Gay Marriage on Front Page
Joaquin G. Bernas, S.J.
On billboards along EDSA you will see the ad for My Husband’s Lover. It is shaking up some elements of the Church, probably fans of Be Careful with My Heart.
If you look into the debates in the House of Lords, you will find Catholic peers disagreeing about same sex marriage.
Last week the US Supreme Court came out with a decision on the subject of gay marriages.
The first case to reach the Philippine Supreme Court about gays was not about gay marriage but about the Comelec’s challenge to the party Ang Ladlad. The Comelec wanted Ang Ladlad banned from participating in the party lists elections. The Comelec lost that one with the Supreme Court saying: “We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct.”
If ever we should reach the point of debating about same sex marriage, I am sure we will be hearing about the constitutional provision which says “The state recognizes the sanctity of the family life and shall protect and strengthen the family is a basic social institution.” Certainly the question of how the state will protect and strengthen the family as a social institution will be a subject of debate. We will also be debating about the constitutional meaning of family and marriage.
But let us leave that for now and go to the legal debate going on in the United Kingdom and in the United States.
What interests me very much is the split among Catholic British peers on the issue of gay marriage. A couple of weeks after the Marriage (Same Sex) Bill passed the House of Commons, it was sent to the House of Lords for debate. How to deal with it was a dilemma for Catholic peers. The split among them went three ways – six in favor, at least seven against and at least six abstained. What was behind their vote?
Among those who expressed opposition to the Act one argued that, whatever the constitutional implications might be, she opposed the redefinition of marriage. She said that marriage was between two people of the opposite sex “and I don’t think you can make things the same by an Act of Parliament”. Another said that the bill was flawed because appropriating the word “marriage” could not change its true meaning. “I believe that, in time, LGBT [lesbian, gay, bisexual and transgendered] people will regret attaching their unions to heterosexual marriage.” A third argued that the bill would cause disharmony, anger and long-lasting hurt. “Far from creating equality in marriage, he warned peers that the bill would establish two different sorts of marriage – statutory gay marriage and traditional marriage.”
Of those who supported gay marriage one argued that homosexuality was not “heterosexuals behaving badly, but gay people behaving naturally”. He
believed it was possible to distinguish between state marriage and Catholic marriage. “The State has got to make different arrangements from the Church because it has different concerns,” Another argued that he had a “strong impulse” towards equality. And a Baroness who was consulted on the legal implications of the bill for religious organizations was firmly of the view that the bill protected the Church. “That people, gay or straight, should want to be part of the whole that is our society is surely an advance on marriage as it is currently constructed,” she said. “It means that, in fact, we are enhancing
rather than diminishing the meaning of marriage.”
That is a sampling of how things might go should the subject of gay marriage come up for debate in Congress and in the larger Philippine society. It is perhaps worth noting that our Constitution does not speak of protecting marriage but “protecting the family.”
Going now to the United States, we can look at a recent Supreme Court decision promulgated only last June 26. I quote the first paragraph of the Court’s decision: “Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of ‘spouse’ as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.”
That is the short of it. The long of it, however, is complicated and not for one column. It involves not only differences between federal and state law but also delicate equal protection principles. But mainly it iterates that marital relations from earliest times have been regulated by the states and not by the federal government. Since ours is a unitary system of government, we do not have that kind of allocation of powers. At present thirteen US states and the District of Columbia allow same-sex marriage and the Federal Supreme Court will not touch them.
1 July 2013