Same-sex civil unions: unconstitutional

Former UP Law dean Pacifico Agabin recently emphasized that prohibiting same-sex marriage violates equal protection and the right to privacy. Agabin reacted to a lecture by retired justice Jose Vitug to senior judges, where Vitug opined that the Philippines is unlikely to follow the global trend recognizing same-sex marriages, but that there might be a need to recognize property relations among same-sex couples. But Agabin is right, and even a seemingly reasonable start with economic relationships is outmoded and no longer a valid framework for discussion.

The synod of Catholic bishops’ draft statement (since rephrased) recently made global headlines by proposing that homosexuals have “gifts and qualities to offer to the Christian community,” and that the Church must be “accepting and valuing their sexual orientation, without compromising Catholic doctrine,” offer “a place of fellowship” and respect how same-sex unions are “a valuable support in the life of these persons.” This was nothing short of an “earthquake” and a “stunning change.” Further, we confront the brutal murder of transgender Filipino Jennifer Laude, allegedly by a US Marine. We face another aspect of the same question of human dignity as we reflect whether Jennifer should be called “she” or “he” and whether certain news editors were exploitative in using her voluptuous bikini picture on the front page.

Agabin is no less than a synod of bishops. In his last major Supreme Court appearance, Senior Associate Justice Antonio Carpio mistakenly addressed him as “Justice,” Justice Marvic Leonen expressed hope that he would do justice to his classes under Agabin, and Chief Justice Ma. Lourdes Sereno tried to cite Agabin’s own lectures against him. His unequivocal statement to our judicial leaders is thus no less an earthquake.

A mere 10 years ago, I was studying the Massachusetts Goodridge decision in Prof. Elizabeth Pangalangan’s class, the first US state (and sixth global) decision in favor of same-sex marriage. It obliquely pronounced marriage as a set of economic benefits such as tax exemptions. Goodridge stopped short of stating that same-sex marriages must be allowed, accepting “civil unions” or some other recognized partnership that is not marriage so long as homosexuals received the same economic benefits.

Human rights philosophers quickly concluded that this is a hollow trick, one that begins from the premise that love has no legal meaning. In 2003, a year before Goodridge, the Lawrence v. Texas decision affirmed that the right to privacy protects homosexual sex. This was not merely privacy behind closed doors but “decisional privacy,” or the right to make fundamental life decisions without government interference. This crucial distinction emphasized the inherent human dignity in the chosen relationship that contextualized the private acts beyond the acts themselves. My professor Laurence Tribe filed a key Lawrence amicus brief and later summarized in the Harvard Law Review: “It’s not the sodomy. It’s the relationship!” (Tribe is the revered constitutional litigator who taught US President Barack Obama and Chief Justice John Roberts and Inquirer publisher Raul Pangalangan, sort of like the Agabin of the United States.)

A primacy on publicly recognizing this dignity, not Goodridge’s legal acrobatics, is now the mainstream argument for same-sex marriage. The US Supreme Court nullified the Defense of Marriage Act in 2013, concluding: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Funny enough, after years of intense legal debate, the most compelling conclusion from Agabin, Tribe and the US Supreme Court is that simple word “dignity.” Law at the highest level is as simple as it is profound.

Even funnier, no intellectual, legal argument has gained traction against the simple word. Religious objections are out of bounds. Abstract claims of morality fail against an invocation of a human right. Inability to procreate is irrelevant as infertile heterosexuals are allowed to marry and several US states allow first cousins to marry if the union would be infertile. The latest argument was that same-sex marriages must be prohibited to protect children. Last September, Judge Richard Posner threw this out, as allowing same-sex couples to marry can only avoid stigmatizing and harming the children they adopt. Note how each such argument fails to address dignity.

Agabin stopped short of spelling out that the legal acrobatics have fallen away in the modern debate and suggestions to begin with property relationships or “civil unions” intentionally miss the point. The state of the law is simply that if each of us is able to look a LGBT Filipino in the eye and say that he or she is a second-class citizen capable only of second-class human relationships that deserve only second-class legal recognition, then we have an unassailable legal basis to exclude LGBT Filipinos from marriage. If not, then our society is due for an honest conversation on human dignity.

Between Agabin and Pope Francis, the conversation may well come sooner than later.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) 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))” and “Articulating the Complete Philippine Right to Privacy, 82(4) PHIL. L.J. 78 (2008)).”