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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¶ble 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 byFsoðing &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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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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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 ðod, 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
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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 $ourteenth A&end&ent,?e)ecutory and does not reuire a (rit of
e)ecution,
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the order of reinstate&ent of the 5abor Arbiter is reversed on
appeal, it is obligatory on the part of the e&ployer to reinstate
and pay the (ages of the e&ployee during the period of appealuntil reversal by the higher court.F
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/'+"6Petitioner (as a for&er international flight ste(ard of
PA5, herein respondent. Petitioner (as dis&issed because of his
failure to adhere to the (eight standards of the airline co&pany.
Petitioner clai&s that he (as illegally dis&issed.
()e6hether or not petitioner (as discri&inated against (hen
he (as dis&issed.
el#6 Petition denied. 'o &a+e his clai& &ore believable,
petitioner invo+es the eual protection clause guaranty of the
Constitution. o(ever, in the absence of govern&ental
interference, the liberties guaranteed by the Constitution cannot
be invo+ed. Put differently, the Bill of Rights is not &eant to be
invo+ed against acts of private individuals. ndeed, the !
!upre&e Court, in interpreting the 1th A&end&ent, (hich is
the source of our eual protection guarantee, is consistent in
saying that the eual protection erects no shield against private
conduct, ho(ever discri&inatory or (rongful. Private actions,
no &atter ho( egregious, cannot violate the eual protection
guarantee.
;ras)e()i %s. Pct. 17, 2003?
Facts:
&omp#ainant was an internationa# '#i(t stewar! wo was !ismisse!beca)se o' is 'ai#)re to a!ere to te wei(t stan!ar!s o' te air#inecompan".
ss)e:
@as te !ismissa# %a#i!A
e#!:
S& )pe#! te #e(a#it" o' !ismissa#. Separation pa", owe%er, so)#!be awar!e! in 'a%or o' te emp#o"ee as an act o' socia# B)stice orbase! on e)it". Tis is so beca)se is !ismissa# is not 'or serio)smiscon!)ct. Neiter is it re'#ecti%e o' is mora# caracter.
Te obesit" o' petitioner, wen p#ace! in te conte$t o' is wor as'#i(t atten!ant, becomes an ana#o(o)s ca)se )n!er rtic#e 2328e o'te
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-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$t fail
Te &onstit)tion,te half 71K:8&onth@s pay for every year of service
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4?
!PRE9E C"R' "$ '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%
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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
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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
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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
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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?-
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$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
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right to &arry (ith the right to procreate. ;ablociv.%ed&ail,
= . !. =, =?3 71
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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 =
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'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
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Process Clause be subtly transfor&ed into the policy preferences
of the 9e&bers of this Court.S Was&ingtonv. #lucsberg, 4:1
. !. ;:, :; 71
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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
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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.
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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
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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 ðodology
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
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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,
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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
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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
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g8 y y g g
for the &a0ority to conclude that the Constitution protects a right
to sa&e>se) &arriage2 it is soðing else to portray everyone
(ho does not share the &a0ority@s better infor&ed
understandingS as bigoted.Ante, at 1
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?=
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
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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.
*