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11 Jesus Nicardo M. Falcis III, )
12 Petitioner, )
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14 v. ) G.R. No. 217910
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16 Civil Registrar-General, )
17 Respondent, )
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35 Tuesday, June 19, 2018
36 Interpellation by Justice Estela Perlas-Bernabe
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………2
Interpellation by J. Perlas-Barnabe

1 JUSTICE PERLAS-BERNABE:
2
3 Good afternoon, Atty. Falcis.
4
5 MR. FALCIS III:
6
7 Good afternoon, your Honor.
8
9 JUSTICE PERLAS-BERNABE:
10
11 Now in your petition, you are challenging
12 Articles 1 and 2, and in consequence, Articles
13 46(4) and 55(6), all of the Family Code.
14 Correct?
15
16 MR. FALCIS III:
17
18 Yes, your Honor.
19
20 JUSTICE PERLAS-BERNABE:
21
22 You’re also seeking to enjoin the Civil
23 Registrar from enforcing the said provisions of
24 the Family Code, in processing applications for,
25 and in issuing marriage licenses against same-
26 sex couples. Is that also correct?
27
28 MR. FALCIS III:
29
30 With the qualification, your Honors, that the
31 prohibition is against the denial or processing
32 for same-sex couples of licenses, your Honors.
33
34 JUSTICE PERLAS-BERNABE:
35
36 Alright, now in paragraph 30 of your petition,
37 you have mentioned that you have a personal
38 stake in the outcome of the case and that you
39 have suffered or sustained a direct injury.
40
41 MR. FALCIS III:
42
43 Yes, your Honor.
44
45 JUSTICE PERLAS-BERNABE:
46
47 Now, what direct and actual injury have you
48 sustained as a result of the Family Code
49 provisions assailed in your petition?
50
51 MR. FALCIS III:
52
53 Your Honors, we are of multiple submissions. The
54 first would be that as an individual, I possess
55 the right to marry because the right to marry
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………3
Interpellation by J. Perlas-Barnabe

1 is not given to couples alone. It is individual,

2 your Honors.
3
4 Second, your Honors, we are guided by this
5 court’s pronouncements in the case of Pimentel
6 versus Aguirre that the mere enactment of a law
7 suffices to give a person either an actual case
8 or standing because. Because, your Honors, we
9 are invoking the expanded power of judicial
10 review where in the most recent cases,
11 especially the one penned by Justice Brion,
12 Association of Medical Workers versus GSS. This
13 court said that under the expanded power of
14 judicial review, the mere enactment of a law...
15 because Article 8, your Honors, Section 1, says
16 that any instrumentality... the grave abuse of
17 discretion of any instrumentality may be
18 questioned before the Supreme Court, your Honor.
19 And, therefore, the direct injury that I
20 suffered, your Honor, was the passage of a law
21 that contradicts the constitution, in grave
22 abuse of discretion, and because of the
23 disregard of other fundamental provisions such
24 as the equal protection clause, the valuing of
25 human dignity, the right to liberty, and the
26 right to found a family, your Honors.
27
28 JUSTICE PERLAS-BERNABE:
29
30 But we have existing jurisprudence that says
31 that if you challenge the constitutionality of
32 a law or a statute, it is not enough that the
33 law is invalid. There must also be a direct
34 injury.
35
36 MR. FALCIS III:
37
38 Your Honors, we are aware that there are cases
39 to that effect. However, we are again guided by
40 the most recent jurisprudence where this court
41 itself explained that in many recent cases, mere
42 enactments of law are sufficient to give rise
43 to the invocation of the expanded power of
44 judicial review, such as the Reproductive Health
45 Law, the Anti-Cyber Crime Act, the... other
46 cases, your Honor, which escape my mind now. But
47 there are cases of this court itself that has
48 said that to that effect, your Honors.
49
50 JUSTICE PERLAS-BERNABE:
51
52 Have you actually tried applying for a marriage
53 license?
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………4
Interpellation by J. Perlas-Barnabe

