Republic of the Philippines

SUPREME COURT
Baguio City

choices are not to be legally prohibited merely because they are

different, and the right to disagree and debate about important
questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition
of, and respect for, diversity and difference in opinion.

EN BANC
G.R. No. 190582

Since ancient times, society has grappled with deep

disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony
among those theoretically opposed is an insurmountable goal.
Yet herein lies the paradox philosophical justifications about
what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however,
that practical solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more worthy
than rhetoric. This will allow persons of diverse viewpoints to
live together, if not harmoniously, then, at least, civilly.

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its

Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its
substance is the right to differ as to things that touch the heart of
the existing order.

Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of
Court, with an application for a writ of preliminary mandatory
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad)
against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 20092 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELECs refusal
to accredit Ang Ladlad as a party-list organization under
Republic Act (RA) No. 7941, otherwise known as the Party-List

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom
to choose is that others may make different choices choices we
would not make for ourselves, choices we may disapprove of,
even choices that may shock or offend or anger us. However,

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System Act.4

(LGBT) Community, thus:

Ang Ladlad is an organization composed of men and women

who identify themselves as lesbians, gays, bisexuals, or transgendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the
ground that the organization had no substantial membership
base. On August 17, 2009, Ang Ladlad again filed a Petition5 for
registration with the COMELEC.

x x x a marginalized and under-represented sector that is

particularly disadvantaged because of their sexual orientation
and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender."

Before the COMELEC, petitioner argued that the LGBT

community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation
and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections.6 Ang Ladlad laid out its
national membership base consisting of individual members and
organizational supporters, and outlined its platform of
governance.7

This definition of the LGBT sector makes it crystal clear that

petitioner tolerates immorality which offends religious beliefs.
In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even
their women did change the natural use into that which is against
nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves
that recompense of their error which was meet.

On November 11, 2009, after admitting the petitioners

evidence, the COMELEC (Second Division) dismissed the
Petition on moral grounds, stating that:

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye
are indeed a people transgressing beyond bounds." (7.81) "And
we rained down on them a shower (of brimstone): Then see what
was the end of those who indulged in sin and crime!" (7:84) "He

x x x This Petition is dismissible on moral grounds. Petitioner

defines the Filipino Lesbian, Gay, Bisexual and Transgender

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said: "O my Lord! Help Thou me against people who do

mischief" (29:30).

morals, good customs, public order or public policy are

inexistent and void from the beginning.

As correctly pointed out by the Law Department in its Comment

dated October 2, 2008:

Finally to safeguard the morality of the Filipino community, the

Revised Penal Code, as amended, penalizes Immoral doctrines,
obscene publications and exhibitions and indecent shows as
follows:

The ANG LADLAD apparently advocates sexual immorality as

indicated in the Petitions par. 6F: Consensual partnerships or
relationships by gays and lesbians who are already of age. It is
further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history
of Sodom and Gomorrah).

Art. 201. Immoral doctrines, obscene publications and

exhibitions, and indecent shows. The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed
upon:

Laws are deemed incorporated in every contract, permit, license,

relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.

1. Those who shall publicly expound or proclaim doctrines

openly contrary to public morals;
2. (a) The authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature;
and the owners/operators of the establishment selling the same;

ANG LADLAD collides with Article 695 of the Civil Code

which defines nuisance as Any act, omission, establishment,
business, condition of property, or anything else which x x x (3)
shocks, defies; or disregardsdecency or morality x x x

(b) Those who, in theaters, fairs, cinematographs or any other

place, exhibit indecent or immoral plays, scenes, acts or shows,
it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet
traffic in and use of prohibited drugs; and (5) are contrary to law,

It also collides with Article 1306 of the Civil Code: The

contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order
or public policy. Art 1409 of the Civil Code provides that
Contracts whose cause, object or purpose is contrary to law,

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public order, morals, good customs,established policies, lawful

orders, decrees and edicts.

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven its
under-representation and marginalization, it cannot be said that
Ladlads expressed sexual orientations per se would benefit the
nation as a whole.

3. Those who shall sell, give away or exhibit films, prints,

engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."

