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Republic of the Philippines

SUPREME COURT

Baguio City

EN BANC

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY repree!"e# $erei! %& i"

C$'ir, DANTON REMOTO,Petitioner,

vs.

COMM(SS(ON ON ELECT(ONSRespondent.

D E C ! " N

DEL CAST(LLO,J.:

... #$%reedo& to differ is not li&ited to things that do not &atter&uch. 'hat (ould be a &ere shado( of freedo&. 'he test of its

substance is the right to differ as to things that touch the heart of

the e)isting order.

*ustice Robert A. *ac+son

West Virginia State Board of Education v. Barnette1

"ne unavoidable conseuence of everyone having the freedo&to choose is that others &ay &a+e different choices - choices (e

(ould not &a+e for ourselves, choices (e &ay disapprove of,

even choices that &ay shoc+ or offend or anger us. o(ever,

choices are not to be legally prohibited &erely because they are

different, and the right to disagree and debate about i&portant

uestions of public policy is a core value protected by our Bill of

Rights. ndeed, our de&ocracy is built on genuine recognitionof, and respect for, diversity and difference in opinion.

!ince ancient ti&es, society has grappled (ith deepdisagree&ents about the definitions and de&ands of &orality. n

&any cases, (here &oral convictions are concerned, har&ony

a&ong those theoretically opposed is an insur&ountable goal./et herein lies the parado) - philosophical 0ustifications about

(hat is &oral are indispensable and yet at the sa&e ti&e

po(erless to create agree&ent. 'his Court recognies, ho(ever,

that practical solutions are preferable to ideological stale&ates2acco&&odation is better than intransigence2 reason &ore (orthy

than rhetoric. 'his (ill allo( persons of diverse vie(points to

live together, if not har&oniously, then, at least, civilly.

$actual Bac+ground

'his is a Petition for Certiorariunder Rule 34 of the Rules of

Court, (ith an application for a (rit of preli&inary &andatoryin0unction, filed by Ang Ladlad 56B' Party 7Ang Ladlad8

against the Resolutions of the Co&&ission on Elections7C"9E5EC8 dated Nove&ber 11, :;;


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!yste& Act.

Ang Ladlad is an organiation co&posed of &en and (o&en

(ho identify the&selves as lesbians, gays, bise)uals, or trans>gendered individuals 756B's8. ncorporated in :;;=, Ang

Ladlad first applied for registration (ith the C"9E5EC in

:;;3. 'he application for accreditation (as denied on theground that the organiation had no substantial &e&bership

base. "n August 1, :;;represented sector that is

particularly disadvantaged because of their se)ual orientationand gender identity.

and proceeded to define se)ual orientation as that (hich

) ) ) refers to a person@s capacity for profound e&otional,affectional and se)ual attraction to, and inti&ate and se)ual

relations (ith, individuals of a different gender, of the sa&e

gender, or &ore than one gender.F

'his definition of the 56B' sector &a+es it crystal clear that

petitioner tolerates i&&orality (hich offends religious beliefs.

n Ro&ans 1:3, :, Paul (rote

$or this cause 6od gave the& up into vile affections, for even

their (o&en did change the natural use into that (hich is against

nature And li+e(ise also the &en, leaving the natural use of the(o&an, burned in their lust one to(ard another2 &en (ith &en

(or+ing that (hich is unsee&ly, and receiving in the&selves

that reco&pense of their error (hich (as &eet.

n the Goran, the hereunder verses are pertinent

$or ye practice your lusts on &en in preference to (o&en Fye

are indeed a people transgressing beyond bounds.F 7.?18 FAnd(e rained do(n on the& a sho(er 7of bri&stone8 'hen see (hat

(as the end of those (ho indulged in sin and cri&eHF 7?8 Fe

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said F" &y 5ordH elp 'hou &e against people (ho do

&ischiefF 7:


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public order, &orals, good custo&s,established policies, la(ful

orders, decrees and edicts.

=. 'hose (ho shall sell, give a(ay or e)hibit fil&s, prints,engravings, sculpture or literature (hich are offensive to &orals.

Petitioner should li+e(ise be denied accreditation not only for

advocating i&&oral doctrines but li+e(ise for not being truthful(hen it said that it For any of its no&ineesKparty>list

representatives have not violated or failed to co&ply (ith la(s,

rules, or regulations relating to the elections.F

$urther&ore, should this Co&&ission grant the petition, (e (ill

be e)posing our youth to an environ&ent that does not confor&to the teachings of our faith. 5eh&an !trauss, a fa&ous bibleteacher and (riter in the .!.A. said in one article that Folder

practicing ho&ose)uals are a threat to the youth.F As an agency

of the govern&ent, ours too is the !tate@s avo(ed duty under!ection 1=, Article of the Constitution to protect our youth

fro& &oral and spiritual degradation.?

henAng Ladladsought reconsideration,representation and &arginaliation, it cannot be said that

5adlad@s e)pressed se)ual orientations per se (ould benefit the

nation as a (hole.

!ection : of the party>list la( uneuivocally states that the

purpose of the party>list syste& of electing congressional

representatives is to enable $ilipino citiens belonging to&arginalied and under>represented sectors, organiations and

parties, and (ho lac+ (ell>defined political constituencies but

(ho could contribute to the for&ulation and enact&ent ofappropriate legislation that (ill benefit the nation as a (hole, to

beco&e &e&bers of the ouse of Representatives.

f entry into the party>list syste& (ould depend only on theability of an organiation to represent its constituencies, then all

representative organiations (ould have found the&selves into

the party>list race. But that is not the intention of the fra&ers of

the la(. 'he party>list syste& is not a tool to advocate toleranceand acceptance of &isunderstood persons or groups of persons.

Rather, the party>list syste& is a tool for the realiation ofaspirations of &arginalied individuals (hose interests are alsothe nation@s - only that their interests have not been brought to

the attention of the nation because of their under representation.

ntil the ti&e co&es (hen 5adlad is able to 0ustify that having&i)ed se)ual orientations and transgender identities is beneficial

to the nation, its application for accreditation under the party>list

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syste& (ill re&ain 0ust that.

. No substantial differentiation

n the nited !tates, (hose eual protection doctrine pervadesPhilippine 0urisprudence, courts do not recognie lesbians, gays,

ho&ose)uals, and bise)uals 756B'8 as a Fspecial classF of

individuals. ) ) ) !ignificantly, it has also been held thatho&ose)uality is not a constitutionally protected funda&ental

right, and that Fnothing in the .!. Constitution discloses a

co&parable intent to protect or pro&ote the social or legaleuality of ho&ose)ual relations,F as in the case of race or

religion or belief.

) ) ) )

'hus, even if society@s understanding, tolerance, and acceptance

of 56B'@s is elevated, there can be no denying that 5adlad

constituencies are still &ales and fe&ales, and they (ill re&aineither &ale or fe&ale protected by the sa&e Bill of Rights that

applies to all citiens ali+e.

) ) ) )

L. Public 9orals

) ) ) 'here is no uestion about not i&posing on 5adlad

Christian or 9usli& religious practices. Neither is there anyatte&pt to any particular religious group@s &oral rules on

5adlad. Rather, (hat are being adopted as &oral para&eters and

precepts are generally accepted public &orals. 'hey are possibly

religious>based, but as a society, the Philippines cannot ignore its

&ore than 4;; years of 9usli& and Christian upbringing, such

that so&e &oral precepts espoused by said religions have sipped#sic% into society and these are not publicly accepted &oral

nor&s.

L. 5egal Provisions

But above &orality and social nor&s, they have beco&e part of

the la( of the land. Article :;1 of the Revised Penal Codei&poses the penalty of prision &ayor upon F'hose (ho shall

publicly e)pound or proclai& doctrines openly contrary to

public &orals.F t penalies Fi&&oral doctrines, obscenepublications and e)hibition and indecent sho(s.F FAng 5adladF

apparently falls under these legal provisions. 'his is clear fro&

its Petition@s paragraph 3$ FConsensual partnerships or

relationships by gays and lesbians (ho are already of age@ t isfurther indicated in par. : of the Petition (hich (aves for the

record In :;;, 9en aving !e) (ith 9en or 9!9s in the

Philippines (ere esti&ated as 3;,;;;. 9oreoever, Article 3


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previously announced that it (ould begin printing the final

ballots for the 9ay :;1; elections by *anuary :4, :;1;.