1 MR. FALCIS III:

2
3 No, your Honors, because I would concede that I
4 do not have a partner and that even if I do have
5 a partner, it is not automatic that my partner
6 might want to marry me. And so, your Honors, I
7 did not apply or I could not apply for a marriage
8 license.
9
10 JUSTICE PERLAS-BERNABE:
11
12 And what is the nature of a petition-in-
13 intervention? Is that a separate action? Is that
14 an ancillary to the main petition?
15
16 MR. FALCIS III:
17
18 It depends, your Honor, on how it was admitted
19 by this Honorable Court. Petitions-in-
20 intervention, when granted to join the main
21 petition, are still separate and of their own
22 existence, but webbed in conjunction under the
23 main petition, especially, your Honors, in this
24 intervention, the intervenors adopted the same
25 arguments of petitioner, but added another
26 argument, your Honors.
27
28 JUSTICE PERLAS-BERNABE:
29
30 Now, can the defects in the main petition be
31 cured by the direct injury claimed in the
32 petition-in-intervention?
33
34 MR. FALCIS III:
35
36 Your Honors, there are cases to that effect that
37 when the petition-in-intervention is granted
38 and there is actual case or standing in that
39 petition, then the original petition is
40 improved, your Honor. The cases escape my mind,
41 your Honor, right now.
42
43 JUSTICE PERLAS-BERNABE:
44
45 And you know of existing jurisprudence to that
46 effect?
47
48 MR. FALCIS III:
49
50 Again, your Honors, it escapes my...
51
52 JUSTICE PERLAS-BERNABE:
53
54 Anyway, you can elaborate on that in the
55 memorandum.
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………5
Interpellation by J. Perlas-Barnabe

1 MR. FALCIS III:

2
3 I will elaborate on that in the memorandum, your
4 Honors.
5
6 JUSTICE PERLAS-BERNABE:
7
8 Alright, let’s now go to the substantive issues.
9 Now, Article 1 of the Family Code states that
10 marriage is a special contract of permanent
11 union between a man and a woman. Meanwhile,
12 Article 2 states that no marriage shall be valid
13 unless there is legal capacity of the
14 contracting parties, who must be a male and a
15 female. Now, based on these provisions, the
16 implication is that only marriages between a man
17 and a woman are legally recognized. Is that
18 correct?
19
20 MR. FALCIS III:
21
22 Yes, your Honor.
23
24 JUSTICE PERLAS-BERNABE:
25
26 And only marriages that comply with these legal
27 provisions are entitled to the benefits accorded
28 by law.
29
30 MR. FALCIS III:
31
32 Yes, your Honor.
33
34 JUSTICE PERLAS-BERNABE:
35
36 Now, Article 1 of the Family Code, in fact,
37 makes it clear that marriage is the foundation
38 of the family and inviolable social institution
39 whose nature, consequences, and incidents are
40 governed by law.
41
42 MR. FALCIS III:
43
44 Yes, your Honor.
45
46 JUSTICE PERLAS-BERNABE:
47
48 And, therefore, the nature, consequences, and
49 incidents of marriage are essentially legal in
50 nature. Is that correct?
51
52 MR. FALCIS III:
53
54 Yes, your Honor.
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………6
Interpellation by J. Perlas-Barnabe

1 JUSTICE PERLAS-BERNABE:
2
3 So, is there any provision in the Family Code
4 that prohibits same-sex couples from marrying
5 each other?
6
7 MR. FALCIS III:
8
9 Legally, your Honors, it would be Articles 1 and
10 2 as evidenced by the denial of the marriage
11 license applications of intervenors, your
12 Honor.
13
14 JUSTICE PERLAS-BERNABE:
15
16 Now, are same-sex couples barred by the Family
17 Code from exchanging vows in a marriage ceremony
18 or publicly declaring their permanent
19 commitment and union to each other?
20
21 MR. FALCIS III:
22
23 No, your Honors. LGBT couples can and do marry
24 in certain ceremonies, religious or otherwise.
25
26 JUSTICE PERLAS-BERNABE:
27
28 So, does the Family Code restrict same-sex
29 couples from their ability to enter into a
30 committed relationship?
31
32
33 MR. FALCIS III:
34
35 Yes, your Honor. In terms of the legal aspect
36 of marriage, your Honors, because while
37 intervenors, for example, may marry religiously
38 under their own churches, that is only a
39 religious ceremony, your Honor, which will not
40 give them legal access or access to legal
41 benefits afforded to opposite-sex couples.
42
43 JUSTICE PERLAS-BERNABE:
44
45 So, effectively, the Family Code does not really
46 prohibit same-sex couples from exercising these
47 freedoms, except that the State does not
48 recognize their marriage.
49
50 MR. FALCIS III:
51
52 Yes, your Honor, and we further submit that
53 because of the non-recognition, that is the
54 undue burden on the religious freedom of
55 intervenors, your Honors, because even though
56 the Family Code does not prohibit them, by not
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………7
Interpellation by J. Perlas-Barnabe

