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What the US gay marriage rulings mean for RH

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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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Tags: column , Gay Marriage , Oscar Franklin Tan , reproductive health

  • RiverHorse

    nature does not contradict its own laws. humans are the only species which contradict nature. and look what’s happening to us. gays and lesbians cannot seem to grasp the concept of simplicity. they complicate matters just to satisfy their whims and delusions! bato bato sa langit, tamaan… umaray!

    like the typical pilipinong gaya-gaya… ipipilit ng mga bakla’t tibo na gawin legal dito ang gusto nila dahil ok sa america. kung titingnan natin, kapag nde agree sa kanila ang tao, they brand us as homophobes. masyadong feeling entitled mga ito aside from having delusions of being persecuted: may god-complex na, paranoid pa.

    • AntonioPeYangIII

      Actually, there are at least 1,500 other animal species that have been know to practice homosexual behavior, so gays and lesbians are are not going “against” nature.

      As for entitlement, let me get this straight: You live in a religiously/socially conservative nation where a majority of the population is Catholic, and you think that just because a disenfranchised minority is speaking up for equality under law, that makes them the bully?

      You are a self-entitled pig.

      • RiverHorse

        disenfranchised minority? people are not curtailing basic human rights of gays and lesbians, you are just asking for too much, a-hole!

      • AntonioPeYangIII

        So it’s “asking too much” to give them the right to marry the person they love? How exactly does that affect you?

        Are you afraid that your partner will leave you for another woman?

        And furthermore, nobody is “forcing” you to accept gays. If you want to remain an intolerant bigot, that is your business. Just don’t expect people not to criticize you for being a jerk.

        That’s what free speech is about.

      • RiverHorse

        since you brought u[ free speech, let me ask you, HAVE YOU AND THE REST OF YOUR KIND gone to a psychiatrist, YOU SICK A-HOLE?!

        not all rights are absolute, that is why we have laws – to keep and maintain order. besides, you talk of rights but i haven’t heard any of you speak of your responsibilities. like i said, no one is curtailing your basic human rights. you are not a sub-subspecies of humanity, if you are then maybe, just maybe, you are entitled to some other rights.

        “common sense is like deodorant. the people who need it most never use it.” and you need to use common sense, not your delusions. i’m fine with being called a bigot, are you alright with being called a sick freak, freak?

      • AntonioPeYangIII

        [since you brought u[ free speech, let me ask you, HAVE YOU AND THE REST OF YOUR KIND gone to a psychiatrist, YOU SICK A-HOLE?!]

        “Your kind”? What in the world makes you think I am gay?

        And even if I were, there wouldn’t be a need – The American Psychological Association and the American Psychiatric Association, as well as the mainstream medical community have long agreed that being gay is not a mental illness.

        If I happened to be gay, and I needed therapy, it would be because of the rampant bullying I would probably get in high school just for being gay.

        [ like i said, no one is curtailing your basic human rights. you are not a sub-subspecies of humanity, if you are then maybe, just maybe, you are entitled to some other rights.]

        Nobody is curtailing gay rights? Really, have you tried asking gay couples here why they can’t marry? Keep digging.

        [ i'm fine with being called a bigot, are you alright with being called a sick freak, freak?]

        1. So you basically admit to being a bigot. Thank you :3

        2. Resorting to ad hominems now? Can we accept this as your indirect admission that you have run out of ammo?

      • RiverHorse

        it’s in the way you speak or express your thoughts, a-hole. ironic that you mentioned ad hominem when it was you who started it, you sick freak.

        being gay may not be considered as a mental illness but if you really look at it, gays exhibit the symptoms. and yeah, your approach sure does leak a lot of those gay symptoms.

      • AntonioPeYangIII

        [it's in the way you speak or express your thoughts, a-hole. ironic that you mentioned ad hominem when it was you who started it, you sick freak.]

        It’s an ad hominem when the label is irrelevant to the discussion, and when you are unable to back up the statement.

        I called you a bigot, and explained why. You, on the other hand, call me a sick freak without being able to refer to any medical proof that I an indeed mentally ill.

        [being gay may not be considered as a mental illness but if you really look at it, gays exhibit the symptoms. ]

        Oh, so you’re a psychologist now?

        [and yeah, your approach sure does leak a lot of those gay symptoms.]

        Once again, I am not gay.

        Or does everybody who is pro-equality and tired of silently listening to unintelligent bigots like you automatically register as “gay” on your gaydar?

      • RiverHorse

        ad hominem is when you make the discussion personal and not about the topic, genius! if you’re not gay, then why are you defensive about it?

        for someone who advocates rights, you sure have a really funny way of showing it. how ironic. if gays like you have the right to speak up and fight for imaginary rights, what’s in the constitution that prevents me from speaking up myself? and free speech is GUARANTEED under the constitution, right? unlike gay rights. THINK ABOUT THAT before you speak up against anybody, asswipe.

      • AntonioPeYangIII

        [ad hominem is when you make the discussion personal and not about the topic, genius! if you're not gay, then why are you defensive about it?]

        The topic of our exchange is your inability to prove that being gay is a mental illness. I have already corrected that, before you started launching accusations that I am a “sick freak.”

