SUPREME COURT OF THE REPUBLIC OF THE PHILIPPINES

THE SUPREME COURT (EN BANC) MANILA, PHILIPPINES

DE LA SALLE LIPA COLLEGE OF LAW

PHILOSOPHY OF LAW
MOOT COURT COMPETITION

THE CASE CONCERNING THE VALIDITY AND LEGALITY OF THE

AMENDMENT OF THE FAMILY CODE OF THE PHILIPPINES
ALLOWING SAME-SEX MARRIAGE
(PETITIONER)
v.
SOLICITOR GENERAL (RESPONDENT)

FIRST DRAFT

---------------------------------------
MEMORIAL FOR THE RESPONDENT
--------------------------------------

November 26, 2016

 QUESTIONS PRESENTED
I.
Whether or not the amended family code allowing same-sex marriage
violates the definition of marriage as used in the 1987 Constitution, Article
XV, Section 2.

II.
Whether or not the amended family code allowing adoption among same-sex
couples is in accordance with the concept of family as used in the 1987
Constitution, Article XV.

III.
Whether or not the amended family code allowing same-sex marriage is in
accordance with the International Law.

IV.
Whether or not the amended family code is violative of Natural Law and
Divine Law
 PLEADINGS AND AUTHORITIES
"The Family Code provides that the nature, consequences, and incidents of
marriage are governed by law and not subject to stipulation," but this does
not go as far as reaching into the choices of intimacy inherent in human
relations. These choices form part of autonomy, protected by the liberty and
human dignity clauses. Human dignity includes our choices of association,
and we are as free to associate and identify as we are free not to associate
or identify
- Justice Marvic Leonen
Mallilin vs. Jamesolamin, G.R. No. 192718, February 18, 2015.

We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold
and express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals
of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other
members of the community."
- Justice Mariano del Castillo
Ang Ladlad LGBT' Party vs. Commission
on Elections, G.R. No.190582, April 8, 2010

I. THE AMENDED FAMILY CODE ALLOWING SAME-SEX

MARRIAGE VIOLATES THE DEFINITION OF MARRIAGE AS
USED IN THE 1987 CONSTITUTION, ARTICLE XV, SECTION 2
a. The amended family code allowing same-sex marriage does not
violate the definition of marriage as used in the 1987 Constitution,
Article XV, Section 2.
Article XV, Section 2 provides that Marriage, as an inviolable
social institution, is the foundation of the family and shall be protected by
the State.
The Constitution does not establish the parameters of state protection
of marriage as a social institution and the foundation of the family. It
remains the province of the legislature to define all legal aspects of marriage
and prescribe the strategy and the modalities to protect it. (Antonio v. Reyes,
G.R. No. 155800, March 10, 2006)
The Latin maxim ubi lex non distinguit nec nos distinguere
debemos which in English translation means, where the law does not
distinguish, courts should not distinguish shall be applied with regard to the
definition of marriage provided in the Constitution. Since it does not
exclusively define marriage strictly between a man and a woman, such
definition shall not be construed as to be exclusive and limited. Defining
marriage as a stable heterosexual relationship to same-sex relationships is
within the plenary powers of the legislature. Therefore, the amended Family
Code which allows same-sex marriage does not violate the definition of
marriage provided in Section 2, Art. XV of the 1987 Constitution.

II. THE AMENDED FAMILY CODE ALLOWING ADOPTION

AMONG SAME-SEX COUPLES IS IN ACCORDANCE WITH THE
CONCEPT OF FAMILY AS USED IN THE 1987 CONSTITUTION,
ARTICLE XV.
The amendments to the Family Code related to the freedom of same-sex
couples to adopt a child and make the said child as their own, in fact and in
law, is in accord with the spirit of the 1987 Constitutional provision defining
a family. Viewed as the foundation of the nation that shall strengthen its
solidarity and actively promote its total development, a family serves as the
basic and the most important institution making a society.

As quoted from Associate Justice Bienvenido Reyes in the decision of the

Supreme Court of the Philippines in the case of Quiao vs. Quiao, it is in a
family where children are molded either to become useful citizens of the
country or troublemakers in the community. Allowing more individuals to
have the privilege of adopting a child, including qualified same-sex couples,
would probably help in achieving the real purpose of marriage.

III. WHETHER OR NOT THE AMENDED FAMILY CODE

ALLOWING SAME-SEX MARRIAGE IS IN ACCORDANCE WITH
THE INTERNATIONAL LAW.

