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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 Marvic Mario Victor F. Leonen
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 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………2
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Atty. Falcis, can you take the podium.
4
5 MR. FALCIS III:
6
7 Your Honor.
8
9 JUSTICE LEONEN:
10
11 I see that you are now properly attired for the
12 court.
13
14 MR. FALCIS III:
15
16 Yes, your Honor.
17
18 JUSTICE LEONEN:
19
20 And, of course, I hope you learned your lesson
21 from the preliminary conference.
22
23 MR. FALCIS III:
24
25 Yes, your Honor.
26
27 JUSTICE LEONEN:
28
29 Now, you realize of course that this is a very
30 dangerous case that you brought. It’s dangerous
31 to the movement that you apparently seem to have
32 brought here, whether or not they had consent,
33 because you are now going to put squarely for
34 this court, the Supreme Court of this Republic,
35 an issue which will require a very intimate
36 reading of the provisions of the Constitution.
37 You’re aware of that?
38
39 MR. FALCIS III:
40
41 Yes, your Honor.
42
43 JUSTICE LEONEN:
44
45 You’re also aware that in many jurisdictions,
46 before same-sex marriage was brought to their
47 Supreme Courts, the United States included,
48 Europe, Australia, that there were a lot of
49 political battles that were waged in political
50 forums such as their parliaments, their
51 congresses, their churches, their corporations,
52 et cetera. Correct?
53
54 MR. FALCIS III:
55
56 Yes, your Honor.
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………3
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 And in this particular case, do you think that
4 the movement now—the feminist movement here in
5 this country, the LGBT movement here in this
6 country, and the movements that are simply
7 asking for recognition of various identities—
8 are that the political maturity of both the
9 movement and the institutions of law are now
10 ready to accept the nuances of your arguments?
11
12 MR. FALCIS III:
13
14 Your Honors, if we may explain about the
15 movement.
16
17 JUSTICE LEONEN:
18
19 Not the movement. I am just asking whether you
20 think that the political infrastructure is
21 already there.
22
23 MR. FALCIS III:
24
25 Yes, your Honor. We do.
26
27 JUSTICE LEONEN:
28
29 And in all cases where same-sex marriage have
30 been argued in any court in this planet, they
31 have always gone up against a patriarchy,
32 correct?
33
34 MR. FALCIS III:
35
36 Yes, your Honor.
37
38 JUSTICE LEONEN:
39
40 Heteronormativity, correct?
41
42 MR. FALCIS III:
43
44 Yes, your Honor.
45
46 JUSTICE LEONEN:
47
48 And maybe in some instances, like some countries
49 in Europe and perhaps even in the Philippines,
50 the dominance of religious faiths and religious
51 morality. Is that not correct?
52
53 MR. FALCIS III:
54
55 Yes, your Honor.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………4
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Yes. And you realize of course that your
4 arguments of intimacy or your arguments of
5 choice of intimate relations will be taken into
6 consideration in the context of that, let us
7 say, a cultural hegemony. Is that not correct?
8
9 MR. FALCIS III:
10
11 Yes, your Honor. If we may add that it will also
12 be considered under the constitutional
13 hegemony.
14
15 JUSTICE LEONEN:
16
17 Well, there is no such thing as constitutional
18 hegemony, if you know what hegemony really
19 means. And then on the other hand, that cases
20 such as this require a very clear understanding
21 of certain concepts. For example, the difference
22 between sex, whether assigned or re-assigned,
23 gender identity, gender expression, and of
24 course sexual orientation. I will just cover
25 four of those later on. But you are of course,
26 by bringing this case, you are trusting that
27 this Supreme Court and of course the various
28 infrastructures in our chambers—our staff, our
29 lawyers—understand the various nuance of
30 between sex, gender, gender identity, gender
31 expression and sexual orientation. Correct?
32
33 MR. FALCIS III:
34
35 Your Honor...
36
37 JUSTICE LEONEN:
38
39 Because if the court, if the public, is not
40 ready to accept the nuances or to understand
41 these nuances, then we may commit a mistake and
42 such a mistake might be permanent in terms of
43 the very everyday intimate relations and the
44 clamor for status of various people that are
45 represented by the movement that is seated at
46 your back. Correct?
47
48 MR. FALCIS III:
49
50 With your Honor’s indulgence, the political
51 infrastructure, the petitioners are of the
52 belief that some Supreme Court decisions...
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………5
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Not the political infrastructure, but the
4 understanding of this issue must be so nuanced
5 because, as I said, do you realize that we
6 are... you are going up against a very powerful
7 heteronormative culture in this country?
8
9 MR. FALCIS III:
10
11 Yes, your Honor.
12
13
14 JUSTICE LEONEN:
15
16 Yes. And I hope you are ready for that.
17
18 MR. FALCIS III:
19
20 Yes, your Honor.
21
22 JUSTICE LEONEN:
23
24 Yes. And we will see. Okay. Now, and you trust
25 that this court has the openness to listen,
26 correct?
27
28 MR. FALCIS III:
29
30 Yes, your Honor.
31
32 JUSTICE LEONEN:
33
34 Notwithstanding our own various intimate
35 relations. Is that not correct?
36
37 MR. FALCIS III:
38
39 Yes, your Honor.
40
41 JUSTICE LEONEN:
42
43 That it will not creep into our understanding
44 of the legal issues that are involved.
45
46
47 MR. FALCIS III:
48
49 Your Honor, yes.
50
51 JUSTICE LEONEN:
52
53 Yes. Okay. So, and of course you understand that
54 whatever ruling this court gives—whether or not
55 to grant your petition and for whatever purpose
56 or whatever reason—is not a reflection of how
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………6
Interpellation by J. Leonen

1 we regard those that are wishing to have same-

2 sex relationships or who have different
3 identity—gender identity—as ours.
4
5 MR. FALCIS III:
6
7 Yes, your Honor.
8
9 JUSTICE LEONEN:
10
11 And, therefore, that you trust that this court,
12 on this issue, is going to simply rule on the
13 merits of the constitution, its provisions, as
14 well as the context, the proper constitutional
15 interpretative methodology that we think is
16 appropriate. Is that not correct?
17
18 MR. FALCIS III:
19
20 We trust this court so much, your Honor.
21
22 JUSTICE LEONEN:
23
24 Yes. Really? So much? So much...
25
26 MR. FALCIS III:
27
28 Yes, your Honor.
29
30 JUSTICE LEONEN:
31
32 ...that you are willing to accept a denial of
33 your petition later on, just in case?
34
35 MR. FALCIS III:
36
37 That is the consequence of democracy, your
38 Honor, and our rule of law.
39
40 JUSTICE LEONEN:
41
42 Well, that’s a good attitude to take because
43 there are some that have been defeated by this
44 court that give other reasons other than
45 trusting the interpretation of this court. Okay.
46
47 Also, you realize that it is your burden to
48 prove to this court the unconstitutionality of
49 the provisions that you have cited, as well as
50 the interference, abridgement, or denial of the
51 constitutional rights of yourself and of your
52 client. You carry the burden. Is that not
53 correct?
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………7
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor. With the indulgence of your
4 Honor...
5
6 JUSTICE LEONEN:
7
8 Yes, so you carry the burden and you have to go
9 through four levels. In accordance with how the
10 pleadings have been filed, there are now four
11 obstacles that you have to hurdle, some of
12 which, of course, you have raised. The others
13 were joined as the Solicitor General filed its
14 comment and its supplemental comment. The first
15 one is justiciability. Correct?
16
17 MR. FALCIS III:
18
19 Yes, your Honor.
20
21 JUSTICE LEONEN:
22
23 Because as far as the first petition was
24 concerned... That was filed by you, is it not
25 correct?
26
27 MR. FALCIS III:
28
29 Yes, your Honor.
30
31 JUSTICE LEONEN:
32
33 And you do not have a partner. Is that not
34 correct?
35
36 MR. FALCIS III:
37
38 I do not have a partner.
39
40 JUSTICE LEONEN:
41
42 And yet you claim that there is an abridgement
43 of your right to marry. Is that not correct?
44
45 MR. FALCIS III:
46
47 Yes, your Honor.
48
49 JUSTICE LEONEN:
50
51 And there was an intervention, but the
52 intervention carried the experience of a couple
53 that tried to get a marriage license. Is that
54 not correct?
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………8
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 By the way, just so we can put a face to the
8 parties, are the intervenors, which you also
9 represent, here present?
10
11 MR. FALCIS III:
12
13 Yes, your Honor.
14
15 JUSTICE LEONEN:
16
17 Can you kindly ask them to stand up so that we
18 can identify them. Okay. There’s three.
19
20 MR. FALCIS III:
21
22 Petitioners Cresencio Agbayani and Marlon
23 Felipe and Maria Sugar Ibañez, but her partner
24 wishes to remain anonymous.
25
26 JUSTICE LEONEN:
27
28 Okay. We will respect that. Thank you. I thought
29 you were going to talk about polyamory. But not
30 yet. Okay.
31
32 MR. FALCIS III:
33
34 No. No, you Honor.
35
36
37 JUSTICE LEONEN:
38
39 Not yet. Although I will have certain questions
40 in relation to that at a certain point. Okay.
41 And a bit serious question later on. Okay.
42
43 So, justiciability is something that you will
44 hurdle and I think that you are very well-aware
45 of the issues that were raised in relation to
46 justiciability.
47
48 The second thing that you have to hurdle is the
49 nature of this right to marry. On the one hand,
50 you claim, the petitioners claim, that it is a
51 fundamental and constitutional right. On the
52 other, the Solicitor General takes the position
53 that it is a right, yes, but it is a statutory
54 construct, which means that the right to marry
55 may be there, but it needs to be clarified in
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………9
Interpellation by J. Leonen