        Furthermore, it’s not being “defensive” when one corrects an opponents misplaced assumption.

        [for someone who advocates rights, you sure have a really funny way of showing it. ]

        And now we’re digressing from your initial assertion that being gay isn’t natural. Have you abandoned your position since I’ve conclusively proven that your point has been disproven by facts?

        [and free speech is GUARANTEED under the constitution, right?]

        Of course. The gay gestapo hasn’t exactly kicked down your door with their designer jackboots because you’re a bigot, right?

        [THINK ABOUT THAT before you speak up against anybody, asswipe.]

        Have you ready Fr. Bernas’ recent column here in PDI, btw? It makes for an interesting read given how he interprets our constitution. Here, let me quote the article:

        //”That is a sampling of how things might go should the subject of gay marriage come up for debate in Congress and in the larger Philippine society. It is perhaps worth noting that our Constitution does not speak of protecting marriage but “protecting the family.”//

        When it comes to matters of Philippine constitution, who better to discuss it than one of its authors, hmm?
        And this is your second attempt at an ad hominem, btw. Please, good sir, elucidate all of us on how calling me an “asswipe” is relevant to the discussion.

        At least when I call you a incoherent bigot, I can simply refer to your horrible grammar and capitalization, excessive use of all-caps, and your blatant self-entitlement and failed attempt to claim being gay is “unnatural” or “sick.”

        Calling you an idiot and a bigot isn’t an ad hominem. It is simply stating the facts.

      • RiverHorse

        whoa… and you don’t consider your obsession as a symptom of being a sick freak?

        ad hominem began when you used “self-entitled pig.” for your information, the following is the definition of ad hominem, genius:

        An ad hominem (Latin for “to the man” or “to the person”), short for argumentum ad hominem, is an argument made personally against an opponent instead of against their argument.

        since you started it, i just followed your suit, you sick freak.

        clearly, you are not familiar with the thought about the wise, that “wise men are not always silent, but we know when to be,” otherwise, you would not show how obsessed you are with “winning an argument” like you are doing right now.

        regarding homosexual animals, have you studied their behavior? they are usually the lowest in their social and pecking order? why? because, as with humans, lower species also understand by instinct that homosexuality is not natural. it’s a defense mechanism or an escape from trauma or stress.

      • AntonioPeYangIII

        [An ad hominem (Latin for "to the man" or "to the person"), short for argumentum ad hominem, is an argument made personally against an opponent instead of against their argument.]

        Very good. At least we both know you can google. Now here’s a further explanation from rationalwiki:

        //Calling someone an idiot when you have explained the evidence five times and they still refuse to address it, or provide counterexamples, is not an ad hominem attack, but rather a statement of fact. Similarly, tacking an insult onto the end of any argument might be bad form, but it doesn’t automatically make it an ad hominem. It’s only an ad hominem if you say the other person must be wrong because they are an idiot – not the other way round.//

        [clearly, you are not familiar with the thought about the wise, that "wise men are not always silent, but we know when to be," otherwise, you would not show how obsessed you are with "winning an argument" like you are doing right now.]

        Wisdom isn’t just about remaining silent, silly rabbit. It’s also about learning when you should speak up, and in this case I think it is called for to be verbose.

        [regarding homosexual animals, have you studied their behavior? they are usually the lowest in their social and pecking order? why?]

        Let me get this straight: Because you claim homosexual behavior is only prevalent in the lower rungs of animal groups, it’s only proper we follow their example and deny gay people equal treatment?

        Why are you so defensive about being called a bigot when everything you say pretty much proves that you are one? :D

        [because, as with humans, lower species also understand by instinct that homosexuality is not natural. it's a defense mechanism or an escape from trauma or stress.]

        Really now? Can you cite actual studies to prove this, or are you once again blowing smoke out of your rear end?

      • RiverHorse

        hey, LOSER. i did say I DO NOT HAVE PROBLEMS WITH BEING CALLED A BIGOT, right? or don’t you remember? what could be defensive about that? it’s you who’s being so defensive to the point that IT SHOWS YOU’RE OBSESSED with winning an argument, you sick freak. and that’s why i choose which ones to address.

        o yan na, tumutulo na laway mo. ahahahahaha!

      • AntonioPeYangIII

        [hey, LOSER. i did say I DO NOT HAVE PROBLEMS WITH BEING CALLED A BIGOT, right?]

        We’re in agreement then. I called you a bigot, and you accept the label :D

        As for the one being obsessed, it’s just a matter of getting the facts straight. An ability I am afraid you have failed to show. You claimed gays were unnatural, and it was disproven.

        You made a claim that being gay was indicative of a lower socail ranking in animals, and you also failed to cite any actual evidence.

        And now you’re celebrating that you’re bing called a bigot, and somebody took the trouble of proving why you are. Huzzah!

      • RiverHorse

        i knew it, YOU’RE OFF YOUR MEDS AGAIN, aren’t you? clean up your act first before you even attempt to comment here. you’re confusing yourself, you sick freak!

        punasan mo laway mo. hehehehehe



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