"n *anuary 3, :;1;, (e ordered the "ffice of the !olicitor6eneral 7"!68 to file its Co&&ent on behalf of C"9E5EC not

later than 1:;; noon of *anuary 11, :;1;.11nstead of filing a

Co&&ent, ho(ever, the "!6 filed a 9otion for E)tension,reuesting that it be given until *anuary 13, :;1; to Co&&ent.1:

!o&e(hat surprisingly, the "!6 later filed a Co&&ent in

support of petitioner@s application.1= 'hus, in order to giveC"9E5EC the opportunity to fully ventilate its position, (e

reuired it to file its o(n co&&ent.1'he C"9E5EC, through

its 5a( Depart&ent, filed its Co&&ent on $ebruary :, :;1;.14

n the &eanti&e, due to the urgency of the petition, (e issued a

te&porary restraining order on *anuary 1:, :;1;, effective

i&&ediately and continuing until further orders fro& this Court,

directing the C"9E5EC to cease and desist fro& i&ple&entingthe Assailed Resolutions.13

Also, on *anuary 1=, :;1;, the Co&&ission on u&an Rights

7CR8 filed a 9otion to ntervene or to Appear as A&icusCuriae, attaching thereto its Co&&ent>in>ntervention.1 'he

CR opined that the denial of Ang Ladladspetition on &oralgrounds violated the standards and principles of theConstitution, the niversal Declaration of u&an Rights

7DR8, and the nternational Covenant on Civil and Political

Rights 7CCPR8. "n *anuary 1


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and RA


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the follo(ing 56B' net(or+sF

M Abra 6ay Association

M A+lan Butterfly Brigade 7ABB8 - A+lan

M Albay 6ay Association

M Arts Center of Cabanatuan City - Nueva Eci0a

M Boys 5egion - 9etro 9anila

M Cagayan de "ro People 5i+e s 7CD" P5!8

M Can@t 5ive in the Closet, nc. 7C5C8 - 9etro 9anila

M Cebu Pride - Cebu City

M Circle of $riends

M Dipolog 6ay Association - a&boanga del Norte

M 6ay, Bise)ual, O 'ransgender /outh Association 76ABA/8

M 6ay and 5esbian Activists Net(or+ for 6ender Euality

76A5AN68 - 9etro 9anila

M 6ay 9en@s !upport 6roup 769!68 - 9etro 9anila

M 6ay nited for Peace and !olidarity 76P!8 - 5anao del

Norte

M loilo City 6ay Association - loilo City

M Gabulig riter@s 6roup - Ca&arines !ur

M 5esbian Advocates Philippines, nc. 75EAP8

M 59NA - Baguio City

M 9ari+ina 6ay Association - 9etro 9anila

M 9etropolitan Co&&unity Church 79CC8 - 9etro 9anila

M Naga City 6ay Association - Naga City

M "NE BACARD

M "rder of !t. Aelred 7"!Ae8 - 9etro 9anila

M PP 5AGAN

M RADAR PRDEEAR

M Rainbo( Rights Pro0ect 7R>Rights8, nc. - 9etro 9anila

M !an *ose del 9onte 6ay Association - Bulacan

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e)istence, no(here in therecords has the respondent ever foundKruled thatAng Ladlad is

not ualified to register as a party>list organiation under any of

the reuisites under RA


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religious progra&s or agenda. 'he non>believers (ould therefore

be co&pelled to confor& to a standard of conduct buttressed by

a religious belief, i.e., to a Fco&pelled religion,F anathe&a to

religious freedo&. 5i+e(ise, if govern&ent based its actionsupon religious beliefs, it (ould tacitly approve or endorse that

belief and thereby also tacitly disapprove contrary religious ornon>religious vie(s that (ould not support the policy. As a

result, govern&ent (ill not provide full religious freedo& for all

its citiens, or even &a+e it appear that those (hose beliefs are

disapproved are second>class citiens.(avv'&i(

n other (ords, govern&ent action, including its proscription of

i&&orality as e)pressed in cri&inal la( li+e concubinage, &ust

have a secular purpose. 'hat is, the govern&ent proscribes thisconduct because it is Fdetri&ental 7or dangerous8 to those

conditions upon (hich depend the e)istence and progress of

hu&an societyF and not because the conduct is proscribed by thebeliefs of one religion or the other. Although ad&ittedly, &oral

0udg&ents based on religion &ight have a co&pelling influence

on those engaged in public deliberations over (hat actions(ould be considered a &oral disapprobation punishable by la(.

After all, they &ight also be adherents of a religion and thus

have religious opinions and &oral codes (ith a co&pelling

influence on the&2 the hu&an &ind endeavors to regulate thete&poral and spiritual institutions of society in a unifor&

&anner, har&oniing earth (ith heaven. !uccinctly put, a la(could be religious or Gantian or Auinian or utilitarian in its

deepest roots, but it &ust have an articulable and discernible

secular purpose and 0ustification to pass scrutiny of the religionclauses. ) ) ) Recogniing the religious nature of the $ilipinos

and the elevating influence of religion in society, ho(ever, the

Philippine constitutionQs religion clauses prescribe not a strict but

a benevolent neutrality. Benevolent neutrality recognies that

govern&ent &ust pursue its secular goals and interests but at the

sa&e ti&e strive to uphold religious liberty to the greatest e)tentpossible (ithin fle)ible constitutional li&its. 'hus, although the

&orality conte&plated by la(s is secular, benevolent neutralitycould allo( for acco&&odation of &orality based on religion,

provided it does not offend co&pelling state interests.:

ublic )orals as a #round to $eny Ang Ladlads etition for

%egistration

Respondent suggests that although the &oral conde&nation of

ho&ose)uality and ho&ose)ual conduct &ay be religion>based,it has long been transplanted into generally accepted public

&orals. 'he C"9E5EC argues

Petitioner@s accreditation (as denied not necessarily becausetheir group consists of 56B's but because of the danger it poses

to the people especially the youth. "nce it is recognied by the

govern&ent, a sector (hich believes that there is nothing (rong

in having se)ual relations (ith individuals of the sa&e gender isa bad e)a&ple. t (ill bring do(n the standard of &orals (e

cherish in our civilied society. Any society (ithout a set of&oral precepts is in danger of losing its o(n e)istence.:?

e are not blind to the fact that, through the years, ho&ose)ual

conduct, and perhaps ho&ose)uals the&selves, have borne the

brunt of societal disapproval. t is not difficult to i&agine thereasons behind this censure - religious beliefs, convictions about

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the preservation of &arriage, fa&ily, and procreation, even

disli+e or distrust of ho&ose)uals the&selves and their

perceived lifestyle. Nonetheless, (e recall that the Philippines

has not seen fit to cri&inalie ho&ose)ual conduct. Evidently,therefore, these Fgenerally accepted public &oralsF have not

been convincingly transplanted into the real& of la(.:list syste& on the sa&e basis as other political

parties si&ilarly situated. !tate intrusion in this case is euallyburdenso&e. ence, la(s of general application should apply

(ith eual force to 56B's, and they deserve to participate in the

party>list syste& on the sa&e basis as other &arginalied and

under>represented sectors.

t bears stressing that our finding that C"9E5EC@s act of

differentiating 56B's fro& heterose)uals insofar as the party>list syste& is concerned does not i&ply that any other la(

distinguishing bet(een heterose)uals and ho&ose)uals under

different circu&stances (ould si&ilarly fail. e disagree (iththe "!6@s position that ho&ose)uals are a class in the&selves

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for the purposes of the eual protection clause.=? e are not

prepared to single out ho&ose)uals as a separate class &eriting

special or differentiated treat&ent. e have not received

sufficient evidence to this effect, and it is si&ply unnecessary to&a+e such a ruling today. Petitioner itself has &erely de&anded

that it be recognied under the sa&e basis as all other groupssi&ilarly situated, and that the C"9E5EC &ade Fan

un(arranted and i&per&issible classification not 0ustified by the

circu&stances of the case.F

Freedo! of E+'ression and Association

nder our syste& of la(s, every group has the right to pro&ote

its agenda and atte&pt to persuade society of the validity of itsposition through nor&al de&ocratic &eans.=denying ordinance. t

pro&ises not to do (hat it other(ise could do to ride roughshodover the dissenting &inorities.

$reedo& of e)pression constitutes one of the essential

foundations of a de&ocratic society, and this freedo& applies notonly to those that are favorably received but also to those that

offend, shoc+, or disturb. Any restriction i&posed in this sphere

&ust be proportionate to the legiti&ate ai& pursued. Absent anyco&pelling state interest, it is not for the C"9E5EC or this

Court to i&pose its vie(s on the populace. "ther(ise stated, the

C"9E5EC is certainly not free to interfere (ith speech for nobetter reason than pro&oting an approved &essage or

discouraging a disfavored one.

