Manuscript 12

REFRAMING MARRIAGE IN THE PHILIPPINES: 1
THE SOCIO-LEGAL DIMENSION OF SAME-SEX MARRIAGE
Marriage Is A Human Right Not A Heterosexual Privilege!

- Banner of the LGBTQ+ Community
on Same-sex Marriage
Marriage can be classified into two namely, traditional marriage and civil marriage.
Traditional marriage is socially and legally recognized union between two consenting adults for
procreation purposes and is formally inducted through a wedding ceremony or matrimony. On
the other hand, civil marriage is a lawfully recognized union by the government without any
religious intervention (Schmidt, 2015).
Same-sex marriage is legally or socially recognizable union between two consenting

adults of the same biological sex or social gender (Schmidt, 2015). Ancient history shows that
unions were not sanctioned by any governing body but by ceremonies that were held in various
parts of the world where individuals of the same sex would enter into arrangements or contracts,
binding them to each other(Schmidt, 2015). According to William N. Eskridge Jr. in his
Symposium on Sexual Orientation and the Law (as cited in Same-Sex Unions throughout
Time: A History of Gay Marriage, 2011), artifacts from Egypt demonstrate that same-sex
relationships is already in existence. The discovery of a pharaonic tomb created specifically for
such couples show that their union was recognized by the kingdom (Same-Sex Unions
throughout Time: A History of Gay Marriage , 2011).
Classical antiquity in the Western world is commonly cited for the existence of same-
sex love and relationships, though separate concepts of homosexuality and heterosexuality did
not exist in the same way as today. Platos Symposium describes instances of homosexual
attraction and same-sex relationships in ancient Greece without condemnation(Same-Sex
Unions throughout Time: A History of Gay Marriage , 2011).
In addition, according to Wayne R. Dynes and Stephen Donaldson in their

Homosexuality in the Ancient World the main considerations in same-sex relationships in early
history were often love, beauty, and excellence of character rather than gender (Same-Sex
Unions throughout Time: A History of Gay Marriage , 2011).
There are now an increasing number of countries which are considering granting legal
recognition to same-sex marriage.
In 2000, the Netherlands grant same-sex couples the right to marry, divorce, and adopt
children. In 2003, the Belgian parliament legalized same-sex marriage, giving gay and lesbian
couples the same inheritance rights as heterosexual couples. In November 2006, South Africa
granted same-sex couples the right to marry as its previous marriage laws violates the South
African constitutions guarantee of equal rights. 2005, was a victorious year for the
LGBTTTQQIAA (Lesbian, Gay, Bisexual, Transgender, Transsexual, Two-spirited, Queer,
Questioning, Intersex, Asexual, Ally) or also known as LGBTQ+ community in Spain and
Canada, as these countries legalized same sex marriage, recognizing same rights to all married
couples regardless of their sexual orientation. In 2010, Argentina, Portugal, and Iceland voted
for the measure legalizing gay marriage. Sweden and Norway, both in 2009, legalized same sex
marriage in their own respective states. Denmark, in 2012, also passed a bill legalizing same-sex
marriage, and was later enacted into law by Queen Margrethe II. In 2013, England and Wales,
France, Brazil, New Zealand, and Uruguay have also legalized same-sex marriage. In 2014,
Luxembourg and Scotland overwhelmingly approved a legislation allowing the LGBTQ+ to
enter marriage with the same sex. In 2015, the United States of America, Greenland, Ireland, and
Finland have completely legalized this kind of unions. However, in Mexico, same-sex marriage
is legal only in some jurisdictions such as Mexico City, Quintana Roo, Coahuila, and Chihuahua
(Masci, Sciupac, & Lipka, 2015).
In the Philippines, even before the arrival of the Spaniards, same-sex relationships existed
among the natives of the Philippine islands. Early account of Spaniards reported that they have
encountered crossing gender and transvestism, which were part of the culture, epitomized by the
babaylans. The babaylans were spiritual leaders, akin to an ancient priestess. They were males
who wore womens clothes and played the role of a woman. In 2004, J. Neil C. Garcia, in his
study entitled Philippine Gay Culture (as cited in Tan, 2014), male babaylans were described
as men who, not only assumed the demeanour of women, but were also granted social and
symbolic recognition as somewhat-women. Surprisingly, some were even married to men,
with whom they had sexual relations according to the aforementioned study of Garcia.
The first ever recorded same-sex marriage in the Philippines was officiated by the
Communist Party of the Philippines (CPP) and its armed wing, the New Peoples Army (NPA).
According to the Facebook post of Thomas van Beersum (as cited in #LoveWins: NPA Weds
Gay Couple in the Philippines, 2015), on Feb. 4 2005, the New Peoples Army (NPA)
conducted the first same-sex marriage in the Philippines. Two guerrilla fighters who have
participated in the armed struggle against the pro-U.S. regime in Manila, Ka Andres and Ka Jose,
exchanged their vows before their comrades, friends and local villagers. Furthermore, the
ceremony was filled with symbolism representing their love and their cause. Ka Andres and Ka
Jose held each others hand throughout the wedding and held a bullet in the other instead of rings
as a representation of their commitment to the armed struggle(#LoveWins: NPA Weds Gay
Couple in the Philippines, 2015).
After this, several gay marriages in the Philippines followed suit. In the City of Baguio,
Metropolitan Community Church of Metro Baguio (MCCMB). It is a Christian church that
ministers to homosexuals. The aforementioned church solemnized the union of a male couple
and of seven lesbian partners at the Ayuyang Bar (Caluza, 2011), preceding the 5th Baguio
Lesbian, Gays, Bisexuals and Transgender (LGBT) Pride Parade (Dumlao, 2011). The MCCMB
hosted the mass same-sex wedding and prepared out pre-wedding counseling before the event
in various areas in the country (Dumlao, 2011).
Research Problems
A. General statement of the problem:

Whether or not same-sex marriage is viable in the Philippines?
B. Specific statement of the problem:

