Same-sex marriage violates the Constitution? SC ruling didn’t say

AST July 3, 2018, Jesus Nicardo Falcis III, 33, a gay lawyer and radio anchor, was cited by the Supreme Court for direct contempt.

Days before that, on June 5, he appeared at the preliminary hearing on his petition against the ban on same-sex marriage “in a casual jacket, cropped jeans and loafers without socks.” To the court, Falcis’s getup was “contumacious” or “stubbornly disobedient.”

While that, to the high tribunal, “recklessly courted disfavor with the court,” that wasn’t the reason the Supreme Court last week dumped Falcis’s petition.

Job of Congress

The SC did not say that same-sex marriage is prohibited by the Constitution. Instead, it called on Congress “to address” the issue of recognizing same-sex union, even as it acknowledged the “long history of discrimination and marginalization faced by the LGBT community.”

The high court didn’t tackle Falcis’s personal grievance: to have articles #1 and #3 of the Family Code of the Philippines struck down as unconstitutional.

The reasons:

[1] Falcis’s lack of status: He wasn’t marrying someone of the same sex and was being barred from doing it.

[2] There was no “actual justiciable cause.”

“Hierarchy of courts”

They call it “hierarchy of courts.” One affects the other. Since he was not in a real situation where his “right” was denied, he would’ve no standing and reason to litigate.

His “disrespectful” attire more than a year ago, just before the oral arguments on his petition, clearly had nothing to do with the throwing away of his case.

What may hearten Falcis and his advocacy was that the SC accepted that the problem is there but it is better resolved in Congress. And the issue has already reached the legislature, in the Senate where the Anti-discrimination Bill or Sogie (Sexual Orientation and Gender Identity and Expression Equality) bill is pending.

Dubious motive

The high court found Falcis’s motive dubious. The SC believed Falcis was using the “constitutional litigation” for propaganda: for the LGBT cause and perhaps for his personal political ambition. A few days after the SC ruling, he announced he’d go into politics to continue waging the battle for “equal rights” of gays.

That sounds familiar. It is. Last Aug. 13, Gretchen Custodio Diez, a transwoman, raised a ruckus by going live on Facebook as she was being evicted from the toilet for women at a mall in Quezon City. Diez was then arrested, fueling the controversy that she must have created to push the Sogie bill in Congress. A few days later, like Falcis, she announced her plan to run for public office.

To secure that reason, Falcis apparently used the same tactic as Diez’s, only that his charade did not involve a security guard but the men and women in black robes of the highest court of the land. The justices were not amused. Falcis might even lose his license as a lawyer because of the stunt.

Not defined or restricted

All that, of course, distracts from the core issue: whether same-sex marriage will violate the 1987 Constitution.

Call it a side comment, “an obiter dictum,” but the SC said in the Falcis ruling that the same Constitution “does not define or restrict marriage on the basis of sex, gender, sexual orientation, or gender identity of the parties.”

In effect, no bar in the fundamental law but Congress can address the controversy best.

The Falcis decision doesn’t mean the SC won’t ever rule on the constitutionality of the Family Code ban on same-sex marriage.

But the next lawyer who will go up there to complain should’ve the real thing: one person’s marriage with another person of the same sex that is being obstructed by authorities because of the ban.*