'his position gains even &ore force if one considers thatho&ose)ual conduct is not illegal in this country. t follo(s that

both e)pressions concerning one@s ho&ose)uality and the

activity of for&ing a political association that supports 56B'individuals are protected as (ell.

"ther 0urisdictions have gone so far as to categorically rule that

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even over(hel&ing public perception that ho&ose)ual conduct

violates public &orality does not 0ustify cri&inaliing sa&e>se)

conduct.1European and nited Nations 0udicial decisions have

ruled in favor of gay rights clai&ants on both privacy andeuality grounds, citing general privacy and eual protection

provisions in foreign and international te)ts.:'o the e)tent thatthere is &uch to learn fro& other 0urisdictions that have reflected

on the issues (e face here, such 0urisprudence is certainly

illu&inating. 'hese foreign authorities, (hile not for&ally

binding on Philippine courts, &ay nevertheless have persuasiveinfluence on the Court@s analysis.

n the area of freedo& of e)pression, for instance, nited !tates

courts have ruled that e)isting free speech doctrines protect gayand lesbian rights to e)pressive conduct. n order to 0ustify the

prohibition of a particular e)pression of opinion, public

institutions &ust sho( that their actions (ere caused byFso&ething &ore than a &ere desire to avoid the disco&fort and

unpleasantness that al(ays acco&pany an unpopular

vie(point.F=

ith respect to freedo& of association for the advance&ent of

ideas and beliefs, in Europe, (ith its vibrant hu&an rights

tradition, the European Court of u&an Rights 7ECR8 hasrepeatedly stated that a political party &ay ca&paign for a

change in the la( or the constitutional structures of a state if it

uses legal and de&ocratic &eans and the changes it proposes areconsistent (ith de&ocratic principles. 'he ECR has

e&phasied that political ideas that challenge the e)isting order

and (hose realiation is advocated by peaceful &eans &ust beafforded a proper opportunity of e)pression through the e)ercise

of the right of association, even if such ideas &ay see& shoc+ing

or unacceptable to the authorities or the &a0ority of the

population.A political group should not be hindered solely

because it see+s to publicly debate controversial political issuesin order to find solutions capable of satisfying everyone

concerned.4"nly if a political party incites violence or putsfor(ard policies that are inco&patible (ith de&ocracy does it

fall outside the protection of the freedo& of association

guarantee.3

e do not doubt that a nu&ber of our citiens &ay believe that

ho&ose)ual conduct is distasteful, offensive, or even defiant.

'hey are entitled to hold and e)press that vie(. "n the other

hand, 56B's and their supporters, in all li+elihood, believe (itheual fervor that relationships bet(een individuals of the sa&e

se) are &orally euivalent to heterose)ual relationships. 'hey,

too, are entitled to hold and e)press that vie(. o(ever, as far asthis Court is concerned, our de&ocracy precludes using the

religious or &oral vie(s of one part of the co&&unity to

e)clude fro& consideration the values of other &e&bers of theco&&unity.

"f course, none of this suggests the i&pending arrival of a

golden age for gay rights litigants. t (ell &ay be that thisDecision (ill only serve to highlight the discrepancy bet(een

the rigid constitutional analysis of this Court and the &ore

co&ple) &oral senti&ents of $ilipinos. e do not suggest thatpublic opinion, even at its &ost liberal, reflect a clear>cut strong

consensus favorable to gay rights clai&s and (e neither atte&pt

nor e)pect to affect individual perceptions of ho&ose)ualitythrough this Decision.

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'he "!6 argues that since there has been neither prior restraint

nor subseuent punish&ent i&posed on Ang Ladlad, and its

&e&bers have not been deprived of their right to voluntarily

associate, then there has been no restriction on their freedo& ofe)pression or association. 'he "!6 argues that

'here (as no utterance restricted, no publication censored, orany asse&bly denied. #C"9E5EC% si&ply e)ercised its

authority to revie( and verify the ualifications of petitioner as a

sectoral party applying to participate in the party>list syste&.'his la(ful e)ercise of duty cannot be said to be a transgression

of !ection , Article of the Constitution.

) ) ) )

A denial of the petition for registration ) ) ) does not deprive the

&e&bers of the petitioner to freely ta+e part in the conduct of

elections. 'heir right to vote (ill not be ha&pered by saiddenial. n fact, the right to vote is a constitutionally>guaranteed

right (hich cannot be li&ited.

As to its right to be elected in a genuine periodic election,petitioner contends that the denial of Ang 5adlad@s petition has

the clear and i&&ediate effect of li&iting, if not outrightlynullifying the capacity of its &e&bers to fully and eually

participate in public life through engage&ent in the party listelections.

'his argu&ent is puerile. 'he holding of a public office is not a

right but a privilege sub0ect to li&itations i&posed by la(. ) )

)

'he "!6 fails to recall that petitioner has, in fact, established its

ualifications to participate in the party>list syste&, and - asadvanced by the "!6 itself - the &oral ob0ection offered by the

C"9E5EC (as not a li&itation i&posed by la(. 'o the e)tent,

therefore, that the petitioner has been precluded, because ofC"9E5EC@s action, fro& publicly e)pressing its vie(s as a

political party and participating on an eual basis in the political

process (ith other eually>ualified party>list candidates, (efind that there has, indeed, been a transgression of petitioner@s

funda&ental rights.

Non>Discri&ination and nternational 5a(

n an age that has seen international la( evolve geo&etrically in

scope and pro&ise, international hu&an rights la(, in particular,

has gro(n dyna&ically in its atte&pt to bring about a &ore 0ustand hu&ane (orld order. $or individuals and groups struggling

(ith inadeuate structural and govern&ental support,

international hu&an rights nor&s are particularly significant, and

should be effectively enforced in do&estic legal syste&s so thatsuch nor&s &ay beco&e actual, rather than ideal, standards of

conduct.

"ur Decision today is fully in accord (ith our internationalobligations to protect and pro&ote hu&an rights. n particular,

(e e)plicitly recognie the principle of non>discri&ination as it

relates to the right to electoral participation, enunciated in theDR and the CCPR.

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'he principle of non>discri&ination is laid out in Article :3 of

the CCPR, as follo(s

Ar"i+le 2

All persons are eual before the la( and are entitled (ithout any

discri&ination to the eual protection of the la(. n this respect,

the la( shall prohibit any discri&ination and guarantee to allpersons eual and effective protection against discri&ination on

any ground such as race, colour, se), language, religion, political

or other opinion, national or social origin, property, birth orother status.

n this conte)t, the principle of non>discri&ination reuires thatla(s of general application relating to elections be appliedeually to all persons, regardless of se)ual orientation. Although

se)ual orientation is not specifically enu&erated as a status or

ratio for discri&ination in Article :3 of the CCPR, the CCPRu&an Rights Co&&ittee has opined that the reference to Fse)F

in Article :3 should be construed to include Fse)ual

orientation.F?Additionally, a variety of nited Nations bodies

have declared discri&ination on the basis of se)ual orientation tobe prohibited under various international agree&ents.in>ntervention, the scope

of the right to electoral participation is elaborated by the u&anRights Co&&ittee in its 6eneral Co&&ent No. :4 7Participation

in Public Affairs and the Right to Lote8 as follo(s

1. Article :4 of the Covenant recognies and protects the right ofevery citien to ta+e part in the conduct of public affairs, the

right to vote and to be elected and the right to have access to

public service. hatever for& of constitution or govern&ent isin force, the Covenant reuires !tates to adopt such legislative

and other &easures as &ay be necessary to ensure that citiens

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have an effective opportunity to en0oy the rights it protects.

Article :4 lies at the core of de&ocratic govern&ent based on

the consent of the people and in confor&ity (ith the principles

of the Covenant.