1. Does the 1987 Philippine Constitution explicitly limit marriage between a man and a
woman?
2. Is the definition of marriage under Article 1 of the Family Code that marriage should
be between a man and a woman, discriminative of the rights of the LGBT
community?
3. Does the deprivation of marriage to same-couples violate the equal protection clause
and the right to privacy articulated in the 1987 Philippine Constitution?
4. Is the Filipino society ready for same-sex marriage?
5. What are the factors hindering the acceptance of same-sex marriage by the Filipino
society?
6. Are there any efforts coming from the government and the church to recognize the
right to marry by same-sex couples?
Research Objectives
The purpose of this research is to analyze and assess whether or not same sex marriage is
feasible in the Philippines. The research attempts to remove the stigma that same-sex couples
should be deprived of the rights enjoyed by heterosexual couples. This study seeks to promote
equality and non-discrimination to homosexual couples, allowing them to be benefitted as that of
heterosexual couples in terms of strengthening their communication and support to each other,
and shaping their social identity. Through this study, the goal is to send a strong message of
respect, dignity, and inclusion of the homosexuals in the institution of marriage as well as to
society as a whole.
MARRIAGE
TRADITIONAL MODERN
Same-sex Marriage as a
Matter of Civil Right
SOCIAL CONSTRUCTIVISM
Concept of MUNICIPAL LAW INTERNATIO
Heterosexual NAL LAW
LEGAL REALISM
Constitutional
LIBERALISM
Relationship/Marria Rights to Equal

