A. The Marriage Equality Petition: Obergefell v Hodges

On 28 April 2015, petitioners ranging from a toddler adopted by a married same-sex couple to same-sex married parents and grieving widowersFootnote ²⁰ appeared before the US Supreme Court to fight for the right of homosexual couples to lawfully enter into marriage.Footnote ²¹ Barely three weeks later, Jesus Falcis, ‘as an open and self-identified homosexual’, likewise filed his Petition for Certiorari and Prohibition before the Philippine Supreme Court seeking a declaration that ‘the provisions of the Family Code disallowing same-sex marriage’ are unconstitutional.

In both the Philippines and the US, the institution of marriage has been historically celebrated as a union between two persons of the opposite sex.Footnote ²² The respondents in Obergefell claimed that it should remain as such, alleging that same-sex marriages would ‘demean a timeless institution’ which by ‘its nature [is] a gender-differentiated union of man and woman’.Footnote ²³ The petitioners acknowledged the historical basis for marriage, but argued that the debate should not end with it.Footnote ²⁴

The US Supreme Court, in a 5–4 decision, ruled that the right of same-sex couples to marry is part of the liberty promised under the due process and equal protection clauses of the Fourteenth Amendment.Footnote ²⁵ Detaching ecclesiastic interests from the marriage equality petition before it, the court characterized marriage as a mere ‘voluntary contract’.Footnote ²⁶ Indeed, in the body of the decision, religion came to the fore merely to recognize the antiquated, and purportedly abandoned, theological underpinnings of the marital bond.Footnote ²⁷ Religious liberties, on the other hand, were addressed only to ‘emphasize that religions, and those who adhere to religious doctrines, may continue to advocate… by divine precepts, [that] same-sex marriage should not be condoned’.Footnote ²⁸

Further, state-sanctioned same-sex unions were not found to violate First Amendment rights.Footnote ²⁹ The US Supreme Court opined that to advocate for or against same-sex marriage whether by reason of religious conviction or secular belief is a right protected under the US constitution. What is not constitutionally permissible is ‘to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex’.Footnote ³⁰

B. What Would Jesus Do?: The Case of Falcis v Civil Registrar-General

On 18 May 2015, Falcis filed his Petition for Certiorari and Prohibition as an ‘open and self-identified homosexual…interested in the unconstitutionality of the provisions of the Family Code disallowing same-sex marriage’.Footnote ³¹ Disregarding the doctrine of hierarchy of courts,Footnote ³² Falcis dispensed with the courts of first instance (ie the Regional Trial Court) and directly filed his petition with the Supreme Court – ‘the court of last resort’.Footnote ³³

The petition sought: (1) a declaration that Articles 1,Footnote ³⁴ 2,Footnote ³⁵ 46(4),Footnote ³⁶ and 55(6)Footnote ³⁷ of the Family Code of the Philippines (Family Code) are unconstitutional on the ground that Congress gravely abused its discretion in ‘defining and limiting marriage as between man and woman’;Footnote ³⁸ and (2) an order ‘prohibit[ing] the civil registrar-general from enforcing the portions of Articles 1 and 2 of the Family Code in processing applications for and in issuing marriage licenses against homosexual couples’.Footnote ³⁹

Similar to Obergefell, Falcis claimed that ‘homosexuals are deprived of their right of due process, equal protection, [and] the right to decisional and marital privacy’.Footnote ⁴⁰ But the Falcis Petition likewise reaches beyond its US counterpart – it grounds the legitimacy of same-sex marriages on religious freedoms.

The prefatory statements of the Falcis Petition cited Ang Ladlad LGBT Party v Commission on Elections to frame the debate, ie, that Philippine democracy prohibits the exclusion of values of other members of society by reason of religious or moral views.Footnote ⁴¹ But despite emphatically opening with the separation of church and state, the doctrine of non-establishment is not once forwarded in the body of the petition. Rather, religious freedoms would only be substantively discussed in the final paragraphs of the thirty-one-page pleadingFootnote ⁴² through the right to free exercise of religion enshrined in Section 3(1), Article XV of the 1987 Constitution, which mandates the state to defend ‘the right of spouses to found a family in accordance with their religious convictions’.

Falcis claimed that the challenged provisions of the Family Code effectively prohibit same-sex couples from founding a family through the vehicle of marriage in line with their faith.Footnote ⁴³ In other words, by reserving the legal institution of marriage to heterosexual couples alone, gay Christian Filipinos belonging to pro-LGBT religious denominations, such as the members of the Metropolitan Community ChurchFootnote ⁴⁴ (MCC) and the Lesbian Gay Bisexual Transgender and Straight Christian Church IncFootnote ⁴⁵ (LCCI) – a breakaway group of the MCCFootnote ⁴⁶ – are ‘denied […] the right to found a family in accordance with their religious convictions’.Footnote ⁴⁷

On 29 March 2016, the Office of the Solicitor General (OSG) opposed the court petition – allegedly not to hamper the marriage equality movement, but to defend it.Footnote ⁴⁸ Avoiding the merits of the case altogether, the OSG forwarded in its Comment (Ad Cautelam) that the petition was ‘so intrinsically [procedurally] flawed that it is incumbent upon the honourable court to summarily dismiss the case’.Footnote ⁴⁹ Notably, the OSG opposed the petition’s form and not its cause.

The Falcis Petition is indeed riddled with remedial lapses. The OSG points out that the mere fact that Falcis ‘comes before the honourable court as an “open and self-identified homosexual… interested in the unconstitutionality of the provisions of the Family Code disallowing same-sex marriage” does not confer him legal standing’.Footnote ⁵⁰ Likening the Falcis Petition to an open invitation to ‘coffee-shop conversation’ rather than ‘constitutional litigation’, the OSG submitted that a judicial decision on the matter would be nothing more than ‘an advisory opinion, without binding effect on real parties that were not impleaded’.Footnote ⁵¹

The OSG’s comment gives a laundry list of procedural missteps that warrant the petition’s dismissal. These include Falcis’ lack of ‘injury in fact’ from the operation of the Family Code – an essential element in establishing legal standing;Footnote ⁵² the error in impleading the civil registrar-general, who ‘merely exercises technical supervision over local civil registrars’;Footnote ⁵³ the failure to implead an indispensable party, the Philippine Congress;Footnote ⁵⁴ and the advisory nature of the inquiry.Footnote ⁵⁵