1 congress rather than in the court. Is that an

2 accurate portrayal of the issue?
3
4 MR. FALCIS III:
5
6 Yes, your honor.
7
8 JUSTICE LEONEN:
9
10 Yes. And, of course, the SolGen takes also a
11 dangerous position for your side because it
12 actually argues that the constitutional
13 provision which says ‘marriage founds a family’
14 only refers to a male and a female, an opposite-
15 sex relation. That is the other position that
16 the SolGen is doing, correct?
17
18 MR. FALCIS III:
19
20 Yes, your Honor.
21
22 JUSTICE LEONEN:
23
24 And if this court adopts that second position,
25 then even same-sex relationships will no longer
26 be a political question. It will not be able to
27 pass any bill in the House or in the Senate
28 because the Supreme Court might say, if it
29 agrees with part of the argument of the SolGen,
30 that marriage is only for same-sex couples
31 constitutionally. Is that not correct? That’s
32 the risk you’re taking.
33
34 MR. FALCIS III:
35
36 Yes, your Honor. However, we have certain
37 qualifications if that would happen, your Honor.
38
39 JUSTICE LEONEN:
40
41 Okay, that’s why I said this is a very dangerous
42 case for your movement. Okay.
43
44 Third is even though there is such a thing as
45 an inherent constitutional fundamental right to
46 marry, that you will have to show clearly and
47 convincingly to this court that it breaches any
48 one of the constitutional limitations of
49 government—the first one being due process, the
50 second one being equal protection, and the third
51 one being religious freedoms. Is that not
52 correct?
53
54 MR. FALCIS III:
55
56 Yes, your Honor.
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………10
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Yes. And in terms of religious freedom, just to
4 be clear, your argument is your right to express
5 a religious belief is violated by the provisions
6 on marriage. Correct?
7
8 MR. FALCIS III:
9
10 Yes, your Honor.
11
12 JUSTICE LEONEN:
13
14 It is not taking a position that the provisions
15 on marriage found in our Civil Code entrenches
16 or establishes a religious belief.
17
18 MR. FALCIS III:
19
20 No, your Honor. That is not...
21
22 JUSTICE LEONEN:
23
24 So, it’s just the... only free expression not
25 non-establishment.
26
27 MR. FALCIS III:
28
29 Free expression, your Honor, in relation... as
30 especially... as well in Article...
31
32 JUSTICE LEONEN:
33
34 And, therefore, some of the words or some of
35 the sentences which could be interpreted in this
36 regard in some of the peti... in the petition-
37 for-intervention, especially, on non... on the
38 non-establishment violation is not correct. We
39 are limiting ourselves to freedom... to the
40 freedom to express one’s religion. Is that not
41 correct?
42
43 MR. FALCIS III:
44
45 Yes, your honor. There is no argument on non-
46 establishment.
47
48 JUSTICE LEONEN:
49
50 Okay. That’s the third.
51
52 And finally, considering that there are many
53 heterosexual couples that have actually taken
54 the vows of marriage, you are now asking the
55 court in your prayer in your pleadings to
56 declare as null and void the provisions which
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………11
Interpellation by J. Leonen

1 actually allow heterosexual couples to marry.

