What the US gay marriage rulings mean for RHBy Oscar Franklin Tan |Philippine Daily Inquirer
My Facebook feed was flooded by inspired, heartwarming posts from young American lawyers in the evening of June 26. That morning, the US Supreme Court released two landmark rulings striking down laws that prohibited same-sex marriages (without, take note, ruling that these marriages are constitutional).
Jordan Estes, a classmate from Prof. Laurence Tribe’s constitutional law class, wrote: “What a great day! So happy that my child will be born into a world without DOMA (the US Defense of Marriage Act), in a state where he can marry whoever he wants.” Chris Drake wrote from Washington about watching the crowds gathered outside the court then slipping inside to get copies of the ruling. He paused at the majesty of the court chamber. It struck me that Chris was an officer of the Black Law Students Association when we met, and the same-sex rulings are paralleled with the US court rulings that ended segregation a generation ago.
Most of my exuberant friends are heterosexual and happily married with children, and their spontaneous reactions reflect an instinctive rightness about the court rulings that surveys on changing US attitudes cannot articulate.
The decision United States v. Windsor, which struck down DOMA, was stunning in its simplicity. Two decades ago, roughly when DOMA was enacted, US courts upheld analogs to same-sex marriage with seeming rationalization. One early theory, for example, held that marriage had a key economic dimension, such as tax deductions. Thus, regardless of whether same-sex couples were included within “the traditional concept of marriage,” a court ruled that its jurisdiction had to give them the same economic benefits for equality’s sake. Windsor in 2013, in contrast, has no such layers of analysis. Instead, it used the word “dignity” several times and focused on the human relationship that early theories sidestepped, saying: “[T]he laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Tribe, who argued a key homosexual relationship case before the US Supreme Court, emphasized that such relationships cannot be reduced to sodomy.
Windsor contained straightforward, unmistakable sentences such as: “This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” It even subtly refuted DOMA justifications, arguing: “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.” And the party-list group Ang Ladlad (once banned from the elections) would applaud this line on enforced legal invisibility: “[DOMA] frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.”
It strikes me how the US court argued in terms of morality beyond law on a legal issue many claimed was really about morality. As a law student, I published an intellectual exercise that attempted to apply DOMA’s justifications to bisexuals and transsexuals. I concluded that a male bisexual may legally marry a female bisexual, and that if one does not look back to historical anatomy, one may argue that a postsurgery transsexual may legally marry someone of the opposite sex. This implied the question: If the arguments regarding “the traditional concept of marriage” might not apply to bisexuals and transsexuals, should one not also rethink their application to homosexuals? These intellectual hoops, however, generate as much conviction as the argument that homosexuals may marry because someone gay may legally marry a lesbian. Windsor opened simply by talking about the love in marriage, and it is this nonlegal approach to human rights that found resonance with the average American with no plans of entering into a same-sex marriage.
Same-sex marriage is not before the Philippine Supreme Court, but the Reproductive Health Act of 2012 is. There is, however, a common thread of human rights (and, according to some, a common damnation) that links the two issues. Beyond equality, both the language and the law of Windsor emphasize the dignity in protecting how human beings go about their fundamental relationships in life. This dignity must underlie a debate on whether our government should empower citizens to make informed choices about fundamental life decisions regarding parenting and childbirth. This dignity is emphasized to be individual; one generally cannot complain that another’s dignity diminishes his own. Indeed, dignity is held to be the underlying concept of our Bill of Rights.
All eyes are now on the Philippine Supreme Court justices and whether they will resolve the challenges to the RH Law as convincingly and with the same moral high ground their American brethren now enjoy. One hopes that the rhetoric of individual choice that heralded the RH Law’s passage will not be lost underneath the intellectual hoops.
Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East. He published “Marriage Through Another Lens: Weighing the Validity of Same-Sex Marriages By Applying Arguments to Bisexuals and Transsexuals, 81 Phil. L.J. 789 (2006).”
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