The OSG further asserted that there was also an error in the relief sought.Footnote ⁵⁶ The petitioner argued that his ‘ability to find and enter into long-term monogamous same-sex relationships is impaired because of the absence of a legal incentive for gay individuals to seek such a relationship’.Footnote ⁵⁷ The OSG responded that ‘the grant of the reliefs sought in the petition [would] not lead to the establishment of a legal incentive for gay individuals to seek [same-sex] relationships’ with Falcis per se.Footnote ⁵⁸

Finally, citing Obergefell, the OSG distinguished the Falcis Petition from its western counterpart. The US decision was ‘rendered in view of [n]umerous cases about same-sex marriage’.Footnote ⁵⁹ The Philippines, however, does not enjoy that same luxury. The Supreme Court has neither jurisprudence nor factual findings ‘mixed in the judicial cauldron that would help it explain … the constitutional status of same-sex marriage in the Philippines. To decide … would be to brew with missing ingredients’.Footnote ⁶⁰

Obergefell is celebrated as the product of a collective effort, yet the Falcis Petition is criticized as the making of an individual’s caprice.Footnote ⁶¹ While years of litigation, political advocacy and debates, as well as coalition-building paved the way for the Obergefell doctrine, Falcis – ‘all by himself, unassisted – puts on the line the future of a social movement and gambles the right of homosexuals’.Footnote ⁶²

Falcis boldly claimed that religious freedoms reinforce his petition for marriage equality. The following sections will look at the prospect of his gambit.

A. De Facto Divorce: The Marriage of Canon and Civil Law

The Philippines is the outlier nation that does not grant divorce decrees in its general law. Instead, the Family Code allows only for ‘relative divorce’Footnote ⁶⁶ by way of legal separationFootnote ⁶⁷ – a disunion a mensa et thoro Footnote ⁶⁸ where the marital bond subsists notwithstanding the suspension of common marital life.Footnote ⁶⁹ This ‘involves nothing more than the bed-and-board separation of the spouses’.Footnote ⁷⁰

The Philippines also provides for de facto divorceFootnote ⁷¹ through Article 36 of the Family Code,Footnote ⁷² which allows for a declaration of nullity of marriage on the obscure and sweeping basisFootnote ⁷³ of ‘psychological incapacit[y]… to comply with essential obligations of marriage’.Footnote ⁷⁴ Justice Sempio-Diy, a luminary on Philippine family law, explains that the Canon Law concept of psychological incapacity was adopted by the Family Code for three reasons: (1) it was intended to be a substitute for divorce; (2) it was viewed as a solution to church-annulled marriages; and (3) it served as an additional remedy for problematic marriages not falling under the Family Code provisions on void or voidable marriages.Footnote ⁷⁵

A fourth reason was identified by the Philippine Supreme Court, which has historically recognized the scriptural bases of this proviso. As echoed through Philippine case law, Article 36 was adopted as an ‘acceptable alternative to divorce’ to avoid ‘the strong opposition that any provision on absolute divorce would encounter from the Catholic Church’.Footnote ⁷⁶

In Santos v Bedia-Santos, the Philippine Supreme Court explained that Article 36 of the Family Code was a compromise to avoid the strong opposition of ‘the Catholic sector … to whom the great majority of [the] people belong’.Footnote ⁷⁷ Hence, in the determination of a marriage’s invalidity, the Court ‘must be guided by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since [Article 36] was taken from Canon Law’.Footnote ⁷⁸

In Republic v Molina, the Philippine Supreme Court unabashedly called for ‘great respect’ for the interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, as Article 36 was derived from Canon 1095 of the New Code of Canon Law.Footnote ⁷⁹ The Court ruled that because the legislative intent was to ‘harmonize our civil laws with the religious faith of our people … great persuasive weight should be given to decisions of such appellate tribunal’.Footnote ⁸⁰ Thus, according to the Court, ‘what is decreed as canonically invalid should also be decreed civilly void’.Footnote ⁸¹

Further eroding the wall of separation, the Philippine Court in Antonio v Reyes pronounced that when a marriage had already been annulled by the Catholic Church, the courts should ‘take [this] into consideration’; otherwise, ‘the rulings of the Catholic Church on this matter would have diminished persuasive value’.Footnote ⁸² Through Malilin v Jamesolamin, the Court confessed how Article 36 envisages ‘the second paragraph of Canon 1095[,] which refers to those who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and obligations’.Footnote ⁸³

B. Exceptions for the Minority Faith

The breach of the Jeffersonian wall of separation is not limited to Catholicism alone. The Code of Muslim Personal Laws (CMPL) was enacted as Philippine law in 1977 via Presidential Decree No 1083. Unlike the Family Code, the CMPL allows for divorce as a right of both husband and wife where both spouses are Muslim, or where the husband is Muslim and the couple was married under Islamic rites.Footnote ⁸⁴

The CMPL deviates from the lex generalis in many ways. While the Family Code sets the minimum age of consent for marriage at eighteen for both men and women,Footnote ⁸⁵ the CMPL lowers the age requirement, depending on one’s gender. For men to marry, they must be at least fifteen years old.Footnote ⁸⁶ For Muslim women, capacity to marry is attained upon reaching puberty – which is statutorily presumed to be attained at the age of fifteen.Footnote ⁸⁷ The CMPL also allows females who have attained puberty, and less than fifteen but not below twelve years of age, to marry upon a petition by a wali (guardian).Footnote ⁸⁸ The betrothal of a minor below the prescribed ages, provided it has been arranged by the wali, is also permitted. It may be subsequently annulled by either party provided, inter alia, no voluntary cohabitation had taken place.Footnote ⁸⁹

Significantly, the CMPL’s provisions contemplates ‘voluntary cohabitation’ with a child below twelve years old – a situation penalized under the Revised Penal Code of the Philippines 1930 (Revised Penal Code) as statutory rape.Footnote ⁹⁰ While the CMPL expressly states that the crime of bigamy does not apply to persons married in accordance with its provisions,Footnote ⁹¹ it does not provide a blanket exemption of criminal liability.

Thus, contrary to the characterization in Obergefell, the institution of marriage in both Philippine lex generalis and lex specialis remains religious. The Family Code has unapologetically entwined Christian theology in its general law, the single exception to which is codified through the CMPL – a legal classification evidently based on Islamic creed. While either institution of marriage is distinct, they are united by a common thread: religious influence.