2 Is that not correct?
3
4 MR. FALCIS III:
5
6 With the indulgence of this court, we would like
7 to qualify that prayer, your Honor, or relief.
8
9 JUSTICE LEONEN:
10
11 Because if that is done so, then you are
12 therefore saying that you want to dictate a kind
13 of intimate relations also on others.
14
15 MR. FALCIS III:
16
17 No, your Honor.
18
19 JUSTICE LEONEN:
20
21 So, what is your prayer?
22
23 MR. FALCIS III:
24
25 The prayer of the petitions, your Honor,
26 initially says that... to declare Articles 1 and
27 2 of the Family Code as null and void. However,
28 we also prayed for other just and equitable
29 reliefs, which we are of the position that in
30 relation with Republic v. Manalo, that there is
31 an alternative option for this court in the
32 exercise of its expanded power of judicial
33 review to... in the light that... that
34 provision...
35
36 JUSTICE LEONEN:
37
38 Wait a minute. You’re saying or you’re claiming
39 that the proper reading of Republic v. Manalo
40 under the ponencia of Justice Peralta is that
41 there is an alternative to finding... there is
42 an alternative consequence to a finding that a
43 provision is unconstitutional. Normally, if a
44 provision is unconstitutional, it is void ab
45 initio.
46
47 MR. FALCIS III:
48
49 Yes, your Honor.
50
51 JUSTICE LEONEN:
52
53 And you are now saying that the court has
54 created new jurisprudence in Republic v. Manalo
55 that when you find a provision to be
56 unconstitutional, that it can be valid?
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………12
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 No, your Honor. What petitioners are saying that
4 our interpretation of this court’s guide in
5 Republic v. Manalo is that...
6
7 JUSTICE LEONEN:
8
9 So in essence you are asking the court to find
10 or to found new jurisprudence in relation to
11 situations like yours.
12
13 MR. FALCIS III:
14
15 No, you Honor. We are only asking for a
16 statutory interpretation that was applied in
17 Republic v. Manalo that versus two
18 interpretations that would lead to a finding of
19 a finding of unconstitutionality, the court
20 found... the court adopted a liberal
21 interpretation, did not declare Article 26
22 paragraph 2 as unconstitutional. But because the
23 constitution is deemed written into the Family
24 Code as well, interpreted it in light of the
25 equal protection clause.
26
27 JUSTICE LEONEN:
28
29 As a matter of fact, this was also mentioned in
30 a concurring opinion in Garcia v. Drilon. Is
31 that not correct? That was on battered men and
32 the possibility that in a future case, and not
33 in that case, that there can be a man, a
34 biological male, who will file or ask that they
35 be protected under VAWC. But it was just a
36 concurring opinion. Is that not correct?
37
38 MR. FALCIS III:
39
40 Yes, your honor.
41
42 JUSTICE LEONEN:
43
44 So your claim now is that it has found unanimity
45 in the court in Republic v. Manalo. Well not
46 really unanimity, there was a dissent in
47 Republic v. Manalo. Correct?
48
49 MR. FALCIS III:
50
51 Yes, your Honor.
52
53 JUSTICE LEONEN:
54
55 How many dissents were there in the Republic...
56 in that case?
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………13
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 One joined by two justices, your Honor.
4
5 JUSTICE LEONEN:
6
7 Who dissented? Because you were mentioning names
8 of justices a while ago, so I think you are a
9 very astute observer of the court.
10
11 MR. FALCIS III:
12
13 I would not claim, your Honor, that, but to
14 answer the original question, the dissenting
15 opinion was by Justice Caguioa joined by Justice
16 Bernabe and Justice Del Castillo.
17
18 JUSTICE LEONEN:
19
20 It was a very well-reasoned out decision, almost
21 convincing to the majority. Was that not
22 correct?
23
24 MR. FALCIS III:
25
26 Yes, your Honor.
27
28 JUSTICE LEONEN:
29
30 Yes. Okay. Now, before we proceed and just to
31 be very clear about this. You mentioned an
32 American case. What is this American case?
33
34 MR. FALCIS III:
35
36 I mentioned two American cases I think, your
37 Honor.
38
39 JUSTICE LEONEN:
40
41 Under the pen of the American justice Kennedy.
42 You mentioned that case.
43
44 MR. FALCIS III:
45
46 The case of Obergefell v. Hodges, your Honor.
47
48 JUSTICE LEONEN:
49
50 Yes. Now, just to be clear. What is the status
51 of American cases to this Supreme Court?
52 MR. FALCIS III:
53
54 Your Honor, it’s only persuasive.
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………14
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 As persuasive as jurisprudence of South Africa,
4 of Nairobi, or Papua New Guinea, or Europe, or
5 the European Court of Human Rights. Is that not
6 correct?
7
8 MR. FALCIS III:
9
10 Yes, your Honor.
11
12 JUSTICE LEONEN:
13
14 Yes. Insofar as we are concerned, it is not
15 precedent. Is that not correct?
16
17 MR. FALCIS III:
18
19 No, your Honor.
20
21 JUSTICE LEONEN:
22
23 Because the truth is, that the provisions that
24 they were interpreting may have had similarity
25 in terms of the text that we find in our
26 constitution, but we have extra provisions in
27 the 1987 Constitution. Is that not correct?
28
29 MR. FALCIS III:
30
31 Yes, your Honor.
32
33 JUSTICE LEONEN:
34
35 That relates to your case. Is that not correct?
36
37 MR. FALCIS III:
38
39 Yes, your Honor.
40
41 JUSTICE LEONEN:
42
43 For example?
44
45 MR. FALCIS III:
46
47 Article 15, the right to found a family in
48 accordance their religious convictions, the
49 nature and the characteristic of marriage as an
50 inviolable social institution that serves as the
51 foundation of the family, and Article 2, your
52 Honor, in relation with the declaration that
53 family life... the state should respect the
54 sanctity of family life.
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………15
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 So are you claiming that.... Well, in that case
4 that you mentioned in the United States, reading
5 it casually, one of the debates between the
6 majority and the minority—that was 5-4
7 decision...
8
9 MR. FALCIS III:
10
11 Yes, your Honor.
12
13 JUSTICE LEONEN:
14
15 One of the debates was whether it was correct
16 to find an inchoate, invisible, substantive
17 right to marry included within the provision
18 that is similar to our due process clause. Was
19 that not correct? In fact, the Chief Justice
20 Roberts there, Alito, and several others were
21 saying while they may not disagree with same-
22 sex marriage, it is for them something that must
23 be statutorily constructed. Is that not true?
24
25 MR. FALCIS III:
26
27 Yes, Your Honor.
28
29 JUSTICE LEONEN:
30
31 So, the debate there was whether in fact there
32 was a right to marry as a fundamental
33 constitutional right. Was that not correct?
34
35 MR. FALCIS III:
36
37 Yes, your Honor.
38
39 JUSTICE LEONEN:
40
41 Yes. But they did not have Article 5, correct?
42 Article 15 that we have now, correct?
43
44 MR. FALCIS III:
45
46 Yes, your Honor.
47
48 JUSTICE LEONEN:
49
50 And in Article 15, Section 2, it says that
51 marriage, as an inviolable social institution,
52 is the foundation of a family and shall be
53 protected by the State. Is that not correct?
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………16
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 So, in essence, can you not say or is it your
8 position that the right to marry is in the
9 Philippines, under the 1987 Constitution, not
10 in the United States, not in Europe, but in the
11 Philippines, that marriage is a right?
12
13 MR. FALCIS III:
14
15 A constitutional right. Yes, your Honor.
16
17 JUSTICE LEONEN:
18
19 Because it says the foundation of a family and
20 shall be protected by the State. Is that not
21 correct?
22
23 MR. FALCIS III:
24
25 Yes, your Honor.
26
27 JUSTICE LEONEN:
28
29 Yes. It is this right to marry that can be
30 implied from Section 2. Is that not correct?
31
32 MR. FALCIS III:
33
34 Yes, your Honor.
35
36 JUSTICE LEONEN:
37
38 Okay. And there is also a right to found a
39 family, correct?
40
41 MR. FALCIS III:
42
43 Yes, your Honor.
44
45 JUSTICE LEONEN:
46
47 Article 15, Section 3, the right of spouses to
48 found a family. Is that not correct?
49
50 MR. FALCIS III:
51
52 Yes, your Honor.
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………17
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Yes. And, therefore, to found a family requires,
4 according to Section 2, marriage, as an
5 inviolable social institution. Correct?
6
7 MR. FALCIS III:
8
9 Yes, your Honor.
10
11 JUSTICE LEONEN:
12
13 Yes. So did you not say that the question as to
14 whether or not there is an inherent,
15 substantive, fundamental constitutional right
16 to marry is already answered by Article 15?
17
18 MR. FALCIS III:
19
20 Yes, your Honor.
21
22 JUSTICE LEONEN:
23
24 There is no other way to read Article 15. From
25 your point of view.
26
27 MR. FALCIS III:
28
29 Your Honor, we are guided by the decision in
30 Antonio v. Reyes that it is a right and the
31 legislature may...
32
33 JUSTICE LEONEN:
34
35 No, but it did handle the question of whether
36 the right to marry is a constitutional right.
37
38 MR. FALCIS III:
39
40 Yes, your Honor.
41
42 JUSTICE LEONEN:
43
44 As a matter of fact, you are correct that the
45 first case that actually did so was Republic v.
46 Manalo. Correct?
47
48 MR. FALCIS III:
49
50 Yes, your Honor.
51
52 JUSTICE LEONEN:
53
54 Where it was very clear from the ponencia that
55 it is a fundamental constitutional right.
56 Correct?
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………18
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 Or was it only a fundamental right?
8
9 MR. FALCIS III:
10
11 A fundamental right, your Honor.
12
13 JUSTICE LEONEN:
14
15 Or did it say constitutional? Of course, you
16 quoted my separate opinion in your... as quote
17 in your pleading, but a separate opinion is
18 always a separate opinion, carried only by a
19 single justice who is always hopeful that in a
20 future case it will be adopted. But of course,
21 we are looking at the majority. In Republic v.
22 Manalo, are you sure that the court consciously
23 said that it was a fundamental constitutional
24 right?
25
26 MR. FALCIS III:
27
28 Your Honors, if I may quote, the case says,
29 ‘Fundamental rights whose infringement leads to
30 strict scrutiny are those basic liberties
31 explicitly or implicitly guaranteed in the
32 constitution. It includes the right of
33 procreation, the right to marry.’
34
35 JUSTICE LEONEN:
36
37 Okay. So, the right to marry is there, already
38 acknowledged. Correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 Yes. Now, let us make a distinction between the
47 concept of marriage. Okay. One can only love
48 through marriage. Is that true?
49
50 MR. FALCIS III:
51
52 No, your Honor.
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………19
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 So it’s possible to love without marriage.
4 Correct?
5
6 MR. FALCIS III:
7
8 Yes, your Honor.
9
10 JUSTICE LEONEN:
11
12 Yes. One can have sexual relations only through
13 marriage.
14
15 MR. FALCIS III:
16
17 No, your Honor.
18
19 JUSTICE LEONEN:
20
21 I mean it’s physically impossible to have sexual
22 relations unless you are married. True or false?
23
24 MR. FALCIS III:
25
26 False, your Honor.
27
28 JUSTICE LEONEN:
29
30 Yes. Is it illegal to have sexual relations
31 outside marriage?
