What Ever Happened to Article 26 of the Philippine Family Code?

What happened to Article 26 of the Family Code?

A few days ago I received a very good question/observation via email, so I thought I'd share it as a post.

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"I'm somewhat confused about the current status of same-sex union law in the Philippines.  Technically same-sex marriage is not specifically banned or illegal, because of no law which forbids it or Constitutional amendment which forbids it. 

"However, the Family Code declares marriages to be between a man and a woman only, which on technicality actually DOES make same-sex union illegal in the country.  But then the Family Code (Art. 26) also declares that marriages conducted legally outside the Philippines shall be recognized also in the Philippines.....  If the law says that, so why would a Filipino couple married in Spain (for example) not be able to register as a proper married couple in the Philippines?  It was conducted legally, so why is this law just being ignored?

"What is correct?  Is it just me or do these laws not contradict on each other?"

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For starters, if you happen to be confused:  join the crowd.  To the best of my knowledge, both of the above observations are correct and, yes, they do overlap in a contradictory manner.  In other words, it is confusing!

After talking about this with a Filipino attorney friend of mine, who happens to specialize in family law, I found out that he too sees a clear discrepancy within the legal framework on this issue; so much so that he predicts it will likely be a source of equal protections fireworks in the future.

The person who emailed the observation above is not alone in recognizing this unforeseen legal contradiction.  It's not just pro-equality folks who have taken notice; the anti-equality folks have as well.  Last year Rene L. Relampagos, Bohol Representative in the Philippine House, together with Camiguin Representative Pedro P. Ramualdo, drafted and submitted HB 4269 for this very reason.

The bill, which has been under review with the Committee on Revision of Laws since March of 2011, seeks to amend Article 26 of the Family Code in order to specifically add same-sex marriages to the list of "prohibited" unions contracted overseas.

In its current form Article 26 reads:

“All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in the country, except those prohibited under Articles 35(1), (4), (5), (6), and 36, 37 and 38.”

Because same-sex marriages aren't listed in Articles 35(1), (4), (5), (6), and 36, 37 and 38, that makes the knuckle-dragging posse of ''Rene, Pedro & Pals'' nervous.  It makes them so nervous, in fact, that they're pushing to get discrimination against same-sex couples written into the nation's law code, to, you know, "protect (blah-blah) the Filipino (blah-blah) family (blah)."

In other words, the same old neo-conservative religious babble.

So technically, no, same-sex marriages are neither forbidden nor illegal under Philippine law.  And, again technically, since same-sex marriages are obviously marriages, those which are contracted overseas in jurisdictions which have marriage equality "shall also be valid" in the Philippines.  That's the Philippine Family Code speaking there, not me.

Of course the authors of said Article back in 1987 didn't know that marriage equality would be sweeping the globe within twenty year's time, but same-sex cohabiting partnerships were already in place at that time in several European countries.*  Nevertheless, the law is there in black and white for all to see.

My attorney friend agrees.  Technically the Philippine state should honor legal, foreign marriage certificates of same-sex couples.  But (and there's always a big 'but' tossed in there somewhere when it comes to legal matters), he said that Article 1 of the Family Code gives the government a free pass to deny marriage rights of any kind to couples of the same sex.

''Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life."  (The Family Code of the Philippines, Chapter 1, Article 1(a))

If Article 26 were interpreted independently of Article 1, as it could and should be, same-sex marriages contracted abroad would be legally valid in the Philippines.  That would then theoretically allow the Philippines to simultaneously deny legal recognition to domestically contracted same-sex holy unions in respect to Article 1, in order to "protect (blah-blah) the Filipino (blah-blah) family (blah)."  You get the point.

That is actually similar to the current legal situation in Japan.

The Japanese Civil Code, Articles 731-737, as well as Article 24 of the Japanese Constitution, restricts 'marriage' to couples of the opposite sex.  The restriction is not for moral reasons, however, as it often is in some majority-Christian and all majority-Muslim countries.  Shintoism, the majority religion in Japan, is silent on same-sex relations, and Shinto temples do conduct wedding ceremonies for same-sex couples upon request.

In Japan the legal restriction is based in history, for the purpose of countering feudal arrangements where the father or husband was legally recognized as the head of the household, as well as for setting matters of 'matrimonial property distribution' which have always been a bit complex in the Japanese culture.  However, when the new constitution codified the old legal code, it had the unintended consequence of defining marriage as a union of "both sexes."

But in 2009 the Ministry of Justice announced that it was green-lighting the right of Japanese citizens to marry their foreign same-sex partners if that partner is a citizen of a country with marriage equality.  Upon their return to Japan, the couple can officially register their marriage with the government, and the spouse can apply for a spousal residency visa for them to reside as a married couple in Japan.

So... why can't the Philippines do this?  (Aside from the obvious reason of Catholic Taliban influence, of course.)  Japanese law also defines marriage as between a man and a woman, yet it makes an exception by recognizing and validating marriages legally solemnized abroad.  Put more directly, why can't the Philippines simply observe its own laws and do what Article 26 tells it to:  recognize as valid all marriages solemnized outside the country.

My attorney friend thinks that the Philippines will... eventually.  Time is on the side of the pro-equality movement, and it truly only is a matter of time.

He thinks that as long as HB 4269 (or some other future discriminatory bill) can be kept from becoming law, sooner or later a civil case will be brought against the government over Article 26 not being applied fairly in accordance with the Equal Protection Clause of the Philippine Constitution.  At the very least that would be a huge step forward, even if it would initially apply only to Filipino (and bi-national) same-sex couples who have married overseas.

In most -- if not all -- Western courts today, such a case would be a slam dunk for the pro-equality side.  But Philippine courts aren't exactly Western in their thinking.  This is especially true of the current Philippine Supreme Court, which is full of social conservative justices.  The best bet, according to most legal analysts, is to wait until there are more liberal (or at least fair minded) justices on the bench.

That is something that is guaranteed to happen with time, and probably not a long amount of time.  Each new generation of Filipinos is more favorable toward equality than the previous, and this includes judges.  It is also true that no court system in a democracy is immune to cases and rulings that come from courts in other democratic nations.

Make no doubt about it: what happens in Europe, in Australia, in Canada, and especially in the U.S., absolutely does have an impact on what will happen in the Philippines.

Of course, it goes without saying that all freedom loving Filipinos should do everything within their power to make sure Relampagos' discriminatory piece of legislation does not become law.  The Philippines needs law revisions to take it forward, not send it backward.  I urge all those reading this to let your voice be heard by emailing the Committee on Revision of Laws Chairperson, Hon. Marlyn Permicias-Agabas.

Let them know they need to dump the discrimination!

*Unregistered Cohabitation laws were already in place in the Netherlands (1979), Denmark (1986), and Sweden (1987) at the time the 1987 Philippine Constitution was written.