[15R]

STA.MARIA CUP 2018

LEGALIZATION OF SAME-SEX MARRIAGE

MEMORIAL FOR RESPONDENT

[NUMBER OF WORDS]
TABLE OF CONTENTS

II
INDEX OF AUTHORITIES

III
SUMMARY OF PLEADINGS

IV
 PLEADINGS

I. The Family Code, in defining and limiting marriage as between man and woman is

unconstitutional because it denies petitioner and other homosexuals the equal

protection of laws.

1. No, there is no violation of Equal Protection

The Court in Ichong v. Hernandez1 said:

The equal protection of the law clause is against undue favor and individual or class

privilege, as well as hostile discrimination or the oppression of inequality. It is not

intended to prohibit legislation which is limited either by the object to which it is

directed or by the territory within which it is to operate. It does not demand absolute

equality among residents; it merely requires that all persons shall be treated

alike, under like circumstances and conditions both as to privileges conferred and

liabilities enforced. The equal protection clause is not infringed by legislation which

applies only to those persons falling within a specified class, if it applies alike to all

persons within such class, and reasonable grounds exist for making a distinction

between those who fall within such class and those who do not.

The equal protection clause permits classification. In issues involving the equal protection clause,

the test developed by jurisprudence is that of reasonableness, which has four requisites: (1) The

classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is

not limited to existing conditions only; and (4) It applies equally to all members of the same class. 2

In this case, provisions of the Family Code limiting civil marriages to opposite sex couples satisfy

the valid classification with regard to the equal protection clause. OSG Calida’s oral arguments on a

petition that seeks to allow same-sex marriage in the Philippines substantiated the valid exercise of

1
Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957

2
Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010

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 classification where he stated:

First. that with regard to classifications that rest on substantial distinctions, only opposite sex

partners can procreate without 3rd party intervention;

Second. the limitation of civil marriages between man and a woman is also germane to the

purpose of the law since its purpose it to preserve the traditional concept of marriage in

which it is geared towards procreation which only a man and a woman can have through

biological sex;

Third. the classification is not limited to existing conditions only so long as procreation

through sexual cooperation is the basic end of marriage, the questioned provisions will still

apply to future conditions;

Fourth. Last but not the least, the assailed articles equally apply to all opposite sex couples

which are all members of the same class. 3

Based on the foregoing, provisions of the Family Code limiting civil marriages to opposite sex

couples satisfies the valid classification and therefore do not violate equal protection.

II. The Family Code, in defining and limiting marriage between a man and a woman is

unconstitutional because it deprives petitioner and other homosexuals the right to

liberty without substantive due process of law.

1. No, there is no violation of due process of law

State’s limitation of marriage as between man and a woman is not a violation of due process of law

as guaranteed in Section 1, Article III of the Constitution.

Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary

governmental encroachment against the life, liberty and property of individuals. The due process

3
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ARGUMENTS ON SAME-SEX MARRIAGE(2018), https://www.youtube.com/watch?v=zCwM7sFxbkU (last visited

Nov 2018).

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 guaranty serves as a protection against arbitrary regulation or seizure. The due process guaranty has

traditionally been interpreted as imposing two related but distinct restrictions on government,

"procedural due process" and "substantive due process." 4

Procedural due process refers to the procedures that the government must follow before it deprives a

person of life, liberty, or property. Substantive due process completes the protection envisioned by

the due process clause. It inquires whether the government has sufficient justification for depriving a

person of life, liberty, or property. The U.S. Supreme Court in U.S. v. Carolene Products5 laid down

the general test of the validity of an ordinance on substantive due process grounds: strict scrutiny for

laws dealing with freedom of the mind or restricting the political process, and the rational basis

standard of review for economic legislation. A third standard, denominated as heightened or

immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications

based on gender and legitimacy. Using the rational basis examination, laws or ordinances are upheld

if they rationally further a legitimate governmental interest. Under intermediate review,

governmental interest is extensively examined and the availability of less restrictive measures is

considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than

substantial, governmental interest and on the absence of less restrictive means for achieving that

interest. Strict scrutiny is used today to test the validity of laws dealing with the regulation of

speech, gender, or race as well as other fundamental rights as expansion from its earlier applications

to equal protection. 6

In this case, applying then the general tests of the validity of a law or ordinance on substantive due

process grounds as discussed above, the provisions of the Family Code in defining marriage as a

special contract of a permanent union between man and woman is merely a manifestation of the

4
White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009

5
United States v. Carolene Products Co., 304 U.S. 144, April 25, 1938

6
White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009

VII
 concept of marriage in which the State has an interest to protect.7

For that reason, state’s prohibition or limitation of marriage between a man and a woman is not in

violation of due process.

III. The Family Code, in defining and limiting marriage as between man and a woman, is

unconstitutional because it violates Sec. 3(1) ART. XV of the 1987 Constitution.

i. It is not necessary to amend the 1987 Constitution, which uses the term “spouses,”

to allow same-sex marriage in the Philippines; that the term “spouses” may also

refer to same-sex couples. 8

1. The plain meaning rule or verba legis9 in statutory construction is that if the statute is clear,

plain and free from ambiguity, it must be given its literal meaning and applied without

interpretation.