A. Religious Exceptions to the General Rule

In Goldman v Weinberger, the US Supreme Court held that in the absence of a government regulation based solely on religious motivations, prohibiting a member of the Jewish faith from wearing a yarmulke while on duty in the Air Force did not violate the First Amendment.Footnote ⁹⁸ Similarly, as held in Employment Division Department of Human Resources of Oregon v Smith, religious freedoms do not relieve an individual from complying with the incidental effects of a generally applicable and otherwise valid government regulation.Footnote ⁹⁹ In gist, if regulating the free exercise of religion is but an accidental effect of law, there is no undue derogation of religious freedoms.Footnote ¹⁰⁰

In Smith, respondents Alfred Leo Smith and Galen Black had their employment terminated for ingesting peyote, a hallucinogenic drug, at a ceremony of the Native American Church. Having been dismissed for work-related misconduct, Smith and Black were denied unemployment benefits, allegedly, in violation of their free exercise rights. The Court, however, rejected their contentionFootnote ¹⁰¹ on the basis that free exercise rights do not exempt a person from complying with a valid and neutral law of general applicability. The Court warned that to hold otherwise would render religious doctrine ‘superior to the law of the land, and in effect, to permit every citizen to become a law unto himself’.Footnote ¹⁰²

The Philippine approach to the interplay of lex generalis and religious freedoms is greatly different from that in the US. In contrast with Goldman and Smith, the Philippine case of Victoriano v Elizalde Rope Workers’ Union pronounced that ‘when general laws conflict with scruples of conscience, exemptions ought to be granted’.Footnote ¹⁰³ Similarly, in Ebralinag v Superintendent,Footnote ¹⁰⁴ the Philippine Supreme Court ruled that the State cannot by lawFootnote ¹⁰⁵ compel students to participate in flag-salute ceremonies when doing so would contravene their religious beliefs. Ruel Ebralinag, a member of the Jehovah’s Witnesses, claimed that to salute the flag was to adore it, hence in violation of his religious creed: ‘Thou shalt have no other gods before me.’Footnote ¹⁰⁶

The Court ruled for Ebralinag on the rationale that ‘[l]egitimate ends cannot be pursued by methods which violate fundamental [religious] freedoms’.Footnote ¹⁰⁷ While US jurisprudence has a similar flag-salute doctrine embodied in West Virginia State Board of Education v Barnette, it is worth noting that it was grounded on the freedom of speech clause of the First Amendment,Footnote ¹⁰⁸ distinct from the free exercise basis of the Ebralinag ruling.

The ecclesiastic exception to the general rule is most evident in Estrada v Escritor, where the Philippine Supreme Court refrained from administratively disciplining Soledad Escritor, a court interpreter and a member of the Jehovah’s Witnesses, for having allegedly engaged in ‘disgraceful and immoral conduct’ in violation of the Revised Administrative Code.Footnote ¹⁰⁹ Escritor sought exemption, claiming that her conjugal arrangement – a twenty-year extra-marital union with a man with whom she had borne a child – was not ‘immoral’ but in conformity with a ‘Declaration of Pledging Faithfulness’ – a religious ceremony equivalent to a wedding sanctioned by the Jehovah’s Witnesses, particularly in countries where divorce is not recognized.Footnote ¹¹⁰

The Court ruled that Escritor could not be disciplined absent a showing that the State and the judiciary would be undermined if she were given an exemption.Footnote ¹¹¹ Effectively, Estrada condoned Escritor’s adulterous relationship – an act that would otherwise give rise to administrative,Footnote ¹¹² civil,Footnote ¹¹³ or criminal liabilityFootnote ¹¹⁴ – on the ground of religious belief.

B. Religious Accommodations in Public Institutions

As held by the US Supreme Court in Abington School District v Schempp Footnote ¹¹⁵ and Lee v Weisman,Footnote ¹¹⁶ prayers hosted by public academic institutions transgress the principle of separation. The same cannot be said for the Philippine legal system. In Estrada,Footnote ¹¹⁷ the Philippine judiciary observed that the Constitution expressly permits forms of religious entanglement in allowing religion to be taught to children in public schools, so long as it is without additional cost to the government. However, in Arias v University of the Philippines,Footnote ¹¹⁸ a law student challenged his professor’s practice of performing an ecumenical prayer in class. The Quezon City Regional Trial Court denounced the professor’s practice as a breach of the wall of separation.

Religious entanglement in public institutions is no novel issue in the Philippines. The Philippine Supreme Court itself abides by a religious practice in prescribing, pursuant to its constitutionally enshrined rule-making power,Footnote ¹¹⁹ a ‘Centennial Prayer for the Courts’.Footnote ¹²⁰ The purportedly ecumenical orison is read by judges in open court, expressly implores an ‘Almighty God’,Footnote ¹²¹ and is often commenced and proceeded by the signum crucis (the sign of the cross).

In the recent case of Re: Letter of Tony Q Valenciano,Footnote ¹²² in an 11-1 ruling, the Philippine Supreme Court validated the use of government buildings – for instance, the basement of the Hall of Justice of Quezon City – as a Roman Catholic chapel, complete with an offertory table, images of Catholic religious icons, a canopy, and an electric organ. Tony Q Valenciano wrote a series of letters to the then Chief Justice Reynato S Puno protesting the practice as a violation of the principle of non-establishment and the constitutional prohibition against the appropriation of public money or property for the benefit of a sect, church, denomination, or any other system of religion.Footnote ¹²³ He further averred that the holding of masses at the basement of the Hall of Justice showed that it tended to favour Catholic litigants.

In categorically rejecting Valenciano’s contention, the Court ruled that the holding of masses within the courts did not violate the separation of church and state. On the contrary, the collaboration of the church and the court was in fact ‘necessary to ensure that there would be no excessive entanglement’ to begin with.Footnote ¹²⁴ The free exercise of religion having mandated an ‘unconditional tolerance’ of all religions, one denomination ‘cannot ask for tolerance when [it] refuses to do the same for others’.Footnote ¹²⁵

The Philippine Supreme Court ignored the constitutional mandate of separation through the logical but callous rationale that religious tolerance abets tolerance. But what is even more striking is that instead of showing disapproval at a clear case of state entanglement with religion, the court justified it. The Supreme Court opined that prohibiting the use of government property for religious purposes would, first, be in itself a form of excessive entanglement, and second, espouse ‘[s]trict separation, rather than benevolent neutrality/accommodation, [as] the norm’.Footnote ¹²⁶

