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The Philippines is not Immune to Change

  • July 25, 2011, 6:52 a.m.
  • = Responses

I had the opportunity to ask a respected Filipino attorney about the prospects of Filipino LGBTs going through the courts to pursue equality.  His opinion was that, at this time, there would likely be no benefit for gay and lesbian couples to sue the government for equal protection.

He highlighted the fact that, because there are no anti-discrimination laws on the books and no legal precedent to stand on from any equality cases in Philippine courts, a suit would be destined to fail.

I agree with that in part, but at the same time I am reminded of same-sex marriage cases that have been won in states in the U.S., for example, which had no anti-discrimination laws on the books.  The courts only had the Equal Protection Clause of the Bill of Rights to go on.  The Philippine Constitution has these same guarantees for its citizens.

The current Philippine Supreme Court has based several of their decisions on grounds of equal protection violations, declaring portions of certain laws to be unconstitutional because of those violations.  Yap vs Thenamaris Ship's Management in May 2011, which struck down Section 10 of R.A. 8042, is one such example, as is Biraogo vs. Philippine Truth Commission in December 2010, which struck down E.O. Number 1.

Additionally, in the vast majority of court cases wherein either civil unions or same-sex marriages were ordered to be allowed in other countries, existing anti-discrimination laws were rarely, if ever, used as an argument.  What mattered was equal protection, the guarantees of the Bill of Rights, and personal liberty as enshrined in the Constitution.  These are what the courts have based their decisions upon.

The attorney I spoke with also said that going through the courts is not just a pipe dream, because the signs of the times are pointing in one very clear direction:  equality.  This, in due time in his opinion, will require the Philippine legislature and/or courts to face the music and reform.  They can only delay the inevitable for so long.  I personally think this is especially true when considering the following:

  • No government or court can completely ignore or disregard the reforms happening in other democratic countries, especially in countries that are close allies.  They may say they are not influenced by foreign court decisions, but it's actually quite impossible not to be.  The U.S. Supreme Court has even said that they, and all courts, are influenced by what other high courts are doing in other countries.  That's a good thing for LGBT equality.  The Canadian Supreme Court, for example, is one of the most widely cited courts in other courts around the world.
  • There are literally millions of Filipino citizens living and working abroad, the vast majority of whom are in Western countries which have strong LGBT rights records, as well as either partnership laws or marriage equality.  When those Filipinos see equality in action, and see that it causes no harm, they bring new open-minded attitudes back to the Philippines with them and help to influence more progressive policies at home.
  • Some of those OFWs (Overseas Filipino Workers) are also LGBTs, and some do enter into partnerships or same-sex marriages with a fellow OFW or with a citizen of the country they're working in.

How fair is it that, upon their return to the Philippines, their own government tosses out their marriage certificate and completely devalues it?  How fair is it that those couples are forbidden to avail of the benefits and rights of marriage by their own government?  They're being taxed at a first-class rate, but being treated like second-class citizens.

I can't imagine anyone standing for that for very long -- being treated with dignity by the countries they work in, and then being treated as a joke by their own government upon returning home.  That class system cannot stand forever.  Imagine if hundreds of LGBT OFWs returned home as legally married and then flooded the courts with discrimination suits against the government.  It can happen, and I think it should happen and most likely will happen eventually.  It has happened in other countries and has been successful.

I'm sorry to those who may not like it or may disagree, but the Philippine government and Philippine courts are not immune to the shifts, currents, and progress being made in other democracies around the world.  The Philippines does not -- and cannot afford to -- live in an isolated box.  It's impossible to be immune to such influences in our globally connected world, especially with today's phenomenon of the Global Pinoy.

Regarding the fight ahead, the attorney said that the Filipino LGBT community and Civil Society must continue to struggle and protest, stay united, and not grow weary.  But that poses a number of quandaries in and of itself.

When one speaks to gay and lesbian Europeans, Americans, or Australians about same-sex marriage, and asks if they want to see it in their country, they are clearly fired up for it.  They give an emphatic and unified "YES!," and usually add something like "And we're willing to fight for it 'til we get it, all the way, no matter what!"

When I've asked gay and lesbian Filipinos the same questions, however, I'm often surprised at their apathy.  Some say yes, some say "oh sure maybe someday who knows," some say "I don't know," some simply shrug their shoulders, but a surprising number of them actually say "No."  When I ask why, 10 times out of 10 I hear something about the Church.  "We don't need to marry; the Church doesn't approve."  "We shouldn't upset the Church."  "It is a sacrament of the Church so it's not something for us."  "I don't want to go against the Church."

There seems to be a misunderstanding of what marriage equality is in the context of civil marriage.  The recent brouhaha over the same-sex Holy Union ceremony held in Baguio City illustrated this misunderstanding.  Bishop Carlito Cenzon was infuriated over the blessing ceremony, calling it an insult to the Civil Code and the Catholic Church.  He said in a radio interview that he couldn't understand how such a wedding rite could take place given the prohibitions under Philippine law and Catholic Church law.

Cenzon seems to have forgotten that Catholic law is not the supreme law of anything other than the Catholic Church.

Second, Philippine secular law does not expressly forbid same-sex blessing ceremonies from taking place under the auspices of non-Catholic clergy who support it.  Philippine law does not recognize such ceremonies as legally binding, but neither does it outlaw them from happening.  That is part of Filipinos' right to freedom of religion.

And third, the Catholic Church is not the only church on this planet.  There are dozens upon dozens of other Christian denominations, and they have the right to formulate their own regulations, policies, and ceremonies based upon their interpretation of the Bible.  If Cenzon doesn't like them because they disagree with the Catholic Church, well, I'm sorry.  The Philippines has religious freedom so he needs to show some spiritual maturity instead of having a tantrum for not getting his way on everything.

And so, a rundown:  Civil same-sex marriage has nothing at all to do with the Catholic Church or any other church.  Civil marriage is completely separate from any sacraments or ecclesiastical rites.  Civil marriage does not force a church to marry or even accept same-sex couples.  No one is forced to do anything.

Civil marriage simply means that gay and lesbian couples could go to their City Hall or nearest Courthouse and be married by a Justice of the Peace.  The same as applies to opposite-sex couples who have civil marriages.  Or, if the couple belong to a church that approves of conducting wedding ceremonies for same-sex couples, as several Protestant churches do, then they could instead be married by their pastor.  It would be entirely up to the pastor, depending on the doctrines and rules of his or her church.

A religious ceremony is different from a civil ceremony.  State-sanctioned marriage equality does not affect the Catholic Church, change the Church's rules on any sacraments, or force the Church to do anything it does not want to do.  It seems that many Filipinos -- including gay and lesbian ones -- get the religious rite confused or meshed with the civil contract.  It's understandable that there may also be confusion surrounding the terms civil union and partnership, and how they differ from actual marriage.  You can check the definitions provided for those terms here, as well as question 7 on the FAQ page.

In the next post we'll look at gay rights and marriage equality cases in the courts around the world, and why the anti-equality side is on a losing streak...even in front of conservative judges and courts.

(A continuation from the previous post, "High Court Progress Seen in Western Nations; What About the Philippines?")

http://progressph.blogspot.com/2011/07/courts-part-2-philippines-is-not-immune.html

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