A. Pacta Sunt Servanda

Pacta sunt servanda is a fundamental maxim of international

law that requires the parties to keep their agreement in good faith. It
bears pointing out that the pacta sunt servanda principle has become
part of the law of the land through the incorporation clause found
under Section 2, Article II of the 1987 Philippine Constitution. It
states that the Philippines "adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
 policy of peace, equality, justice, freedom, cooperation, and amity
with all nations."1

The time-honored international principle of pacta sunt servanda

demands the performance in good faith of treaty obligations on the
part of the states that enter into the agreement. Every treaty in force is
binding upon the parties, and obligations under the treaty must be
performed by them in good faith.2 More importantly, treaties have the
force and effect of law in the Philippine jurisdiction.3

B. International Covenant on Civil and Political Rights (ICCPR)

One of the treaties which the Philippines is a signatory is the

International Covenant on Civil and Political Rights (ICCPR). The
treaty is adopted by the United Nations General Assembly on the 16th
of December 1966, and had been in force from the 23rd of March
1976. It commits the State-Parties to respect the civil as well as the
political rights of individuals, which includes the right to life, freedom
of religion, freedom of speech, freedom of assembly, electoral rights
and rights to due process and fair trial.

On the 23rd of October 1986, the Philippines ratified

the International Covenant on Civil and Political Rights. As a
signatory to the Covenant, the Philippines is obligated under
international law and the 1987 Constitution to protect the inherent
dignity and human rights of all its citizens.4

Principle of equality

The principle of equality requires that any recognition with

respect to the formal relationship available under the law to couples of
the opposite sex should also be available to couples of the same sex.
Hence, civil marriage shall be deemed to be included.

Equality is a key human rights principle. It is set out in Article

26 of the ICCPR, which states that all people are equal before the
law and are entitled without any discrimination to the equal
protection of the law. In addition, Article 2 of the ICCPR requires
State Parties to ensure all individuals are to enjoy the rights set out in
the ICCPR without any discrimination. Notably, Article 26 is broader
in scope than Article 2(1) because it is a stand-alone right which

1
Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212 (2000)
2
Vienna Convention on the Law on Treaties (1969), Art. 26.
3
Luna v. Court of Appeals, G.R. No. 100374-75, 27 November 1992, 216 SCRA 107,
111-112.
4
MVRS Publications, Inc v. Islamic Da'wah Council Of The Philippines, Inc., G.R. No. 135306, 28
January 2003
 forbids discrimination in any law and in any field regulated by public
authorities, even if those laws do not relate to a right specifically
mentioned in the ICCPR.

The right to equality before the law guarantees equality with

regard to the enforcement of the law. The right to the equal protection
of the law without discrimination is directed at the legislature and
requires State Parties to prohibit and take action against it.

Article 26 of the ICCPR does not specifically mention sexual

orientation or sexuality in the prohibited grounds of discrimination.
However, the phrase other status has been interpreted to include
sexual orientation. The United Nations Human Rights Committee
(Human Rights Committee) has emphasized the obligation on all
parties to the ICCPR to provide effective protection against
discrimination based on sexual orientation.

Interpretation of the right to marry in relation to its preamble

In interpreting the right to marry, and whether its scope could

extend to same-sex couples, it is important to take note of the
preamble of the ICCPR and the maxim of non-discrimination which is
enunciated both as a stand-alone human right and as part of the right
to marry. The preamble provides that the purpose of the ICCPR is to
recognize the inherent dignity and ... the equal and inalienable rights
of all members of the human family.

https://sydney.edu.au/law/slr/slr_36/slr36_4/SLRv36n4GerberTaySifri
s.pdf

B. Universal Declaration Of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is a
declaration adopted by the United Nations General Assembly on 10
December 1948 at the Palais de Chaillot, Paris. The Declaration arose
directly from the experience of the Second World War and represents
the first global expression of what many people believe to be the
rights to which all human beings are inherently entitled.5

The Right to Marriage

Article XVI of the Universal Declaration of Human Rights
(UDHR) states, Men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution

5 "The Universal Declaration of Human Rights". un.org.