Construction and interpretation of law come only after it has been demonstrated that application is

impossible or inadequate without them. In revealing the true intention of the lawmaking body in

enacting the provisions of the Constitution, extrinsic aids such as deliberations of Constitutional

Commission, where the meaning put to the provision during the legislative deliberation or

discussion may be adopted, or examining in the light of the history of the times and the condition

7
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ARGUMENTS ON SAME-SEX MARRIAGE(2018), https://www.youtube.com/watch?v=zCwM7sFxbkU (last visited

Nov 2018).
8
The Varistarian, Same-sex marriage ‘not a religious issue,’ possible under PH constitution, says Protestant

pastor, The Varsitarian (July 4, 2015),

9
Ruben Agpalo, Statutory Construction, 124 (5th ed. 2003), available at

https://books.google.com.ph/books?id=_tJxoRdQthUC&pg=PA124&lpg=PA124&dq=verba+legis+meaning+a

gpalo&source=bl&ots=4aokwN00v&sig=4rQTAQNQXohusS0ILz2o3fqLz70&hl=ceb&sa=X&ved=2ahUKEw

i-8o7LgsneAhVHi7wKHZKbBPEQ6AEwAnoECAcQAQ#v=onepage&q=verba%20legis&f=false

VIII
 and circumstances under which the Constitution or statute was formed can be used.10

Here, on deliberations of constitutional commission regarding definition of marriage, Constitutional

Commissioner Maria Teresa Nieva when asked to clarify what marriage meant, she said,

“Generally, I think, the accepted definition of marriage is the union between a man and a woman.”11

In examining our history of our marriage laws, it clearly shows that it constantly remains as a union

between a man and a woman.12 This has been practiced prior and during the Spanish regime. The

Rule of Canon Law particularly covenant between man and a woman was then prevailing in the

Philippine being one of Spain’s dominions. The law of civil marriage of 1870 was extended to the

Philippine by royal decree in 1883. In 1889, the Spanish Civil Code likewise extended to the

Philippines. These laws fixed the duties and obligations of the husband and wife. General Orders

No. 68 promulgated on Dec. 18, 1899 likewise made available only to qualified male and female.

Act No. 3412 which took effect on 1927 retained the reference to male and female but includes the

age of consent. On Dec. 1929, Act No. 3613 was approved enacting a new law on marriage but

retained the previous requirements that marriage may only be solemnized between a man and a

woman.13

Based on the foregoing, it is clear that the drafters of the Constitution intended that marriage may

only be solemnized between a man and a woman and therefore, limiting marriage to men and

10
AGPALO, SUPRA, AT 9
11
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12
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13
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 women does not violate Section 3(1), Article XV of the Constitution.

2. Section 3(1), Article XV14 cannot be invoked for it is not a self-executory right.

As a general rule, the provisions of the Constitution are considered self-executing, and do not

require future legislation for their enforcement. For if they are not treated as self-executing, the

mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some

provisions have already been categorically declared by this Court as non self-executing.15

In Tanada v. Angara16, the Court specifically set apart the sections found under Article II of the

1987 Constitution as non self-executing and ruled that such broad principles need legislative

enactments before they can be implemented:

“By its very title, Article II of the Constitution is a declaration of principles and state

policies. These principles in Article II are not intended to be self-executing principles ready for

enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of

its power of judicial review, and by the legislature in its enactment of laws.”

In Basco v. Philippine Amusement and Gaming Corporation17, this Court declared that Sections 11,

12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987

Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance 18 , the Court

referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral

incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay

down a general principle, are distinguished from other constitutional provisions as non self-

executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody

14
1987 Philippine Constitution. Art. XV, § 3, par.1
15
Tondo Medical v. CA, G.R. No. 167324, July, 17, 2007
16
Tanada v. Angara, G.R. No. 118295, May 2, 1997
17
Basco v. Philippine Amusement and Gaming Corporation, G.R. No. 91649, May 14, 1991
18
Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994

X
 judicially enforceable constitutional rights.19 Sections 11 and 14 of Article XIII and Sections 1 and 3

of Article XV, like the provisions that were declared as non self-executory in the cases of Basco v.

Philippine Amusement and Gaming Corporation20 and Tolentino v. Secretary of Finance,21 they are

mere statements of principles and policies. As such, they are mere directives addressed to the

executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but

rather, the electorates’ displeasure may be manifested in their votes.

IV. In Obergefell v. Hodges, it provides that the Equal Protection Clause, like the Due

Process Clause, prohibits this unjustified infringement of the fundamental right to

marry; that marriage not granted to same-sex couples is discriminatory of one’s right

to life, liberty and property.

i. The right of individuals, homosexual or heterosexual, to choose the person he or she

wants to have a relationship with and consequently have that relationship legally

recognized with all concomitant the rights and obligations is a private decision for

individuals to make, not the State.

ii. LGBT Filipinos all over the country are deprived from marrying the one they want

or the one they love.

1. No, there is no infringment of right to marry.

Under the law, right to marry and whom to marry are cognates of the rights to life and liberty. It

must be emphasized that these rights are not absolute. They are subject to State’s inherent power of

police power. Police power is based on the concept of necessity of the State as well as its duty to

19
Tondo Medical v. CA, G.R. No. 167324, July, 17, 2007
20
Basco v. Philippine Amusement and Gaming Corporation, G.R. No. 91649, May 14, 1991
21
Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994

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 protect itself and its people.22

Under the present case, the State then has the power to determine the marital unions it would

recognize including the requirements each individuals would have to possess to enter a state

sanctioned marriage. Police power is concededly not limitless. It must be effected through a lawful

subject which is the state’s interest to preserve the traditional concept of marriage in Philippines and

through a lawful method which is limiting civil marriages through opposite sex under Art. 1 and 2 of

the Family Code.23

Therefore, marriage not granted to same-sex couples is not an infringement of right to marry

because such right is not absolute for it is subject to the State’s inherent power of police power.

V. The Family Code does not require married individuals to procreate or have the ability

to procreate. The law allows impotency, which refers to the inability to copulate or

have sexual intercourse, as a ground for annulment of marriage but not sterility, which

refers to the inability to procreate. Old men and women who are sterile are allowed to

marry and are not allowed to annul their marriage on the ground of sterility.

22
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Nov 2018)
23
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VISITED NOV 2018)

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