) ) ) )

14. 'he effective i&ple&entation of the right and the opportunityto stand for elective office ensures that persons entitled to vote

have a free choice of candidates. Any restrictions on the right to

stand for election, such as &ini&u& age, &ust be 0ustifiable onob0ective and reasonable criteria. Persons (ho are other(ise

eligible to stand for election should not be e)cluded by

unreasonable or discri&inatory reuire&ents such as education,residence or descent, or by reason of political affiliation. No

person should suffer discri&ination or disadvantage of any +ind

because of that personQs candidacy. !tates parties should indicate

and e)plain the legislative provisions (hich e)clude any groupor category of persons fro& elective office.4;

e stress, ho(ever, that although this Court stands (illing to

assu&e the responsibility of giving effect to the Philippines@international la( obligations, the blan+et invocation of

international la( is not the panacea for all social ills. e referno( to the petitioner@s invocation of the /ogya+arta Principles7the Application of nternational u&an Rights 5a( n Relation

to !e)ual "rientation and 6ender dentity8,41 (hich petitioner

declares to reflect binding principles of international la(.

At this ti&e, (e are not prepared to declare that these

,ogyaarta rinci'lescontain nor&s that are obligatory on the

Philippines. 'here are declarations and obligations outlined in

said Principles (hich are not reflective of the current state of

international la(, and do not find basis in any of the sources ofinternational la( enu&erated under Article =?718 of the !tatute

of the nternational Court of *ustice.4: Petitioner has notunderta+en any ob0ective and rigorous analysis of these alleged

principles of international la( to ascertain their true status.

e also hasten to add that not everything that society - or acertain seg&ent of society - (ants or de&ands is auto&atically a

hu&an right. 'his is not an arbitrary hu&an intervention that

&ay be added to or subtracted fro& at (ill. t is unfortunate that

&uch of (hat passes for hu&an rights today is a &uch broaderconte)t of needs that identifies &any social desires as rights in

order to further clai&s that international la( obliges states to

sanction these innovations. 'his has the effect of diluting realhu&an rights, and is a result of the notion that if F(antsF are

couched in FrightsF language, then they are no longer

controversial.(avv'&i(

sing even the &ost liberal of lenses, these ,ogyaarta

rinci'les, consisting of a declaration for&ulated by various

international la( professors, are - at best - de lege ferenda - anddo not constitute binding obligations on the Philippines. ndeed,

so &uch of conte&porary international la( is characteried by

the Fsoft la(F no&enclature, i.e., international la( is full ofprinciples that pro&ote international cooperation, har&ony, and

respect for hu&an rights, &ost of (hich a&ount to no &ore than

(ell>&eaning desires, (ithout the support of either !tatepractice or opinio 0uris.4=

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1?

As a final note, (e cannot help but observe that the social issues

presented by this case are e&otionally charged, societal attitudes

are in flu), even the psychiatric and religious co&&unities are

divided in opinion. 'his Court@s role is not to i&pose its o(nvie( of acceptable behavior. Rather, it is to apply the

Constitution and la(s as best as it can, uninfluenced by publicopinion, and confident in the +no(ledge that our de&ocracy is

resilient enough to (ithstand vigorous debate.

-ERE/ORE, the Petition is hereby GRANTED. 'heResolutions of the Co&&ission on Elections dated Nove&ber

11, :;;< and Dece&ber 13, :;;< in !PP No. ;::? 7P58 are

hereby SET AS(DE. 'he Co&&ission on Elections is directed

to GRANTpetitioner@s application for party>list accreditation.

!" "RDERED.

MAR(ANO C. DEL CAST(LLO

Associate *ustice

ANG LADLAD S. COMELEC

/'+"

Petitioner is a national organiation (hich represents the

lesbians, gays, bise)uals, and trans>genders. t filed a petition for

accreditation as a party>list organiation to public respondent.

o(ever, due to &oral grounds, the latter denied the said

petition. 'o buttress their denial, C"9E5EC cited certainbiblical and uranic passages in their decision. t also stated that

since their (ays are i&&oral and contrary to public policy, they

are considered nuissance. n fact, their acts are even punishable

under the Revised Penal Code in its Article :;1.

A &otion for reconsideration being denied, Petitioner filed this

instant Petition on Certiorari under Rule 34 of the R"C.Ang 5adlad argued that the denial of accreditation, insofar as it

0ustified the e)clusion by using religious dog&a, violated the

constitutional guarantees against the establish&ent of religion.

Petitioner also clai&ed that the Assailed Resolutions

contravened its constitutional rights to privacy, freedo& of

speech and asse&bly, and eual protection of la(s, as (ell as

constituted violations of the Philippines@ international

obligations against discri&ination based on se)ual orientation.

n its Co&&ent, the C"9E5EC reiterated that petitioner does

not have a concrete and genuine national political agenda to

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19/85

16.R. !P No.= reversing the decision of the National 5abor Relations

Co&&ission 7N5RC8 (hich affir&ed the ruling of the 5abor

Arbiter.

Petitioner !tar Paper Corporation 7the co&pany8 is a corporation

engaged in trading - principally of paper products. *osephine

"ngsitco is its 9anager of the Personnel and Ad&inistrationDepart&ent (hile !ebastian Chua is its 9anaging Director.

'he evidence for the petitioners sho( that respondents RonaldoD. !i&bol 7!i&bol8, ilfreda N. Co&ia 7Co&ia8 and 5orna E.Estrella 7Estrella8 (ere all regular e&ployees of the co&pany.1

!i&bol (as e&ployed by the co&pany on "ctober :, 1


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course of their e&ploy&ent and then decided to get &arried, one

of the& should resign to preserve the policy stated above.=

!i&bol resigned on *une :;, 1


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==

for it covers hiring, (or+ assign&ent, (or+ing &ethod, ti&e,

place and &anner of (or+, tools to be used, processes to be

follo(ed, supervision of (or+ers, (or+ing regulations, transferof e&ployees, (or+ supervision, lay>off of (or+ers and the

discipline, dis&issal and recall of (or+ers. E)cept as providedfor or li&ited by special la(, an e&ployer is free to regulate,according to his o(n discretion and 0udg&ent all the aspects of

e&ploy&ent.


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activities, including the right to stri+e in accordance (ith la(.

'hey shall be entitled to security of tenure, hu&ane conditions

of (or+, and a living (age. 'hey shall also participate in policyand decision>&a+ing processes affecting their rights and benefits

as &ay be provided by la(.

'he !tate shall pro&ote the principle of shared responsibilitybet(een (or+ers and e&ployers, recogniing the right of labor

to its 0ust share in the fruits of production and the right of

enterprises to reasonable returns on invest&ents, and toe)pansion and gro(th.

'he Civil Code li+e(ise protects labor (ith the follo(ing

provisions

Art. 1;;. 'he relation bet(een capital and labor are not &erely

contractual. 'hey are so i&pressed (ith public interest that labor

contracts &ust yield to the co&&on good. 'herefore, suchcontracts are sub0ect to the special la(s on labor unions,

collective bargaining, stri+es and loc+outs, closed shop, (ages,

(or+ing conditions, hours of labor and si&ilar sub0ects.

Art. 1;:. n case of doubt, all labor legislation and all labor

contracts shall be construed in favor of the safety and decentliving for the laborer.

'he 5abor Code is the &ost co&prehensive piece of legislation

protecting labor. 'he case at bar involves Article 1=3 of the

5abor Code (hich provides

Art. 1=3. t shall be unla(ful for an e&ployer to reuire as a

condition of e&ploy&ent or continuation of e&ploy&ent that a

(o&an e&ployee shall not get &arried, or to stipulate e)presslyor tacitly that upon getting &arried a (o&an e&ployee shall be

dee&ed resigned or separated, or to actually dis&iss, discharge,discri&inate or other(ise pre0udice a (o&an e&ployee &erelyby reason of her &arriage.