C. Government Endorsed Religious Holidays

According to County of Allegheny v American Civil Liberties Union,Footnote ¹²⁷ which was decided by the US Supreme Court, religion cannot be the basis of public, state-proclaimed, holidays. In a complex and fragmented decision, the majority held that while the government may acknowledge Christmas as a cultural phenomenon, it may not celebrate it as a Christian holy day.Footnote ¹²⁸ Historical practice may not legitimize the use of crèche or Christmas displays, which would evidence state fidelity to a particular religion.Footnote ¹²⁹ Justice O’Connor, in a concurrence joined in part by Justices Brennan and Stevens, stated that these signs merely recognize Christmas as part of the winter holiday season that had attained a secular status in society.Footnote ¹³⁰ In a partial concurrence and dissent by Justice Kennedy, it was said that mere passive and symbolic recognition by the government was unlikely to present a realistic risk of establishmentFootnote ¹³¹ – a ratio adopted in the earlier cases of Lynch v Donnelly,Footnote ¹³² regarding a crèche holiday display, and Marsch v Chambers,Footnote ¹³³ concerning the employment of a legislative chaplain.

Philippine courts have consistently subscribed to the reasoning in the Allegheny minority opinions. Similar to Re: Letter of Tony Q Valenciano discussed above, the Supreme Court pronounced in Garces v Estenzo Footnote ¹³⁴ that the use of government-raised funds for the purchase of a wooden image of Valencia’s patron saint, San Vicente Ferrer, for the local barrio fiesta violated neither the principle of non-establishment nor the constitutional prohibition on the appropriation of public money ‘directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion’.Footnote ¹³⁵ The effigy having been purchased to celebrate the barrio fiesta honouring the patron saint (instead of favouring any particular religion nor interfering with religious matters), the use of public funds could not be barred.Footnote ¹³⁶ For the Court, the celebration was a socio-religious affair – an ingrained tradition in rural communities.

In doing so, Garces attempts to recast religious celebration in secular light. This ratio is comparable to the European Court of Human Rights’ reasoning in Lautsi v Italy,Footnote ¹³⁷ which recognized that ‘in countries of Christian tradition, Christianity enjoys a special social legitimacy’.Footnote ¹³⁸ Hence, as in the Philippines, ‘Christian symbols may legitimately relish greater visibility in government institutions’.Footnote ¹³⁹

D. Religious Expression as a Highly Protected Speech

The Philippines’ adoption of American constitutional tradition is not isolated to religious freedoms alone. While under Spanish rule the right of freedom of expression remained a foreign notion, it was after the Philippines was ceded to the US that the right to free speech was guaranteed through President McKinley’s Instruction to the second Philippine Commission.Footnote ¹⁴⁰ The doctrine of free expression was ‘lifted bodily from the Federal Constitution of the United States’Footnote ¹⁴¹ and reproduced in all Philippine constitutions, including the current 1987 Constitution.Footnote ¹⁴²

The rights to free expression and religion encompass proselytization. In Cantwell v Connecticut,Footnote ¹⁴³ the US Supreme Court ruled that absent a statute narrowly drawn to punish specific conduct as a clear and present danger, religious communication fell within the realm of protected speech. In Cohen v California, the court ruled that even words which invoke tumult, discord, and offence are protected, these being ‘but necessary side effects’ of free speech.Footnote ¹⁴⁴ Indeed, the right of free expression espouses ‘the principle of free thought – not free thought for those who agree with us, but freedom for the thought that we hate’.Footnote ¹⁴⁵

The Philippines adopts the Holmesian model of free expression, albeit inconsistently. In the case of Iglesia ni Cristo (INC) v Court of Appeals, Board of Review for Motion Pictures and Television (now MTRCB) and Mendez,Footnote ¹⁴⁶ the Philippine Supreme Court allowed the airing of televangelist episodes containing controversial statements aimed against the Catholic Church. The Court opined that the ‘bedrock of freedom of religion is freedom of thought … [hence] the marketplace of ideas demands that speech should be met by more speech’.Footnote ¹⁴⁷ With the establishment clause of the Constitution having prohibited any bias towards or against religion, the State enjoys no option but neutrality. The MTRCB cannot thus ‘squelch’ the speech of the INC ‘simply because it attacks other religions’, even if said religion happens to be the pre-dominant faith in the country.Footnote ¹⁴⁸

The constitutional guarantee of free expression notwithstanding, the Philippines criminalizes acts against religious worship.Footnote ¹⁴⁹ It is also prohibited under Article 133 of the Revised Penal Code for ‘anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony [to] perform acts notoriously offensive to the feelings of the faithful’.Footnote ¹⁵⁰ Pursuant to this law, ridicule of religious dogma or ritual is a ground for criminal liability.Footnote ¹⁵¹ Simple remarks on certain beliefs as anti-Christ or that the Pope is the commander of Satan are notoriously offensive to the feelings of the faithful and are deemed criminal acts under Philippine law.Footnote ¹⁵²

In People v Celdran,Footnote ¹⁵³ the defendant, a celebrity tour-guide and media personality, was prosecuted under Article 133 for staging a protest inside the Manila Cathedral against the church’s meddling in government affairs. During the ecumenical prayer, Celdran, while dressed as the Filipino national hero Jose Rizal, paraded a placard with the word ‘DAMASO’ before the attending Cardinal and bishops. The sign referred to ‘Padre Damaso’, the antagonist Catholic priest in Jose Rizal’s novel, Noli Me Tangere Footnote ¹⁵⁴ – a celebrated and familiar reference for students enrolled in Philippine academic institutions.Footnote ¹⁵⁵ Ultimately, the Court found Celdran guilty beyond reasonable doubt of offending religious feelings and subsequently sentenced him to a maximum prison sentence of a year, a month, and eleven days.Footnote ¹⁵⁶

Professor Florin T Hilbay, former Solicitor General of the Philippines, has criticized Article 133 as ‘patently unconstitutional because it smacks of viewpoint discrimination’.Footnote ¹⁵⁷ Likening the law to lèse-majesté – a ‘set of criminal offenses meant to sanction disrespect toward the crown or its agents’Footnote ¹⁵⁸ – Hilbay opposes government use of the criminal justice system to silence public criticism against certain institutions, ideas, and practices, which would violate constitutional guarantees of free expression and secularism.Footnote ¹⁵⁹

The contrast between Celdran and Iglesia ni Cristo evidences the dichotomy between the right of free expression in general and the right of religious expression per se, with the latter enjoying greater protection. In Iglesia ni Cristo, the congregation’s ‘attacks’ on another religion were justified on principles of free thought – that ‘the ultimate good desired is better reached by the free trade in ideas’,Footnote ¹⁶⁰ that ‘the remedy against bad theology is better theology’, and that ‘speech should be met by more speech’.Footnote ¹⁶¹ On the other hand, in Celdran, which concerned the crime of offending religious feelings, the marketplace of ideas was promptly abandoned. While the content-neutral considerations of Article 133 should not be arbitrarily dispensed with,Footnote ¹⁶² the legal dichotomy is made clear: while offensive utterances are recognized as part and parcel of a free and robust debate,Footnote ¹⁶³ they are actionable when made against religious feelings.

