Obergefell V. Hodges Eisenstadt v. Baird,, 453 (1972) Yick Wo vs. Hopkins, 30, L. Ed. 220, 226

DEPRIVING GAY COUPLES OF THEIR RIGHT TO MARRY IS A VIOLATION OF

SECTION 1.(1) ARTICLE III, PHIL. CONSTITUTION

DEFINITION OF MARRIAGE IS NOT A FIXED CONCEPT BUT RATHER A FLEXIBLE

CONCEPT, WHEN MARRIAGE WAS DEFINED IN THE PHILIPPINES GAYS WERE
NOT ACCEPTED IN THE SOCIETY. HOWEVER, OUR ERA IS DIFFERENT.
Justice Anthony Kennedy said the hope of gay people intending to marry "is not to be
condemned to live in loneliness, excluded from one of civilization's oldest institutions.
They ask for equal dignity in the eyes of the law. The Constitution grants them that right."
1
No State shall deprive any person of life, liberty, or property, without due process of law.
The fundamental liberties protected by this Clause include most of the rights enumerated
in the Bill of Rights. In addition these liberties extend to certain personal choices central
to individual dignity and autonomy, including intimate choices that define personal identity
and beliefs.2
SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article
III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and
freedom in democracies, are not limited to citizens alone but are admittedly universal in
their application, without regard to any differences of race, of color, or of nationality3
The right to marry is fundamental as a matter of history and tradition, but rights come not
from ancient sources alone. They rise, too, from a better informed understanding of how
constitutional imperatives define a liberty that remains urgent in our own era. Many who
deem same-sex marriage to be wrong reach that conclusion based on decent and
1 OBERGEFELL v. HODGES
2 Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)
3 Yick Wo vs. Hopkins, 30, L. ed. 220, 226
honorable religious or philosophical premises, and neither they nor their beliefs are
disparaged here. But when that sincere, personal opposition becomes enacted law and
public policy, the necessary consequence is to put the imprimatur of the State itself on an
exclusion that soon demeans or stigmatizes those whose own liberty is then denied.4
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment
did not presume to know the extent of freedom in all of its dimensions, and so they
entrusted to future generations a charter protecting the right of all persons to enjoy liberty
as we learn its meaning. When new insight reveals discord between the Constitutions
central protections and a received legal stricture, a claim to liberty must be addressed.5
There is no difference between same- and opposite-sex couples with respect to this
principle. Yet by virtue of their exclusion from that institution, same-sex couples are
denied the constellation of benefits that the States have linked to marriage. This harm
results in more than just material burdens. Same-sex couples are consigned to an
instability many opposite-sex couples would deem intolerable in their own lives. As the
State itself makes marriage all the more precious by the significance it attaches to it,
exclusion from that status has the effect of teaching that gays and lesbians are unequal
in important respects. It demeans gays and lesbians for the State to lock them out of a
central institution of the Nations society. Same-sex couples, too, may aspire to the
transcendent purposes of marriage and seek fulfillment in its highest meaning.6
The limitation of marriage to opposite-sex couples may long have seemed natural and
just, but its inconsistency with the central meaning of the fundamental right to marry is
now manifest. With that knowledge must come the recognition that laws excluding same-
sex couples from the marriage right impose stigma and injury of the kind prohibited by
our basic charter.7
That principle applies here. If rights were defined by who exercised them in the past, then
received practices could serve as their own continued justification and new groups could
5 Id.
7 Id.
not invoke rights once denied. This Court has rejected that approach, both with respect
to the right to marry and the rights of gays and lesbians.8
ASSUMING ARGUENDO THAT GRANTING THE RIGHT TO MARRY TO GAY

COUPLES WILL VIOLATE THE CONSTITUTION, SUCH CONTENTION SHALL STILL
FAIL BY REASON OF COMPELLING STATE INTEREST
The "compelling state interest" test is proper where conduct is involved for the whole
gamut of human conduct has different effects on the state's interests: some effects may
be immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus the
Filipinos implore the "aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones until
they are destroyed. In determining which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide. The "compelling state interest" serves
the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test,
8 Loving 388 U. S., at 12; Lawrence, 539 U. S.