Section 2 of the party-list law unequivocally states that the

purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to
become members of the House of Representatives.

Furthermore, should this Commission grant the petition, we will

be exposing our youth to an environment that does not conform
to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older
practicing homosexuals are a threat to the youth." As an agency
of the government, ours too is the States avowed duty under
Section 13, Article II of the Constitution to protect our youth
from moral and spiritual degradation.8

If entry into the party-list system would depend only on the

ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into
the party-list race. But that is not the intention of the framers of
the law. The party-list system is not a tool to advocate tolerance
and acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also
the nations only that their interests have not been brought to
the attention of the nation because of their under representation.
Until the time comes when Ladlad is able to justify that having
mixed sexual orientations and transgender identities is beneficial
to the nation, its application for accreditation under the party-list

When Ang Ladlad sought reconsideration,9 three commissioners

voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
Velasco), while three commissioners voted to deny Ang Ladlads
Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The
COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:

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system will remain just that.

precepts are generally accepted public morals. They are possibly

religious-based, but as a society, the Philippines cannot ignore its
more than 500 years of Muslim and Christian upbringing, such
that some moral precepts espoused by said religions have sipped
[sic] into society and these are not publicly accepted moral
norms.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a "special class" of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental
right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal
equality of homosexual relations," as in the case of race or
religion or belief.

V. Legal Provisions
But above morality and social norms, they have become part of
the law of the land. Article 201 of the Revised Penal Code
imposes the penalty of prision mayor upon "Those who shall
publicly expound or proclaim doctrines openly contrary to
public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad"
apparently falls under these legal provisions. This is clear from
its Petitions paragraph 6F: "Consensual partnerships or
relationships by gays and lesbians who are already of age It is
further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000. Moreoever, Article 694
of the Civil Code defines "nuisance" as any act, omission x x x
or anything else x x x which shocks, defies or disregards
decency or morality x x x." These are all unlawful.10

xxxx
Thus, even if societys understanding, tolerance, and acceptance
of LGBTs is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that
applies to all citizens alike.
xxxx
IV. Public Morals

On January 4, 2010, Ang Ladlad filed this Petition, praying that

the Court annul the Assailed Resolutions and direct the
COMELEC to grant Ang Ladlads application for accreditation.
Ang Ladlad also sought the issuance ex parte of a preliminary
mandatory injunction against the COMELEC, which had

x x x There is no question about not imposing on Ladlad

Christian or Muslim religious practices. Neither is there any
attempt to any particular religious groups moral rules on
Ladlad. Rather, what are being adopted as moral parameters and

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previously announced that it would begin printing the final

ballots for the May 2010 elections by January 25, 2010.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion

to Intervene18 which motion was granted on February 2, 2010.19

On January 6, 2010, we ordered the Office of the Solicitor

General (OSG) to file its Comment on behalf of COMELEC not
later than 12:00 noon of January 11, 2010.11 Instead of filing a
Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment. 12
Somewhat surprisingly, the OSG later filed a Comment in
support of petitioners application.13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment. 14 The COMELEC, through
its Law Department, filed its Comment on February 2, 2010.15

The Parties Arguments

In the meantime, due to the urgency of the petition, we issued a

temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.16

The OSG concurred with Ang Ladlads petition and argued that
the COMELEC erred in denying petitioners application for
registration since there was no basis for COMELECs
allegations of immorality. It also opined that LGBTs have their
own special interests and concerns which should have been
recognized by the COMELEC as a separate classification.
However, insofar as the purported violations of petitioners
freedom of speech, expression, and assembly were concerned,
the OSG maintained that there had been no restrictions on these
rights.

Ang Ladlad argued that the denial of accreditation, insofar as it

justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of
speech and assembly, and equal protection of laws, as well as
constituted violations of the Philippines international
obligations against discrimination based on sexual orientation.

Also, on January 13, 2010, the Commission on Human Rights

(CHR) filed a Motion to Intervene or to Appear as Amicus
Curiae, attaching thereto its Comment-in-Intervention.17 The
CHR opined that the denial of Ang Ladladspetition on moral
grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights
(UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHRs
motion to intervene.

