Wednesday, July 18, 2018
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Sisyphus’ Lament

Falcis’ anti-LGBT same-sex marriage case

“Jesus Falcis v. Civil Registrar” is the Red Wedding of LGBT advocacy. In an unprecedented massacre, every justice who spoke in the June 19 hearing said that they might dismiss due to jurisdiction. Because the case jettisoned the strongest same-sex marriage doctrines, the LGBT community should prefer dismissal to having this on record.

Falcis’ cocounsel Darwin Angeles powerfully outlined a fundamental right to marry, in liberty’s broader context. His words “strict scrutiny,” “compelling state interest,” “least intrusive means” were textbook-perfect.

God of jurisdiction Justice Lucas Bersamin even put on record that Angeles did not draft Falcis’ intensely criticized petitions.

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Sadly, Angeles spoke only for the first seven minutes.

Justice Marvic Leonen set the ominous tone. His first question: whether Falcis learned to dress properly for court, given his appearance at the preliminary conference.

First, Falcis repeatedly declined to cite a constitutional basis for the right to marry. Justice Teresita Leonardo de Castro asked if he could at least cite an international convention, given his position.

But the basis is “decisional privacy,” under “substantive due process.” At liberty’s apex, humans have a fundamental right to intimate life decisions, most crucially having sex, marrying and starting a family.

The 2015 US Obergefell same-sex marriage decision reiterated 100 years of landmark decisional privacy decisions, from how immigrants raise children to interracial marriage—all praised in our jurisprudence.

Decisional privacy goes beyond “equal protection” by arguing that the right to marry is inherent in being human, not merely relative to heterosexual rights.

Falcis repeatedly emphasized Obergefell is not binding—but not that its doctrines are paralleled in the Philippines, as I explained in “The Complete Philippine Right to Privacy,” 82(4) Phil. L.J. 78 (2008).

Arguing same-sex marriage without decisional privacy is like Daenerys attacking the Lannisters by leaving all dragons at home.

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Second, Falcis framed marriage as a mere bundle of rights. He was thus trapped by Acting Chief Justice Antonio Carpio and Leonen, who posited that LGBTs can recreate the bundle using wills and contracts, and can wait for a pending “civil union” law.

This is 20 years out of date. No one marries because they calculated the tax benefits. Rather, they demand public
affirmation that their choice of life partner is dignified enough for humankind’s oldest institution.

“Bundle of rights” in 2018 is like Daenerys leaving all Dothraki at home, too.

Third, Falcis framed the right to marry as a religious right. This would catastrophically subject marriage to every legal test for genuine belief. It would distinguish “devout” from “atheist” LGBTs, nudging the latter to live another lie to marry.

Justice Francis Jardeleza scuttled this by having intervenor Pastor CJ Agbayani admit that same-sex marriage is not a religious doctrine of his fledgling church. Falcis exacerbated this by stressing that his own claim is purely secular.

Muddling the issues with religious freedom is like Daenerys telling Jon Snow to join the Lannisters, too.

All this was on top of Falcis conceding he has no one to marry, and the justices not inclined to accept LGBT couples as intervenors. “What is ironic about your case, you make yourself the lead plaintiff,” Jardeleza said.

“You will be asking us to rule on a hypothetical situation,” Bersamin scolded. “That cannot be allowed. Did you not learn that from law school?”

Bersamin recognized he could be impeached — our Constitution’s Article VIII, Section 1 requires “actual controversies” in cases.

Jardeleza gave a thoughtful, underappreciated lecture on when it is prudent to dismiss cases, all the way to Alexander Bickel’s “passive virtues.”

I thank Falcis for citing my June 18 column on “separate but equal” and the right to marry being individual to the Supreme Court.

My further thoughts: “Weighing the Validity of Same-Sex Marriages By Applying Arguments to Bisexuals and Transsexuals,” 81 Phil. L.J. 789 (2006).

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: Darwin Angeles, Francis Jardeleza, Jesus Falcis, LGBT community, Lucas Bersamin, Marvic Leonen, Oscar Franklin Tan, same-sex marriage, Sisyphus’ Lament, Supreme Court, Teresita de Castro
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