E. Juridical Personality of Majority and Minority Faiths

In the US, the church’s corporate status is a mere concession of the state. It is not recognized as an independent society established by divine law.Footnote ¹⁶⁴ On the other hand, Philippine courts have declared as early as 1907 that the Catholic Church has both a moral and juridical status.Footnote ¹⁶⁵ Furthermore, in Long v Basa, the Philippine Supreme Court ruled that a corporation sole – a religious corporate bodyFootnote ¹⁶⁶ – was of a peculiar nature and based on common religious or spiritual belief.Footnote ¹⁶⁷

The recognition given to the corporation sole is no trivial matter. In the case of Register of Deeds v Ung Siu Si Temple,Footnote ¹⁶⁸ involving an unincorporated Buddhist organization composed of foreign nationals, the Court ruled that constitutional prohibitions on foreign landholdingFootnote ¹⁶⁹ applied to the Ung Siu Si Temple because ‘the spirit of the Constitution demands that in the absence of capital stock, the controlling membership should be composed of Filipino citizens’.Footnote ¹⁷⁰ However, in Roman Catholic Apostolic Administrator of Davao, Inc v Register of Deeds, which concerned a Catholic corporation sole comprising only Msgr Thibault, a Canadian citizen, the Court ruled that constitutional mandates against foreign landholdings were inapplicable because Msgr Thibault was a mere ‘administrator of the “temporalities” or properties titled in [the Sole’s] name’, and that the constitutional provisions ‘could not have intended to curtail the Roman Catholic faith’.Footnote ¹⁷¹

The aforementioned cases show that although religion is generally given a privileged status in the Philippines, not all religions are treated similarly. While the Supreme Court liberally construed constitutional mandates in Roman Catholic Apostolic Administrator of Davao, a case involving the pre-dominant religion, a strict construction was adopted in Ung Siu Si Temple, which concerned a minority faith.

A. Civil Partnerships: Separate but Equal

Pending before the Philippine Congress are House Bill No (HB) 6595 (An Act Recognizing the Civil Partnership of Couples Providing for their Rights and Obligations) and HB 3179 (An Act Governing Property Ownership of Couples of Same Sex Living Together). HB 6595 seeks to remedy the Philippines, failure to provide ‘some of the most basic civil rights to couples who are not eligible for marriage under the law[,] [a] large part of [whom are members of] the Lesbian [,] Gay, Bisexual and Transgender (LGBT) community’ who ‘by reason of their sexual orientation and who they love… are excluded from entering into legally recognized and protected unions’.Footnote ¹⁷² Deviating from religious tradition, the bill proposes to allow couples, regardless of sex, to enter into civil partnerships enjoying the same rights, benefits, and responsibilities of marriage.Footnote ¹⁷³

On the other hand, HB 3179 seeks to offer legal recognition and protection to the property relations of same-sex partners. Similar to HB 6595, the novelty of HB 3179 is found in its departure from the religious sentiment reflected in existing Philippine family law.Footnote ¹⁷⁴ While the proposed statutes are undoubtedly progressive efforts worth celebrating, they have done little to quell the marriage equality debate. Rather than serving as a panacea to the Philippines’ social ills, these bills are merely ‘band-aid’ solutions to the Filipinos’ repudiation of the LGBT community.

HB 3179’s principal author, Representative Edcel B Lagman, explains that because the church holds a degree of influence in state affairs, gay marriage has yet to find a place in the Philippine legal system. Thus, rather than providing for a right to marriage, HB 3179 proposes a sui generis property regime for two persons of the same sex cohabiting with each other. Representative Lagman concludes: ‘after all, they should also be treated equally’.Footnote ¹⁷⁵

Representative Lagman echoes the reality embedded in law and jurisprudence: notwithstanding the constitutionally mandated separation of church and state, ‘religion has transcended mere rubric and has permeated into every sphere of human undertaking’.Footnote ¹⁷⁶ Congress thus seeks to circumvent religious considerations altogether by providing the same bundle of rights that come with marriage for a separate and distinct institution – the civil partnership. On its face, these bills deserve scant criticism. If the same rights of marriage are afforded to extra-marital same-sex relations, then the difference between the legal status of heterosexual and same-sex couples would lie in terminology rather than substantive right. After all, what’s in a name?

In the author’s opinion: everything. The issues entrenched in the marriage equality debate go beyond legal niceties and into the value ‘We the People’ give to same-sex relations, ie, ‘whether same-sex unions are worthy of honour and recognition by the community – whether they fulfil the purpose of the social institution of marriage’.Footnote ¹⁷⁷ Determining the rights of same-sex couples to legally enter into marriage is ultimately about the equal status of their person and the validity of their claim.Footnote ¹⁷⁸

But the issue of same-sex unions is not solely about de jure recognition, but also de facto equality. This the Philippines fails to address. HBs 3179 and 6595 profess to level the playing field by granting the rights of marriage to those who do not enjoy the right to marriage. The bills purport to treat heterosexual and same-sex couples as ‘separate but equal’Footnote ¹⁷⁹ creatures. But upon closer scrutiny, contrary to securing equality in law, they reinforce secular biases. The bills restate religious dogma: same-sex couples are unworthy of the legal institution of marriage. They are ‘separate’ because they are ‘unequal’.