1 recognizing the relationships like other

2 couples, your Honor, with their own
3 religions..., that it places an undue burden
4 because it gives no legal recognition and
5 security to their relationship.
6
7 JUSTICE PERLAS-BERNABE:
8
9 So, the only restriction that the Family Code
10 makes is that it limits the recognition—legal
11 recognition—to couples...between a man and a
12 woman.
13
14 MR. FALCIS III:
15
16 It restricts the recognition... yes, your Honor,
17 ...legal recognition.
18
19 JUSTICE PERLAS-BERNABE:
20
21 Now, but does an individual have a fundamental
22 right to choose who he or she can have a
23 committed relationship with?
24
25 MR. FALCIS III:
26
27 Yes, your Honor.
28
29 JUSTICE PERLAS-BERNABE:
30
31 Does that individual also have the fundamental
32 right to express his or her commitment to that
33 other person by marrying him or her?
34
35 MR. FALCIS III:
36
37 In a religious manner...
38
39 JUSTICE PERLAS-BERNABE:
40
41 Regardless of whether the marriage is... would
42 be legally recognized.
43
44 MR. FALCIS III:
45
46 Yes, your Honor. We have individual human
47 rights.
48
49 JUSTICE PERLAS-BERNABE:
50
51 So, does an individual have the fundamental
52 right to engage in certain ceremonies following
53 the customs and traditions practiced by his or
54 her own religion?
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………8
Interpellation by J. Perlas-Barnabe

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE PERLAS-BERNABE:
6
7 Is there a fundamental right to the legal
8 recognition of marriage?
9
10 MR. FALCIS III:
11
12 In relation, your Honor, with Article 15, either
13 secular or for couples who have religious
14 convictions and want to found a family, yes,
15 your Honor.
16
17 JUSTICE PERLAS-BERNABE:
18
19 So, you believe that you can compel recognition
20 on the basis of Article 15 of the Civil Code?
21
22 MR. FALCIS III:
23
24 Your Honors, we would not frame it as a way of
25 compelling recognition. We believe that there
26 is recognition right now to other arrangements
27 or relationships such as heterosexual couples.
28 The compulsion comes from the constitution
29 because of the equal protection clause, your
30 Honors.
31
32 JUSTICE PERLAS-BERNABE:
33
34 So, is there really a distinction between a
35 right to marry, as a cognate of the right to
36 life and liberty and even an aspect of freedom
37 of expression and religion, from the concept of
38 legal recognition of marriage?
39
40 MR. FALCIS III:
41
42 There are distinctions, your Honor, but we
43 submit that the concepts are intertwined because
44 when individuals have a right to choose who they
45 want to live their lives with in relation with
46 free expression and religious freedom, while
47 marriage is separate, it is intertwined because
48 some aspects of expression and religious freedom
49 are enhanced or diminished by marriage
50 recognized... if it is recognized or not, your
51 Honors.
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………9
Interpellation by J. Perlas-Barnabe

1 JUSTICE PERLAS-BERNABE:
2
3 Now, can you invoke the Bill of Rights of our
4 constitution as a source of entitlement to
5 benefits or a mere freedom from government
6 intrusion?
7
8 MR. FALCIS III:
9
10 Your Honors, when it comes to marriage, which
11 is a bundle of legal rights and obligations, we
12 are guided by the case of Antonio versus Reyes
13 that while it is the province of the legislature
14 to set the parameters, it is still subject, your
15 Honors, to the constitution and the court said,
16 differently, and the Bill of Rights, your
17 Honors.
18
19 JUSTICE PERLAS-BERNABE:
20
21 Now, does the constitution define marriage?
22
23 MR. FALCIS III:
24
25 No, your Honor.
26
27 JUSTICE PERLAS-BERNABE:
28
29 Does it define who are qualified or allowed to
30 marry and those who are not?
31
32 MR. FALCIS III:
33
34 The constitution, your Honor, characterizes
35 some nature of marriage, which is that it is an
36 inviolable social institution and serves as the
37 foundation of the family, but the rest, your
38 Honors, are not.
39
40 JUSTICE PERLAS-BERNABE:
41
42 Now, when our constitution was drafted, was it
43 presumed by the framers that marriage follows
44 its historical and traditional concept—that it
45 is a union between a man and a woman?
46
47 MR. FALCIS III:
48
49 Your Honors, we are aware that there are two
50 commissioners in the constitutional
51 deliberations that were of the idea that
52 marriage, as written in Article 15, is to mean
53 between a man and a woman. We are aware... the
54 petitioners are aware of that, your Honors.
55 However, it is our submission that the intent
56 or idea of two commissioners... two framers,
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………10
Interpellation by J. Perlas-Barnabe

