SolGen did not oppose same-sex marriage

SOLICITOR GENERAL Florin Hilbay opposed the court petition to allow same-sex marriage to support—not block—same-sex marriage.

Hilbay’s opposition has nothing to do with same-sex marriage. He protested how the “intrinsically flawed” petition lacked the most basic requirements. He implied same-sex marriage advocates should be the first to oppose it lest their cause be damaged.

Hilbay seemed to decry the use of the Supreme Court to publicly complain of being sawi (loveless) instead of a real case, and to try to single-handedly hijack same-sex marriage advocacy, perhaps for self-promotion. Media must stop publicizing a petition that would be thrown out of a freshman law class.

Jesus Falcis III is an “open and self-identified homosexual” who graduated from the UP College of Law in 2014 and teaches undergraduates at Far Eastern University. In May 2015, Falcis petitioned the Supreme Court to force the civil registrar-general to issue marriage licenses for same-sex couples. Falcis never applied for a marriage license and had no client who did.

In reacting, Hilbay could have been reading out Chapter 1 of Constitutional Law to an unprepared freshman.

No client, no case. First, Hilbay protested that there is no client—no one for the Supreme Court to allow to marry. This is a most basic, most obvious omission because no one can win or lose the case.

Hilbay scolded: “This is an invitation to a debate or coffee-shop conversation, not a constitutional litigation. To decide here would be to brew with missing ingredients.”

Sawi. Hilbay reiterated the fundamental rule that a petitioner must show “injury in fact,” a concrete violation of rights that the Supreme Court may concretely remedy. Mere interest does not translate to a right to sue.

Falcis merely claimed his “ability to find and enter into long-term monogamous same-sex relationships is impaired because of the absence of a legal incentive for gay individuals to seek such a relationship.”

Hilbay denounced that this nonsequitur “demeans the capacity of homosexuals to enter into committed relationships” and “no additional argument is presented as to why the creation of an across-the-board, systemic incentive through the recognition of same-sex marriage will lead specific gay individuals to choose petitioner over any other homosexual.”

Hilbay thus condemned using the Supreme Court to publicly complain about being sawi.

Just like anti-RH. The “actual case” required by Article VIII, Section 1 of the Constitution is the most essential restriction on the Supreme Court. If unelected justices rule outside actual cases, they usurp the elected lawmakers’ broader power.

A court cannot hear an abstract case. Falcis is as frustrating as the 2013 anti-Reproductive Health Act petitioners. Some sued over sex education materials that did not yet exist. Others sued for health workers’ religious rights even though they were not health workers and could not illustrate these. Others made unverifiable claims about contraceptives instead of suing in the Bureau of Food and Drug Administration. The case degenerated into speculation and wild hypotheticals.

Wrong person sued. Second and equally basic, Hilbay protested how Falcis sued the wrong person. There was no basis to sue the civil registrar-general, which took no action on Falcis. And Falcis asked to declare the Family Code unconstitutional but did not sue Congress.

Wrong type of case. Third, without boring you with the technicalities, Falcis initiated a “certiorari” petition. This may only correct “quasi-judicial” action. The civil registrar-general took no such action, so there is no case.

Self-promotion. Finally, Hilbay seemed to scold Falcis for trying to single-handedly hijack same-sex marriage advocacy, possibly for self-promotion. Hilbay wrote that Obergefell, the 2015 US same-sex marriage decision, “took decades of litigation, planning, political advocacy, legislative debates, and coalition building. In contrast, petitioner—all by himself, unassisted—puts on the line the future of a social movement and gambles the right [sic] of homosexuals in an ill-timed suit that might underwhelm even well-meaning sympathizers.”

We cannot reward filing high-profile cases for self-promotion. Precisely to discourage this, in the cybercrime case, the Supreme Court even issued a rule that cases will not necessarily be named after the first petitioner. Note that if Falcis had an actual client as required by the Constitution, the case could not be called the Falcis case.

Wrong doctrine. I add that the 31-page petition was simplistic and hurriedly written. For example, it invoked the right to privacy found in the 1998 Ople case. This ruled on government databases and its doctrine on personal information has no connection whatsoever to marriage.

No freshman law student who read the basic material on this complex doctrine could possibly make such an obvious mistake. I explained privacy and same-sex marriage in my article “The Complete Philippine Right to Privacy” [82(4) Phil. L.J. 78 (2008)], which was cited in a 2011 Supreme Court opinion.

Media-driven. Arguably, the petition was not instantly thrown out of the Supreme Court—as it would be in a freshman law class—because of undeserved media attention. Justices may be wary of being misinterpreted in media as denying LGBT rights, as Hilbay is being misinterpreted now.

Beyond the “intrinsically flawed” petition, our front pages routinely feature legal proposals that blatantly contradict freshman textbooks. Although media publicizes issues for many reasons, it must grow more critical of its role in educating the public.

Hilbay’s time is better spent suing China to protect the West Philippine Sea than cleaning up Falcis’ mess.

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