That inequality is inherent to the institution of civil partnerships as illustrated by HB 6595 itself. While the bill seeks to afford same-sex couples ‘[a]ll benefits and protections as are granted to spouses in a marriage under existing laws’,Footnote ¹⁸⁰ it demands more from aspiring civil partners than from heterosexual spouses-to-be. For example, Section 5(b) of the proposed legislation provides for a residency requirement before the applicant same-sex couple may avail of the bill’s benefits. The civil partnership would be valid only if the parties have shared ‘a common domicile for a minimum of two (2) uninterrupted years at the time when the civil partnership license is applied for, as supported by competent evidence’.Footnote ¹⁸¹ Further, the relationship must be ‘publicly known’.Footnote ¹⁸²

Traditional marriage under the Family Code is not subjected to these pre-requisites. Article 2 of the Family Code but requires ‘a man and a woman’Footnote ¹⁸³ who have obtained a valid marriage licenseFootnote ¹⁸⁴ to have the legal capacity to enter into marriageFootnote ¹⁸⁵ and to freely consent thereto in the presence of a duly authorizedFootnote ¹⁸⁶ solemnizing officerFootnote ¹⁸⁷ and at least two witnesses of legal age.Footnote ¹⁸⁸

While HBs 3179 and 6595 seek to afford same-sex couples the same rights of marriage, it restricts the right to marriage to its legal, traditional, and religious definition: as a bond between a man and a woman.Footnote ¹⁸⁹ What is more, they impose upon same-sex couples stricter pre-requisites than heterosexual partners for the enjoyment of the same rights. The legal recognition of same-sex partnerships is thus not the abandonment of canon law; rather, it is ratification.

B. Marriage Dissolution, Church Annulments: Divorce in Sheep’s Clothing

The Philippines is the only state in the world apart from the Vatican that does not allow for absolute divorce.Footnote ¹⁹⁰ Instead, the Family Code only allows for relative divorce by way of legal separationFootnote ¹⁹¹ and for de facto divorce through Article 36 of the Family Code.Footnote ¹⁹² The Philippine Supreme Court has openly recognized the scriptural bases of the latter proviso, Article 36 having been adopted to avoid the ‘strong opposition that any provision on absolute divorce would encounter from the Catholic Church’.Footnote ¹⁹³

One might argue, however, that a divorce-free Philippines may soon be a thing of the past. In a landmark effort, members of Congress have proposed three house bills – HB 1062, HB 1629, and HB 6027.Footnote ¹⁹⁴ But like Article 36 of the Family Code, none of these bills seek to directly incorporate divorce per se within Philippine jurisdiction. Rather, the bills attempt to juridify a ‘disguised divorce’ under the auspices of ‘marriage annulment’ or ‘marriage dissolution’.Footnote ¹⁹⁵

While HBs 1062 and 6027 invoke grounds of public policy,Footnote ¹⁹⁶ HB 1629 openly adopts religious rationale by attempting to effect ‘divorce’ by legally recognizing church-ordained annulments and dissolutions. Section 1 of HB 1629 provides that marriages ‘legally solemnized by a priest, minister, imam, rabbi, or presiding elder of an established church or religion in the Philippines’ may be subsequently ‘annulled’ or ‘dissolved’ by ‘said church or religion’ and ‘be given full force and effect in the Philippines’. The bill’s principal sponsor Gweondolyn F Garcia explains:

As observed in an expert opinion by the University of the Philippines Institute of Human Rights, ‘giving automatic recognition to an annulment decree issued by [any] one church will violate the doctrine of separation of church and state’.Footnote ¹⁹⁸ Distinct from the divorce laws of foreign nations, HB 1629 does not attempt to legalize absolute divorce – it hopes to give legal effect to canonical marital dissolutions. Likewise, similar to Article 36 of the Family Code, HBs 1062 and 6027 reflect religious considerationFootnote ¹⁹⁹ by proposing a divorce in sheep’s clothing – an adamant refusal to call a spade a spade.Footnote ²⁰⁰ Thus, in its attempt to modernize the Family Code, Congress does not break away from the religious underpinning of Philippine law. On the contrary, it embraces it.

C. The Secular State of Reproductive Health

After fourteen years of debates and delays due to resistance by the Catholic clergy, the Philippine Congress passed the Reproductive Health Act of 2012 (RH Law).Footnote ²⁰¹ Catholic clergy and conservative legislators campaigned against its passing on the ground that the use of artificial methods of contraception was a ‘direct assault and violation of [Philippine] religious belief’.Footnote ²⁰² Ironically, the law’s naysayers claimed that Congress could not ‘quibble or trifle with matters of faith… against the fundamental Catholic doctrines, [and] the strong beliefs of the majority of Filipinos born and raised in a Catholic environment’.Footnote ²⁰³

The RH Law was immediately challenged before the Supreme Court in Imbong v Ochoa.Footnote ²⁰⁴ After long and agonizing debates, the Court eventually affirmed the law’s constitutionality, recognizing that the ‘jurisdiction of the Court extend[s] only to public and secular morality’ and not ‘one’s dogma or belief … ecclesiastical matters [falling] outside the province of the civil courts’.Footnote ²⁰⁵

The foregoing illustrates a rejuvenation of the non-establishment doctrine in the Philippines. Yet, notwithstanding Imbong’s secular approach to the intimate matter of reproductive health in the marital bed, jurisprudence has yet to take a similar stance regarding the institution of marriage. Likewise, even Congress’ attempts to modernize Philippine family laws through the incorporation of ‘marriage dissolution’ remain rooted in religious considerations. In similar vein, civil partnerships do not amount to the abandonment of canon law. Rather, the proposal would carve out a separate and distinct legal relationship, leaving the traditional religious institution unscathed.

Given the seminal role religion plays in Philippine society, particularly on the subject of marriage as a legal institution, the compatibility of Obergefell’s secular notion of marriage with the Philippine socio-political landscape remains to be seen. The Falcis Petition thus faces an uphill battle against decades of jurisprudence kowtowing to the clergy and a majoritarian society that fails to distinguish between popular religious opinion and secular culture.

A. Procedural Errors: Religious Freedoms for Whom?

Falcis fails to establish a factual foundation that would trigger the Free Exercise Clause of the constitution. Of the sects expressly listed in the Philippine census of 2010,Footnote ²¹⁸ not one congregation officially celebrates or recognizes same-sex marriages.Footnote ²¹⁹ Arguing that the veracity of faith does not hinge upon numbers, Falcis points to the practice of two minority religions of a generous estimate of 150 followersFootnote ²²⁰ – a membership of about 0.00000163 per cent of the Philippine populationFootnote ²²¹ – to establish a free exercise claim for same-sex marriages. But this only leads to a greater faux pas: Falcis claims a personal injury.