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In its Comment, the COMELEC reiterated that petitioner does

not have a concrete and genuine national political agenda to
benefit the nation and that the petition was validly dismissed on
moral grounds. It also argued for the first time that the LGBT
sector is not among the sectors enumerated by the Constitution

and RA 7941, and that petitioner made untruthful statements in

its petition when it alleged its national existence contrary to
actual verification reports by COMELECs field personnel.

Respondent also argues that Ang Ladlad made untruthful

statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel,
it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21

Our Ruling
We grant the petition.

This argument that "petitioner made untruthful statements in its

petition when it alleged its national existence" is a new one;
previously, the COMELEC claimed that petitioner was "not
being truthful when it said that it or any of its nominees/partylist representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere
was this ground for denial of petitioners accreditation
mentioned or even alluded to in the Assailed Resolutions. This,
in itself, is quite curious, considering that the reports of
petitioners alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a
belated afterthought, a change in respondents theory, and a
serious violation of petitioners right to procedural due process.

Compliance with the Requirements of the Constitution and

Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration
on the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong
Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals) may be registered under
the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections,20 "the
enumeration of marginalized and under-represented sectors is
not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA
7941.

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Nonetheless, we find that there has been no misrepresentation. A

cursory perusal of Ang Ladlads initial petition shows that it
never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the
Philippines was estimated to constitute at least 670,000 persons;
that it had 16,100 affiliates and members around the country, and
4,044 members in its electronic discussion group.22 Ang Ladlad
also represented itself to be "a national LGBT umbrella
organization with affiliates around the Philippines composed of

the following LGBT networks:"

Gay United for Peace and Solidarity (GUPS) Lanao del

Norte

Abra Gay Association

Iloilo City Gay Association Iloilo City
Aklan Butterfly Brigade (ABB) Aklan
Kabulig Writers Group Camarines Sur
Albay Gay Association
Lesbian Advocates Philippines, Inc. (LEAP)
Arts Center of Cabanatuan City Nueva Ecija
LUMINA Baguio City
Boys Legion Metro Manila
Marikina Gay Association Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Metropolitan Community Church (MCC) Metro Manila
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Naga City Gay Association Naga City
Cebu Pride Cebu City
ONE BACARDI
Circle of Friends
Order of St. Aelred (OSAe) Metro Manila
Dipolog Gay Association Zamboanga del Norte
PUP LAKAN
Gay, Bisexual, & Transgender Youth Association (GABAY)
RADAR PRIDEWEAR
Gay and Lesbian Activists Network for Gender Equality
(GALANG) Metro Manila

Rainbow Rights Project (R-Rights), Inc. Metro Manila

Gay Mens Support Group (GMSG) Metro Manila

San Jose del Monte Gay Association Bulacan

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 Sining Kayumanggi Royal Family Rizal

morality, or lack thereof.

Society of Transexual Women of the Philippines (STRAP)

Metro Manila

Religion as the Basis for Refusal to Accept Ang Ladlads

Petition for Registration

Soul Jive Antipolo, Rizal

Our Constitution provides in Article III, Section 5 that "[n]o law

shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof." At bottom, what our nonestablishment clause calls for is "government neutrality in
religious matters."24 Clearly, "governmental reliance on religious
justification is inconsistent with this policy of neutrality." 25 We
thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.

The Link Davao City

Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City23

Rather than relying on religious belief, the legitimacy of the

Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26

Since the COMELEC only searched for the names ANG

LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In
fact, if COMELECs findings are to be believed, petitioner does
not even exist in Quezon City, which is registered as Ang
Ladlads principal place of business.

x x x The morality referred to in the law is public and

necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate
may influence the civil public order but public moral disputes
may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as

Against this backdrop, we find that Ang Ladlad has sufficiently

demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELECs moral objection
and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is
not qualified to register as a party-list organization under any of
the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlads

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religious programs or agenda. The non-believers would therefore

be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a
result, government will not provide full religious freedom for all
its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens.1avvphi1

Philippine constitution's religion clauses prescribe not a strict but

a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlads Petition for
Registration

