By: Buena Bernal

When a historic plea was filed in the Philippine Supreme Court in May 2015 by gay lawyer Jesus Nicardo Falcis III challenging select provisions of the Family Code that limit marriage to opposite-sex partners, the petition was roundly criticized: flawed, defective, bearing fundamental mistakes, critics said. Court insiders sought to point out the petitioner’s lack of legal standing. 

Three years later, the case is still hanging fire before the court. On June 26, the justices ended oral arguments on the petition  Falcis acknowledges he has at times doubted himself, given the barrage of criticism about how he supposedly failed to consolidate the views of the LGBT community in the Philippines before he filed. 

Jesus Falcis

“Sometimes it makes me question if I’m doing the right thing. If I’m going to be the cause for the LGBT movement to suffer setbacks,” he told me. 

Certainly, the struggle to bring acceptance for LGBTQs in the Philippines is a quixotic one. Some 80 percent of Filipinos are Catholics whose leaders, the Catholic Bishops’ Conference, are among the global religion’s most conservative prelates in a conservative church. They pass it on to their flock. A survey released June 30 by nonprofit Social Weather Stations showed only 22 percent of Filipinos support same-sex marriage. There is indeed a long way to go.

 Nonetheless, getting to know an LGBTQ person almost always forces you into contemplation. The stories they tell you drives you to check your privilege as a heterosexual. They tell you it’s about the simple joys all humans crave, like being able to freely hold hands with your gay partner in public without having to endure judgment apparent in the eyes of people staring.

It’s also about the more complicated inner desire to belong, to not be thrown out of the house by your parents the day you came out to them.  Over drinks, I remember a bisexual friend whose parents kicked her out coming to terms with the fact that a parent’s love isn’t unconditional. She just wished the condition was not something so indispensable to her life as her gender identity. They have since reconciled, but not without hurt.

Anger from the straight community can be terrifying. The Philippine LGBT Hate Crime Watch has documented a pattern of overkill in the murders (sometimes including robbery) — multiple stab wounds, choking, signs of torture. The actual incidence of gender-related hate crimes is said to be higher than reported.  If you have been fortunate enough to be shielded from that type of treatment, you have an obligation to speak up. The basis of most hate is ignorance.

When we are not married to the one we love, how we feel inside doesn’t jibe with the societal view of our union.  But how do LGBTQ individuals feel not being able to marry the one they love and have that marriage recognized by the state? Some claim they couldn’t care less. One said marriage is not really part of his life’s plans. Another urged “shoving those marriage certificates down into [heterosexual] people’s lungs!” — a Filipino idiom commonly used to express anger. 

Those in long-term relationships say it is dehumanizing “to not be able to exercise a right so fundamental to self-actualize and be happy in general.” One said it was insulting, as the denial of the right was based on a belief they do not subscribe to.  Another one said he felt “betrayed” by the government.  That is a universal hurt. 

 The government, after all, is supposed to protect fundamental rights and freedoms; limiting them only in exceptional cases including certain preventable future harms or overarching state interests.  But when Solicitor-General Jose Calida invoked police power as the rationale behind limiting state recognition of same-sex marriages, he essentially proclaimed such marriages harmed society. Questioned by the justices, Calida said the harm goes against the intent of the original framers of the Constitution.

But the purported harm of same-sex marriage, one gay friend says, is so remote compared to “what we feel on an everyday basis.” 

It must be said that many don’t even subscribe to the importance of marriage as an institution, that it creates undue pressure to abide by social notions of lasting relationships.

But I guess finding a person you are willing to commit to changes your tolerance to the institution. Legal recognition of one’s marriage helps you and me bring our subjective experience and what is subjectively valuable to us into the public sphere – both into their awareness and normative acceptance. It is a fulfilling act. It brings meaning and joy because what is subjectively valuable to you becomes objectively valuable to everyone else. What you personally want to be protected becomes socially protected as well.

But there has been openness exhibited from no less than the presidential podium and from the justices of the country’s top court. Justice Samuel Martires raised a flurry of questions: “Why do we have to discriminate against same-sex marriage? Are not gay people, the lesbians capable of loving like heterosexuals? Why are we allowing marriages between criminals and yet will not recognize marriage between a man and a man and a woman and a woman? Why is the state so indifferent to the happiness of these people? Are we not just affected by our religious beliefs? If Attorney Falcis was your son, will you be proud of him?”

Calida vehemently argued before the Supreme Court that the Constitution defines marriage as strictly between a man and a woman. While the actual text of the Philippines Charter does not explicitly say this, Calida said that was the intent of the framers as shown in a transcript of them voting on the matter. 

Justice Marvic Leonen aptly pointed out that the Constitution’s power is derived from the Filipino people, who ratified by plebiscite the 1987 Constitution. He explained that Filipinos involved in the plebiscite ratified the Charter based on its actual text and not the debates behind its framing. He also pointed out that the outcome of these debates in the framing of the Charter is not necessarily a strict legal prescription but can have a persuasive effect on the Constitution’s present interpretation.

“That is what the law says, and we must uphold the law,” said an insistent Calida.

Yet, at so many points in history, certain laws turned out to reflect myopic views of right and wrong. There was a time humanity thought enslaving another person and treating him or her as a property was okay. We got that one wrong. Women used to not be able to vote. Workers used to not be able to collectively bargain for workplace-linked social protections.

Society progressed. We adopted corrective measures because someone somewhere was brave enough to bring the issue into the public’s consciousness. Someone stood up to point out what was wrong. 

Falcis was a first mover in that regard. Solicitor-General Jose Calida was right to answer in court that he would be proud of Falcis if the latter was his son. The government’s top defender was right to encourage the young lawyer to press on. 

But society doesn’t need Calida to be proud of Falcis. We need a government to do what’s right.  Humanity’s greatest redemptive acts in history have always been in relation to correcting flawed perceptions and the hurtful practices that emanated from these perceptions.

Compassion’s basic premise is simple: that, had luck not come your way, it could have been you. You could have been born differently. A sore, ignorant lack of compassion – from which all unfair assumptions emanate – always comes from a point of privilege.  In the context of romantic relationships, LGBTQ individuals are unable to bring their subjective experience into public acceptance. Because unlike heterosexuals, the government denies them of legal recognition. 

So many people feel betrayed. This tells them and the rest of society not to be human like us, not to love like us. That there is harm when they participate in forming families. That there is harm when they rear a child when they love and want to commit to another person. That their love is less valid than ours. It also tells LGBTQ-led families that they exist at the expense of harming society. The message is that their families are inferior to ours.

That is the error. That is what is defective. That is what is flawed. That, truly, is the fundamental mistake here that needs correcting.  

Buena Bernal is a journalist based in Manila. http://buenabernal.com