Respondents sub&it that their dis&issal violates the above

provision. Petitioners allege that its policy F&ay appear to becontrary to Article 1=3 of the 5abor CodeF but it assu&es a ne(

&eaning if read together (ith the first paragraph of the rule. 'he

rule does not reuire the (o&an e&ployee to resign. 'he

e&ployee spouses have the right to choose (ho bet(een the&

should resign. $urther, they are free to &arry persons other thanco>e&ployees. ence, it is not the &arital status of the

e&ployee,'er se, that is being discri&inated. t is only intendedto carry out its no>e&ploy&ent>for>relatives>(ithin>the>third>

degree>policy (hich is (ithin the a&bit of the prerogatives of

&anage&ent.13

t is true that the policy of petitioners prohibiting close relatives

fro& (or+ing in the sa&e co&pany ta+es the nature of an anti>

nepotis& e&ploy&ent policy. Co&panies adopt these policies to

prevent the hiring of unualified persons based on their status asa relative, rather than upon their ability.1'hese policies focus

upon the potential e&ploy&ent proble&s arising fro& theperception of favoritis& e)hibited to(ards relatives.

ith &ore (o&en entering the (or+force, e&ployers are also

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enacting e&ploy&ent policies specifically prohibiting spouses

fro& (or+ing for the sa&e co&pany. e note that t(o types of

e&ploy&ent policies involve spouses policies banning onlyspouses fro& (or+ing in the sa&e co&pany !o4po)e

eplo&e!" poli+ie:, and those banning all i&&ediate fa&ily&e&bers, including spouses, fro& (or+ing in the sa&e co&pany

'!"i4!epo"i eplo&e!" poli+ie:.1?

nli+e in our 0urisdiction (here there is no e)press prohibition

on &arital discri&ination,1

spouse policies violate their la(s prohibiting both &arital status

and se) discri&ination.

n challenging the anti>nepotis& e&ploy&ent policies in the

nited !tates, co&plainants utilie t(o theories of e&ploy&ent

discri&ination the #ip'r'"e "re'"e!" and the #ip'r'"eip'+". nder the #ip'r'"e "re'"e!" '!'l&i, the plaintiff

&ust prove that an e&ploy&ent policy is discri&inatory on its

face. No>spouse e&ploy&ent policies reuiring an e&ployee ofa p'r"i+)l'r e; to either uit, transfer, or be fired are facially

discri&inatory. $or e)a&ple, an e&ploy&ent policy prohibiting

the e&ployer fro& hiring (ives of &ale e&ployees, but not

husbands of fe&ale e&ployees, is discri&inatory on its face.::

"n the other hand, to establish #ip'r'"e ip'+", the

co&plainants &ust prove that a facially neutral policy has adisproportionate effect on a particular class. $or e)a&ple,

although &ost e&ploy&ent policies do not e)pressly indicate

(hich spouse (ill be reuired to transfer or leave the co&pany,

the policy often disproportionately affects one se).:=

'he state courts@ rulings on the issue depend on their

interpretation of the scope of &arital status discri&ination (ithinthe &eaning of their respective civil rights acts. 'hough they

agree that the ter& F&arital statusF enco&passes discri&inationbased on a personQs status as either &arried, single, divorced, or

(ido(ed, they are divided on (hether the ter& has a %ro'#er

&eaning. 'hus, their decisions vary.:

'he courts !'rrospouse

e&ploy&ent policies based on the broad legislative intent of the

state statute. 'hey reason that the no>spouse e&ploy&ent policyviolate the &arital status provision because it arbitrarily

discri&inates against all spouses of present e&ployees (ithout

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regard to the actual effect on the individualQs ualifications or

(or+ perfor&ance.: 'hese courts also find the no>spouse

e&ploy&ent policy invalid for failure of the e&ployer to presentany evidence of %)i!e !e+ei"& other than the general

perception that spouses in the sa&e (or+place &ight adverselyaffect the business.:?'hey hold that the absence of such a %o!'

=i#e o++)p'"io!'l >)'li=i+'"io!:


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or B$", (here the particular reuire&ents of the 0ob (ould

0ustify the sa&e, but not on the ground of a general principle,

such as the desirability of spreading (or+ in the (or+place. Areuire&ent of that nature (ould be valid provided it reflects an

inherent uality re'o!'%l& !e+e'r& for satisfactory 0obperfor&ance.=7E!'&ases su''lied.8

'he cases of D)!+'!and PTTinstruct us that the reuire&ent

of reasonableness &ust be +le'rl& established to uphold the

uestioned e&ploy&ent policy. 'he e&ployer has the burden toprove the e)istence of a reasonable business necessity. 'he

burden (as successfully discharged in Duncan but not in P'O'.

e do not find a reasonable business necessity in the case at bar.

Petitioners@ sole contention that Fthe co&pany did not 0ust (ant

to have t(o 7:8 or &ore of its e&ployees related bet(een the

third degree by affinity andKor consanguinityF=?is la&e. 'hat thesecond paragraph (as &eant to give teeth to the first paragraph

of the uestioned rule=e&ployee. Petitioners failed to

sho( ho( the &arriage of !i&bol, then a !heeting 9achine"perator, to Al&a Dayrit, then an e&ployee of the Repac+ing

!ection, could be detri&ental to its business operations. Neither

did petitioners e)plain ho( this detri&ent (ill happen in thecase of ilfreda Co&ia, then a Production elper in the

!electing Depart&ent, (ho &arried o(ard Co&ia, then a

helper in the cutter>&achine. 'he policy is pre&ised on the &ere

fear that e&ployees &arried to each other (ill be less efficient.f (e uphold the uestioned rule (ithout valid 0ustification, the

e&ployer can create policies based on an unproven presu&ptionof a perceived danger at the e)pense of an e&ployee@s right tosecurity of tenure.

Petitioners contend that their policy (ill apply only (hen one

e&ployee &arries a co>e&ployee, but they are free to &arrypersons other than co>e&ployees. 'he uestioned policy &ay not

facially violate Article 1=3 of the 5abor Code but it creates a

disproportionate effect and under the disparate i&pact theory, the

only (ay it could pass 0udicial scrutiny is a sho(ing that it is

re'o!'%le despite the discri&inatory, albeit disproportionate,effect. 'he failure of petitioners to prove a legiti&ate business

concern in i&posing the uestioned policy cannot pre0udice thee&ployee@s right to be free fro& arbitrary discri&ination based

upon stereotypes of &arried persons (or+ing together in one

co&pany.;

5astly, the absence of a statute e)pressly prohibiting &arital

discri&ination in our 0urisdiction cannot benefit the petitioners.

'he protection given to labor in our 0urisdiction is vast and

e)tensive that (e cannot prudently dra( inferences fro& thelegislature@s silence1 that &arried persons are not protected

under our Constitution and declare valid a policy based on apre0udice or stereotype. 'hus, for failure of petitioners to present

undisputed proof of a reasonable business necessity, (e rule that

the uestioned policy is an invalid e)ercise of &anage&entprerogative. Corollarily, the issue as to (hether respondents

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=?

!i&bol and Co&ia resigned voluntarily has beco&e &oot and

acade&ic.

As to respondent Estrella, the 5abor Arbiter and the N5RC

based their ruling on the singular fact that her resignation letter(as (ritten in her o(n hand(riting. Both ruled that her

resignation (as voluntary and thus valid. 'he respondent courtfailed to categorically rule (hether Estrella voluntarily resigned

but ordered that she be reinstated along (ith !i&bol and Co&ia.

Estrella clai&s that she (as pressured to sub&it a resignationletter because she (as in dire need of &oney. e e)a&ined the

records of the case and find Estrella@s contention to be &ore in

accord (ith the evidence. hile findings of fact by

ad&inistrative tribunals li+e the N5RC are generally given notonly respect but, at ti&es, finality, this rule ad&its of

e)ceptions,:as in the case at bar.

Estrella avers that she (ent bac+ to (or+ on Dece&ber :1, 16.R. !P No. = dated August =, :;;

isA//(RMED.1avvphil.net

SO ORDERED.

REYNATO S. PUNO

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=called F9eiorin 'estF in deter&ining(hether an e&ploy&ent policy is 0ustified. nder this test, 718

the e&ployer &ust sho( that it adopted the standard for a

purpose rationally connected to the perfor&ance of the 0ob237:8the e&ployer &ust establish that the standard is reasonably

necessary34to the acco&plish&ent of that (or+>related purpose2

and 7=8 the e&ployer &ust establish that the standard is

reasonably necessary in order to acco&plish the legiti&ate (or+>

related purpose. !i&ilarly, in Star a'er Cor'oration v.Si!bol,33 this Court held that in order to 0ustify a B$", the

e&ployer &ust prove that 718 the e&ploy&ent ualification isreasonably related to the essential operation of the 0ob involved2

and 7:8 that there is factual basis for believing that all or

substantially all persons &eeting the ualification (ould beunable to properly perfor& the duties of the 0ob.3

n short, the test of reasonableness of the co&pany policy is used

because it is parallel to B$".3? B$" is valid Fprovided it

reflects an inherent uality reasonably necessary for satisfactory0ob perfor&ance.F3bodied cabin attendant is bloc+ing the narro(aisles. 'hese possibilities are not re&ote.

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Petitioner is also in estoppel. e does not dispute that the (eight

standards of PA5 (ere &ade +no(n to hi& prior to his

e&ploy&ent. e is presu&ed to +no( the (eight li&it that he&ust &aintain at all ti&es.?n fact, never did he uestion the

authority of PA5 (hen he (as repeatedly as+ed to tri& do(n his(eight. Bona fides e+igit ut *uod convenit fiat. 6ood faithde&ands that (hat is agreed upon shall be done.Kung ang taoay tapat kanyang tutuparin ang napagkasunduan.

