CBCP and same-sex marriage

The Catholic Bishops’ Conference of the Philippines (CBCP) is holding its semestral three-day meeting this weekend (July 11, 12, 13) to discuss current events and Pope Francis’ recent encyclical, “Laudato Si.”

Same-sex marriage. On current events, the bishops will look at the long shadow cast by the recent US Supreme Court decision (Obergefell vs Hodges, June 26, 2015) compelling all the 50 states of America to issue marriage licenses to persons of the same sex “on the same terms and conditions as marriages between persons of the opposite sex.”

The decision, passed by the slimmest margin at 5-4 and penned by Justice Anthony Kennedy, ruled that this new right to marry is derived from and inherent in “the Due Process Clause … and the Equal Protection Clause of the 14th Amendment” to the US Constitution.

These two clauses provide that no state in America “shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The majority held that denying marriage licenses to persons of the same sex and granting it to those of the opposite sex is tantamount to a denial of the right to liberty. Such denial, they argued, is equivalent to a restraint of personal liberty, to being deprived of the right to make individual choices.

They added that the equal protection clause prohibits discrimination on account of color, religion, sex, race, etc. Thus, denying a marriage license to same-sex couples while granting one to opposite-sex couples smacks of discrimination based on sex, a discrimination akin to a denial of entry to a public school due to a student’s black color.

Dissenting opinions. The four dissenters employed scathing words. Chief Justice John Roberts accused the majority of judicial legislation. He said that for many years, the legislatures in the various states of America have been debating on the correct concept of marriage “through the democratic process.”

But with their decision, he fumed, “Five lawyers have closed the debate and enacted their own vision of marriage… [t]hose who founded our country would not recognize the majority’s conception of the judicial role… [t]hey would never have imagined yielding that right [to decide] a question of social policy to unaccountable and unelected judges.”

Justice Antonin Scalia used even more ferocious language, charging the majority of “hubris,” of issuing a decision “couched in a style that is as pretentious as its content is egoistic… [and of showing] profundities [that] are often profoundly incoherent.”

Justice Clarence Thomas acerbically argued, “Since before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits… [a]side from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

Justice Samuel Alito decried, “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

Philosophical divide. To fully comprehend these acidic exchanges, it is necessary to review the philosophical division in the US Supreme Court. Four justices—the dissenters (CJ Roberts, JJ Scalia, Thomas and Alito)—belong to the conservative wing. They believe that the US Constitution should be interpreted in accordance with the original intent of the framers.

They also opine that the US Supreme Court should exercise “judicial restraint” and defer to policies made by elected officials, and that in case of conflict, the state governments should prevail over the federal.

Four other justices (Stephen Breyer and the three ladies, Ruth Ginsburg, Sonia Sotomayor and Elena Kagan) belong to the liberal wing. They believe that the US Charter should be interpreted to solve current problems, and to do so, the US Supreme Court can, if necessary, invent new concepts like the Miranda rights, the right to abortion and the right against racial segregation.

The ninth member, Justice Kennedy, holds the swing vote. Typically, as in this same-sex decision, he tilts the balance and leads either group in judging high-profile cases. This is why the US Supreme Court is often referred to as the “Kennedy Court,” rather than the “Roberts Court.” (For more details, see my column on “Legal philosophy,” 10/26/14.)

Long shadow in PH. As I said earlier, the CBCP is watching the long shadow cast on our landscape by this decision, because:

1) Our 1935, 1973 and 1987 Constitutions carry the due process and equal protection clauses of the US Charter in almost identical words: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

2) A petition, anchored on these constitutional clauses, has been filed in our Supreme Court on May 18, 2015 (even prior to the issuance of the US Supreme Court’s decision), to nullify portions of the Family Code which “define and limit marriage between a man and a woman,” and “mention lesbianism or homosexuality as grounds for annulment or legal separation.”

3) After learning of the US Supreme Court decision, a congressman said he is filing a bill legalizing same-sex marriage.

Expect the bishops, Catholic (and other religious) groups and concerned citizens to fight this petition and bill as passionately as they did the Reproductive Health Law.

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