A government lawyer on Tuesday asked the Supreme Court to dismiss an “intrinsically flawed” petition that seeks to abolish the prohibition under the Family Code and allow same-sex marriages in the Philippines.

In a 16-page Comment, Solicitor General Florin Hilbay chided petitioner Atty. Jesus Nicardo M. Falcis III for gambling on “the right of homosexuals in an ill-timed suit.”

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Falcis, who identifies himself as “openly gay,” in his petition filed last year urged the high court to nullify Articles 1 and 2 of the Family Code as well as Articles 46 (4) and 55 (6) of the same law.

Articles 1 and 2 limit marriages between men and women while Articles 46(4) and 55 (6) mention lesbianism or homosexuality as grounds for annulment and legal separation.

Falcis said he has a personal stake in the case since he is an open and identified homosexual and has sustained direct injury as a result of the prohibition against same-sex marriage.

“Petitioner has grown up in a society where same-sex relationships are frowned upon because of the law’s normative impact. Petitioners’ ability to find and enter into long monogamous same-sex relationship is impaired because of the absence of a legal incentive for gay individuals to seek such relationship,” he added.

But Hilbay said Falcis failed to demonstrate an “injury in fact” from the implementation of the Family Code. Injury in fact is the litigant’s “personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of [the law’s] enforcement.”

“Whatever injury petitioner [Falcis] feels is non-particularized for the reason that his interest is shared with the entire universe of people who agree with his advocacy,” Hilbay said.

Hilbay added that mere “interest” in declaring particular provisions of the Family Code as unconstitutional.

He said even law students would know that such reason is not enough justification for impugning the constitutionality of Articles 1,2,46(4) and 55(6) of the Family Code.

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“This is an invitation to a debate or coffee-shop conversation, not a constitutional litigation,” Hilbay said.

Hilbay added that Falcis’ argument that his ability of finding and entering into a long-term monogamous same sex relationships is impaired because of the absence of legal incentive for gay individuals “demeans the capacity of homosexuals to enter into a committed relationships.

“Even if this claim rises to the level of an argument, no additional argument is presented as to why the creation of an across-the-board, systemic incentive through the recognition of same sex-marriage will lead to specific gay individuals to choose petitioner over any other homosexual,” he added.

Falcis also failed to implead Congress considering that the petition is questioning the current legislative policy on same sex-marriage.

“The relief it seeks is the nullification of certain provisions of law on the ground that there exists an incompatibility between Congress’ obligation to a class of citizens and its current code of family relations. And yet, petitioner has not impleaded Congress. This blatant omission is additional cause for an outright dismissal,” Hilbay said.

Because of his failure to include Congress in his petition, Hilbay said even if the high court granted Falcis’ petition would not lead to the recognition of same-sex marriage because it requires a positive act from Congress.

Hilbay added that Falcis also erred in impleading the Civil Registrar-General in his petition.

The lead government counsel said Falcis failed to show how the Civil Registrar-General acted in grave abuse of discretion with respect to an application for a marriage license.

“The reality is that petitioner and his suit have no factual connection with the Civil Registrar-General,” Hilbay said adding that the Civil Registrar-General merely exercises technical supervision over local civil registrars as mandated by law.

Falcis also said that homosexuals, like heterosexuals, can also fulfill the essential marital obligations laid down by the Family Code such as the obligation to live together, observe mutual love, respect and fidelity and render mutual help and support, fix the family domicile and support the family and pay the expenses for such support and other conjugal obligations.

“Thus, petitioner submits that homosexuals and same-sex couples do not and cannot harm the institution of marriage. In fact, homosexuals and same-sex couples can serve to forward the compelling interest in protecting and strengthening the family as a basic autonomous social institution. Consequently, there is no necessity to limit marriage as between a man and a woman to protect and strengthen the family. There is actually a necessity to allow same-sex marriage,” he added. CDG



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