'oo, the (eight standards of PA5 provide for separate (eightli&itations based on height and body fra&e for both &ale and

fe&ale cabin attendants. A progressive discipline is i&posed to

allo( non>co&pliant cabin attendants sufficient opportunity to

&eet the (eight standards. 'hus, the clear>cut rules obviate any

possibility for the co&&ission of abuse or arbitrary action on thepart of PA5.

(((. Pe"i"io!er ='ile# "o )%"'!"i'"e $i +l'i "$'" $e avoidance position that i&pliedly

ad&itted the cause of dis&issal, including the reasonableness ofthe applicable standard and the private respondent@s failure to

co&ply.F?; t is a basic rule in evidence that each party &ust

prove his affir&ative allegation.?1

!ince the burden of evidence lies (ith the party (ho asserts an

affir&ative allegation, petitioner has to prove his allegation (ith

particularity. 'here is nothing on the records (hich couldsupport the finding of discri&inatory treat&ent. Petitioner

cannot establish discri&ination by si&ply na&ing the supposedcabin attendants (ho are allegedly si&ilarly situated (ith hi&.

!ubstantial proof &ust be sho(n as to ho( and (hy they are

si&ilarly situated and the differential treat&ent petitioner gotfro& PA5 despite the si&ilarity of his situation (ith other

e&ployees.

ndeed, e)cept for pointing out the na&es of the supposed

over(eight cabin attendants, petitioner &iserably failed toindicate their respective ideal (eights2 (eights over their ideal

(eights2 the periods they (ere allo(ed to fly despite their being

over(eight2 the particular flights assigned to the&2 thediscri&inating treat&ent they got fro& PA52 and other relevant

data that could have adeuately established a case of

discri&inatory treat&ent by PA5. n the (ords of the CA, FPA5really had no substantial case of discri&ination to &eet.F?:

e are not un&indful that findings of facts of ad&inistrative

agencies, li+e the 5abor Arbiter and the N5RC, are accordedrespect, even finality.?= 'he reason is si&ple ad&inistrative

agencies are e)perts in &atters (ithin their specific and

specialied 0urisdiction.?But the principle is not a hard and fastrule. t only applies if the findings of facts are duly supported by

substantial evidence. f it can be sho(n that ad&inistrative

9AN R6'! 5A
http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt78http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt79http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt80http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt81http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt82http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt83http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt83http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt84http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt84http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt78http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt79http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt80http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt81http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt82http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt83http://www.lawphil.net/judjuris/juri2008/oct2008/gr_168081_2008.html#fnt84


54/85

4

bodies grossly &isappreciated evidence of such nature so as to

co&pel a conclusion to the contrary, their findings of facts &ust

necessarily be reversed. $actual findings of ad&inistrativeagencies do not have infallibility and &ust be set aside (hen

they fail the test of arbitrariness.

?4

ere, the 5abor Arbiter and the N5RC ine)plicably&isappreciated evidence. e thus annul their findings.

'o &a+e his clai& &ore believable, petitioner invo+es the eual

protection clause guaranty?3of the Constitution. o(ever, in theabsence of govern&ental interference, the liberties guaranteed

by the Constitution cannot be invo+ed.?Put differently, the Bill

of Rights is not &eant to be invo+ed against acts of private

individuals.??

ndeed, the nited !tates !upre&e Court, ininterpreting the $ourteenth A&end&ent,?e)ecutory and does not reuire a (rit of

e)ecution,


55/85

44

the order of reinstate&ent of the 5abor Arbiter is reversed on

appeal, it is obligatory on the part of the e&ployer to reinstate

and pay the (ages of the e&ployee during the period of appealuntil reversal by the higher court.F


56/85

43

/'+"6Petitioner (as a for&er international flight ste(ard of

PA5, herein respondent. Petitioner (as dis&issed because of his

failure to adhere to the (eight standards of the airline co&pany.

Petitioner clai&s that he (as illegally dis&issed.

()e6hether or not petitioner (as discri&inated against (hen

he (as dis&issed.

el#6 Petition denied. 'o &a+e his clai& &ore believable,

petitioner invo+es the eual protection clause guaranty of the

Constitution. o(ever, in the absence of govern&ental

interference, the liberties guaranteed by the Constitution cannot

be invo+ed. Put differently, the Bill of Rights is not &eant to be

invo+ed against acts of private individuals. ndeed, the !

!upre&e Court, in interpreting the 1th A&end&ent, (hich is

the source of our eual protection guarantee, is consistent in

saying that the eual protection erects no shield against private

conduct, ho(ever discri&inatory or (rongful. Private actions,

no &atter ho( egregious, cannot violate the eual protection

guarantee.

;ras)e()i %s. Pct. 17, 2003?

Facts:

&omp#ainant was an internationa# '#i(t stewar! wo was !ismisse!beca)se o' is 'ai#)re to a!ere to te wei(t stan!ar!s o' te air#inecompan".

ss)e:

@as te !ismissa# %a#i!A

e#!:

S& )pe#! te #e(a#it" o' !ismissa#. Separation pa", owe%er, so)#!be awar!e! in 'a%or o' te emp#o"ee as an act o' socia# B)stice orbase! on e)it". Tis is so beca)se is !ismissa# is not 'or serio)smiscon!)ct. Neiter is it re'#ecti%e o' is mora# caracter.

Te obesit" o' petitioner, wen p#ace! in te conte$t o' is wor as'#i(t atten!ant, becomes an ana#o(o)s ca)se )n!er rtic#e 2328e o'te


57/85

4

-mp#o"ment in partic)#ar Bobs ma" not be #imite! to persons o' apartic)#ar se$, re#i(ion, or nationa# ori(in )n#ess te emp#o"er cansow tat se$, re#i(ion, or nationa# ori(in is an act)a# )a#i'ication 'orper'ormin( te Bob.

A!u"ent t#at BFOQ i$ a $tatuto% defen$e "u$t fail

Te &onstit)tion,te half 71K:8&onth@s pay for every year of service

9AN R6'! 5A


58/85

4?

!PRE9E C"R' "$ 'E N'ED !'A'E!

YYYYYYYYYYYYYYYYY

Nos. 1-443, 1>43:, 1>41 and 1-4

YYYYYYYYYYYYYYYY

*A9E! "BER6E$E55, et al., PE''"NER!

1-443v.

RCARD "D6E!, DREC'"R, "" DEPAR'9EN' "$

EA5', et al.2

LA5ERA 'ANC", et al., PE''"NER!

1-43:v.

B55 A!5A9, 6"LERN"R "$ 'ENNE!!EE, et al.2

APR5 DeB"ER, et al., PE''"NER!

1-41v.

RCG !N/DER, 6"LERN"R "$ 9C6AN, et al.2 AND

6RE6"R/ B"RGE, et al., PE''"NER!

1-4v.

!'ELE BE!EAR, 6"LERN"R "$ GEN'CG/

on (rits of certiorari to the united states court of appeals for the

si)th circuit

#*une :3, :;14%

9AN R6'! 5A


59/85

4se) couples

should be allo(ed to affir& their love and co&&it&ent through

&arriage, 0ust li+e opposite>se) couples. 'hat position has

undeniable appeal2 over the past si) years, voters and legislators

in eleven !tates and the District of Colu&bia have revised their

la(s to allo( &arriage bet(een t(o people of the sa&e se).

But this Court is not a legislature. hether sa&e>se) &arriage is

a good idea should be of no concern to us. nder the

Constitution, 0udges have po(er to say (hat the la( is, not (hat

it should be. 'he people (ho ratified the Constitution authoried

courts to e)ercise neither force nor (ill but &erely 0udg&ent.S

'he $ederalist No. ?, p. 34 7C. Rossiter ed. 1

se) couples &ay be co&pelling, the legal argu&ents for

reuiring such an e)tension are not. 'he funda&ental right to

&arry does not include a right to &a+e a !tate change its

definition of &arriage. And a !tate@s decision to &aintain the

&eaning of &arriage that has persisted in every culture

throughout hu&an history can hardly be called irrational. n

short, our Constitution does not enact any one theory of

&arriage. 'he people of a !tate are free to e)pand &arriage to

include sa&e>se) couples, or to retain the historic definition.

