World’s most boring same-sex marriage case

The Reproductive Health Act case of 2013 climaxed with a kariton (wooden cart). Justice Roberto Abad proposed RH education was unnecessary because women can IGM (“i- Google mo!”). Sen. Pia Cayetano poignantly countered that a single mother living in a kariton with eight children, able to feed only four at breakfast and four at dinner, has no WiFi in her kariton to IGM.

The RH case was criticized for lacking an “actual case,” our Constitution’s most fundamental requirement for a Supreme Court challenge. It came before the law was implemented, a case with no facts.

So Cayetano defended the law with her own facts. Her fourth son was born blind, deaf, with kidney tumors, and died nine months later. The sight of a child traumatized her. Contraceptives saved her emotional health.

She channeled women’s stories from the law’s 14-year congressional odyssey, of maternal deaths and “substitute spouses,” daughters who slept with fathers while mothers worked overseas.

Cayetano’s vivid narrative, paired with then Solicitor General Francis Jardeleza’s brilliance, fired the national imagination. Even teenagers tweeted on women’s autonomy.

Today’s same-sex marriage case has no kariton, no Cayetano, and certainly no Jardeleza.

Justices all criticized the blatant lack of actual case; petitioner and lawyer Jesus Falcis has no boyfriend, no one to marry. In substance, the arguments fell short of decades of rich decisions from around the world.

But the deeper problem is that a case with no actual case—a case with no facts—is ultimately boring.

Today’s same-sex marriage case ironically leaves out LGBTs.

Oddly, media focused only on the story of Falcis, the lawyer, not any actual LGBT couple. Instead, the lasting image from the second hearing last June 26 is intervenor-oppositor Fernando Perito asking if he might marry his pet dog and, “If I cannot marry my sister, is that not discrimination?”

Simply reiterating jurisdiction would have led to an easy win for Solicitor General Jose Calida. But he surprised by doubling down, arguing that the Constitution limits marriage to man and woman (not the text itself, but briefly in the authors’ deliberations).

Calida invoked history, tradition and ability to procreate as substantial distinction. The doctrinal argument was imprecise, as in the first hearing.

Justice Marvic Leonen refuted, correctly, that such deliberations are nonbinding. Only the actual text, not these deliberations, was presented to voters. Leonen later protested that Calida was not responding to his questions and arguing in circles.

No justice probed why Calida proposed more lenient “rational” and “intermediate” legal tests, but argued language of the “strict” test such as “compelling state interest.” An “equal protection” case turns on the level of test used; the government wins if judges are convinced not to use the “strict” test. But this is all boring. Thus, when now Justice Jardeleza protested lack of “actual case” and demanded facts proven in trial courts, he rightly protests a boring case.

A US trial court devoted nine days to hearing evidence on whether heterosexual couples raise better children. Fifty years ago, a US trial court heard Dr. Kenneth Clark’s “doll test.” Black schoolchildren projected positive traits onto white but not black dolls, reflecting their self-esteem.

Jardeleza quoted Judge Learned Hand: “It would be most irksome to be ruled by a bevy of Platonic Guardians.” Justices should not presume to be Plato’s philosopher-kings, not to hastily rule on a contentious social issue in a boring case—no kariton, no dolls, nothing to inspire us to reaffirm our most deeply held values.

It was his most thoughtful performance from the other side of the bench. Like me, Jardeleza seems open to same-sex marriage yet cannot approve of the badly framed, intensely criticized petition.

The best outcome for LGBT Filipinos may be dismissal of this case for lack of jurisdiction, leaving whether our Constitution prohibits same-sex marriage for a better case.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.