In other words, government action, including its proscription of

immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence
on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law.
After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its
deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion
clauses. x x x Recognizing the religious nature of the Filipinos
and the elevating influence of religion in society, however, the

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Respondent suggests that although the moral condemnation of

homosexuality and homosexual conduct may be religion-based,
it has long been transplanted into generally accepted public
morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because
their group consists of LGBTs but because of the danger it poses
to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong
in having sexual relations with individuals of the same gender is
a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of
moral precepts is in danger of losing its own existence.28
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

10

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. Evidently,
therefore, these "generally accepted public morals" have not
been convincingly transplanted into the realm of law.29

should continue to restrict behavior considered detrimental to

society. Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on
one end of an argument or another, without bothering to go
through the rigors of legal reasoning and explanation. In this, the
notion of morality is robbed of all value. Clearly then, the bare
invocation of morality will not remove an issue from our
scrutiny.

The Assailed Resolutions have not identified any specific overt

immoral act performed by Ang Ladlad. Even the OSG agrees
that "there should have been a finding by the COMELEC that
the groups members have committed or are committing
immoral acts."30 The OSG argues:

We also find the COMELECs reference to purported violations

of our penal and civil laws flimsy, at best; disingenuous, at
worst. Article 694 of the Civil Code defines a nuisance as "any
act, omission, establishment, condition of property, or anything
else which shocks, defies, or disregards decency or morality,"
the remedies for which are a prosecution under the Revised
Penal Code or any local ordinance, a civil action, or abatement
without judicial proceedings.32 A violation of Article 201 of the
Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws
is not proof, and a mere blanket invocation of public morals
cannot replace the institution of civil or criminal proceedings
and a judicial determination of liability or culpability.

x x x A person may be sexually attracted to a person of the same

gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have
its hands full of disqualification cases against both the
"straights" and the gays." Certainly this is not the intendment of
the law.31
Respondent has failed to explain what societal ills are sought to
be prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position
that petitioners admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We,
of course, do not suggest that the state is wholly without
authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and

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As such, we hold that moral disapproval, without more, is not a

sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The
denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public
interest. Respondents blanket justifications give rise to the

11

inevitable conclusion that the COMELEC targets homosexuals

themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our
equal protection clause.

population considers homosexual conduct as immoral and

unacceptable, and this constitutes sufficient reason to disqualify
the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that
public opinion is as the COMELEC describes it, the asserted
state interest here that is, moral disapproval of an unpopular
minority is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause.
The COMELECs differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of
legislation that would benefit the nation, furthers no legitimate
state interest other than disapproval of or dislike for a disfavored
group.

Equal Protection
Despite the absolutism of Article III, Section 1 of our
Constitution, which provides "nor shall any person be denied
equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. "Equality,"
said Aristotle, "consists in the same treatment of similar
persons."33 The equal protection clause guarantees that no person
or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the
same place and in like circumstances.34

From the standpoint of the political process, the lesbian, gay,

bisexual, and transgender have the same interest in participating
in the party-list system on the same basis as other political
parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply
with equal force to LGBTs, and they deserve to participate in the
party-list system on the same basis as other marginalized and
under-represented sectors.

Recent jurisprudence has affirmed that if a law neither burdens a

fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, 36 we declared
that "[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the rational basis
test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is
a showing of a clear and unequivocal breach of the
Constitution."37

It bears stressing that our finding that COMELECs act of

differentiating LGBTs from heterosexuals insofar as the partylist system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with
the OSGs position that homosexuals are a class in themselves

The COMELEC posits that the majority of the Philippine

HUMAN RIGHTS LAW

12

for the purposes of the equal protection clause. 38 We are not

prepared to single out homosexuals as a separate class meriting
special or differentiated treatment. We have not received
sufficient evidence to this effect, and it is simply unnecessary to
make such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the
circumstances of the case."

is a necessary principle in this democratic governance. Thus,

when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies including protection of
religious freedom "not only for a minority, however small not
only for a majority, however large but for each of us" the
majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod
over the dissenting minorities.

Freedom of Expression and Association

Freedom of expression constitutes one of the essential

foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this
Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or
discouraging a disfavored one.