'oday, ho(ever, the Court ta+es the e)traordinary step of

ordering every !tate to license and recognie sa&e>se) &arriage.

9any people (ill re0oice at this decision, and begrudge none

their celebration. But for those (ho believe in a govern&ent of

la(s, not of &en, the &a0ority@s approach is deeply

disheartening. !upporters of sa&e>se) &arriage have achieved

considerable success persuading their fello( citiensJthrough

the de&ocratic processJto adopt their vie(. 'hat ends today.

$ive la(yers have closed the debate and enacted their o(n

vision of &arriage as a &atter of constitutional la(. !tealing this

issue fro& the people (ill for &any cast a cloud over sa&e>se)

&arriage, &a+ing a dra&atic social change that &uch &ore

9AN R6'! 5A


60/85

3;

difficult to accept.

'he &a0ority@s decision is an act of (ill, not legal 0udg&ent. 'he

right it announces has no basis in the Constitution or this Court@sprecedent. 'he &a0ority e)pressly disclai&s 0udicial cautionS

and o&its even a pretense of hu&ility, openly relying on its

desire to re&a+e society according to its o(n ne( insightS into

the nature of in0ustice.SAnte, at 11, :=.As a result, the Court

invalidates the &arriage la(s of &ore than half the !tates and

orders the transfor&ation of a social institution that has for&ed

the basis of hu&an society for &illennia, for the Galahari

Bush&en and the an Chinese, the Carthaginians and the

Atecs. *ust (ho do (e thin+ (e areZ

t can be te&pting for 0udges to confuse our o(n preferences

(ith the reuire&ents of the la(. But as this Court has been

re&inded throughout our history, the Constitution is &ade for

people of funda&entally differing vie(s.SLoc&nerv."e ,or,

1


61/85

31

serious dispute that, under our precedents, the Constitution

protects a right to &arry and reuires !tates to apply their

&arriage la(s eually. 'he real uestion in these cases is (hat

constitutes &arriage,S orJ&ore preciselyJ&o decides (hat

constitutes &arriageSZ

'he &a0ority largely ignores these uestions, relegating ages of

hu&an e)perience (ith &arriage to a paragraph or t(o. Even if

history and precedent are not the endS of these cases, ante, at ,

(ould not s(eep a(ay (hat has so long been settledS (ithout

sho(ing greater respect for all that preceded us. 9on of #reece

v. #alloay, 4: . !. YYY, YYY 7:;18 7slip op., at ?8.

A

As the &a0ority ac+no(ledges, &arriage has e)isted for

&illennia and across civiliations.S Ante, at =. $or all those

&illennia, across all those civiliations, &arriageS referred toonly one relationship the union of a &an and a (o&an. !ee

ante, at 2 'r. of "ral Arg. on uestion 1, p. 1: 7petitioners

conceding that they are not a(are of any society that per&itted

sa&e>se) &arriage before :;;18. As the Court e)plained t(o

'er&s ago, until recent years, . . . &arriage bet(een a &an and

a (o&an no doubt had been thought of by &ost people as

essential to the very definition of that ter& and to its role and

function throughout the history of civiliation.S :nited States

v.Windsor, 4; . !. YYY, YYY 7:;1=8 7slip op., at 1=8.

'his universal definition of &arriage as the union of a &an and a

(o&an is no historical coincidence. 9arriage did not co&e

about as a result of a political &ove&ent, discovery, disease,

(ar, religious doctrine, or any other &oving force of (orld

historyJand certainly not as a result of a prehistoric decision to

e)clude gays and lesbians. t arose in the nature of things to

&eet a vital need ensuring that children are conceived by a

&other and father co&&itted to raising the& in the stable

conditions of a lifelong relationship. !ee 6. uale, A istory of

9arriage !yste&s : 71


62/85

3:

everything in co&&on.S8.

'he pre&ises supporting this concept of &arriage are so

funda&ental that they rarely reuire articulation. 'he hu&anrace &ust procreate to survive. Procreation occurs through

se)ual relations bet(een a &an and a (o&an. hen se)ual

relations result in the conception of a child, that child@s prospects

are generally better if the &other and father stay together rather

than going their separate (ays. 'herefore, for the good of

children and society, se)ual relations that can lead to procreation

should occur only bet(een a &an and a (o&an co&&itted to a

lasting bond.

!ociety has recognied that bond as &arriage. And by besto(ing

a respected status and &aterial benefits on &arried couples,

society encourages &en and (o&en to conduct se)ual relations

(ithin &arriage rather than (ithout. As one pro&inent scholar

put it, 9arriage is a socially arranged solution for the proble&

of getting people to stay together and care for children that the

&ere desire for children, and the se) that &a+es children

possible, does not solve.S *. . ilson, 'he 9arriage Proble&

1 7:;;:8.

'his singular understanding of &arriage has prevailed in the

nited !tates throughout our history. 'he &a0ority accepts thatat the ti&e of the Nation@s founding #&arriage% (as understood

to be a voluntary contract bet(een a &an and a (o&an.S Ante, at

3. Early A&ericans dre( heavily on legal scholars li+e illia&

Blac+stone, (ho regarded &arriage bet(een husband and (ifeS

as one of the great relations in private life,S and philosophers

li+e *ohn 5oc+e, (ho described &arriage as a voluntary

co&pact bet(een &an and (o&anS centered on its chief end,

procreationS and the nourish&ent and supportS of children. 1

. Blac+stone, Co&&entaries [1;2 *. 5oc+e, !econd 'reatise

of Civil 6overn&ent MM?-


63/85

3=

$ra&ers thereby entrusted the !tates (ith #t%he (hole sub0ect of

the do&estic relations of husband and (ife.S Windsor, 4; . !.,

at YYY 7slip op., at 18 7uoting0n re Burrus, 1=3 . !. 4?3 -4


64/85

3

right to &arry (ith the right to procreate. ;ablociv.%ed&ail,

= . !. =, =?3 71


65/85

34

Court in :;;= interpreted its !tate Constitution to reuire

recognition of sa&e>se) &arriage, &any !tatesJincluding the

four at issue hereJenacted constitutional a&end&ents for&ally

adopting the longstanding definition of &arriage.

"ver the last fe( years, public opinion on &arriage has shifted

rapidly. n :;;se) couples, (hile also providing acco&&odations for

religious believers. n :;11, the Ne( /or+ 5egislature enacted a

si&ilar la(. n :;1:, voters in 9aine did the sa&e, reversing the

result of a referendu& 0ust three years earlier in (hich they had

upheld the traditional definition of &arriage.

n all, voters and legislators in eleven !tates and the District of

Colu&bia have changed their definitions of &arriage to include

sa&e>se) couples. 'he highest courts of five !tates have decreed

that sa&e result under their o(n Constitutions. 'he re&ainder of

the !tates retain the traditional definition of &arriage.

Petitioners brought la(suits contending that the Due Process and

Eual Protection Clauses of the $ourteenth A&end&ent co&pel

their !tates to license and recognie &arriages bet(een sa&e>

se) couples. n a carefully reasoned decision, the Court of

Appeals ac+no(ledged the de&ocratic &o&entu&S in favor of

e)pand#ing% the definition of &arriage to include gay couples,S

but concluded that petitioners had not &ade the case for

constitutionaliing the definition of &arriage and for re&oving

the issue fro& the place it has been since the founding in the

hands of state voters.S : $. =d, at =


66/85

33

'he &a0ority purports to identify four principles and traditions

in this Court@s due process precedents that support a

funda&ental right for sa&e>se) couples to &arry.Ante, at 1:.n

reality, ho(ever, the &a0ority@s approach has no basis in

principle or tradition, e)cept for the unprincipled tradition of

0udicial policy&a+ing that characteried discredited decisions

such asLoc&nerv."e ,or, 1


67/85

3

Process Clause be subtly transfor&ed into the policy preferences

of the 9e&bers of this Court.S Was&ingtonv. #lucsberg, 4:1

. !. ;:, :; 71


68/85

3?

p y , 0 g ,

foundation for holding this to be necessary or appropriate as a

health la(.S0d./at 4?.

