‘What’s in a name?’

Dominador Awiten .

IN this “interesting age,” fraught and crisis-driven, one game changer is the proposition for a civil partnership or civil union that is intended to overcome the present-day notion of marriage being limited to the heterosexual relationship. 

The start of the 18th Congress was the occasion for the re-filing of the bill that will legislate the proposition. According to the bill’s principal sponsor in the House of Representatives, the vision for a civil partnership of a couple (including those of the LGBT community) is predicated on the constitutional right to equal protection of the laws.

Several legal leading lights are in favor of the proposition.

To Supreme Court Senior Associate Justice Antonio Carpio, civil partnership or civil union – even same sex marriage – hinges on the constitutional right to free association.

In the view of former University of the Philippines law dean Professor Pacifico Agabin, a firm basis is a person’s right to privacy.

In the United States, the right to marry is already established case law, also known as decisional law.

The decision in Obergefell v. Hodges (2015) set the new precedent. In turn this decision has as its origin the case of Loving v. Virginia (1967) that invalidated the ban against interracial marriage.

As penned by Justice Anthony Kennedy, the ratio decidendi recognized the evolution of the institution of marriage and put an end to conflicting legal rules among the States of the Union. 

According to the decision, “The liberties protected by the due process clause extend to choices that are central to a person’s dignity and autonomy, including intimate choices about personal beliefs and identity.”

There are involved four far reaching essential principles relating to the right to marry:

First, the right to personal choice in relation to marriage as an inherent aspect of an individual’s autonomy;

Second, the importance of the union of marriage to the two individuals which was “unlike any other”;

Third, that marriage provides a safeguard for children and families;

Last, that marriage was central to social order, with states offering married couples rights, benefits and responsibilities.

The Court, then, held: “Each of these principles applies equally to same-sex marriages and while limiting marriage may have previously been seen as just and natural, it is now manifest that limiting marriage to opposite-sex partners is inconsistent with the ‘central meaning of the right to marry.’  Such knowledge must lead to recognition that banning of same-sex marriage imposes “stigma and injury of the kind prohibited by (the) basic charter’.”

Before the Obergefell decision, there were legal opinions in favor of expanding the concept of marriage.

For instance, in his commentary in the Journal of Constitutional Law (University of Pennsylvania, March 2008), entitled “What’s in a name? Civil Unions and the Constitutional Significance of ‘Marriage,’” Misha Isaak proposed four distinct arguments for such a constitutional significance.

“First, not only a civil union must provide the tangible benefits of marriage it must also provide marriage’s intangible benefits, such as esteem, self-definition, and the stabilizing influence of social expectations.”

Second, “state recognition is itself a tangible benefit analogous to other government-conferred statuses, such as citizenship or paternity/parentage. Because state recognition is a valuable privilege that facilitates social understanding, denial of that benefit is a deprivation of constitutional magnitude.”

Third, “the title ‘marriage’ is a constitutionally significant benefit” that should be conferred also to civil-unioned couples.

“Much like a state identification card, marriage is a government-issued key that unlocks numerous private-sector benefits. Denial of access to this key is therefore a constitutionally significant deprivation.

Finally, there is “the constitutional significance of marriage beyond the scope of equal protection. For many, marriage is a religious rite performed by a member of the clergy; therefore, the state’s refusal to accord legitimacy to same-sex marriages lacks a secular purpose and amounts to an impermissible endorsement of religion under the First Amendment’s Establishment Clause.

In Obergefell, the dissent of Chief Justice Roberts (joined by three other justices) argued that the Constitution did not allow judges to decide the definition of marriage as it left that decision to the electorate.

The dissenting argument may be viewed to rely upon the dichotomy between a “political question” and a “justiciable controversy.”

In Philippine jurisprudence, a political question is one that involves policy and may be decided by the political agencies, namely, Congress and the President in the enactment of a law, or by the people themselves as the electorate when they choose our officials or when they vote in a plebiscite.