ge Protection, Privacy,
Universal
Traditional Model of and Liberty
Declaration of
Family Article XV, Section
Human Rights
2 1987 Philippine
Filipino societys Constitution
view on Marriage Article 1 of the
Family Code of the
Philippines
LEGALIZATION OF SAME SEX MARRIAGE
Diagram 1. Conceptual Framework
In a traditional Filipino family, the father is considered the head and the provider of the
family while the mother takes responsibility of the domestic needs and in charge of the
emotional growth and values formation of the children. The parents both perform different tasks
and being remarked separately by the children. Children see their mothers soft and calm, while
they regard their fathers as strong and the most eminent figure in the family(Philippine Culture:
Common Family Traits, 2006).
The most traditional social norm views marriage as a sacred phenomenon; that is,
marriage is a divine and holy institution created and maintained by God or by some supreme
being greater than humans. It is an institution which consists of a man and a woman. (Apostol,
2011). It is also a traditional view that procreation is the purpose of marriage. This is the concept
of heterosexual marriage.
The Family Code of the Philippines expressly states that, Marriage is a special contract
of permanent union between a man and a woman entered into in accordance with law for the
establishment of conjugal and family life.This provision of the law clearly violates and is
inimical to ones basic constitutional rights specifically the right to privacy, liberty, and equal
protection of the law.
Right to privacy and liberty, according to the case of Lawrence v Texas, is the right
which involves the most intimate and personal choices a person makes which is central to ones
personal dignity and autonomy (Lawrence v. Texas , 2003). In Loving vs. Virginia, it states that
marriage is one of the basic civil rights of man, fundamental to our very existence and survival
(Loving vs. Virginia, 1967). Based on the foregoing court decisions, it can be resolved that
marriage is a personal choice and a civil right. It is not a privilege wherein only certain persons
are allowed to enjoy such benefit. Article 12 of the UDHR further highlighted the importance of
privacy stating that no one shall be subjected to arbitrary interference with his privacy, family,
home, or correspondence, nor to attacks upon his honor and reputation.
Right to equal protection of the laws, under Section 1, Article III of the 1987
Constitution, states that, No person shall be deprived of life, liberty, and property without due
process of law, nor shall any person be denied the equal protection of the laws. The Family
Code clearly violates the aforementioned provision in limiting marriage between a man and a
woman, contradicting the right to equality of every person, which the Constitution firmly
protects. Article 7 of the UDHR further emphasized that all are equal before the law and are
entitled without any discrimination to equal protection of the law.
Reframing marriage would then uphold the right to privacy, liberty and equal
protection of the laws of the LGBTQ+ community regarding marriage. In addition, prohibiting
same-sex couples to marry deprives them their constitutional right to privacy which encompasses
their entire due process rights arising from liberty, collectively known as decisional privacy.
There is a realm of personal liberty which the government may no longer enter. There should be
a limitation as to the governments intervention in the lives of its people. Hence, marriage must
not be limited to heterosexual relationships only, as marriage must not be discriminatory and
should be granted to couples regardless of their sex/gender, religion, race, or ethnicity.
Moreover, by reframing marriage, the right of the LGBTQ+ to marry will be recognized legally
by the State which would eventually lead to their acceptance by the society.
In an evolving society, it is inevitable that peoples views, norms, and behaviors change.
An example of the changes in society, which our laws fail to address, is the modification in the
way gender has been perceived. The problem with the Philippine laws is that it remains stagnant
as it fails to adapt with the changes of time. As a result, the LGBTQ+ Community, struggle to
fight for their total acceptance and recognition by society and by our laws.
In the concept of legal realism theory, it suggests that laws and social sciences must be
unified in order for it to function in the real world (Singer, 2001). Legal realism insists that the
way we understand law and the way we study, teach, and practice law should not focus solely on
the letter of the law wherein social interests is being neglected. As such, law is a living document
and not stagnant. Lawyers and/or legislators should not be legal automatons or legal technicians
purely relying on the text. Moreover, law must always consult the demand of social realities and
development.
In addition, social constructivism suggests that all labels and categories in society and
the meanings attached to them come out of a particular socio-cultural and historical context; they
are socially defined and not prescribed by non-human forces; and, more broadly, Berger and
Luckmanns emphasis on the social construction of language and social institutions. Sexuality,
homosexuality and heterosexuality (and all categories) are human-made social creations. In this
framing, there is no one type of sexuality that is natural. Rather, the meanings we assign to
sexuality and what are normal and less normal vary across societies, and within any one society,
across time. Social constructionism sees homosexuality more as an identity choice than a
biologically predetermined natural state. In this view, people learn how to present themselves as
gay by internalizing what society labels as gay behavior; they seek out social ties with others
whom they perceive to be gay, and form various gay subcultures. This perspective on sexual
identity has parallels with how we commonly understand ethnic identity. Although ethnic
identity can have a biological, genetic basis, in societal terms ethnicity is understood by
individuals patterns of association with others of similar ethnicity, and by the groups shared
practices and meanings. Homosexual constructionists argue that gay and lesbian identity can be
similarly thought of as another ethno-social, sub-cultural identity; thus, like ethnic groups, gays
and lesbians should be regarded as behaving in particular, meaningful ways that reflect and
nurture their particular social identity (Dillon, 2014).
To further this theories the concept of liberalism was applied. This concept suggests that
society should be organized in accordance with certain unchangeable and inviolable human
rights, especially the rights to life, liberty and property. It also holds that traditions do not carry
any inherent value, that social practices ought to be continuously adjusted for the greater benefit
of humanity, and that there should be no foundational assumptions (hereditary status or
established religion) that take precedence over other aspects of government (Mastin, 2008).
Ergo, this study aims to reframe marriage also because the provision of the Family Code
on marriage is inconsistent with the fundamental rights which the Constitution upholds. The
1987 Philippine Constitution in fact is silent and does not prohibit same sex marriage as stated in
Art XV, Sec. 2 that Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State. There is no clear restriction of same-sex marriage that exists
in the above provision. The basic rule on statutory construction is expression uniusest exclusion
alterius. This implies that whatever the law expressly states, concludes the exclusion of others
that are not expressly mentioned (Delfino vs. St. James Hospital, INC., 2007). Everything that is
not included is deemed excluded. Hence, the legislators of the Family Code have no room to put
any limitation for marriage to be only between a man and a woman. Since this limitation is
discriminatory in todays context, it is high time that marriage should include unions of the same
sex.
When we refer to same sex marriage, it encompasses all kinds of gender legally allowed
to marry any person with the same or different gender. Marriage should not only be limited to the
idea of procreation but also with companionship. Remember, there are heterosexual couples who
are permitted to marry despite being sterile. The Family Code does not require procreation as a
requirement for marriage. Therefore, the same right of marriage should also be granted to
homosexuals even though they cannot biologically procreate.
Most social scientists would probably have the same concept of what a homosexual
relationship, and that would be, a couple in which same-sex partners build a life together that
includes both love and sex. Another approach to defining homosexual relationships focuses
commonly on sexuality and love. In this view, we can say that a close same-sex relationship is
homosexual if, or only if, the partners have sex and/or experience love.
Another concept of defining homosexual relationships concerns the emotional quality of
a relationship and the experience of love between the partners. For example, in a discussion of
women's relationships in the nineteenth century, Faderman (1981) argued that, the term
lesbian describes a relationship in which two women's strongest emotions and affections are
directed toward each other.Furthermore, according to Faderman, Sexual contact may be a part
of the relationship to a greater or lesser degree, or it may be entirely absent. And by preference
the two women spend most of their time together and share most aspects of their lives with each
other(Gallagher, Ann-Marie; Lubelska, Cathy; Ryan, Louise, 2013).
In the social aspect, same sex marriage is obviously not yet fully accepted by the Filipino
society mainly due to their religious beliefs, viewing same sex marriage as a sin and against the
accepted norms. It is equally our aim to show that even if the Filipinos value religious beliefs, it
is imperative to consider that marriage is more of a civil right rather than a religious right.
Denying the right of marriage to same sex couples sends a strong message that they are not part
of the society; that their relationships are not valued and that their unions are not meaningful.
Marriage being a civil right embraces the peoples right to safety, integrity and protection from
discrimination (Marriage Equality : Revel & Riot, 2014).
With the aforementioned theories, laws, legal and social concepts, it is feasible to reframe
marriage in such a way that same sex couples will be supported or accepted and be recognized
by the State.
Design and Methodology
Research Design
This type of research was exploratory as it established prospects and realities for future socio
cultural and legal questions on same-sex marriage. It constructed the framework in dealing with
changes in societal norms and ideologies. Thus, this study was intended to explore and
investigate on the possibilities of integrating same-sex marriage in the Philippine which is an
area where little is discerned. The exploratory method of research was the most appropriate
method used because of the vague concept of same-sex marriage that is unacceptable in todays
context.
Moreover, this study is qualitative in character, since it is a sociological and legal inquiry
which focuses on the way people interpret and make sense of social and legal phenomena
relating to the grant of the right to marry for same-sex couples.
Furthermore, descriptive method of research was also used in this study. This is a fact-
finding study; hence, care was made to adequately and accurately interpret the arising data.
Settings and Participants
To further establish the concept of same-sex marriage in the Philippine context,

interviews were conducted within Baguio City. The respondents were chosen based on their field
of expertise, on either law or social sciences to guarantee that they were knowledgeable on the
phenomenon subject matter being studied. There were fifteen participants who were chosen
through purposive referral or sampling. To ensure the participants as well as the universitys
anonymity, we assigned codenames to them. Thus, respondents who answered the questions on
the legal dimension of same-sex marriage were Atty. A, Atty. B Atty. C, Atty. D, Atty. E, and
Prosecutor F. They are either practicing lawyers and/or academicians. On the other hand,
respondents who answered queries for the social dimension of same-sex marriage were
academicians with relevant masters or doctorate degrees. They are Professor G, Professor H, and
Professor I from University 1; Professor J, Professor K, and Professor L from University 2; and
Professor M, Professor N, Professor O from University 3.
Data Gathering Procedure
It involved interviews to competent people in order to gather deep understanding of