Under our system of laws, every group has the right to promote
its agenda and attempt to persuade society of the validity of its
position through normal democratic means.39 It is in the public
square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada
v. Escritor:40
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free,
every opinion, every prejudice, every aspiration, and every
moral discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square.
In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule

HUMAN RIGHTS LAW

This position gains even more force if one considers that

homosexual conduct is not illegal in this country. It follows that
both expressions concerning ones homosexuality and the
activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that

13

even overwhelming public perception that homosexual conduct

violates public morality does not justify criminalizing same-sex
conduct.41 European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection
provisions in foreign and international texts.42 To the extent that
there is much to learn from other jurisdictions that have reflected
on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive
influence on the Courts analysis.

of the right of association, even if such ideas may seem shocking

or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely
because it seeks to publicly debate controversial political issues
in order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant.
They are entitled to hold and express that view. On the other
hand, LGBTs and their supporters, in all likelihood, believe with
equal fervor that relationships between individuals of the same
sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as
this Court is concerned, our democracy precludes using the
religious or moral views of one part of the community to
exclude from consideration the values of other members of the
community.

In the area of freedom of expression, for instance, United States

courts have ruled that existing free speech doctrines protect gay
and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public
institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular
viewpoint."43
With respect to freedom of association for the advancement of
ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it
uses legal and democratic means and the changes it proposes are
consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order
and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise

HUMAN RIGHTS LAW

Of course, none of this suggests the impending arrival of a

golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy between
the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that
public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality
through this Decision.

14

x47

The OSG argues that since there has been neither prior restraint
nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or
any assembly denied. [COMELEC] simply exercised its
authority to review and verify the qualifications of petitioner as a
sectoral party applying to participate in the party-list system.
This lawful exercise of duty cannot be said to be a transgression
of Section 4, Article III of the Constitution.

The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and as
advanced by the OSG itself the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of
COMELECs action, from publicly expressing its views as a
political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we
find that there has, indeed, been a transgression of petitioners
fundamental rights.

xxxx

Non-Discrimination and International Law

A denial of the petition for registration x x x does not deprive the

members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said
denial. In fact, the right to vote is a constitutionally-guaranteed
right which cannot be limited.

In an age that has seen international law evolve geometrically in

scope and promise, international human rights law, in particular,
has grown dynamically in its attempt to bring about a more just
and humane world order. For individuals and groups struggling
with inadequate structural and governmental support,
international human rights norms are particularly significant, and
should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of
conduct.

As to its right to be elected in a genuine periodic election,

petitioner contends that the denial of Ang Ladlads petition has
the clear and immediate effect of limiting, if not outrightly
nullifying the capacity of its members to fully and equally
participate in public life through engagement in the party list
elections.

Our Decision today is fully in accord with our international

obligations to protect and promote human rights. In particular,
we explicitly recognize the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the
UDHR and the ICCPR.

This argument is puerile. The holding of a public office is not a

right but a privilege subject to limitations imposed by law. x x

HUMAN RIGHTS LAW

15

The principle of non-discrimination is laid out in Article 26 of

the ICCPR, as follows:

Likewise, the ICCPR states:

Article 25

Article 26
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions:

All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status.

(a) To take part in the conduct of public affairs, directly or

through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;

In this context, the principle of non-discrimination requires that

laws of general application relating to elections be applied
equally to all persons, regardless of sexual orientation. Although
sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex"
in Article 26 should be construed to include "sexual
orientation."48Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to
be prohibited under various international agreements.49

(c) To have access, on general terms of equality, to public

service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope
of the right to electoral participation is elaborated by the Human
Rights Committee in its General Comment No. 25 (Participation
in Public Affairs and the Right to Vote) as follows:

The UDHR provides:

1. Article 25 of the Covenant recognizes and protects the right of

every citizen to take part in the conduct of public affairs, the
right to vote and to be elected and the right to have access to
public service. Whatever form of constitution or government is
in force, the Covenant requires States to adopt such legislative
and other measures as may be necessary to ensure that citizens

Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.

HUMAN RIGHTS LAW

16

have an effective opportunity to enjoy the rights it protects.

