Chapter I – Background of the Study

In the Philippine legal system, marriage is defined as a special contract of permanent union between a man and a woman entered into in accordance with the law. It is the foundation of the family whose nature, consequences and incidents are governed by law.1 This definition has been the roots of all arguments, debates and controversies because of the acceptance of the Filipinos to the rise of LGBT community or the “third-sex” society and the raising of the issue on equal protection clause and their equal right to marry, and conjugal rights.

Same sex marriage is the practice of marriage between two people of the same gender. Although same-sex marriage has been regulated through law, religion, and custom in most countries of the world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other. In the late twentieth century, debates about the legalization of same-sex marriage around the world has been publicly noticeable in view of the strong opposition of Christianity as they consider it as morally wrong. On one hand, some scholars, have argued that same-sex unions were recognized by the Roman Catholic Church in medieval Europe, although others have disputed this claim. Scholars and the general public became increasingly interested in the issue during the late 20th century, a period when attitudes toward homosexuality and laws regulating homosexual behavior were liberalized, particularly in western Europe and the United States. In the year 2000, as research shows, Netherlands granted religious rites of marriage and legal recognition to Lesbian, Gay, Bisexual, and Transgender (LGBT) Community. In light of its decision, 20 other countries namely Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), Portugal (2010), Denmark (2012), Brazil (2013), England and Wales (2013), France (2013) New Zealand (2013), Uruguay (2013), Luxembourg (2014), Scotland (2014), Finland (2015) Ireland (2015) and United States of America (2015) legalized marriage for same sex couples.2 Though few more countries are in the process of assessing legitimizing same sex marriage, still, majority of these countries doesn’t recognized reformation of marriage in their Constitution, and this include the Philippines.            

The Philippines is a predominantly Christian country, from which morality and Christianity has always been an influence in the society. This has been the core reason why being a conservative individual matters for Filipino, especially one that involves marriage. As a matter of discussion, there are house bills regarding same sex marriage has been introduced in the Philippine laws , to wit: House Bill No. 6595, House Bill No. 3179. In 2011, there was a bill filed to amend Article 26 of the Philippine Family Code, to prohibit “forbidden marriages.” Specifically, this sought to bar the Philippines from recognizing same-sex marriages contracted overseas. However, these bills did not advance.

Several of gay rights organization has been fighting their rights contending that marriage is a human right based on love and not on two sets of genitalia. Ladlad Partylist, a leading LGBT political party in the Philippines has been advocating that the legalization of same sex unions would laid down anti-discrimination and would grant them the equal protection as provided in the Constitution.            

This issue on same sex marriage once again revives its national relevance after President Duterte’s pronouncement, reversing his campaign to support the legislation allowing same-sex marriage, saying that marriage should always be only between a man and a woman. While the Family Code has been clear on its definition on marriage, however, some lawyers and scholars believe that the Constitution, the supreme law of the land, neither discriminates, nor prohibits same-sex marriage. Hence, this analysis.

This research study aims to analyze the nuances of the law regarding marriage and the possibility of approving same sex marriage based on different jurisprudence, the Family Code and the Constitution.

B. Importance of the Study

Marriage in the Philippines is one of the most important features that was granted by our Constitution from which some rights springs up to. It constitutes legal benefits, such as the right for common and conjugal properties, and marital obligations, parental authority and ownership. Moreover, it constitutes equality beyond the realm of married life. This study will enlighten not only the researchers, but also the readers, on what is the legal standing of same sex couples to fight for their right in cognizance with our laws. Moreover, the study will create an impact to the scholars of the law regarding the legalization of same sex marriage in the Philippines.

C. Statement of the Problem            

The always debated topic of same sex marriage is on the LGBT’s continuous fight against discrimination and inequality. In light of United States, an allied country of the Philippines, that recently recognized gay marriage throughout the 50 states of America, were the hopes of Philippines’ LGBT’s plea of approving the constitutionality of same sex marriage. Its adoption in the United States clearly made a huge mark of change in their constitution especially in the sense of rights and benefits in the eyes of the law. This research papers aims to answer the following in its legal sense;
1. Does Same-sex marriage violates the definition of marriage in the Family Code?
2. Is same- sex marriage Constitutional?
3. Does the legalization of same-sex marriage upholds the rights of the LGBT community on right to property, life and liberty?
4. Does the legalization of same sex marriage upholds the equal protection clause of the Constitution?