1 your Honor, does not reflect the intent of the

2 rest. But further, your Honor, with this court’s
3 indulgence, we would like to mention the fact
4 that one of the framers of the 1987
5 Constitution, Director Lino Brocka, was openly
6 gay, your Honors, and that during 1987, when the
7 constitution was ratified, LGBT couples have
8 been living together and have existed, but
9 unlike intervenors do not have the openness to
10 come out and be subjected to scrutiny. But a
11 lot of old LGBT couples are still alive today,
12 your Honors... and they were alive during the
13 1987...
14
15 JUSTICE PERLAS-BERNABE:
16
17 So, you do not think that the right to marry
18 protected by the constitution should be
19 understood as merely between a man and a woman?
20
21 MR. FALCIS III:
22
23 No, your honor. We are guided by this court’s
24 pronouncements that intentions of the framers
25 must be reflected in the text from the
26 constitution. If there was such intent and the
27 framers discuss it, but they did not codify it
28 into the text, we are of the opinion that this
29 court can use the principle of casus omissus,
30 your Honor, where if it wasn’t written there,
31 if it was omitted, then that intent does not
32 control. And so, we are of the humble
33 submission, your Honors, that marriage, while
34 it does include a man and a woman because the
35 framers... and two framers contemplated it to
36 be that way, is not limited to only a man and a
37 woman, your Honors.
38
39 JUSTICE PERLAS-BERNABE:
40
41 But you would agree that that was the framers’
42 understanding?
43
44 MR. FALCIS III:
45
46 The two framers, your Honor, if... because they
47 were on record. Unfortunately, the record was
48 very sparse. It was only a one-page
49 deliberation, your Honor, of two commissioners
50 or framers and the other framers were not
51 involved in the discussion, your Honor.
52
53 JUSTICE PERLAS-BERNABE:
54
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………11
Interpellation by J. Perlas-Barnabe

1 Now, can this understanding be overturned by the

2 court through an analysis of new insights and
3 norms subscribed to by our society today?
4
5 MR. FALCIS III:
6
7 Your Honors, we are guided by this court’s
8 pronouncements that the first step this court
9 does is to look at the text of the constitution
10 and before interpreting or trying to... if this
11 court would overturn the intent of the framers,
12 will not look at the intent of the framers if
13 the text of the constitution is clear under the
14 principle of verbal legis. We believe that the
15 text of the constitution is clear that it is
16 not limited to a man and a woman. And we submit
17 further, your Honors, that we must use the
18 principle of ut magis valeat quam pereat, and
19 that means, your Honor, I’m sure your Honors’
20 know this, but... it is to harmonize the
21 provisions of the constitution. And so, Article
22 15 must read in conjunction with Article 3,
23 Section 1 and Article 2 in relation with the
24 valuation... the State valuing human dignity,
25 your Honor.
26
27 JUSTICE PERLAS-BERNABE:
28
29 Don’t you think this is a political question
30 that should be left to the discretion of
31 congress?
32
33 MR. FALCIS III:
34
35 We are of the opinion, like the question by
36 Justice Leonen, that while it may be desirable
37 for congress to be the one to enact a law
38 allowing same-sex marriage, your Honors, our
39 submission is that, first, fundamental rights
40 cannot be subjected to the political whims or
41 to popular elections, your Honor, and we are
42 guided by the pronouncement in Ang Ladlad versus
43 COMELEC or in other more recent cases that this
44 court does not make decisions based on
45 popularity. It makes decisions based on freedom
46 and the rights and if the tests under the
47 constitution are passed or failed by the statute
48 or law questioned, your Honor.
49
50 JUSTICE PERLAS-BERNABE:
51
52 Now, the constitution provides that no person
53 shall be denied the equal protection of the
54 laws.
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………12
Interpellation by J. Perlas-Barnabe