32
33 MR. FALCIS III:
34
35 According to our public morality, your Honor,
36 No.
37
38 JUSTICE LEONEN:
39
40 No, not public morality. I’m asking about
41 legality. I am not a priest. Therefore, my
42 question is, is it illegal?
43
44 MR. FALCIS III:
45
46 Yes, it’s illegal.
47
48 JUSTICE LEONEN:
49
50 Sex outside of marriage? Oh my god, we have lots
51 of criminals.
52
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………20
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 It is not illegal, your Honor. I only mentioned
4 public morality, your Honor, to refer to
5 secular...
6
7 JUSTICE LEONEN:
8
9 That by the way is not an admission, but in any
10 case, it was a question. Okay. In any case, so,
11 is it illegal to have sex outside of marriage?
12
13 MR. FALCIS III:
14
15 No, your Honor.
16
17 JUSTICE LEONEN:
18
19 Is it illegal to have a child outside of
20 marriage?
21
22 MR. FALCIS III:
23
24 No, your Honor.
25
26 JUSTICE LEONEN:
27
28 Is it illegal to have co-ownership outside of
29 marriage?
30
31 MR. FALCIS III:
32
33 No, your Honor.
34
35 JUSTICE LEONEN:
36
37 Is it.... So, therefore, it’s possible to love,
38 to promise, to commit, to found a family outside
39 marriage.
40
41 MR. FALCIS III:
42
43 To serve as a foundation of their family, your
44 Honor, no.
45
46 JUSTICE LEONEN:
47
48 That is not my question. My question was, is it
49 possible to love, to promise, to commit, to have
50 children, to have intimate relations outside of
51 marriage?
52
53 MR. FALCIS III:
54
55 Yes, your Honor.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………21
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Is it possible to have property relations
4 outside of marriage?
5
6 MR. FALCIS III:
7
8 Yes, your Honor.
9
10 JUSTICE LEONEN:
11
12 Yes. So what’s the problem?
13
14 MR. FALCIS III:
15
16 Your Honor, the Family Code...
17
18 JUSTICE LEONEN:
19
20 Because your claim is, and if I may examine your
21 arguments very carefully, that you are deprived
22 of your right to intimacy, that you are deprived
23 of your right to choice, that you are deprived
24 of your right to have intimate sexual expression
25 because of the prohibition that you cannot
26 marry.
27
28 MR. FALCIS III:
29
30 Your Honors, with the court’s indulgence, the
31 petition did not argue that without marriage the
32 LGBT people could not consummate intimate sexual
33 relationships, your Honor. We are only of the
34 submission that without marriage, we lose access
35 to a bundle of legal rights and obligations that
36 will help serve as the foundation of their
37 family, your Honor.
38
39 JUSTICE LEONEN:
40
41 So your claim is that marriage produces a legal
42 status different from... let’s unpack it a
43 little bit more. Your claim is that marriage
44 creates a social and cultural status—let’s
45 forget about the legal first—as social and
46 cultural status which is not granted to the
47 possibility of intimate relations among same-
48 sex couples.
49
50 MR. FALCIS III:
51
52 Yes, your Honor.
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………22
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Really? But if the couple is out, they can have
4 friends that understand that they are together.
5 Is that not correct?
6
7 MR. FALCIS III:
8
9 Yes, your Honor.
10
11 JUSTICE LEONEN:
12
13 In fact, I know of a lot of same-sex
14 relationships that outlasts married
15 relationships among heterosexual couples.
16
17 MR. FALCIS III:
18
19 Yes, your Honor.
20
21 JUSTICE LEONEN:
22
23 So it’s possible. There is social recognition
24 already. Correct?
25
26 MR. FALCIS III:
27
28 Yes, your Honor.
29
30 JUSTICE LEONEN:
31
32 And among the families of same-sex couples, if
33 they are out and if there is acceptance, then
34 there is also a recognition that there can be
35 some relations that are created by two strangers
36 when they pronounce themselves as being
37 together. Is that not correct?
38
39 MR. FALCIS III:
40
41 There can be a relationship, yes, your Honor,
42 but it is not a legal relationship.
43
44 JUSTICE LEONEN:
45
46 A legal relationship. So, it’s illegal?
47
48 MR. FALCIS III:
49
50 No, your Honor. It is not recognized.
51
52 JUSTICE LEONEN:
53
54 Not recognized. What is this with recognition?
55 What is it that is added by the legal
56 recognition of marriage?
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………23
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 The legal recognition of same-sex relationships
4 under marriage would allow them to access
5 numerous rights and obligations, your Honor,
6 like the right to make decisions for their
7 partner in the event of a medical accident where
8 one person is in comatose. In the status quo,
9 your Honor, they cannot assert and demand by
10 right to be in the hospital and make decisions
11 for their partner. Or they cannot inherit or
12 they cannot claim SSS, GSIS benefits, your
13 Honor.
14
15 JUSTICE LEONEN:
16
17 Let’s look through that a little bit more. Is
18 it not possible to delegate, to create a will,
19 and in the will, actually state that another
20 person shall have arrangements, or shall make
21 the arrangements with respect to a decedent?
22
23 MR. FALCIS III:
24
25 Yes, your Honor. However, the...
26
27 JUSTICE LEONEN:
28
29 In fact, the recent case of Valiño v. Adriano
30 said that. Except that in that particular case,
31 there was no will. And, therefore, it was
32 granted to the legitimate spouse in accordance
33 with the law.
34
35
36 MR. FALCIS III:
37
38 Yes, your Honor, and not the mistress, your
39 Honor.
40
41 JUSTICE LEONEN:
42
43 Okay. So, it is possible by contractual
44 relations for a couple in intimate relations to
45 actually construct the kind of relationship that
46 they want.
47
48 MR. FALCIS III:
49
50 Yes, your Honor. However...
51
52 JUSTICE LEONEN:
53
54 So, isn’t this better than marriage?
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………24
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 For some people, your Honor, yes.
4
5 JUSTICE LEONEN:
6
7 Yes. I mean for marriage, you are given a
8 package deal. As a matter of fact, that marriage
9 even has that provision that the only way that
10 you can get out of marriage, are... one of the
11 ways is this provision on Article 36,
12 psychological incapacity. And according to this
13 court, the dominant view is that Republic v.
14 Molina still applies. And in same-sex couples,
15 you can package a civil union. You can actually
16 create the relationship amongst yourselves,
17 getting bits and pieces from the law. Isn’t that
18 a more advantageous relationship? It has more
19 freedom. It has more choices. And without the
20 burdens of a married state.
21
22 MR. FALCIS III:
23
24 With the court’s indulgence, your Honor, we
25 submit that it depends on the person what kind
26 of recognition or contractual relationship they
27 would want to have with the person. And some
28 may want to have a relationship outside marriage
29 and get expensive lawyers to create those
30 contractual relationships. Some may want the
31 right to marry which comes as a package deal...
32
33 JUSTICE LEONEN:
34
35 I think we have to be careful about
36 stereotyping. Not all lawyers are expensive. I
37 mean I’m looking at you. For example, you are a
38 public interest lawyer, I suppose, doing a lot
39 of work. I think you were also counsel for
40 SPARK, if I’m not a ..., this curfew case, among
41 others, decided by Justice Perlas-Bernabe in a
42 unanimous decision of this court. So, we have
43 to be careful because that will color
44 emotionally the decisions in this case. There
45 are available lawyers, even paralegals, that can
46 help same-sex couples actually create a civil
47 union. And that civil union can have all the
48 rights provided by law, carefully constructed
49 in order to be able to have, you know, the best
50 possible world. Isn’t that more powerful, more
51 liberating of one’s agency?
52
53 MR. FALCIS III:
54
55 Your Honors, petitioners are of the submission
56 that not all legal rights may be....
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………25
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 In other words, even within the LGBT movement,
4 there is debate whether marriage equality is
5 already gender equality, correct?
6
7 MR. FALCIS III:
8
9 Yes, your Honor.
10
11 JUSTICE LEONEN:
12
13 That gender equality can be achieved even much
14 more without marriage equality. There is some
15 that take that kind of position. Is that not
16 correct?
17
18 MR. FALCIS III:
19
20 Yes, your Honor.
21
22 JUSTICE LEONEN:
23
24 Yes. So, now, what is your argument now? So,
25 you can create your own relationship. You can
26 have a civil union, do not call it marriage.
27 Or... Well, you will not have... or you can
28 create your own relationship with the in-laws
29 or the other relations of the other party. Is
30 that not correct?
31
32 MR. FALCIS III:
33
34 Your Honors, petitioners may concede that there
35 are some legal aspects that we can access
36 without marriage with expensive or not expensive
37 lawyers, but this would simply put is in an
38 unequal footing, your Honors, as second-class
39 citizens because other couples do not need to
40 go through those legal maze to access those
41 rights...
42
43 JUSTICE LEONEN:
44
45 What I’m asking you, Atty. Falcis, is aren’t
46 people—heterosexual couples—that go into
47 marriage more second-class than what you can
48 create?
49
50 MR. FALCIS III:
51
52 No, your Honors.
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………26
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Because it’s a... well, it’s pre-packaged set
4 of law. In fact, if you trace that law, it comes
5 from the Spanish Civil Code. Okay, the Partidas
6 and then the Nueva Recopilacion and coming from
7 the Fuero Juzgo before, correct. And it
8 instilled the patriarchy. In fact, there are
9 still vestiges now of patriarchy in that
10 particular Civil Code. And there are a lot of
11 limitations. It is not culturally created. It’s
12 not endogenous within our system. Can you
13 imagine, same-sex couples now can make their own
14 civil union. Correct?
15
16 MR. FALCIS III:
17
18 Yes, your Honor, in a limited sense.
19
20 JUSTICE LEONEN:
21
22 The ideal of some legal scholars which is to
23 challenge even the constitutionality of
24 marriage as a burden into their freedoms is now
25 available to same-sex couples.
26
27 MR. FALCIS III:
28
29 Yes, your Honor, but that is not by choice, your
30 Honors. The same-sex couples do not have the
31 choice to opt out of marriage because we are
32 not even allowed to opt in.
33 JUSTICE LEONEN:
34
35 Is it accurate that you are arguing to get into
36 a situation which is more limited?
37
38 MR. FALCIS III:
39
40 Your Honors, there are some situations that
41 would be limited under marriage, but there are
42 other situations that are...
43
44 JUSTICE LEONEN:
45
46 But you see, Atty. Falcis, that was not clear
47 in your pleadings. And perhaps you make that
48 clear when you file your memoranda. What exactly
49 in marriage—that status of marriage?
50
51 So, the status of marriage creates a bundle of
52 rights and obligations, but the rights and
53 obligations can also be fixed by contractual
54 obligations. Is that not correct? And because
55 it can be fixed by contractual relations, you
56 can actually create a little bit more perfect
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………27
Interpellation by J. Leonen