D. Scope and Limitation of the Study

The study is concerned with the Same Sex Marriage issue in the Philippines – if such is a legal right that LGBT community deserve to have. It also touches on the importance of marriage, its benefits and definition in terms used by the Philippine Laws, the advantage it can make in the country and its significance to the rights of LGBTs. The study mainly spotlights the constitutionality of legalizing same sex marriage in the Philippines comprising LGBT rights against inequality and discrimination and how it contradicts to the definition of marriage in the Family Code. Facts contained herein are limited to secondary data such as news articles, books, international and local literatures and internet web sources released by educational institutions, academes and authors of law.  The data collected from the secondary data serves only as representative and not to generalize as whole, to provide insights for future policy making and research directions. Nevertheless, the study may still be a turning point for the general public.

Chapter IIReview of Related Literature

We are originally from an Asian country which has not yet opened to the same sex marriage. But, we have been given the chance to study in a developed country and see how the world is opening its gate to welcome different people from different suffers.1

The Philippines is a country whose belief in marriage is mostly in lined with morals and cultural aspects where a majority of its principles were taught through Christianity. Marriage, as stated in Art. 1 of the FC, is a special contract of permanent union between a man and a woman…. It’s clearly stipulated in the mentioned provision that only a man and a woman can enter into a valid marriage ceremony. However, other countries viewed marriage as a legal right and not merely a privilege.

United States of America (2015)

In 2015, the US Supreme Court ruled same-sex marriage bans are unconstitutional and the Republic of Ireland became the first country in the world to legalize same-sex marriage by popular vote following a country-wide referendum. However, while stigma against LGBT communities is certainly lessening in some countries, many states continue to criminalize same-sex sexual contact under the threat of imprisonment or even death.2

Ireland (2015)

On May 22, 2015, Catholic-majority Ireland became the first country to legalize same-sex marriage through a popular referendum. More than six-in-ten Irish voters (62%) voted “yes” to amend the Constitution of Ireland to say that “marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

While some Catholic Church leaders opposed the change, Dublin Archbishop Diarmuid Martin wrote a commentary in The Irish Times newspaper before the referendum, saying that he would not tell people how to vote and that he had “no wish to stuff my religious views down other people’s throats.” Irish Prime Minister Enda Kenny supported the “yes” campaign.3

Finland (2015)

Same-sex marriage will become legal in Finland starting in 2017. The Finnish Parliament approved a bill legalizing same-sex unions in November 2014, and Finland’s president, Sauli Niinistö, signed the measure into law in February 2015. The bill started out as a “citizens’ initiative” – a public petition with a reported 167,000 signatures.

Finland becomes the last of the five Nordic countries to legalize same-sex marriage, joining Denmark, Iceland, Norway and Sweden.3

Scotland (2014)

On Feb. 4, 2014, the Scottish Parliament voted overwhelmingly to approve legislation legalizing same-sex marriage. In addition to allowing same-sex couples to wed, the measure gives churches and other religious groups the option of deciding whether or not they want to conduct such marriages. The two largest churches in Scotland – the Church of Scotland and the Roman Catholic Church – oppose same-sex marriage and lobbied against the bill.

The law took effect and same-sex couples began marrying in Scotland in December 2014.3

Belgium (2003)

Beginning in 1998, the Belgian parliament offered limited rights to same-sex couples through registered partnerships. Same-sex couples could register with a city clerk and formally assume joint responsibility for a household. Five years later, in January 2003, the Belgian parliament legalized same-sex marriage, giving gay and lesbian couples the same tax and inheritance rights as heterosexual couples.

Support for the law came from both the Flemish-speaking North and the French-speaking South, and the law generated surprisingly little controversy across the country. The long-dominant Christian Democratic Party, traditionally allied with the Catholic Church, was out of power when the parliament passed the measure.