'he dissenting *ustices inLoc&nere)plained that the Ne( /or+

la( could be vie(ed as a reasonable response to legislative

concern about the health of ba+ery e&ployees, an issue on (hich

there (as at least roo& for debate and for an honest difference

of opinion.S0d./ at : 7opinion of arlan, *.8. 'he &a0ority@s

contrary conclusion reuired adopting as constitutional la( an

econo&ic theory (hich a large part of the country does not

entertain.S0d./at 4 7opinion of ol&es, *.8. As *ustice ol&es

&e&orably put it, 'he $ourteenth A&end&ent does not enact

9r. erbert !pencer@s !ocial !tatics,S a leading (or+ on the

philosophy of !ocial Dar(inis&. 0bid.'he Constitution is not

intended to e&body a particular econo&ic theory . . . . t is &ade

for people of funda&entally differing vie(s, and the accident of

our finding certain opinions natural and fa&iliar or novel and

even shoc+ing ought not to conclude our 0udg&ent upon the

uestion (hether statutes e&bodying the& conflict (ith the

Constitution.S0d., at 4-3.

, y

la(s as violations of individual liberty, often over strong dissents

contending that #t%he criterion of constitutionality is not

(hether (e believe the la( to be for the public good.S Adinsv.C&ildrens 6os'ital of $. C., :31 . !. 4:4, 4; 71


69/85

3se) couple has the constitutional right to &arry becausetheir children (ould other(ise suffer the stig&a of +no(ing

their fa&ilies are so&eho( lesser,S ante, at 14,(hy (ouldn@t the

sa&e reasoning apply to a fa&ily of three or &ore persons

raising childrenZ f not having the opportunity to &arry serves

to disrespect and subordinateS gay and lesbian couples, (hy

(ouldn@t the sa&e i&position of this disability,S ante, at ::,

serve to disrespect and subordinate people (ho find fulfill&ent

in polya&orous relationshipsZ !ee Bennett, Polya&ory 'he

Ne)t !e)ual RevolutionZ Ne(s(ee+, *uly :?, :;;< 7esti&ating

4;;,;;; polya&orous fa&ilies in the nited !tates82 5i, 9arried

:;12 "tter, 'hree 9ay Not Be a Cro(d 'he Case for a

Constitutional Right to Plural 9arriage, 3 E&ory 5. *. 1se) couples

(ith plural &arriages in all respects. 'here &ay (ell be relevant

differences that co&pel different legal analysis. But if there are,

petitioners have not pointed to any. hen as+ed about a plural

&arital union at oral argu&ent, petitioners asserted that a !tate

doesn@t have such an institution.S 'r. of "ral Arg. on uestion:, p. 3. But that is e)actly the point the !tates at issue here do

not have an institution of sa&e>se) &arriage, either.

Near the end of its opinion, the &a0ority offers perhaps the

clearest insight into its decision. E)panding &arriage to include

sa&e>se) couples, the &a0ority insists, (ould pose no ris+ of

har& to the&selves or third parties.SAnte, at :. 'his argu&ent

again echoesLoc&ner, (hich relied on its assess&ent that (e

9AN R6'! 5A

thin+ that a la( li+e the one before us involves neither the safety,

th l th lf f th bli d th t th i t t f

certainly does not enact any one concept of &arriage.


76/85

3

the &orals nor the (elfare of the public, and that the interest of

the public is not in the slightest degree affected by such an act.S

1


77/85

that the Eual Protection Clause reuires their !tates to license

and recognie sa&e>se) &arriages. 'he &a0ority does not

seriously engage (ith this clai&. ts discussion is, uite fran+ly,difficult to follo(. 'he central point see&s to be that there is a

synergy bet(eenS the Eual Protection Clause and the Due

Process Clause, and that so&e precedents relying on one Clause

have also relied on the other. Ante, at :;. Absent fro& this

portion of the opinion, ho(ever, is anything rese&bling our

usual fra&e(or+ for deciding eual protection cases. t is

caseboo+ doctrine that the &odern !upre&e Court@s treat&ent

of eual protection clai&s has used a &eans>ends &ethodology

in (hich 0udges as+ (hether the classification the govern&ent is

using is sufficiently related to the goals it is pursuing.S 6. !tone,

5. !eid&an, C. !unstein, 9. 'ushnet, O P. Garlan,

Constitutional 5a( 4= 7th ed. :;1=8. 'he &a0ority@s approach

today is different

Rights i&plicit in liberty and rights secured by eual protection

&ay rest on different precepts and are not al(ays co>e)tensive,

yet in so&e instances each &ay be instructive as to the &eaning

thought to capture the essence of the right in a &ore accurate and

co&prehensive (ay, even as the t(o Clauses &ay converge in

the identification and definition of the right.SAnte, at 1


78/85

?

benefits that acco&pany &arriage, such as hospital visitation

rights and recognition of spousal status on official docu&ents,

petitioners@ la(suits target the la(s defining &arriage generallyrather than those allocating benefits specifically. 'he eual

protection analysis &ight be different, in &y vie(, if (e (ere

confronted (ith a &ore focused challenge to the denial of certain

tangible benefits. "f course, those &ore selective clai&s (ill not

arise no( that the Court has ta+en the drastic step of reuiring

every !tate to license and recognie &arriages bet(een sa&e>

se) couples.

L

'he legiti&acy of this Court ulti&ately rests upon the respect

accorded to its 0udg&ents.S%e'ublican arty of )inn.v. W&ite,

4=3 . !. 34,


79/85

to have provo+ed, not resolved, conflict. 6insburg, !o&e

'houghts on Autono&y and Euality in Relation to%oev.Wade,

3= N. C. 5. Rev. =4, =?4-=?3 71


81/85

?1

g y p g

de&ocratically to include acco&&odations for religious practice.

'he &a0ority@s decision i&posing sa&e>se) &arriage cannot, of

course, create any such acco&&odations. 'he &a0ority

graciously suggests that religious believers &ay continue to

advocateS and teachS their vie(s of &arriage.Ante, at :. 'he

$irst A&end&ent guarantees, ho(ever, the freedo& to

e+erciseS religion. "&inously, that is not a (ord the &a0ority

uses.

ard uestions arise (hen people of faith e)ercise religion in

(ays that &ay be seen to conflict (ith the ne( right to sa&e>se)

&arriageJ(hen, for e)a&ple, a religious college provides

&arried student housing only to opposite>se) &arried couples, or

a religious adoption agency declines to place children (ith

sa&e>se) &arried couples. ndeed, the !olicitor 6eneral

candidly ac+no(ledged that the ta) e)e&ptions of so&e

religious institutions (ould be in uestion if they opposed sa&e>

se) &arriage. !ee 'r. of "ral Arg. on uestion 1, at =3-=?.

'here is little doubt that these and si&ilar uestions (ill soon be

y 0 y y

Perhaps the &ost discouraging aspect of today@s decision is the

e)tent to (hich the &a0ority feels co&pelled to sully those on

the other side of the debate. 'he &a0ority offers a cursory

assurance that it does not intend to disparage people (ho, as a

&atter of conscience, cannot accept sa&e>se) &arriage. Ante, at

1


82/85

?:

g8 y y g g

for the &a0ority to conclude that the Constitution protects a right

to sa&e>se) &arriage2 it is so&ething else to portray everyone

(ho does not share the &a0ority@s better infor&ed

understandingS as bigoted.Ante, at 1


83/85

?=

OBERE!E"" #. $O%E&

/ACTS6

'(o individuals, *a&es "bergefell and *ohn Arthur *a&es filed a

la(suit challenging the state@s refusal to recognie sa&e>se)&arriage on death certificates. 'he t(o (ere legally &arried in

9aryland in :;1=. 9r. Arthur, (ho suffered fro& a ter&inal

illness, died several &onths after litigation began. Due to "hiola(, under both the "hio Constitution and the "hio Revised

Code, plaintiffs believed that state officials (ould refuse to

indicate 9r. Arthur (as &arried at the ti&e of his death and that

9r. "bergefell (as his spouse.

'he plaintiffs filed the case on *uly 1


84/85

?

he (ere to classify a legally &arried sa&e se) couple as (eddedspouses.

'he plaintiffs@ a&ended co&plaint na&ed as defendants Dr.Ca&ille *ones, Registrar of the City of Cincinnati ealthDepart&ent, "ffice of Lital Records, and Dr. 'heodore

y&yslo, the Director of the "hio Depart&ent of ealth.

n the a&ended co&plaint, the plaintiffs sought a declarationfro& the court that "hio@s practice of denying recognition of

&arriages la(fully perfor&ed in other states on death certificates

is unconstitutional and reuested an in0unction to stop thispractice.

"n Dece&ber :=, :;1=, *udge Blac+ held that "hio@s refusal to

recognie sa&e>se) &arriages perfor&ed in other states violatesthe substantive due process and eual protection rights of the

parties to those &arriages.

*

hr cases wave 2

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