Article 25 lies at the core of democratic government based on
the consent of the people and in conformity with the principles
of the Covenant.

Yogyakarta Principles contain norms that are obligatory on the

Philippines. There are declarations and obligations outlined in
said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute
of the International Court of Justice. 52 Petitioner has not
undertaken any objective and rigorous analysis of these alleged
principles of international law to ascertain their true status.

xxxx
15. The effective implementation of the right and the opportunity
to 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 minimum age, must be justifiable on
objective and reasonable criteria. Persons who are otherwise
eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage of any kind
because of that person's candidacy. States parties should indicate
and explain the legislative provisions which exclude any group
or category of persons from elective office.50

We also hasten to add that not everything that society or a

certain segment of society wants or demands is automatically a
human right. This is not an arbitrary human intervention that
may be added to or subtracted from at will. It is unfortunate that
much of what passes for human rights today is a much broader
context of needs that identifies many social desires as rights in
order to further claims that international law obliges states to
sanction these innovations. This has the effect of diluting real
human rights, and is a result of the notion that if "wants" are
couched in "rights" language, then they are no longer
controversial.1avvphi1

We stress, however, that although this Court stands willing to

assume the responsibility of giving effect to the Philippines
international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer
now to the petitioners invocation of the Yogyakarta Principles
(the Application of International Human Rights Law In Relation
to Sexual Orientation and Gender Identity),51 which petitioner
declares to reflect binding principles of international law.

Using even the most liberal of lenses, these Yogyakarta

Principles, consisting of a declaration formulated by various
international law professors, are at best de lege ferenda and
do not constitute binding obligations on the Philippines. Indeed,
so much of contemporary international law is characterized by
the "soft law" nomenclature, i.e., international law is full of
principles that promote international cooperation, harmony, and
respect for human rights, most of which amount to no more than
well-meaning desires, without the support of either State
practice or opinio juris.53

At this time, we are not prepared to declare that these

HUMAN RIGHTS LAW

17

As a final note, we cannot help but observe that the social issues
presented by this case are emotionally charged, societal attitudes
are in flux, even the psychiatric and religious communities are
divided in opinion. This Courts role is not to impose its own
view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public
opinion, and confident in the knowledge that our democracy is
resilient enough to withstand vigorous debate.

accreditation as a party-list organization to public respondent.

WHEREFORE, the Petition is hereby GRANTED. The

Resolutions of the Commission on Elections dated November
11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.

under the Revised Penal Code in its Article 201.

However, due to moral grounds, the latter denied the said

petition. To buttress their denial, COMELEC cited certain
biblical and quranic passages in their decision. It also stated that
since their ways are immoral and contrary to public policy, they
are considered nuissance. In fact, their acts are even punishable

A motion for reconsideration being denied, Petitioner filed this

instant Petition on Certiorari under Rule 65 of the ROC.
Ang Ladlad argued that the denial of accreditation, insofar as it

SO ORDERED.

justified the exclusion by using religious dogma, violated the

MARIANO C. DEL CASTILLO

Associate Justice

constitutional guarantees against the establishment of religion.

Petitioner

also

claimed

that

the

Assailed

Resolutions

contravened its constitutional rights to privacy, freedom of

speech and assembly, and equal protection of laws, as well as

ANG LADLAD VS. COMELEC

constituted

violations

of

the

Philippines

international

Facts:

obligations against discrimination based on sexual orientation.

Petitioner is a national organization which represents the

In its Comment, the COMELEC reiterated that petitioner does

lesbians, gays, bisexuals, and trans-genders. It filed a petition for

not have a concrete and genuine national political agenda to

HUMAN RIGHTS LAW

18

benefit the nation and that the petition was validly dismissed on

the party-list system. As we explicitly ruled in Ang Bagong

moral grounds. It also argued for the first time that the LGBT

Bayani-OFW Labor Party v. Commission on Elections, the

sector is not among the sectors enumerated by the Constitution

enumeration of marginalized and under-represented sectors is

and RA 7941, and that petitioner made untruthful statements in

not exclusive. The crucial element is not whether a sector is

its petition when it alleged its national existence contrary to

specifically enumerated, but whether a particular organization

actual verification reports by COMELECs field personnel.

complies with the requirements of the Constitution and RA

7941.