The 2003 law allowed the marriages of Belgian same-sex couples and recognized as married those from other countries where same-sex marriage was legal. Those provisions were broadened in 2004 to allow any same-sex couple to marry as long as one member of the couple had lived in Belgium for at least three months. In 2006, the parliament also granted same-sex partners the right to adopt children.3

Colombia (2016)

On April 28, 2016, Colombia became the fourth country in Catholic-majority South America to legalize same-sex marriage, following Argentina, Uruguay and Brazil. The country’s Constitutional Court, by a 6-3 vote, ruled that that “all people are free to choose independently to start a family in keeping with their sexual orientation … receiving equal treatment under the constitution and the law,” according to the wire service Agence France-Presse.3

Though these countries already accepted the marriage between couples who have the same gender, still, a majority of the countries around the world doesn’t recognize such.

Chapter III – Methodology

This chapter describes the research method of the study, the strategy of the researchers in gathering the data needed, and its correlation in the pre-existing phenomenon.

This study is purely research in its approach. The researchers aim to analyze the possibility in integrating same-sex marriage law in the Philippine law by taking into consideration the laws of other countries recognizing same-sex marriage, and the researchers will discuss its constitutionality and applicability with regard to the provisions in the New Civil Code and the rights reserved for the LGBT community inscribed for all humans in our Constitution.

This study applied the descriptive method of research, a fact-finding research which involves adequate and accurate interpretation if findings. The purpose of using the descriptive method is to describe the nature of a condition, as it takes place during the time of the study and to explore the causes. The researchers opted to use this kind of research considering the need to acquire first-hand informations from primary sources, such as laws, jurisprudences, and codes, and at the same time to formulate rational and sound discussions and recommendations for this study.

  1. Glance at Stance of Other Countries Recognizing Same Sex- Marriage

The researchers first took a step in reviewing the different kinds of laws concerning same-sex marriage from different country;

Leading lawyer, judge, and writer Justice Robert A. Jackson once said: freedom 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.”

Netherlands is the very first state that recognized Same Sex Marriages. According to the reports of statistics in Netherlands, the number of homosexual and lesbian couples living together totalled 57 thousand in 2010 where in 14,813 of them had same sex marriage, in which 7,522 were female and 7,291 were male. One in three couples had their relationships officially registered and nearly 11 thousand couples were married and more than 61 thousand had registered partnerships.There have been 1,078 same sex divorces, 734 (two-thirds) of them by female couples. The title of married partners for same sex couples gave them the advantage of building their own family. One of this is the automatic joint parental authority over common children only in the following circumstances:

1.For gay marriage, a consent from the mother of the child is needed;

2.For lesbian marriage, a mother must be one of the couple

In addition, they also extend the right of adoption for same-sex couples.  Article 277 of Civil Code of Netherlands provided that they allow adoptions, except Intercountry adoptions, of same-sex partners (whether married, registered as partners, or neither) of their civil status or gender-combination, as long as the partners have lived together for three years. This rights made equal treatment between different-sex couples and same-sex couples in terms of privileges in having children. The discrimination of capacity of raising a child by same-sex couples diminishes, and has been proven to have nothing different from how different-couples raises their child. In regards to their properties and debts, under their Private laws, each partner are considered to have joint property and considered joint debt. As for property taxes and income taxes, the couple may also take advantage of lower tax rates in certain circumstances which depends on their monthly earnings and salary as individuals. Article 5 of Wet Inkomstenbelasting 2001 provided income tax legislation which assumes that when there is 4% profit on savings and investments, a 30% tax is imposed on this 4% profit. The fact that a relationship can result in a lower property tax follows, no tax is imposed over the first circa EUR 19.000 owned. This changes in marriage, in which registered partnership or informal cohabitation, such amount can be doubled for one of the partners if the other partner is willing to forgo that tax-free threshold. If the latter owns less than circa EUR 19.000, this will result in a lower tax for the couple as a whole. Same-sex couples are also entitled with other legal consequences that different-sex couples have. Among these are entitlement of statutory protection against other partner violence and abuse, legality of organ donation to partner, legally obtaining citizenship of foreign partners and their residence permit with restrictions, and even with testamentary succession. They have also raised the Anti-Discrimination Legislation which prerogative is to prohibit discrimination on many grounds, including sexualorientation and civil status against employers and service providers.  According to the text of Article 7, almost all forms of commercial, professional or public provision of services are covered, including services provided by institutions in the field of housing, welfare, health care, culture and education.