1 civil union. In fact, you can even say in your

2 contract that we will stay together for ten
3 years. After ten years, it’s renewable. Correct?
4 That cannot be done by heterosexual couples
5 wanting to marry. But if that is your belief,
6 then it can be established in that kind of an
7 arrangement. Correct? You may say not conjugal
8 partnership or absolute community. You will
9 specify the details of the co-ownership or the
10 common ownership that you have of the properties
11 that you have. You will say that everything that
12 I made is mine; everything that you make,
13 because you’re richer, therefore, will be shared
14 by us. That’s more egalitarian. Correct? That’s
15 not in the Civil Code, right?
16
17 MR. FALCIS III:
18
19 Yes, your Honor.
20
21 JUSTICE LEONEN:
22
23 And you can say that you can create property
24 relations prior to committing to each other and
25 you can amend it after two years while inside
26 the relations. Whereas in marriage, when is the
27 only time that you can create a property
28 relations?
29
30 MR. FALCIS III:
31
32 In a pre-nuptial agreement, your Honor.
33
34 JUSTICE LEONEN:
35
36 Pre-nuptial. After you get married, you cannot
37 change the property relations. Is that not
38 correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 So, are you now saying that it is a limitation
47 on your freedom rather than a... I mean... Do
48 you agree with me that marriage limits the
49 freedom of same-sex couples?
50
51 MR. FALCIS III:
52
53 With this court’s indulgence, your Honor, there
54 are contracts and stipulations that will not be
55 allowed unless you are married because they will
56 be contrary to laws such as the compulsory
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………28
Interpellation by J. Leonen

1 portion of one’s inheritance or SSS and GSIS

2 benefits, which can only go to a spouse, your
3 Honor, and the next kin after that, your Honor.
4
5 JUSTICE LEONEN:
6
7 Let’s follow that through. The legitime,
8 correct? Compulsory portion of your
9 inheritance, right? But if it’s a same-sex
10 couple, who should have that? And can you not
11 provide in the will that the same amount that
12 should been a compulsory... the compulsory share
13 of the spouse is now with your partner?
14
15 MR. FALCIS III:
16
17 Your Honors, we don’t think that would be
18 allowed because if same-sex marriage is not
19 recognized, the compulsory, the portion...
20
21 JUSTICE LEONEN:
22
23 Can we do just disinherit The children? The
24 spouse?
25
26 MR. FALCIS III:
27
28 Your Honors, in the simple understanding of
29 counsel, your Honors, there are two portions to
30 a legitime, the free portion and the compulsory
31 portion. Where a person may freely give to any
32 one the free portion, the compulsory portion is
33 given to a list of people by succession and
34 without...
35
36 JUSTICE LEONEN:
37
38 And yes, the list of persons includes legitimate
39 spouse. But if the same-sex couple does not have
40 a legitimate spouse, correct?
41
42 MR. FALCIS III:
43
44 Yes, your Honor.
45
46 JUSTICE LEONEN:
47
48 Because there is no one. The next one is
49 descendants.
50
51 MR. FALCIS III:
52
53 Yes, your Honor.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………29
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 And if the same-sex couples adopt, singly or
4 together, then there is that descendant.
5 Correct?
6
7 MR. FALCIS III:
8
9 Your Honors, we don’t think LGBT couples can
10 jointly adopt under our present...
11
12 JUSTICE LEONEN:
13
14 So that is one.
15
16 MR. FALCIS III:
17
18 Yes, your Honor.
19
20 JUSTICE LEONEN:
21
22 So, the solution there is to change the law on
23 adoption.
24
25 MR. FALCIS III:
26
27 No, your Honor.
28
29 JUSTICE LEONEN:
30
31 It’s to change the law on marriage?
32
33 MR. FALCIS III:
34
35 If by changing, your Honor, it means going to
36 congress, we so...
37
38 JUSTICE LEONEN:
39
40 Why is changing the law on marriage more urgent
41 rather than attacking other laws? I’m aware that
42 there is an organ donation law that when a
43 spouse dies, according to this law, that it is
44 the legitimate spouse that decides whether the
45 organs of the decedent can be donated. Okay. I’m
46 aware of that. That’s a single provision that
47 may be amended by congress. And you know in the
48 process, Atty. Falcis, as you amend bits and
49 pieces of other laws, you create an
50 understanding of the nuances of gender identity,
51 sexual orientation, gender and sex amongst our
52 political leaders. Who knows that at some point
53 there can be legislation rather than relying on
54 the Supreme Court to actually give you that
55 right.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………30
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Your Honors, with the simple...
4
5 JUSTICE LEONEN:
6
7 The political acceptance by the majority is
8 stronger than a decision of this court. We are
9 unelected. We can be changed. We can be subject
10 of quo warranto for that matter and the SolGen
11 is there looking at me very intently. So I am
12 not sure what his intentions are. But the point
13 there, counsel, is that this is an unelected
14 majority, an unelected institution. Shouldn’t
15 it be stronger that culturally we get acceptance
16 of things which are the vestiges of our
17 heteronormative world and patriarchy so that it
18 becomes stronger?
19
20 MR. FALCIS III:
21
22 Your Honor, with this court’s indulgence, while
23 it may be desirable for the question of sex,
24 sexuality, gender identity to pass through
25 congress, in the case of Philippine Blooming
26 Mills, this court has said that fundamental
27 rights are not subject to popular elections or
28 to the wills—to the will—of congress, your
29 Honor. Fundamental rights are and should be
30 enjoyed by all.
31
32 JUSTICE LEONEN:
33
34 Yes, but can you imagine the danger? This court
35 can say that the right to contract...the right
36 to... the right of contract is a fundamental
37 right and can you imagine what that will do in
38 terms of social justice.
39
40 If we are to be free in terms of what is
41 dictating what is inside that concept of
42 autonomy protected by the due process clause
43 then as much as we can be liberal to progressive
44 movements, we can also be liberal to non-
45 progressive movements. Is that not correct?
46
47 MR. FALCIS III:
48
49 Yes, your Honor.
50
51 JUSTICE LEONEN:
52
53 And you do not want the power to an institution
54 that does not have political accountability. Is
55 that not correct?
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………31
Interpellation by J. Leonen