same-sex marriage. Prior to the actual interview, a schedule for the interview was set up
depending on their availability and free time. Participants were also notified that the data and
their identity will be kept confidential and will only be used for research purposes. Each
interview was conducted in the participants office. We created 3 kinds of guide questions-- one
for every aspect, namely: legal, social, and psychological. Our interviews emphasized on the
legal and sociological aspect, having only the psychological aspect as a support to the social
aspect. Questions were a combination of open-ended question and yes-or-no questions. These
questions were printed and given to the participants during the interview. Two to three members
of the group were tasked to do the interview. One or two member/s worked as a note taker and
the other acted as an audio recorder operator. The interviewers were allowed to ask sub questions
that were not printed on the paper for further elucidation or clarification. Interviews with the
respondents lasted for 20-60 minutes and no follow-up interviews were conducted. Respondents
consent was obtained for the use of audio recorder during the interview.
Treatment of Data
Actual interviews were transcribed word per word and thereafter translated to English
language. Respondents answers/statements that were significant in the course of this research
were extracted and formed as a premise to support the viability of same-sex marriage in the
Philippines.
For the material sources, jurisprudences or case laws from other countries, historical
and/or sociological documents, and interviews were the primary sources. Jurisprudences and
case laws were used because they had persuasive value to the Philippine courts especially when
there were no Philippine statutes or jurisprudences available. The interviews conducted were also
included as our primary sources. The contentions of the interviewees were consolidated to come
up with premises. These were presented through quotes and commentaries that added to the
quality of the report.
Our secondary sources were books, writings, and journal articles that explained,
discussed, and commented relating to the issues presented. These materials greatly helped the
study for their degree of persuasiveness. These were used for our general analysis. Relevant
documentary evidence, foreign legislations and/or concepts from foreign countries, international
and municipal laws supporting the establishment of same-sex marriage were obtained and were
analyzed and interpreted in interrelationship with the Philippine context.
Findings/Results
Premise 1: Constitutional Provision on Marriage
Section 2, Article XV of the 1987 Philippine Constitution defines marriage as an

inviolable social institution, is the foundation of the family and shall be protected by the State.
With the aforesaid provision, it is clear that there is no express statement of any prohibition or
limitation regarding same sex marriages. According to one respondent:
The Philippine Constitution did not specifically state any

prohibition with respect to same-sex marriage--- it's our other
laws. For example, the Family Code which sets forth that marriage
should be between a man and a woman or male/female or of the
opposite sex.
The fact that there is no law governing same-sex marriage and no jurisprudence rendered
by the court yet, for there is no actual case or controversy filed regarding such matter, the
possible legalization of same sex marriage remains to be silent in the Philippine law. Same-sex
marriage, therefore, is not allowed nor prohibited in the Philippine legal system. Other
respondents from the interviews agreed to the same.
Majority of the respondents agreed that the prohibition of same sex marriage is a
violation of the equal protection clause and subverts the due process clause particularly upon
liberty. In line to this, according to one respondent on whether or not the LGBTQ+ community is
seeking a special right/treatment:
They are seeking equal rights and not special rights or special
treatment. They want people to know that they deserve to be treated
equally.
In the case of Loving vs. State of Virginia in the United States of America, it affirms that
the freedom 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 survival(Loving v. Virginia , 1967). The US Supreme
Court likewise decided on its landmark case, Obergefell vs. Hodges, wherein it held that, the
Fourteenth Amendment requires a State to license a marriage between two people of the same
sex and to recognize a marriage between two people of the same sex when their marriage was
lawfully licensed and performed out-of-State. It was based on the premise that the right to
marry is an inherent right in the liberty of the person, and under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, same-sex couples should not be deprived of
that right and liberty(Obergefell vs Hodges, 2015). Under Section 1, Article III of the 1987
Philippine Constitution, it stated that: No person shall be deprived of life, liberty, and property
without due process of law, nor shall any person be denied the equal protection of the laws.
With the aforesaid provision upholding the equality principle, Article 1 of the Family Code is
clearly contrary to it considering that it limits by express statement that marriage is between a
man and a woman.
Furthermore, courts and/or legislatures in some parts of the world have also used the
concept of human dignity to advance gay rights. The 1998 case decided by the Constitutional
Court in South Africa which is the National Coalition for Gay and Lesbian Equality and Another
v. Minister of Justice and Others, for instance, used the right to dignity in connection with the
right to privacy and equality. This case involves the crime of sodomy. The Constitutional Court
of South Africa established that sodomy as an offense which prohibits sexual intimacy between
gay men violated the right to equality because they were unfairly discriminated on the basis of
their sexual orientation. The Court, thus, concluded that the common law offense of sodomy is
not a reasonable nor a justifiable limitation on the rights of gay men to equality, dignity and
privacy(National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and
Others, 1998). Dignity is a concept without a precise legal meaning, yet it is central to
contemporary human rights discourse. The criterion justifying the grant of this right is the quality
of being human. According to a basic instinctive understanding, dignity signifies an expression
of respect and value that is given to each human being on account of his or her humanity. One
can take the view that dignity is indeed innate to any human being, including homosexuals. It is
expressly stated under the 1987 Constitution, Art. II, Sec. 11, that, The State values the dignity
of every human person and guarantees full respect for human rights. The right to dignity,
therefore, mandates the respect of a person to another and indicates the most basic form of
respect the State owes to individuals. The Universal Declaration of Human Rights also invokes
the right to dignity by declaring in Article 1 that, All human beings are born free and equal in
dignity and rights. It has become the central value supporting the entirety of international
human rights law.
Premise 2: Marriage under The Family Code of the Philippines
When the Family Code was formulated, the legislators were in the era where there is
great regard for the views of the religious groups. The traditional way of living branded with a
very religious culture has been implanted in the country for many generations. Over eighty (80)
percent of the Filipino people belong to the Roman Catholic Church; this church affects
constantly the lives of the Filipinos (UNDP. USAID, 2014). According to one respondent, on
whether the Family Codes provision is discriminatory towards the LGBTQ+ community:
No. It is not discriminatory. When the Family Code was framed,