Same-sex marriages has also been long recognized in Canada. Statistics show that of the 72,880 same-sex couples counted in Canada last year, 24,370 of them were married – more than three times the number of married same-sex couples enumerated in 2006. Same-sex couples in general grew in number by just 61 per cent over the same period. That said, marriage brings material benefits, including legal protections, tax advantages and workplace benefits. It can also bestow “cultural legibility,” said Catungal, a journalist.

The only firm conclusion to be drawn from these studies shows inexistence of negative impacts of passage of same-sex marriage in Netherlands and Canada. Purely, equality is the main concern raised by  both states to finally approve the petition of same-sex couples towards a legal recognition of marriage. Both may have experienced flurry of gay marriage lawsuits, debates and arguments due to divided hearts of legislators and citizens in the subject of same-sex marriage, yet what prevails was shown to be in favor of the prayer of the majority. The immediate effects of law amendments has been outdone in the long run, following social, economic and legal changes in the society.

B. Same Sex Marriage in the Philippine Context

Philippines has a strong and ongoing debate of legality of marriage towards same-sex couples. The religious principles, culture and social acceptance, and marriage provisions of the Family Code of the Philippines were the main hindrances that dismisses the petition of LGBT community in the country of making same-sex couple relationships legal in the eyes of law. As of now, the Philippines does not recognize same-sex relationships or same-sex marriages between its citizens. 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. From this provision, it is thus clear that the law on marriage only allows marriage between a man and a woman, not man and a man nor a woman and a woman. Moreover, article 2 of the Family Code that it is one of the legal impediments in a marriage which makes it void ab initio. Article 26 discusses marriages that where they were validly celebrated is also recognized as valid in our country. This provision is with certain exceptions, such when the marriage is against public policy. Same-sex marriage is considered as marriage against public policy, hence considered as invalid in our country.

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.” This is what most lawmakers contend. The constitution as the fundamental law of the land where all laws must bow down to, does not even prohibit same sex marriage. Thus, there is no impediment against legalizing same-sex marriage in the Philippines.

Chapter IV – Results and Discussions

From the foregoing discussions in the preceding article and based from different researches on laws and jurisprudence, it was shown that there is no impediment in legalizing same-sex marriage in the Philippines. If we based it on the provisions of the Civil Code, it is clear that marriage between two same-sexed people is a legal impediment and is abominable in this state. However, the Constitution, being the supreme law of the land, wherein all laws should agree with, should prevail, support and protect the equality of every individual to life, liberty and property, does not inhibit the said conduct. Hence, it is highly probable to implement a law to allow same-sex marriage and to give the LGBT community to all privilege that a married person could have.

However, there needs to be an enabling law redefining, and changing the parties who may contract, marriage. LGBT community still contends that they felt bereft of anti-discriminatory laws. In 2001, an anti-discrimination bill banning discrimination based on sexual orientation was unanimously approved by the House but it was stalled in the Senate, and ultimately died. 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. 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.

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.

Chapter V – Conclusion and recommendation

The researchers, therefore finds that same sex marriage is only beneficial to the citizens of same-sex relationship. Although a lot of Filipino citizen willingly accept the relationship of same sex couples, the probability that same sex marriage will be allowed here in the Philippines is for now highly impossible. One main reason is that, the Philippines is a Catholic country and legalizing same sex marriage weakens and contradicts the teachings as well as the doctrines of the Church which defines marriage as a union between a man and a woman. Another reason is that it would ruin the concept of a family. In a normal set up, a family is composed of a father, a mother and a child or children. Father Marcos Gonzales once said, “the Church says that homosexuals should be treated with love and respect but redefining the natural and divine institution of marriage is simply something we are not able to do.” On the bright side, the Philippines is not closing its doors for the changes that may happen in the near future. Especially that the Filipino citizens always go with what we call is “uso” or trending.

The researchers recommend that the citizen of the Philippines reading this to consider the disadvantages and advantages of the adoption of same sex marriage. The legislators should also make the definition of marriage and equal rights in our constitution clear to avoid confusion and conflict involving the rights and privileges of the people. It should also be followed by the proper interpretation of the judiciary.


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Allyanna Patrisha T. Magbanua

Crystine Senadre

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