We previously noted that same-sex marriage, while allowed in some U.S. states, are definitely far from being accepted here in the Philippines. This is true even with the increasing trend of sex reassignment or sex transplant.
The Supreme Court briefly touched on this issue in a petition for change of name and sex. According to the SC, one of the most sacred social institutions is a special contract of permanent union between a man and a woman, referring to the institution of marriage. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought — including the change of gender as reflected in the birth certificate from “male” to “female” — “will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).”
The solution? Amend the Family Code. I’ll hazard a guess, however, that this is not happening in the near future, not even in our lifetime. Still, let’s open the floor for a debate.
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by Joselito Basilio
04 Nov 2007 at 14:58
This is in the realm of possibility and such possibility is not remote.
Let’s wait for Judge Felixberto Olalia Jr. and other magistrates whose philosophy is same as that of the former to be at the helm of the Supreme Court.
by Atty. Fred
04 Nov 2007 at 15:18
On the other hand, regardless of the inclination of any or all justices, the fact remains that the proponent must get the numbers in congress to amend the law.
by Joselito Basilio
04 Nov 2007 at 17:14
That is right. The proposal needs to be cast in statutory form.
However, we need only a majority in the Supreme Court to amend laws. Didn’t the OSG accuse the Supreme Court of resorting to judicial legislation when the latter “amended” Art. 26 (para. 2) of the FC where the import of this provision was expanded to include valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry?
by Atty. Fred
05 Nov 2007 at 21:58
Lito, I believe while the criticism has a point, we could argue that it is only interpretation. In same sex marriage, no interpretation is possible because the law is clear – marriage is between a man and a woman. On second thought, the law is silent as to what point in time a man must be a man – from birth? hehe
by Joselito Basilio
20 Nov 2007 at 14:17
I believe same-sex marriage may be allowed under exceptional circumstances.
Art. 26 of the Family Code recognizes as valid in the Philippines those marriage solemnized abroad and are valid there as such, except for marriages forbidden under Art. 35(1), (4), (5) and (6) and Art. 36, 37 and 38 of the Family Code.
Same-sex marriage validly celebrated abroad is not one of the above exceptions. Hence, this marriage may be recognized here in accordance with the language of Art. 26, a special provision, and the doctrine of lex loci celebrationis.
by deidy15
28 Dec 2007 at 20:31
“In same sex marriage, no interpretation is possible because the law is clear – marriage is between a man and a woman. ”
And the constitution never defined what “man” really is, as well as “woman”.
What if a woman with the reproductive system feels like a real man, did the law ever state that a man is someone who does not give birth?
Consistency is needed to support to an argument.
by Atty. Fred
04 Jan 2008 at 21:05
Lito, would that be contrary to law, public morals and public policy? No application of renvoi?
Deidy, very true, there’s no definition of man or woman under the constitution. You’re also correct that the llaw didnt state that a man is one who doesnt give birth. To be sure, some women cant give birth, but since they have d reproDuctive system upon birth, theyre women. No amount of surgery can change that. At least that’s how the law stands now.
by Joselito Basilio
08 Jan 2008 at 14:43
Thank you for your presumption Deidy15 and Atty.
My point is there appears to be a presumption that same-sex marriage is one of the exceptions under Art. 26, a special provision, based on the doctrine of inclusio unius est exlusio alterius. For this reason, one may presume that same-sex marriage legally celebrated abroad would not be considered invalid because Art. 26 does not include the requirement that parties shall be a man and a woman.
At is it presently expressed and worded, Art. 26 conflicts with the general provision of the Family Code where marriage is a union founded on distinction of sex, a requirement under the provisions of legal capacity.
by Joselito Basilio
08 Jan 2008 at 14:52
Erratum : presumption to read as “reaction” in first sentence.
by orbil17
22 Apr 2008 at 10:26
Wow, very nice contentions… Aren’t there any other opinions? I seem to agree with Lito… but I haven’t thoroughly comprehended yet the interpretation of the Supreme Court about Art. 26. Probably it’s high time for me to go back reading my books, hehehe… But if you could give me a url of your basis Lito, I would very much appreciate it.
by syelapin
10 Jul 2008 at 17:56
While I commend and admire the intellectual discourse above, i fear that it might all be an exercise in futility.
All the relevant laws involved in this issue were drafted and implemented under a regime and mindset antithetical to what supports “free love”. With our history and culture as a backdrop, highly doubt we’ll see THE change in our lifetimes. Yet I hope that I do.
Until then, to argue for same-sex marriage utilizing the laws as they are now would be like Sisyphus and his rock–only more cruel because the hardship is undeserved.
hey fred. hope you’re well.
by mel
05 Oct 2009 at 14:47
hmmm
by mel
05 Oct 2009 at 14:48
what do you think about marrying the same sex?Is it healthy to our moral values?
by marlon
30 Nov 2009 at 16:36
ARE YOU AGAINST SAME SEX MARRIAGE..WHY NO AND WHY YES ..ANSWER PLS,,
by marlon
30 Nov 2009 at 16:37
TNX .. I HAVE A DEBATE AND I NID YOUR REACTIONS.. IM NOT AGAINST EEH ..
by All hot tranny
05 Mar 2010 at 22:00
Very well writed , I ll be waiting for more shemale posts
by Darron Altiery
06 Mar 2010 at 21:36
You need to seriously write some more about this topic. This last post makes me really mind blowed thank you !