the LGBT community was not that active before. The LGBTs were
not assertive with their rights as compared today. The usual
concept of matrimony of marriage is between a man and a woman.
We have to consider that that is our tradition.
Because of this, people acceded in the orthodox concept that marriage is only between a
man and a woman, since procreation is necessary. Their belief is that procreation defines the
sanctity of family life. Though there were same-sex marriages or unions that were practiced a
long time ago, such practice had not been acknowledged yet by a number of people. Hence, the
people remained to commit themselves with the belief that marriage stays to be only between a
man and a woman. The rights of the LGBTQ+ community were not fully recognized by the
government. The issues governing them were disregarded or not given significance in the
society. Thus, the Family Codes provision in Article 1 which defines marriage as only between
a man and a woman can be stated as not discriminatory against the LGBTs only because it was
created during the time that traditional and religious views were important and necessary in all
government actions. Majority of the respondents agreed to this but they also believed that since
this issue is already prevalent and ubiquitous in the society, the government must address this
matter.
The difference lies on procreation and child rearing. However, it is not a disadvantage
that a couple cannot procreate; marriage depends on what the couples have agreed upon or for
what purpose. Thus, traditional role models of a family would not be absolute. As stated by one
of the respondents on procreation as basis of marriage:
I disagree. Marriage is based on love, mutual sexual attraction,

equality and a flexible division of labor; not always on pro-
creation.
As human beings capable of providing love, emotional fidelity, and financial support to
their partners, same-sex couples are capable of performing such. Moreover, these obligations
have nothing to do with gender identity or sexual orientation.
In the present time, the traditional belief that the purpose of marital union is of
procreation is progressively changing in the present by contemplating that sex is just one of the
aspects of marriage. Love, equality, and support are the other aspects which mean that marriage
entails a lot of other values and commitments. Accordingly, these can also be performed by the
same-sex couples. Likewise, the ability to procreate is not a requisite for marriage because even
the aged and the infertile are allowed to get married. Also, the concept of sanctity of marriage
has been often questioned as to its meaning for no provision has provided for its specific
definition.
Because of these, there are persons and certain groups who are on the journey of
supporting and advocating marriage equality in the Philippines. For example, Jesus Nicardo
Falcis III, who is a lawyer and an open and self-identified homosexual, filed a petition to the
Philippine Supreme Court to allow same-sex marriage by declaring unconstitutional certain
provisions of the Family Code: the provision in limiting marriage between a man and a woman
and the provision considering lesbianism and homosexuality as a ground for annulment and legal
separation. Moreover, the Ang Ladlad which is one of the LGBT organizations established in the
Philippines aims the full recognition and acknowledgement of the rights of the homosexuals.
Premise 3: Marriage under International Law
Marriage is a universal human right. The United Declarations of Human Rights further
supports this contention by stating in Article 16 that everyone has the right to marry and to
found a family. Though it only serves as an expression of advocacy and not necessarily a basis
of law, it may still by custom be accepted as rules binding upon States. However, in the
Philippines, since the Family Code uses the traditional definition that marriage is a permanent
union between a man and a woman, majority of the respondents expressed that it makes it a
privilege rather than a right for it is granted for those who are considered as male and female
only. According to one respondent:
Somehow it makes it a privilege rather than a right. Same-sex

couples may undergo commitment ceremonies or pseudo-marriage
ceremonies; yet, in the eyes of the law they are prevented from
invoking the legal protection and benefits of marriage.
These benefits of marriage may include hospital and prison visitations, deciding on
medical and burial matters, transfer of properties, adoption, and other privileges granted to
married or unmarried heterosexual couples. The LGBT people want to have the same rights
which the majority is enjoying. In connection to this, one respondent said:
If we are going to use the YOGYAKARTA principle which deals

with the LGBT eyes enunciating that there must be a concept of
non-discrimination on sexual preference or orientation, then there
is violation of the equal protection clause.
The Yogyakarta Principles is a set of doctrines or rules on the application of

international human rights in relation to sexual orientation or gender identity which emphasizes
that: all people are born free and equal in dignity and rights(The Yogyakarta Principles, n.d.).
Sexual orientation and gender identity are integral to every persons dignity and humanity and
must not be the basis for discrimination or abuse. Human rights violations such as ill-treatment,
invasions of privacy, denial of employment and education, and serious discrimination, targeted
towards persons because of their actual or perceived sexual orientation constitute a global and
entrenched pattern of serious concern. These violations are often compounded by experiences of
other forms of violence, hatred, discrimination and exclusion based on race, age, religion,
disability, or economic, social or other status(The Yogyakarta Principles, n.d.). Hence, these
principles were created for the protection of every person from discrimination, violence, etc.
based on sexual orientation or gender identity.
If the right to marry as a basic human right will be granted to same-sex couples, it will
strengthen the recognition of the homosexuals as well as the acceptance of the people that such
right is imperative for the welfare of same-sex couples. A member of the LGBTQ+ community
will be free to declare their sexuality. There will be a society free from discrimination, hatred,
and/or negative reactions. This is furthered by one of the respondents asserting that:
It is a right. Article 23 of the International Convention on Civil

and Political Rights states that everybody has the right to marry.
The aforementioned International Human Rights Law should be interpreted to include the
right to grant marriage to same-sex couples. Moreover, such interpretation should be in a non-
discriminatory and should not be restricted exclusively to heterosexual couples.
Premise 4: Same sex-marriage and the Filipino society
It is our findings that, inevitably, the Filipino society is so conservative that it blocks
possible discourse on same-sex marriage, as viewed by the majority of the respondents.
However, one respondent stated that the Filipino society is not conservative in its view but
Filipino people resist change in the society because they are afraid of the possible consequences
that may accrue.
No. It is the resistant to change because people are afraid of the

