And so the act of the US Supreme Court in striking down laws prohibiting samesex marriage is as democratic as the passing of a law. The United States is not a
democracy. It is a constitutional democracy. The people provided a Bill of Rights
not just a limitation on the powers of government but as a self-imposed limitation
on what they can do to prevent a tyranny of the majority. No law can be passed
allowing the torture of terrorists or communists, even if the majority wanted it
(well, until they change the Constitution they can't).

Another concern that Oscar Tan cited is the dissent of Justice Scalia, who railed
against the majority for declaring a radical unwritten right. How radical is it to
follow the Constitution? The US Constitution has long said that no person shall be
denied equal protection of the laws. Further, Justice Scalia had no problem
declaring a radical unwritten right in the case of Citizens United vs. Federal
Election Commission, where he along with the majority declared that corporations
have a right to freedom of speech. Nowhere in their Constitution does it state
such thing, but they declared it. That is the same with the right to privacy, which
covers the right to choose who you want to marry regardless of sex or gender.
While the right to privacy is unwritten, it is neither radical nor is it unreasonable to
declare that there is such a right.
The best argument against same-sex marriage is a dangerous argument because
it would weaken the guarantees of a constitutional democracy. If Oscar Tan agrees
that the denial of marriage to same-sex couples violates the equal protection
clause, the due process clause, and the right to privacy, there are no ifs and buts
about it except for the US Supreme Court to allow same-sex marriage.
Ending all debates by court order is proper if the other side of the debate deprives
individuals of their fundamental rights and human dignity. Is it really up for debate
that LGBTs are human beings who can consent to marry and love another person?

Same sex marriage

Posted on July 16, 2011 by Philbert E. Varona Posted in Civil Law, Commercial
Law, Philippines - Cases, Philippines - Law
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 persons 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 wideranging 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 petitioners 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 levelin 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.