1 There may be rallies that are conducted outside

2 of our halls in Padre Faura; there may be
3 newspaper articles that come out; there may be
4 social media that attack each on of us, put is
5 in memes, et cetera; but our sworn duty is not
6 to be popular. Our sworn duty is to interpret
7 the provision of the law. Is that not correct?
8
9 MR. FALCIS III:
10
11 Yes, your Honor.
12
13 JUSTICE LEONEN:
14
15 Yes. So, what is it in marriage? Is this... is
16 there really inequality in terms of the
17 interpretation of that status?
18
19 MR. FALCIS III:
20
21 Yes, your Honor. We are of the submission that
22 the Family Code limited the definition of
23 marriage by itself without due regard to the
24 constitutional provisions about the right to
25 marry in relation with the equal protection
26 clause and other provisions of the constitution.
27
28 JUSTICE LEONEN:
29
30 So, you do not agree that for opposite-sex
31 couples, when they choose the right of
32 marriage.... By the way, can opposite-sex
33 couples, a man and a woman or a woman and a man,
34 may they opt not to marry?
35
36 MR. FALCIS III:
37
38 Yes, your Honor.
39
40 JUSTICE LEONEN:
41
42 So, the right to marry is really not a
43 mandatory, compulsory duty.
44
45 MR. FALCIS III:
46
47 Yes, your Honor.
48
49 JUSTICE LEONEN:
50
51 In other words, nobody can compel you to marry,
52 right?
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………32
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 Especially if we do not have a partner, correct?
8 That would be the height of cruelty, right? Yes.
9 So, it is a privilege. It is an option.
10
11 MR. FALCIS III:
12
13 Yes, your Honor.
14
15 JUSTICE LEONEN:
16
17 And, therefore, even opposite-sex couples, or
18 heterosexual couples, may opt not to marry. Is
19 that not correct?
20
21 MR. FALCIS III:
22
23 Yes, your Honor.
24
25 JUSTICE LEONEN:
26
27 Yes. So, my question is this. Why is there an
28 insistence that same-sex couples can also be
29 marry considering that there are many ways by
30 which the civil union can also be reconstructed?
31
32 MR. FALCIS III:
33
34 Our submission, your Honor, is that heterosexual
35 couples may or may not marry, but LGBT couples
36 do not have the same choices to may marry or
37 nor marry, your Honors. And as Filipinos, as
38 taxpayers, as human beings with dignity, the
39 constitution requires that their rights be
40 guaranteed as well.
41
42 JUSTICE LEONEN:
43
44 Can a same-sex couple have families?
45
46 MR. FALCIS III:
47
48 Yes, your Honor.
49
50 JUSTICE LEONEN:
51
52 Can it be a loving family environment?
53
54 MR. FALCIS III:
55
56 Yes, your Honor.
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………33
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Can it be a loving family environment without
4 marriage?
5
6 MR. FALCIS III:
7
8 Yes, your Honor.
9
10 JUSTICE LEONEN:
11
12 Can that family become an autonomous unit in our
13 body-politic such that it provides the
14 foundation of a society because of its loving
15 atmosphere?
16
17 MR. FALCIS III:
18
19 Yes, your Honor, subject to certain stigma or
20 inequality...
21
22 JUSTICE LEONEN:
23
24 Do you need a marriage certificate in order that
25 that family contributes to society?
26
27 MR. FALCIS III:
28
29 No, your Honor.
30
31 JUSTICE LEONEN:
32
33 So, that family can be as strong as a family of
34 heterosexual couples that get married. Is that
35 not correct?
36
37 MR. FALCIS III:
38
39 In their...your Honor, in their own private
40 sphere, maybe in their houses, your Honor, but
41 when they go out or deal with the government or
42 with state agents or instrumentalities, that
43 relationship or loving family will not be given
44 the same priority or rights or benefits, your
45 Honor.
46
47 JUSTICE LEONEN:
48
49 Okay. Is marriage only for procreation?
50
51 MR. FALCIS III:
52
53 No, your Honor.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………34
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Is the compelling state interest in protecting
4 marriage because it legitimizes procreation?
5
6 MR. FALCIS III:
7
8 Your Honors, we are of the submission that
9 procreation cannot be and is not the compelling
10 state interest.
11
12 JUSTICE LEONEN:
13
14 I am aware of course that the Catholic doctrine,
15 if I’m not mistaken in my Catholic schools, is
16 that marriage, one of the primary functions is
17 procreation. But that’s religion.
18
19 MR. FALCIS III:
20
21 Yes, your Honor.
22
23 JUSTICE LEONEN:
24
25 Yes. And you can marry at the age of seventy.
26 Is that not correct? Is it a disqualification
27 that senior citizens cannot get married?
28
29 MR. FALCIS III:
30
31 No, your Honor.
32
33 JUSTICE LEONEN:
34
35 Overqualification?
36
37 MR. FALCIS III:
38
39 No, your Honor.
40
41 JUSTICE LEONEN:
42
43 No. So, senior citizens may get married,
44 correct?
45
46 MR. FALCIS III:
47
48 Yes, your Honor.
49
50 JUSTICE LEONEN:
51
52 But biologically they cannot have an offspring,
53 correct?
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………35
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 So, marriage is not for procreation simply,
8 right?
9
10 MR. FALCIS III:
11
12 As it stands now in our laws, yes, your Honor.
13
14 JUSTICE LEONEN:
15
16 Yes. What about the protection of tradition? Is
17 that a compelling state interest?
18
19 MR. FALCIS III:
20
21 Your Honors, petitioners are of the submission
22 that that cannot be compelling state interest
23 given that we are...
24
25 JUSTICE LEONEN:
26
27 Would you agree with me that the law on marriage
28 have changed through the years?
29
30 MR. FALCIS III:
31
32 Yes, your Honor.
33
34 JUSTICE LEONEN:
35
36 Would you agree with me that there was a time
37 that a married woman cannot contract without the
38 consent of the husband?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 Would you agree with me that there was a time
47 when we almost had a similar situation like
48 coverture? In other words, the woman loses her
49 identity. Is that not correct?
50
51 MR. FALCIS III:
52
53 Yes, your Honor.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………36
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 And those changed, correct?
4
5 MR. FALCIS III:
6
7 Yes, your Honor.
8
9 JUSTICE LEONEN:
10
11 So, if there is a compelling state interest to
12 protect tradition, then we should not have
13 changed our marriage laws. Correct?
14
15 MR. FALCIS III:
16
17 Yes, your Honor.
18
19 JUSTICE LEONEN:
20
21 But is that applicable for the sexes of the
22 couple?
23
24 MR. FALCIS III:
25
26 Your Honors, we are of the submission that if...
27 even...even by going by tradition, your Honors,
28 there were LGBT couples who were alive during
29 the time that our constitution was ratified and
30 were already living together and had a loving
31 relationship, your Honor. Even in pre-colonial
32 times, your Honor, based on tradition, but
33 because they were erased after colonization...
34
35 JUSTICE LEONEN:
36
37 In fact, we have the concept of a babaylan,
38 correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 What is a babaylan?
47
48 MR. FALCIS III:
49
50 A babaylan, your Honor, according to scholars
51 if I recall correctly, is a person who can
52 access two sexes or genders and sometimes they
53 can perform rituals that heal people because of
54 their different ability to access both sexes,
55 your Honor.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………37
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Okay. And the babylan, therefore, can have a
4 male partner although he or she would consider
5 herself as with the sexual orientation wanting
6 male partners. Correct?
7
8 MR. FALCIS III:
9
10 Yes, your Honor. There is this scholar in the
11 University of the Philippines by the name of
12 Neil Garcia and we obtained his permission to
13 quote him. He has a paper that says that there
14 were babaylans that had male partners.
15
16 JUSTICE LEONEN:
17
18 In view of the comment of the SolGen, the
19 Solicitor General, tracing the history of
20 marriage, I would guess that in your memoranda
21 you would like to cover your own take of
22 herstory or history of marriage, correct?
23
24 MR. FALCIS III:
25
26 Yes, your Honor.
27
28 JUSTICE LEONEN:
29
30 Yes and I hope that it will be very clear that
31 in certain instances, the history of marriage
32 cannot only be the statutory provisions because
33 statutory are impositions on cultures that are
34 evolving, correct?
35
36 MR. FALCIS III:
37
38 Yes, your Honor.
39
40 JUSTICE LEONEN:
41
42 Therefore, you might want to cover that in your
43 memoranda. But, by the way, can same-sex couples
44 procreate?
45
46 MR. FALCIS III:
47
48 Technically, your Honors, with the advent of...
49
50 JUSTICE LEONEN:
51
52 Yes, technically.
53
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………38
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 With the advent of science, with their DNAs
4 together, they cannot, but individually, with
5 surrogacy or an actual donor...
6
7 JUSTICE LEONEN:
8
9 Yes, there are various technologies available
10 in order to be able to have an offspring where
11 the DNA comes from either, correct?
12
13 MR. FALCIS III:
14
15 Yes, your Honor.
16
17 JUSTICE LEONEN:
18
19 By the way, these reproductive technologies, are
20 they available to heterosexual couples?
21
22 MR. FALCIS III:
23
24 Yes, your Honor.
25
26 JUSTICE LEONEN:
27
28 Yes, also available to them. And it is not
29 because they have availed of that technology
30 that the children are not their children. Is
31 that not correct?
32
33 MR. FALCIS III:
34
35 Yes, your Honor.
36
37 JUSTICE LEONEN:
38
39 They become their children only because they are
40 married, correct?
41
42 MR. FALCIS III:
43
44 Yes, your Honor.
45
46 JUSTICE LEONEN:
47
48 They become legitimate children because they are
49 married, correct?
50
51 MR. FALCIS III:
52
53 Yes, your Honor.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………39
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Yes, but in such cases where, for example, one
4 of the members of that heterosexual couple
5 discovers that it wants to be more authentic
6 with respect to its gender identity, or maybe
7 not even gender identity, it’s sexual
8 orientation, and therefore annuls or divorces
9 the marriage and chooses another partner, that
10 is more attuned with his authentic sexual
11 orientation, then it is possible to make
12 arrangements with that non-traditional
13 arrangement, correct?
14
15 MR. FALCIS III:
16
17 Yes, your Honor.
18
19 JUSTICE LEONEN:
20
21 Does that not destroy the family?
22
23 MR. FALCIS III:
24
25 Your Honors, under our system of laws, it is
26 only because there are absence of laws that
27 recognize such situations that that create that
28 situation...
29
30 JUSTICE LEONEN:
31
32 Do broken families destroy family?
33
34 MR. FALCIS III:
35
36 A broken family, your Honor, yes. Unfortunately,
37 for some people is a...
38
39 JUSTICE LEONEN:
40
41 In fact, when the husband and wife separate and
42 not file annulment, sometimes they become more
43 cordial. Is that not correct?
44
45 MR. FALCIS III:
46
47 Sometimes, your Honor.
48
49 JUSTICE LEONEN:
50
51 Because they’re more cordial, the atmosphere of
52 the households, be they one or two, becomes more
53 cordial for the children. Is that not correct?
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………40
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 Yes. And the claim that a family with a male
8 and a female, a mother and a father, is the only
9 one that assures the protection of the family
10 may not be accurate. Is that not correct?
11
12 MR. FALCIS III:
13
14 Yes, your Honor. It’s not accurate.
15
16 JUSTICE LEONEN:
17
18 Because there can be non-traditional
19 relationships where you have a second family,
20 but everybody gets together fine. Is that not
21 correct?
22
23 MR. FALCIS III:
24
25 Your Honors, when...
26
27 JUSTICE LEONEN:
28
29 Does the constitution family?
30
31 MR. FALCIS III:
32
33 No, your Honor.
34
35 JUSTICE LEONEN:
36
37 It just says it’s a strong autonomous political
38 unit. Is that not correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 I’m sorry, social unit. Is that not correct?
47
48 MR. FALCIS III:
49
50 Yes, your Honor.
51
52 JUSTICE LEONEN:
53
54 Yes, probably you can also cover that in your
55 memoranda. You see, when a judge has a relation
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………41
Interpellation by J. Leonen