consequences of it.
Moreover, Filipinos are two-faced or what we say hypocritical because their actions
differ from what they say. For example, if you ask a parent if they tolerate homosexuality, they
will answer yes. However, if you tell them that their son is gay, they would react differently.
There is still the existence of discrimination towards the LGBT community. Basically, Filipinos
look down on other genders, such as homosexuals, for not being in accordance with the norms of
society. Majority of the Filipinos only tolerate, if not reject, the LGBT community. One
respondent declared that:
Filipinos are quite two-faced. We say something but we behave
otherwise. If there is an audience, the LGBTs have their support
but in private, their tolerance level is different. But high and large,
there might be a problem in the acceptance of the LGBT
community.
Furthermore, the perception of the Filipino society towards the LGBTQ+ community is
no different with their perception on the legalization of same-sex marriage. Majority of the
Filipinos do not yet accept same-sex marriage primarily because of the strong influence of
religion hindering its non-acceptance. The Filipinos are not yet ready for such a drastic shift in
their laws. It would cause disunity, division and chaos among the Filipinos.
However, in the present time, a number of people accept the fact that the traditional way
of living changed due to the variations in the circumstances of time. The recognition of the
LGBTQ+ rights has indeed lingered in the whole Filipino community. There is a gradual shift of
Filipino societys acceptance towards the LGBTQ+ community. As one of the respondents
maintained:
Yes but not today, because we are brown Americans. It takes a

while. But in this world, its bound to happen or little delayed
compared to the others. It can happen.
The Filipino society is now more open and more engaging in issues relating to the
acceptance of the LGBTQ+ community and the grant of marriage to such. The overall behavior
of the Filipino society is changing. Social legislation plays a vital role on this change that is
already evident in the Filipino society:
As Filipinos also, we respect authority hence this would make

people more respectful towards the law, hence they will accept it
[same-sex marriage] more.
Social legislation is a social institution that embodies the social norms created on the
initiative of a competent legislative agency. These laws are enacted keeping in view the needs
of the time, the circumstances of the nation and its socio-political ideals (Sehgal). There are
already LGUs which passed ordinances that protect the right and welfare of the LGBTQ+
community such as Mandaue City and Quezon City.
Premise 5: Philippine Government and Religious Views on Same-sex Marriage
Although there are alterations in the mind-set of the society today with regards to the
recognition of rights of the homosexuals, the issue still remains to be stagnant because of the fact
that the country, being generally a Catholic society is influenced with the beliefs and opinions of
the church. For example, in 2006, the chairperson of the Committee on Human Rights of the
House of Representatives was former Rep. Bienvenido Abante, a Baptist pastor, was against the
passage of an anti-discrimination law (UNDP. USAID, 2014). Even if the Constitution separates
the Church and the State, nobody can be overconfident that a person guarded by his religiosity
will bind himself to everything which the provision of the laws state. Filipinos are too religious
and too traditional. This is the reason why the government cannot pass a law allowing same-sex
marriage. According to one respondent, this is because:
The government is not hesitant. It is just the fact that the

politicians, legislators, and the other leaders governing the
country are still of the old school type who are not prepared to
accept the reality that same sex is already a fact.
Marriage is a three-way contract between the State, the husband, and the wife. Marriage,
as a social institution, is mainly regulated by the State. The State, being a principal party, is
permitted to plausibly regulate the union by prescribing who is allowed to marry and how the
marriage can be dissolved. One of the respondents expressed that:
Rights are subject to limitations. Marriage as a right is subject to

limitations for no right and freedom is absolute. The Family
Code's provision on marriage is not forcing someone to marry
someone whom you don't want but it serves as a regulation to one's
right to marry.
However, for the State to dictate whom one should marry is a curtailment of the human
right to choose or right of choice. The right to choose whoever we love is universal and basic. It
is asserted by one of the respondents that:
Everyone deserves to be happy. The government cannot regulate

and legislate laws to prohibit one from his/her happiness;
otherwise, there is a violation of the equal protection clause.
In addition, the Philippine society embraces Catholic colonialism where the society is
entrenched with the churchs teachings. Such is further articulated by one respondent:
Its not actually colonialism that changed us because we also had

American colonialism that was not really bigoted towards gays
and lesbians. It was actually Catholic colonialism. The union of
church and state that Spanish colonial government. That is really
the political factor that affected the distinctiveness of the gay
community.
The religious sector, such as the Roman Catholic, stresses opposition to the legalization
of same-sex marriage as marriage is an indissoluble bond of man and woman, according to
Archbishop Socrates Villegas, the president of the influential Catholic Bishops Conference of the
Philippines (France-Presse, 2015).
However, as the society shifts from one norm to another, other religious clergies are at
par with this shift. One respondent made the clarification:
I would qualify that further. I would say the traditional or

conservative catholic religion. Because many Catholics today,
even priests and theologians accept homosexuality. More and
more priests are coming out of the open to support the gays. So its
not really religion per se, but it is the conservative religion that
will prevail in the Philippines. The Pope even has expressed his
tolerance towards the gays. So its not really religion per se, but
the conservative part of religion.
In general, the actions of the government and the church is not homophobic at all
because: (a) Government leaders are only basing their stand on what they think their voters
would prefer and (b) the church is acting on its conservative nature of faith of Catholicism and
strictly follows church doctrines. Such actions coming from these institutions results to people
rejecting the LGBTQ+ community not because they hate them but rather this is what they
learned from the aforementioned institutions.
Premise 6: Law and the Society on Same-sex Marriage
With the conservative view of marriage and because change terrifies the society, the
norm remains to be stagnant viewing that when one is born male, one must act like a male, same
is true when one is born female. However, respondents disagree with this so-called sexual
orientation change efforts. According to one respondent:
It is a violation of personal rights to modify one's behavior. It is

an infringement of one's basic right to life, liberty and pursuit to
happiness.
The denial of marriage rights to same sex couples is a form of discrimination that causes
stigma on the LGBT community. Stereotypes and false assumptions by the society are one of the
factors why the LGBT community continues to be deprived of marriage today.
When same-sex marriage will be legalized, the Filipino mind would undergo an
adjustment phase where a person would be under a dilemma to choose between the law of the
land and ones religious beliefs. One respondent explained further that:
A member of the LGBTQ+ now is faced with the conflict of either