Assuming, for the purpose of argument, that the Court were to recognize that individuals belonging to the MCC and LCCI creeds are ‘denied of the right to found a family in accordance with their religious convictions’,Footnote ²²² Falcis established the prospect of neither perk nor prejudice from a court ruling on the ground of religious freedoms. After all, his claims to legal standing stem from a ‘personal stake’ in the case because his chances to enter long-term monogamous same-sex relationships is impaired.Footnote ²²³ Nowhere in the pleading does Falcis claim to be a member of these congregations, yet as a last ditch effort, he conveniently invokes the rights of ‘individuals belonging to religious denominations that believe in same-sex marriage’ for his benefit.Footnote ²²⁴ Falcis – an alleged atheistFootnote ²²⁵ – thus attempts to free-ride on the religious beliefs of others.

This glaring error casts serious doubt on Falcis’ cause. Again, Falcis does not seek to represent the group of members who may be injured by the absence of law recognizing same-sex marriages in a class suit;Footnote ²²⁶ he merely hopes to vindicate a phantom injury – the alleged impairment of his ability to enter into long-term monogamous same-sex relationships.Footnote ²²⁷ As observed by the OSG, Falcis’ claim to standing is a non sequitur devoid of any evidence of an ‘injury in fact’, and ‘demeans’ the very people Falcis purports to protect.Footnote ²²⁸

B. Substantive Mischaracterization: A Lack of Deprivation

Setting these procedural lapses aside, the Falcis Petition encounters its greatest substantive hurdle: it fails to establish how the free exercise rights of MCC and LCCI members were deprivedFootnote ²²⁹ by the contested provisions of the Family Code. Falcis claims that reserving state-sanctioned marriages to heterosexual couples alone is contrary to Section 3(1) Article XV of the 1987 Constitution because it ‘prohibits same-sex couples from founding a family through the vehicle of marriage in accordance with their religious convictions’.Footnote ²³⁰ This claim is highly questionable for failing to consider: (1) the proper subject of the right claimed; and (2) the concomitant duty borne by the state.

As to the former, a plain reading of the Constitution shows that the right ‘to found a family in accordance with their religious convictions’ belongs to a particular subject – the ‘spouses’.Footnote ²³¹ Notice the paradox: Falcis claims that by withholding the legal status from same-sex marriages, members of the MCC and LCCI are denied the constitutional right to raise a family in accordance with their religious convictions. Yet that is a right that, in the first place, belongs to spouses, a term which has historically and legally referred to a relationship ‘between a man and a woman’.Footnote ²³² Effectively, Falcis places the cart before the horse. He seeks a legal status for same-sex marriages, but in that same breath, he attempts to found that claim on a right hinged on the very status that is sought.

But perhaps it may be argued that as far as the MCC and LCCI are concerned, the marriage celebrators are indeed spouses, albeit from a religious perspective rather than its traditional legal sense. Even if through some form of legal gymnastics, the unqualifiedFootnote ²³³ use of the word ‘spouse’ in Section 3(1) Article XV of the 1987 Constitution could and should be stretched to include all marriages, whether civil or otherwise, the Falcis Petition still does not withstand legal scrutiny.

Again, the petitioner claims that individuals whose religious denominations approve of same-sex marriage are denied the right to found a family in accordance with their religious beliefs.Footnote ²³⁴ However, even assuming that said right was enjoyed by spousal relations recognized by the MCC or LCCI, Falcis fails to establish how that right was indeed violated. On the contrary, these religious sects are cited in the petition precisely because they successfully celebrated same-sex marriages.

Absent any form of state action depriving their respective congregations of religious freedoms, the Falcis Petition is its own rebuttal. It must be emphasized that Philippine jurisprudence subscribes to state action-only liability.Footnote ²³⁵ As in the US legal system,Footnote ²³⁶ the Philippine Constitution presumes ‘[o]ne’s liberty, not to mention one’s dignity, was something to be shielded from – not provided by – the State’.Footnote ²³⁷ The state being bound by negative obligation alone,Footnote ²³⁸ a mere failure to afford the same state-sanctioned status of heterosexual marriages to ecclesiastically ordained same-sex marriages would not constitute a deprivation of religious freedoms per se.

The foregoing discussion is crafted neither to decide on the legitimacy nor moral propriety of same-sex marriages. It is instead about the potential of the Falcis Petition to withstand judicial scrutiny when subjected to constitutional tests. Unfortunately for Falcis, the petition’s prospects of success are in doubt. Contrary to Obergefell, neither the Philippine legislature nor judiciary is poised to open the door to marriage equality. As Article 36 of the Family Code and the CMPL show, the legislative and judiciary alike have abandoned state secularity in favour of sectarianism, content with infusing religious convictions into the Philippine legal system.

But all is not lost for the Falcis Petition. While the views of mainstream churches cannot be ignored, jurisprudence has consistently treated religious freedoms as lex specialis vis-à-vis laws of general application; the judiciary eager to condone even patently prohibited acts when couched in terms of religious freedoms.Footnote ²³⁹ Ironically, it thus appears that the very remedy against religious encroachments by the state is the invocation of religion itself. In this light, the following strategies are offered for the more effective use of religious freedoms in the march towards marriage equality.

C. Recasting the Debate: Neutrality as a Duty to Accommodate

It is said that the Constitution was crafted to allow the government to control the governed, but in that same breath, to oblige it to control itself.Footnote ²⁴⁰ Contrary to the tripartite duties to respect, protect, and fulfil human rights recognized in international human rights law,Footnote ²⁴¹ the Philippine Bill of Rights is simply ‘a list of those which the state may not do … not a list of those which the state must do’.Footnote ²⁴² That principle is known as the state action doctrine (as distinguished from state inaction liability), pursuant to which the government is bound by a single obligation: the duty to respect.Footnote ²⁴³

But as already established, religion is the exception to the general rule. In the language of religious freedoms, the duty of the state is fulfilled through the doctrine of benevolent neutrality:

Under the orthodox view, the state need only refrain from interfering with individual rights; it is not obligated to take positive steps to protect those rights.Footnote ²⁴⁵ Notice, however, how the language of benevolent neutrality modifies the duty to respect, which is a negative obligation, into a positive duty to accommodate. In Estrada v Escritor, the Philippine Supreme Court applied that doctrine by exempting Escritor’s ‘disgraceful and immoral conduct’ from administrative liability.Footnote ²⁴⁶ But that notion has recently been further expanded. In Valmores v Achacoso, the Philippine Supreme Court construed benevolent neutrality as an affirmative duty to protect and preserve religious freedoms.Footnote ²⁴⁷

Denmark S Valmores, a Seventh Day Adventist Church (SDAC) devotee and medical student at the Mindanao State University College of Medicine (MSUCM) – a public academic institutionFootnote ²⁴⁸ – strictly observed the Sabbath as a sacred day for worship. He thus refrained from non-religious undertakings from sunset on Friday to sunset on Saturday. Hoping to avoid any potential conflict between his academic schedule and his church’s Saturday worship, Valmores wrote to his professor, respondent Achacoso, requesting to be excused from attending Saturday classes. He likewise expressed his willingness to take make-up exams whenever necessary. Valmores’ request fell on deaf ears. No accommodation having been given to him, he received a failing grade for Achacoso’s class and was considered ineligible to retake the exam.