1 within the fourth degree of consanguinity and

2 affinity, that judge has to recuse.
3
4 MR. FALCIS III:
5
6 Yes, your Honor.
7
8 JUSTICE LEONEN:
9
10 And that’s in our Implementing Rules and
11 Regulations, Internal Rules and Regulations of
12 the Supreme Court, correct?
13
14 MR. FALCIS III:
15
16 Yes, your Honor.
17
18 JUSTICE LEONEN:
19
20 And that is also among judges. Is that not
21 correct?
22
23 MR. FALCIS III:
24
25 Yes, your Honor.
26
27 JUSTICE LEONEN:
28
29 So, in terms of judges who are... who have...
30 sexually oriented towards the same sex, this
31 will not apply, correct?
32
33 MR. FALCIS III:
34
35 No, your Honor.
36
37 JUSTICE LEONEN:
38
39 They will not have to mandatorily inhibit
40 because according to the law now, there is no
41 consanguinity or affinity because they can never
42 be legally married. Correct?
43
44 MR. FALCIS III:
45
46 Yes, your Honor.
47
48 JUSTICE LEONEN:
49
50 So, there are these consequences of having a
51 married state. Correct?
52
53 MR. FALCIS III:
54
55 Yes, your Honor.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………42
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 It may be more difficult, it may be more
4 constraining, but it’s the choice of the
5 individual to choose such an arrangement. Is
6 that not correct?
7
8 MR. FALCIS III:
9
10 Yes, your Honor.
11
12 JUSTICE LEONEN:
13
14 Yes. Okay. And in some cases where there are
15 same-sex couples, the roles—cultural roles or
16 legal roles—of the in-laws, the cousins, may not
17 be recognized. Correct?
18
19 MR. FALCIS III:
20
21 Yes, your Honor.
22
23 JUSTICE LEONEN:
24
25 Because one of the functions of marriage as a
26 legal status is to actually bring the families
27 of two strangers together. Is that not correct?
28
29 MR. FALCIS III:
30
31 Yes, your Honor.
32
33 JUSTICE LEONEN:
34
35 And, therefore, from there create a larger clan,
36 which will later on become bigger and bigger,
37 which would then be the foundation of the... our
38 politics. Is that not correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 And by not allowing marriage to same-sex
47 couples, therefore, it disenfranchises their
48 citizenship in that regard. Is that not correct?
49
50 MR. FALCIS III:
51
52 Yes, your Honor.
53
54 JUSTICE LEONEN:
55
56 How come?
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………43
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Citizens of this republic, your Honor, they
4 deserve the same rights and obligations or
5 liabilities even as other citizens. And so if
6 on the one hand, there are situations that will
7 not create those bonds that lead to either
8 inhibitions or liabilities, then there is
9 inequality there, your Honor.
10
11 JUSTICE LEONEN:
12
13 Okay, before I end, just to be clear, so that
14 the terms are very clear. Sex and gender, what’s
15 the difference?
16
17 MR. FALCIS III:
18
19 Your Honors, based on the most recent
20 understandings of the community...
21
22 JUSTICE LEONEN:
23
24 Sex is biological. It is either assigned at
25 birth or it can be reassigned, correct?
26
27 MR. FALCIS III:
28
29 Unfortunately...
30
31 JUSTICE LEONEN:
32
33 One can go through a sexual reassignment surgery
34 in order to be able to change one’s biological
35 sex. Correct?
36
37 MR. FALCIS III:
38
39 Outside the law, yes, your Honor. That is
40 possible.
41
42 JUSTICE LEONEN:
43
44 Meaning it’s illegal?
45
46 MR. FALCIS III:
47
48 No, your Honors.
49
50 JUSTICE LEONEN:
51
52 In this country, it’s illegal? Is it illegal to
53 pierce one’s ear?
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………44
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 No, your Honor.
4
5 JUSTICE LEONEN:
6
7 Is it illegal to do something with your body,
8 like cut all of your hair?
9
10 MR. FALCIS III:
11
12 No, your Honors.
13
14 JUSTICE LEONEN:
15
16 It’s in fact fashionable. Correct? Yes. But it’s
17 not illegal, therefore, as far as the Revised
18 Penal Code says, to actually go through a sexual
19 reassignment surgery, correct?
20
21 MR. FALCIS III:
22
23 It is...
24
25 JUSTICE LEONEN:
26
27 The only thing’s that’s illegal is suicide. I’m
28 sorry, not suicide, assisting suicide. Because
29 if it’s suicide and the person dies there is no
30 accused already, correct?
31
32 MR. FALCIS III:
33
34 Yes, your Honor. Just to clarify, your Honor,
35 what I mean by it is not legal is that if one
36 person changes their sex, except in the limited
37 circumstance in Republic versus...
38
39 JUSTICE LEONEN:
40
41 That’s the cultural, the legal aspect of it. I’,
42 just clarifying the concept of sex, correct?
43
44 MR. FALCIS III:
45
46 Yes, your Honor.
47
48 JUSTICE LEONEN:
49
50 Sex is different from gender. Correct?
51
52 MR. FALCIS III:
53
54 Yes, your Honor.
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………45
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Gender refers to the cultural. Right?
4
5 MR. FALCIS III:
6
7 It may either refer, your Honors, to expression
8 or identity.
9
10 JUSTICE LEONEN:
11
12 So, one says gender identity, it means the kinds
13 of roles that you associate with yourself.
14 Correct?
15
16 MR. FALCIS III:
17
18 Yes, your Honor.
19
20 JUSTICE LEONEN:
21
22 Whether you are biologically male or
23 biologically female. Correct?
24
25 MR. FALCIS III:
26
27 Yes, your Honor.
28
29 JUSTICE LEONEN:
30
31 The easiest way would be that if you are male
32 and you choose pink, that doesn’t necessarily
33 mean that your gender identity is that of
34 female. Correct?
35
36 MR. FALCIS III:
37
38 Yes, your Honor.
39
40 JUSTICE LEONEN:
41
42 It’s just that you choose it. Correct?
43
44 MR. FALCIS III:
45
46 That would be gender expression, your Honor.
47
48 JUSTICE LEONEN:
49
50 Yes. So, this is gender identity, how you
51 consider yourself in relation to society, in
52 relation to your choices, correct? That’s gender
53 identity.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………46
Interpellation by J. Leonen