to conform to go against/change the norm of the society.
Nevertheless, there is a possibility that the legalization of same-sex marriage may either
induce the acceptance of the LGBTQ+ community by the Filipino society or cause a greater
resistance by the people. Quoted hereunder is a realistic view by one of the respondents.
It follows. If they cannot accept the members of the LGBT, what

more in the idea of same-sex marriage and more so because this is
legal. And until we dont amend our Constitution, we will use the
legal aspect that is acceptable to law and then, again because of
our Christian values, that are in the Bible, we will say both legal
and spiritual.
The society, in general, dictates on how people perform their roles. However, social
orientation being a social construct is subject to change. One must not dictate on how a person or
individual must act or behave as it violates its autonomy and should be respected with regards
tohis/her decision on how he/she behaves in the society so long as it does not harm the society.
Thus, an individual is free to pursue happiness and live life in a way that makes an individual
contented, as long as the individual does not infringe the rights of others.
As such, there is a possibility of changing the societys perception because the society
itself is changing. Cultures are man-made, thus, man can only change or determine the way it
views the world. To change the societys perception on the notion of what is a man and a woman
is alongside with this shift of the society. However, this shift will take a long process but with the
help of different instrumentalities (i.e. media, government, and school), it will be possible. A
respondent sounded very optimistic when he/she declared that:
Yes, the society is changing. LGBTQ+ people have slowly

integrated themselves with different fields. Even certain religions,
openly supports homosexuality.
Moreover, majority of the respondents considered that allowing same-sex marriage is

actually a good idea to further open supports to the minority group whose rights are violated or
unrecognized. Legalizing same-sex marriage is already a huge leap in fighting for minority
rights. The government could make other laws compatible for all minority rights seeking their
acknowledgement. However, the Philippines as a Republican state, which adheres mostly to the
claims of the majority, disregard more often the minority group.
Furthermore, it is not just the religion or tradition which actually ceases the decision in
implementing same-sex marriage. Others are hypocrisy, priorities by the legislators and the
lawmakers' personal views of same-sex marriage. Also, others lack of education causing them
not to understand the issues which, in effect, make them resolve to just giving their opinions
based on the belief of the institutions they belong to (like the church) or the belief of the majority
population. Yet, law is not supposed to be a dead law. It is not supposed to be tied to the realities
that were prevailing during the time it was passed. It should be a living tree. It should be evolutiv
e. As a Democratic State, equality to all must be observed by the country. With the present
situation, the government should respond to the current needs of the society through an
enactment of a law and should be forward-looking because the end of the law must be to serve
justice. Lest we forget, society is a composite of living souls and thus there should be no
discrimination at all.
Premise 7: Same-sex Marriage as an Emerging Social Institution
In light of the new information and emerging options, same-sex marriage would not
require religious involvement to perform these marriages. Also, it would not require religious
institutions to permit these ceremonies to be held. It is also worth mentioning that there are many
religious groups that decided to solemnize the marriage of same-sex couples (White, 2013). It is
therefore the discretion of the church whether or not they would solemnize same-sex marriages.
In the Philippines, the first church to conduct same-sex marital ceremonies is the Metropolitan
Community Church (i.e. Metropolitan Community Church in Baguio).
Conclusion
Based on the legal and sociological analyses of the data gathered and the various
researches obtained, we have come to a conclusion that same-sex marriage is possible in the
Philippines, but not as of the present situation. With a conventional mind-set still lingering
among a lot of people, the possibility of same sex marriage being legal here in the Philippines is
still low, considering the unfavorable circumstances.
The Constitution, specifically Article XV, Section 2, did not explicitly limit marriage to
be only between a man and a woman, in contrast with Article 1 of the Family Code of the
Philippines, stating that marriage is a contract between a man and a woman. When the Family
Code was drafted, the lawmakers did not take into account the LGBTQ+ community due to the
fact that they were not that assertive of their rights during that time. But if we look at todays
present situation, it is high time to modify Article 1 of the Family Code because it is
discriminative of the rights of the LGBTQ+ community, namely, their right to equal protection,
privacy, dignity, and liberty.
There are so many factors immensely hindering the legalization of same-sex marriage,
primarily the religious views of the Filipino society including the government. Majority of the
Filipinos believe that marriage was created by God for the union between a man and a woman
only. This is also interrelated with the conventional or traditional views of the Filipinos about
marriage that it should be for procreation. We cannot remove the fact that almost all Filipinos are
still governed by this kind of religious and conservative traditional way of thinking and are still
unwilling to accept any change or shift.
Furthermore, the movement for same-sex marriage receives no support from the
government because the government still adheres to the voice of the majority of the people. It is
true also that the conservative Roman Catholic Church still has an immense influence over the
Philippine government. This is also in consonance with the fact that the three branches of our
government, namely, the legislative, the judiciary and the executive are still of the traditional and
religious view. But inasmuch as we would like to think that this fact will never change, this will
not remain forever. As the saying goes, Change is the only thing permanent in this world. The
legalization and acceptance of same-sex marriage is an inevitable shift that the Philippines will
sooner or later undergo. It may take a long time for such shift to take place but it cannot be
prevented and it will happen whether we like it or not. The growing demand for it will leave our
legislators with no choice but to legalize it in the future. Our legislators cannot neglect the fact
that the LGBTQ+ people exist and are part of society.
Based on our analysis of the various data gathered, marriage in the Philippines can be
reframed into one that recognizes the rights of all individuals regardless of sex or gender, if the
concept of Legal Realism is applied. The legislators should be legal realists wherein they should
create and pass laws that should function in the real world. They must unify the law and the
society because laws must be created to address the current needs of the society. Laws must be
evolutive and must be based on human experiences rather than on formal logic. It must
modernize to be able to respond to the palpable changing social circumstances and values.
Therefore, any opposing law must be amended to cope up with the recent advancements in social
construct.
Our understanding of law and the way we study, teach, and practice
law should not focus solely on laws ideals, in which power and interest are
cancelled, but rather should incorporate, the reality and thus unmask how law
falls short of normative ideals and the ends of justice (Dagan, 2014)
Policy Recommendations
Some recommendations were listed which can be the possible solutions in integrating
same-sex marriage in the Philippines. These will advance and support the LGBTQ+
communitys rights.
1. Marriage can be reframed legally through an amendment of the Family Code by defining
marriage as to its present context. However, this is only possible if the lawmakers
themselves will recognize that the current definition of marriage declared in Article 1 of
the Family Code is discriminative and violative of certain basic human rights such as the
right to equal protection of the law, right to due process, and right to privacy, liberty and
dignity since marriage should be viewed as a matrimony practiced not only by a man and
a woman, but also by people of the same sex.
2. It can also be reframed if the Filipino people are well-educated and well-informed about
same-sex marriage and its importance. Ignorance is one factor that explains why Filipinos
have stereotypes and prejudices on the LGBT community and on same-sex marriage. One
cannot think well if one is not informed well. Thus, institutionalized programs may be
created in order to educate the people of gender equality or anti-discrimination, and the
importance of recognizing the rights of homosexuals, and to inform all Filipinos that all
forms of violence, hatred, discrimination and exclusion to the LGBT community must
end. Basically, this kind of educational program, in the long run, would remove the
stereotypes and prejudices of society towards the LGBT community. Through this,
society will learn to accept the LGBT community and their right to marriage, and
eventually accept the legalization of same-sex marriage.
3. Moreover, it can also be reframed by setting an actual case or controversy to be