 The right to marry is a protected right as may be met in the
provisions of the Universal Declaration of Human Rights6. This treaty
is binding upon the Philippines under the Constitution as provided in
Section 2, Article II. This right, furthermore, was enunciated in an
American case, Loving v. Virginia which held:

(F)reedom to marry has long been recognized as one of the

vital personal rights essential to the orderly pursuit of happiness
by free men Marriage is one of the basic civil rights of man,
fundamental to our very existence and survival7

It is settled that the right to marry is one of the fundamental

rights of an individual as provided under the Universal Declaration of
Human Rights and Convention for the Protection of Human Rights
and Fundamental Freedom. And on these foregoing provisions,
nobody shall be deprived of this right as guaranteed by no less than
the Constitution.
Furthermore, since the UDHR guarantees all men and women
the right to marry, and does not explicitly provide that sexual
orientation is an exception to the right, states that do not allow two
men or two women to marry are acting in contrast to the Declarations
language and intention.

Nondiscrimination
Article II of the UDHR states [e]veryone is entitled to all the
rights and freedoms set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
In addition to arguably qualifying as both sex and other opinion,
sexual orientation is implicitly included among the factors listed in the
UDHR, because of the provisions intentions; Although the
Universal Declaration of Human Rights and the other principal human
rights instruments drafted by the United Nations do not explicitly
mention sexual orientation or same- sex marriage, they have created a

6 G.A. res. 217A (III), U.N. Doc A/810, 71, Art. 16 (1) (1948): Men and women of full age,
without any limitation due to race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to marriages, during marriage and at
its dissolution.
7 Loving v. Virginia, 388 U.S. 1, 12 (1967).
 comprehensive body of human rights law that protects all people
(Green, 2010).

The State recognizes the Filipino family as the foundation of the nation. 8
As the foundation, every childs need of a family shall always be given
paramount consideration.
In the modern society, where a number of children do not have their
families to support them, the trend is to encourage adoption and every
reasonable intendment should be sustained to promote the objective of
marriage. 9 Adoption is geared more towards the promotion of the welfare of
the child and enhancement of his opportunities for a useful and happy
life. 10 It is not the bureaucratic technicalities but the interest of the child that
should be the principal criterion in adoption cases. 11

To reiterate, it is not the bureaucratic technicalities but the interest of the

child that should be the principal criterion in adoption cases.12 With the
provisions in the amended law which allowed the adoption of couples herein
above identified, the technicalities were brushed off paving the way to give
more importance to the interests of the child.

Allowing same-sex couples to adopt would rightly serve the purpose of

marriage and adoption itself. Generally, the purpose of adoption is to
establish a relationship of paternity and filiation where none existed before.13
Also, the amended Family Code likewise upholds that the interest and
welfare of the child to be adopted should be the paramount consideration.

It is also the policy of the State to ensure that whenever every familys
efforts prove insufficient and no appropriate placement or adoption within

8
Const., Art. XV, Sec. 1
9
Santos, et al., vs. Aranzanso, et al., No. L-23828, 16 SCRA 344, February 28, 1966.
10
Daoang vs. Municipal Judge of San Nicolas, Ilocos Norte, No. L-34568, 159 SCRA
369, March 28, 1988.
11
De Tavera vs. Cacdac, Jr., No. L-76290, 167 SCRA 636, November 23, 1988.
12
Id.
13
In the matter of the Adoption of the minors Maria Lualhati Magpayo and Amada
Magpayo. Clyde E. Mcgee vs. Republic of the Philippines, G.R. No. L-5387, April 27,
1954
the child's extended family is available, adoption by an unrelated person be
considered.14 To be emphasized in the previous statement is that adoption is
considered for a person unrelated to a child. It is not actually and expressly
provided that adoption is limited to heterosexual couples.

In all matters relating to the care, custody and adoption of a child, his
interest shall be the paramount consideration in accordance with the tenets
set forth in the international law.15 These international laws and declarations
include United Nations (UN) Convention on the Rights of the Child; UN
Declaration on Social and Legal Principles Relating to the Protection and
Welfare of Children with Special Reference to Foster Placement and
Adoption, Nationally and Internationally; and the Hague Convention on the
Protection of Children and Cooperation in Respect of Intercountry
Adoption.16 The Philippines adopts these generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations.17

IV. THE AMENDMENT OF THE FAMILY CODE IS CONSISTENT

WITH THE PRINCIPLES OF NATURAL LAW
A) Same-sex marriage as a tool of inclusion in the Society.
Perceptions of homosexuality have dramatically changed over the past
decades. (For an overview of this evolution in the American context, see
MICHEAL KLARMAN, FROM THE CLOSET TO THE ALTAR. COURTS,
BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE
(Oxford University Press. 2013). Raquel Platero, Outstanding challenges in
a post-equality era: The same-sex marriage and gender identity laws in
Spain, 21 INTERNATIONAL JOURNAL OF IBERIAN STUDIES 41(2008).
at 41 These include the normalizations of sexual identities other than
heterosexuality ( arguing that Lately, sexual minorities have been
normalised).