1 MR. FALCIS III:

2
3 Yes, your Honor.
4
5 JUSTICE LEONEN:
6
7 And gender identity can either be binary or non-
8 binary. Is that not correct?
9
10 MR. FALCIS III:
11
12 It can be either, yes, your Honor.
13
14 JUSTICE LEONEN:
15
16 So, which means that you can either be boy or
17 girl, male or female. That’s binary, correct?
18
19 MR. FALCIS III:
20
21 Yes, your Honor.
22
23 JUSTICE LEONEN:
24
25 Or you could opt not to choose any. My gender
26 identity is asexual. My gender identity is talk
27 to me further. It’s a conversational piece. Ask
28 me questions and I will tell you my identity.
29 Correct?
30
31 MR. FALCIS III:
32
33 Yes, your Honor.
34
35 JUSTICE LEONEN:
36
37 Yes. Okay, now, gender identity is different
38 from gender expression. Correct?
39
40 MR. FALCIS III:
41
42 Yes, your Honor.
43
44 JUSTICE LEONEN:
45
46 Because you may have a gender identity which
47 society says you should act in this particular
48 manner, but in certain instances, you’re a
49 different person. You want to express yourself
50 differently. Correct?
51
52 MR. FALCIS III:
53
54 Yes, your Honor.
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………47
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Like males that carry a muscled body that have
4 earrings. Gender expression, correct?
5
6 MR. FALCIS III:
7
8 Yes, your Honor.
9
10 JUSTICE LEONEN:
11
12 Now, one way to express is your sexual
13 orientation, correct?
14
15 MR. FALCIS III:
16
17 Yes, your Honor.
18
19 JUSTICE LEONEN:
20
21 Simplifying it. Just so that it’s clear. And,
22 therefore, sexual orientation is who you want
23 to have intimate relations with. Correct?
24
25 MR. FALCIS III:
26
27 Yes, your Honor.
28
29 JUSTICE LEONEN:
30
31 Gender identity is who you are.
32
33 MR. FALCIS III:
34
35 Yes, your Honor.
36
37 JUSTICE LEONEN:
38
39 Sexual orientation is who you want to go to bed
40 with.
41
42 MR. FALCIS III:
43
44 With the qualification, your Honors, that sexual
45 orientation is not a choice. It is something
46 that people just realize that they are attracted
47 to a certain sex.
48
49 JUSTICE LEONEN:
50
51 To simplify things, the law has made it that
52 every male will all this kinds of gender
53 identity and this sexual orientation. All
54 females will have gender identity and sexual
55 orientation. Correct? That’s how simplified the
56 law is. Correct? And now you are challenging
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………48
Interpellation by J. Leonen

1 that simplification by actually saying that

2 there can be exceptions. There can be a
3 constitutional and fundamental right with
4 respect to same sexes, but there are sexual
5 orientation that they express is different.
6 Correct?
7
8 MR. FALCIS III:
9
10 Yes, your Honor.
11
12 JUSTICE LEONEN:
13
14 Yes, because you are saying now that in the 1987
15 Constitution, when this was drafted, that was
16 not yet a dominant view. That was not an
17 accepted view, correct? In fact, right now, it
18 may not be majoritarian view. It may not be the
19 dominant view, but people operate their lives
20 in accordance with that. Correct?
21
22 MR. FALCIS III:
23
24 Yes, your Honor.
25
26 JUSTICE LEONEN:
27
28 Okay. Is there a law that says that all males
29 should choose blue?
30
31 MR. FALCIS III:
32
33 No, your Honor.
34
35 JUSTICE LEONEN:
36
37 Is there a law that says that homosexuality is
38 a crime?
39
40 MR. FALCIS III:
41
42 No, your Honor.
43
44 JUSTICE LEONEN:
45
46 Is there are which says that having sex with
47 the same sex is a crime?
48
49 MR. FALCIS III:
50
51 No, your Honor.
52
53 JUSTICE LEONEN:
54
55 Whether it’s male to male or female to female.
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………49
Interpellation by J. Leonen

1 MR. FALCIS III:

2 None, your Honor.
3
4 JUSTICE LEONEN:
5
6 There is none. And, therefore, there is already
7 some recognition that these things are not
8 illegal and therefore people in the Philippines
9 are free to live with that. Correct?
10
11 MR. FALCIS III:
12
13 Yes, your Honor.
14
15 JUSTICE LEONEN:
16
17 But there is a difficulty of outing themselves.
18 In fact, as one of your petitioners, your
19 peritioners-in-intervention, they opt to be
20 anonymous for reasons which may be traced simply
21 to an oppressive culture. Is that not correct?
22
23 MR. FALCIS III:
24
25 Yes, your Honor.
26
27 JUSTICE LEONEN:
28
29 There is no acceptance of who they are. Correct?
30
31 MR. FALCIS III:
32
33 Yes, your Honor.
34
35 JUSTICE LEONEN:
36
37 But what they should be allowed to do, by a
38 constitution that understands freedom, is to
39 have them accepted. Correct?
40
41 MR. FALCIS III:
42
43 Yes, your Honor.
44
45 JUSTICE LEONEN:
46
47 Because the constitution celebrates not our
48 respect for sameness, but our respect for
49 otherness. Is that not correct?
50
51 MR. FALCIS III:
52
53 Yes, your Honor.
54
55
56
 Falcis III v. Civil Registrar-General—Oral Arguments………………………………………………………………………………………………50
Interpellation by J. Leonen

1 JUSTICE LEONEN:
2
3 Okay. Thank you.
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