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE PERLAS-BERNABE:
6
7 However, the equal protection clause does not
8 require the universal application of the laws
9 and the legislature is allowed to classify the
10 subjects of its legislation. Now, can you give
11 me the requisites for a valid classification?
12
13 MR. FALCIS III:
14
15 A valid classification, your Honors, must be:
16 one, that the legislative classification rests
17 on substantial distinction; second, your
18 Honors, that the classification must be germane
19 to the purpose of the law; third, that the
20 classification is not limited to existing
21 conditions; and fourth, that the classification
22 is applied equally to all members of the same
23 class.
24
25 JUSTICE PERLAS-BERNABE:
26
27 Now, is there a substantial distinction between
28 the same-sex and the opposite couples insofar
29 as granting legal recognition to their
30 marriages?
31
32 MR. FALCIS III:
33
34 We submit, your Honor, that there is no
35 substantial distinction. While there may be a
36 perceived distinction by common laymen
37 Filipinos that LGBT people cannot ordinarily
38 procreate, we are of the submission that this
39 is not the distinction that the Family Code
40 itself looks for. If the purpose of marriage is
41 the establishment of a conjugal and family life,
42 in Article 68 to 70 of the Family Code lists
43 out the essential marital obligations... that
44 there are no substantial distinctions in how
45 LGBT couples or same-sex couples can fulfill the
46 purposes of marriage and the essential marital
47 obligations, your Honor.
48
49 JUSTICE PERLAS-BERNABE:
50
51 Isn’t the ability to procreate a substantial
52 distinction because it mirrors society’s
53 traditional and natural concept of a family,
54 which the state has a right or reasonable
55 interest to foster?
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………13
Interpellation by J. Perlas-Barnabe

1 MR. FALCIS III:

2
3 Your Honors, we are guided by this court’s
4 pronouncements in the cases of Republic v.
5 Albios and other cases where State-interference
6 in terms of whether the State can tell couples
7 to have children or not would raise serious
8 constitutional questions and that is why the
9 Family Code does not require couples to
10 procreate or have children to be able to access
11 marriage. And, therefore, your Honors, while
12 there might be a cultural perception or
13 tradition that marriage is for procreation, we
14 do respect that from petitioners, your Honor,
15 but others are also of the belief, even straight
16 couples, that they do not need to procreate or
17 have children to be able to enjoy the benefits
18 of marriage. And we have straight couples, your
19 Honors, that do not have children and yet are
20 married.
21
22 JUSTICE PERLAS-BERNABE:
23
24 Now, but while couples are not obliged to
25 procreate, it’s the mere ability to create that
26 justifies a distinction. Do you agree with that?
27
28 MR. FALCIS III:
29
30 Your Honors, with this court’s indulgence, we
31 do not agree with it because this court also
32 explained in other cases that impotency is the
33 only ground under the Family Code and not
34 sterility. And, therefore, your Honors, the
35 ability to procreate is not a core or central
36 focus of the Family Code. It might be a focus,
37 your Honors, of some people, of some religions,
38 and they are allowed, your Honors, to follow
39 what they believe. But what about, your Honors,
40 intervenors who are also Christians, but do not
41 and may not share belief, your Honors.
42
43 JUSTICE PERLAS-BERNABE:
44
45 Alright, do you think it’s about time to correct
46 the inequality in the institution of marriage?
47
48 MR. FALCIS III:
49
50 Yes, your Honor. It is about time to correct
51 the inequality and the correction, if we may
52 further add, your Honor, can come from this
53 honorable court because of the rules we have
54 about fundamental rights.
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………14
Interpellation by J. Perlas-Barnabe

1 JUSTICE PERLAS-BERNABE:
2
3 Notwithstanding that the function of the court
4 is only to interpret the laws and not to correct
5 such inequality?
6
7 MR. FALCIS III:
8
9 In the course of interpreting our laws, your
10 Honor, this court in past cases, as a
11 consequence of interpreting the law, have
12 corrected certain inequalities. So, your
13 Honors, the petitioners are not asking this
14 court to primarily correct the inequalities, but
15 interpret the constitution because the
16 constitution, your Honors, itself mandates
17 equal protection.
18
19 JUSTICE PERLAS-BERNABE:
20
21 Alright, thank you very much, Atty. Falcis.
22
23 MR. FALCIS III:
24
25 Thank you, your Honors.
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