14
Domestic Adoption Act of 1998
15
Id.
16
Id.
17
Const., Art. II, Sec. 2
 Individuals once looked at as being unworthy of humanity are now
considered as humans of equal worth. Gays and lesbians are becoming full
members of society, able to rely on all the protections of the law and benefits
of citizenship.
In the absence of marriage equality, homosexuals are not full citizens,
as they remain excluded from an institution on the sole basis of their
sexuality. Denying people in same sex relationships the option of marriage,
when it is a course of action available to all other individuals, impairs
freedom and dignity inherent in the substantive liberty guarantees of the
Constitution.
Gregori Scalia, Associate Justice of the Supreme Court states that
The conceptual core of the liberty clause pertains to an individuals self
determination, dignity or respect. the California Supreme Court too relied
on dignity to find that same-sex couples could no longer be excluded from
the institution of marriage as it denies them equal dignity and respect. The
judgment that legalized same-sex marriage in Texas stated that the denial of
marriage rights to gays and lesbians demeans their dignity and denies
same-sex couples the benefits, dignity and value of celebrating marriage.
Exclusion of same-sex couples from the institution of marriage
perpetuates the view that same-sex relationships are less worthy of
recognition than opposite-sex relationships, and offends the dignity of
persons in same-sex relationships. (Halpern v. Canada (2003), 65 O.R. 3d
161, para 2, 107)

B) Natural law is unclear and subject to disagreement

Some of the dictates of Natural Law are unclear and are subject to
disagreement among reasonable people. As Francis Hutcheson explained,
"When the strain of conversation and popular maxims have long represented
certain actions or events as good, and others as evil; we find it difficult to
break the association, even after our reason is convinced of the contrary.
(1755)). (FRANCIS HUTCHESON, A SYSTEM OF MORAL PHILOSOPHY
bk. 1, ch. 1, art. 8, p. 30 (A.M. Kelley 1968)
Yet, the same might be said of the reactions of many to same-sex
relationships, that the associations inculcated since childhood are affecting
the ability to make a correct, unbiased moral judgment.
Sometimes, it is not the historical moral teachings themselves but the
method of applying those precepts that suggests discriminatory treatment.
Thus, arguments based on historical religious and moral teachings may be
used selectively to burden gays, lesbians, and bisexuals, but not others, even
though the traditions themselves made no such distinction. Like choices
concerning contraception, family relationships, procreation, and
childrearing, all of which are protected by the Constitution, decisions
concerning marriage are among the most intimate that an individual can
make.

C) The promotion of Morality

The state has a legitimate interest in promoting morality. Even if the
Natural Law is clear that same-sex marriages were impermissible, that
would not establish that such unions were immoral, since there are a variety
of moral systems of which Natural Law is but one example.
To fully execute the Constitutions promise of respect for individual
selfdefinition, worth, and freedom, the state must also respect and validate
public manifestations of personal identity. We must ensure that individuals
are not publicly degraded for their self-defining attributes.
b. Allowing same-sex marriage under the Philippine law is in
accordance with equal protection clause.
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently,
so as to give undue favor to some and unjustly discriminate against others.
The guarantee means that no person or class of persons shall be
denied the same protection of laws which is enjoyed by other persons or
other classes in like circumstances. [City of Manila v. Laguio (2005) citing
Ichong v. Hernandez (1957).
People v. Cayat (68.Phil. 12, 18 (1939)) summarized early
jurisprudence on equal protection thus:
It is an established principle of constitutional law that the guaranty of
the equal protection of the laws is not equal protection of the laws is
not violated by a legislation based on reasonable classification. And
the classification, to be reasonable, (1) must rest on substantial
distinctions; (2) must be germane to the purposes of the law; (3) must
not be limited to existing conditions only; and (4) must apply equally
to all members of the same class. (Borgnis vs. Falk Co., 133 N.W.,
209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law.
ed., Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and
Hongkong & Shanghai Banking Corporation vs. Vera and Cu
Unjieng, 37 Off. Gaz ., 187.)
For determining the reasonableness of classification, later
jurisprudence has developed three kinds of test depending on the subject
matter involved. The most demanding is the strict scrutiny test which
requires the government to show that the alleged classification serves a
compelling state interest and that the classification is necessary to serve that
interest.