by upholding the paramount interests of the state, seeks to protect the very state, without
which, religious liberty will not be preserved.9
Strict scrutiny entails that the presumed law or policy must be justified by a compelling
state or government interest, that such law or policy must be narrowly tailored to achieve
that goal or interest, and that the law or policy must be the least restrictive means for
achieving that interest.10
It is certain that not every conscience can be accommodated by all the laws of the land;
but when general laws conflict with scrupples of conscience, exemptions ought to be
granted unless some "compelling state interest" intervenes.11
NATURAL LAW THEORISTS RECOGNIZED SUCH RIGHT OF

GAY COUPLES
The new-natural-law theorists have intellectual roots in the old natural-law theory of St.
Thomas Aquinas, their argument is rather different. Aquinas opposed homosexual
conduct on the grounds that it violates the sexual organs natural purpose of procreation.
By contrast, the new-natural-law theorists rightly acknowledge that even though sexual
organs are for procreation in some sense, it doesn't follow that it's wrong to use them for
other reasons.35 To say otherwise would have absurd implicationsfor example, that it's
wrong to walk on one's hands, as acrobats sometimes do.12
DEPRIVING THEM OF SUCH RIGHT VIOLATES ARTICLE 1 OF UDHR
All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.
13This article implies two things. It implies that if there is a denial of basic human dignity ,
then people have grounds for a complaint, and it implies that if basic rights are denied,
then people have grounds for complaint. For it is in their being human that people are
endowed with this equality. Thus, there must also be a corresponding duty binding all
9 James M. Imbong v. Hon. Paquito N. Ochoa, Jr., G.R. No. 204819, 8 April 2014
10 Rev. Bishop Vicente M. Navarra v. COMELEC and Atty. Marvil V. Majarucon, G.R. No. 205728,
January 21, 2015
11 VICTORIANO vs. ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC.,
defendants, ELIZALDE ROPE WORKERS' UNION

12 Corvino, J., Gallagher, M., & Oxford University Press. (2012). Debating same-sex marriage.
Oxford;New York;: Oxford University Press.

13 Article 1 of the Universal Declaration of Human Rights
people to recognize the dignity and rights of others and to act in accordance with such
duties; this is what it means to act toward one another in a spirit of brotherhood.14
DEPRIVING THEM OF SUCH RIGHT VIOLATES ARTICLE 2 OF UDHR
Everyone is entitled to the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.15 Everyone is entitled to
the rights and freedoms set forth in this Declaration, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.16
DEPRIVING THEM OF SUCH RIGHT VIOLATES ARTICLE 3,12,16 OF UDHR
Relevant to same-sex marriage are the following: articles 3, 12, and 16. These fall into
the category of first generation rights, which refer to liberties, both civil and political.
Article 3 states: Everyone has the right to life, liberty and security of person. One may
argue that where same-sex marriage is not legal, LGBT people are specifically lacking in
liberty. Some activists have argued this point by drawing an analogy to miscegenation
laws. On miscegenation laws, Hannah Arendt has argued: The right to marry whoever
one wishes is an elementary human right. . . . Even political rights, like the right to vote .
. . are secondary to the inalienable human rights to life, liberty and the pursuit of
happiness proclaimed in the [U.S.] Declaration of Independence; and to this category the
right to home and marriage unquestionably belongs.
Finally, article 16 of the UDHR is crucial when considering the claim to same-sex marriage
since it sets out what a right to marriage supposedly means. It consists of three parts,
and reads as follows: 1. 2. 3. Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to found a family. They are entitled
to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be
entered into only with the free and full consent of the intending spouses. The family is the
14 Richardson-Self, L. (2015). Justifying same-sex marriage: A philosophical investigation. London:

Rowman & Littlefield International.
15 Article 2 of UDHR

natural and fundamental group unit of society and is entitled to protection by society and
the State.17
The first thing to notice is that although section 1 specifically mentions men and women
rather than individuals, it does not state explicitly that men must marry women and vice
versa. Second, it is important to recall that this right comes under the section of civil and
political liberties , meaning men and women ought to have the freedom to marry. But this
raises an important question: There may be many things that people ought to be able to
freely choose to do, so why does marriage specifically warrant articulation as a right in
the UDHR and subsequent covenants? Why isnt marriage merely an implied right under
article 3 (as Arendt suggests)? A potential answer is to be found in the third section of
article 16, which proclaims the family to be the fundamental group unit of society, thus
entitling it to state and society protection. 31 Yet this answer warrants further questioning:
What structure must this so-called fundamental group unit take? Furthermore, why is a
reference to the family made when the article pertains to the right to marriage are
marriage and the family inextricably connected?18
Consider Freedom to Marry, an American organization, which argues the following:
Marriage matters to gay people in similar ways that it matters to everyone. Gay and
lesbian couples want to get married to make a lifetime commitment to the person they
love and to protect their families. Marriage says, We are family in a way that no other
word does. Marriage is one of the few times where people make a public promise of love
and responsibility for each other and ask our friends and family to hold us accountable.
Gay and lesbian couples may seem different from straight couples, but we share similar
values like the importance of family and helping out our neighbors; worries like
making ends meet or the possibility of losing a job; and hopes and dreams like finding
that special someone to grow old with, and standing in front of friends and family to make
a lifetime commitment.
GAY COUPLES CAN ALSO PROVIDE THE LOVE AND

AFFECTION OF STRAIGHT PARENTS
17
Id.
18
Richardson-Self, L. (2015). Justifying same-sex marriage: A philosophical investigation. London:
According to the American Academy of Pediatrics, the nation's premier child-welfare
organization:
The American Academy of Pediatrics recognizes that a considerable body of professional
literature provides evidence that children with parents who are homosexual can have the
same advantages and the same expectations for health, adjustment, and development,
as can children whose parents are heterosexual.19
There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit
parents on the basis of their sexual orientation. On the contrary, results of research
suggest that lesbian and gay parents are as likely as heterosexual parents to provide
supportive and healthy environments for their children. Overall, results of research
suggest that the development, adjustment, and well-being of children with lesbian and
gay parents do not differ markedly from that of children with heterosexual parents.20
19 Corvino, J., Gallagher, M., & Oxford University Press. (2012). Debating same-sex marriage.
Oxford;New York;: Oxford University Press.

Obergefell V. Hodges Eisenstadt v. Baird,, 453 (1972) Yick Wo vs. Hopkins, 30, L. Ed. 220, 226

Uploaded by

Copyright:

Available Formats

Obergefell V. Hodges Eisenstadt v. Baird,, 453 (1972) Yick Wo vs. Hopkins, 30, L. Ed. 220, 226

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Obergefell V. Hodges Eisenstadt v. Baird,, 453 (1972) Yick Wo vs. Hopkins, 30, L. Ed. 220, 226

Uploaded by

Copyright:

Available Formats

DEPRIVING GAY COUPLES OF THEIR RIGHT TO MARRY IS A VIOLATION OF

SECTION 1.(1) ARTICLE III, PHIL. CONSTITUTION

DEFINITION OF MARRIAGE IS NOT A FIXED CONCEPT BUT RATHER A FLEXIBLE

ASSUMING ARGUENDO THAT GRANTING THE RIGHT TO MARRY TO GAY

8 Loving 388 U. S., at 12; Lawrence, 539 U. S.

NATURAL LAW THEORISTS RECOGNIZED SUCH RIGHT OF

defendants, ELIZALDE ROPE WORKERS' UNION

Oxford;New York;: Oxford University Press.

14 Richardson-Self, L. (2015). Justifying same-sex marriage: A philosophical investigation. London:

Rowman & Littlefield International.

GAY COUPLES CAN ALSO PROVIDE THE LOVE AND

Rowman & Littlefield International.

You might also like