adjudicated by the Supreme Court. It is a principle that any judicial decision of the
Supreme Court form part of the law of the land, hence, it has the effect of law. However,
as aforementioned, this can only be done when people even government leaders are
educated in order to cure their ignorance and to impress upon them that marriage is
actually a matter of a civil right rather than a religious right. This specific right giving
justice to the LGBTQ+ people that are being challenged would then have an adverse
effect to the people opposing it. So when the people are ready, only then would a
constitutional question which is the right to marry be ripe for judicial determination.
Judges must also be legal realists in resolving this conflict.
4. If legalizing same-sex marriage is not attainable as of today, an alternative solution may

be given to same-sex couples who wish to have the same benefits enjoyed by the
heterosexual married couples. Civil unions would probably be the next closest thing to
same-sex marriage. This would answer the legal problems that same-sex couples are
facing, such as property relations, succession, paternity and filiations, adoption, and the
like.
5. Marriage can also be reframed through a process whereby the people directly propose
and enact laws. This is called the Peoples Initiative which is provided in the Philippine
Constitution. Although the Philippine Constitution is silent on the issue of same-sex
marriage, it is upright that it should have a clear policy on this issue. The people
themselves have the power to decide on this through, for example, Peoples Initiative and
some other forms of social influencing, when the Filipino people are ready. For instance,
last 2015, the people of Ireland conducted a popular vote wherein a huge majority chose
to support the legalization of same-sex marriage. Ireland, a republic once dominated by
the Catholic Church, became the first country in the world to perform this move hailed as
a social revolution. The following text was added to their Constitution: Marriage may be
contracted in accordance with law by two persons without distinction as to their sex.
The clock is always ticking towards gender equality.
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REFRAMING MARRIAGE IN THE PHILIPPINES: 1

THE SOCIO-LEGAL DIMENSION OF SAME-SEX MARRIAGE

Marriage Is A Human Right Not A Heterosexual Privilege!

Same-sex marriage is legally or socially recognizable union between two consenting

In addition, according to Wayne R. Dynes and Stephen Donaldson in their

A. General statement of the problem:

B. Specific statement of the problem:

Relationship/Marria Rights to Equal

LEGALIZATION OF SAME SEX MARRIAGE

Diagram 1. Conceptual Framework

Design and Methodology

Settings and Participants

To further establish the concept of same-sex marriage in the Philippine context,

Data Gathering Procedure

It involved interviews to competent people in order to gather deep understanding of

Premise 1: Constitutional Provision on Marriage

Section 2, Article XV of the 1987 Philippine Constitution defines marriage as an

The Philippine Constitution did not specifically state any

Premise 2: Marriage under The Family Code of the Philippines

No. It is not discriminatory. When the Family Code was framed,

I disagree. Marriage is based on love, mutual sexual attraction,

Premise 3: Marriage under International Law

Somehow it makes it a privilege rather than a right. Same-sex

If we are going to use the YOGYAKARTA principle which deals

The Yogyakarta Principles is a set of doctrines or rules on the application of

It is a right. Article 23 of the International Convention on Civil

No. It is the resistant to change because people are afraid of the

Yes but not today, because we are brown Americans. It takes a

As Filipinos also, we respect authority hence this would make

Premise 5: Philippine Government and Religious Views on Same-sex Marriage

The government is not hesitant. It is just the fact that the

Rights are subject to limitations. Marriage as a right is subject to

Everyone deserves to be happy. The government cannot regulate

Its not actually colonialism that changed us because we also had

I would qualify that further. I would say the traditional or

Premise 6: Law and the Society on Same-sex Marriage

It is a violation of personal rights to modify one's behavior. It is

A member of the LGBTQ+ now is faced with the conflict of either

It follows. If they cannot accept the members of the LGBT, what

Yes, the society is changing. LGBTQ+ people have slowly

Moreover, majority of the respondents considered that allowing same-sex marriage is

Premise 7: Same-sex Marriage as an Emerging Social Institution

3. Moreover, it can also be reframed by setting an actual case or controversy to be

4. If legalizing same-sex marriage is not attainable as of today, an alternative solution may

Tan, M. D. (2014). BEING LGBT IN ASIA: THE PHILIPPINES COUNTRY REPORT (A

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