Before the Supreme Court, Achacoso argued inter alia that membership to the SDAC was not a valid excuse to exempt Valmores from complying with academic standards. Valmores, however, claimed that his professor’s refusal to accommodate his request, in contravention of his religious freedoms, violated a 2010 Commission on Higher Education (CHED) Memorandum.Footnote ²⁴⁹ The memorandum provides that, in light of the Free Exercise Clause enshrined in the Philippine Constitution, all higher education institutions are ordered to excuse students, faculty, personnel, and staff from school attendance if such conflicts with the exercise of their religious duties. Instead, the affected individual ‘may be allowed to do remedial work to compensate for absences … without their grades being affected, or with no diminution in their salaries’.Footnote ²⁵⁰

The Supreme Court ruled for Valmores. In a unanimous decision, the Court held that because the Bill of Rights guaranteed the free exercise of religion, the state is ‘duty-bound to protect and preserve’ Valmores’ religious freedom.Footnote ²⁵¹ As representatives of the State, educational institutions should thus restrict their own academic liberties if they collide with the constitutionally preferred right of religion.

The following observations were made: First, neither public healthFootnote ²⁵² nor academic freedomFootnote ²⁵³ were at issue. As to the latter, the court insouciantly pronounced that the ‘respondents never even asserted, much less mentioned, their right to academic freedom in any of their submissions’. In contrast with the secular nature of the doctrines laid down in Schempp Footnote ²⁵⁴ and Weisman,Footnote ²⁵⁵ Valmores conceded that ‘religion has transcended mere rubric and has permeated into every sphere of human undertaking’.Footnote ²⁵⁶ Public education, therefore, is not detached from religious considerations.

Second, the separation of church and state was wholly ignored. Rather than invoking the doctrine of non-establishment, the Supreme Court espoused religious entanglement as the status quo, with religion having already become so deeply entrenched in Philippine culture. For the Court, therefore, religion is at the heart of the Philippine legal system. All Philippine constitutions have acknowledged and recognized the significance of religion in the country’s social and political history. This is manifested in various benevolent provisions, as well as in the present constitution’s Preamble (‘imploring the aid of Almighty God’). Ironically, the Court further expounded on how the recognition is also embodied in Section 5, Article III of the Constitution – the very same provision which expressly mandates that ‘[n]o law shall be made respecting an establishment of religion’.

Last and most importantly, while the Court has historically packaged its preference for religion in passive language, the doctrine of benevolent neutrality now manifests as an affirmative duty to safeguard religion. Departing from earlier case law recognizing state action-only liability,Footnote ²⁵⁷ Valmores interpreted ‘neutrality’ as a duty to protect and preserve. As in the case of MSUCM, a refusal to accommodate religious beliefs and practices of same-sex marriages (ie, a failure to protect) would violate religious freedoms.

Freedom of religion is more than an exception to general law; it is an exception to the very paradigm on which the Bill of Rights is founded. Benevolent neutrality mandates the state to go beyond the duty to respect – it is obligated to protect religion. Such an interpretation is consistent with Section 3(1), Article XV of the Constitution, which compels the state to defend the right to found a family in accordance with one’s religious convictions.Footnote ²⁵⁸ Through Valmores, sects such as the MCC and LCCI are effectively given a narrow but opportune opening to argue for the accommodation of their religious beliefs and practice of same-sex marriage. The criticism to Falcis’ use of religious freedoms is therefore not one of impropriety, but one of misapplication. In addition to the procedural lapses riddling his petition, Falcis fails to capitalize on substantive law in advocating for judicial protection of the religious beliefs of the MCC and LCCI.

Falcis insists that Articles 1 and 2 of the Family Code proscribe same-sex couples from founding a family in accordance with their religious convictions.Footnote ²⁵⁹ This claim is problematic, considering that the questioned articles are merely permissive and are neither mandatory nor prohibitory (ie, they allow, but neither prescribe nor proscribe, conduct).Footnote ²⁶⁰ These provisions do not forbid same-sex unions in the same way that they do not compel heterosexual marriages. Rather, they merely fail to confer on the former the same statutorily created status of marriage enjoyed by the latter. However, as I have argued earlier, under Philippine constitutional tradition, the state is bound only by a negative obligation. There is thus no constitutionally mandated duty to ‘give’ that legal status of marriage.Footnote ²⁶¹ As far as the Bill of Rights is concerned, the members of the MCC and LCCI cannot be ‘deprived without due process of law’ of what they did not have in the first place.

However, this criticism only attacks the orthodox view of the Falcis Petition: Falcis can still avail himself of a better argument. What Falcis should have done was to recast the debate not as a prohibition on religious freedoms (ie, as a deprivation of the constitutional right of spouses to found a family in accordance with their religious convictions) but rather as a failure to accommodate religious freedoms, particularly that of the MCC and LCCI. Recall that Valmores interpreted benevolent neutrality as a duty of the state to protect and preserve. Pursuant to this paradigm, the ‘refusal to accommodate’ religious belief would violate the constitutionally enshrined right to the free exercise of religion.Footnote ²⁶² Concomitantly, a failure to accommodate the MCC’s and LCCI’s religious views of marriage cannot be countenanced. As a matter of duty, the state must ensure that religious freedoms are unconstrained.Footnote ²⁶³

If religious freedoms will indeed be used in the march towards marriage equality, the task remains: (1) to cure the procedural flaws of the Falcis Petition by either finding an appropriate party suffering from a personal injuryFootnote ²⁶⁴ or by bringing a case in a representative capacity;Footnote ²⁶⁵ and (2) to re-frame the claim as one of accommodation of religion rather than its prohibition or deprivation.

With these elements present, unbeknownst to the Philippines Supreme Court, their breach of the Jeffersonian wall may have very well set the stage for marriage equality – ironically, through the vehicle of religion.