Issue:
WON Respondent violated the Non-establishment clause of the

Our Constitution provides in Article III, Section 5 that [n]o law

Constitution;

shall be made respecting an establishment of religion, or

WON Respondent erred in denying Petitioners application on

prohibiting the free exercise thereof. At bottom, what our non-

moral and legal grounds.

establishment clause calls for is government neutrality in

religious matters. Clearly, governmental reliance on religious

Held:

justification is inconsistent with this policy of neutrality. We

thus find that it was grave violation of the non-establishment

Respondent mistakenly opines that our ruling in Ang Bagong

clause for the COMELEC to utilize the Bible and the Koran to

Bayani stands for the proposition that only those sectors

justify the exclusion of Ang Ladlad. Be it noted that government

specifically enumerated in the law or related to said sectors

action must have a secular purpose.

(labor, peasant, fisherfolk, urban poor, indigenous cultural

communities, elderly, handicapped, women, youth, veterans,

Respondent has failed to explain what societal ills are sought to

overseas workers, and professionals) may be registered under

be prevented, or why special protection is required for the youth.

HUMAN RIGHTS LAW

19

Neither has the COMELEC condescended to justify its position

homosexuals from participation in the party-list system. The

that petitioners admission into the party-list system would be so

denial of Ang Ladlads registration on purely moral grounds

harmful as to irreparably damage the moral fabric of society.

amounts more to a statement of dislike and disapproval of

homosexuals, rather than a tool to further any substantial public

We also find the COMELECs reference to purported violations

interest.

of our penal and civil laws flimsy, at best; disingenuous, at

worst. Article 694 of the Civil Code defines a nuisance as any
act, omission, establishment, condition of property, or anything
else which shocks, defies, or disregards decency or morality,
the remedies for which are a prosecution under the Revised
Penal Code or any local ordinance, a civil action, or abatement

Republic of the Philippines

SUPREME COURT
Manila

without judicial proceedings. A violation of Article 201 of the

Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly

SECOND DIVISION

needs to be emphasized that mere allegation of violation of laws

G.R. No. 162994

is not proof, and a mere blanket invocation of public morals

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and

PEDRO A. TECSON, petitioners,
vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

cannot replace the institution of civil or criminal proceedings

and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a

RESOLUTION

sufficient governmental interest to justify exclusion of

HUMAN RIGHTS LAW

September 17, 2004

20

TINGA, J.:

employment with the company, the management and the

employee will explore the possibility of a "transfer to another
department in a non-counterchecking position" or preparation
for employment outside the company after six months.

Confronting the Court in this petition is a novel question, with

constitutional overtones, involving the validity of the policy of a
pharmaceutical company prohibiting its employees from
marrying employees of any competitor company.

Tecson was initially assigned to market Glaxos products in the

Camarines Sur-Camarines Norte sales area.

This is a Petition for Review on Certiorari assailing the

Decision1 dated May 19, 2003 and the Resolution dated March
26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.2

Subsequently, Tecson entered into a romantic relationship with

Bettsy, an employee of Astra Pharmaceuticals 3(Astra), a
competitor of Glaxo. Bettsy was Astras Branch Coordinator in
Albay. She supervised the district managers and medical
representatives of her company and prepared marketing
strategies for Astra in that area.

Petitioner Pedro A. Tecson (Tecson) was hired by respondent

Glaxo Wellcome Philippines, Inc. (Glaxo) as medical
representative on October 24, 1995, after Tecson had undergone
training and orientation.

Even before they got married, Tecson received several reminders

from his District Manager regarding the conflict of interest
which his relationship with Bettsy might engender. Still, love
prevailed, and Tecson married Bettsy in September 1998.

Thereafter, Tecson signed a contract of employment which

stipulates, among others, that he agrees to study and abide by
existing company rules; to disclose to management any existing
or future relationship by consanguinity or affinity with coemployees or employees of competing drug companies and
should management find that such relationship poses a possible
conflict of interest, to resign from the company.

In January 1999, Tecsons superiors informed him that his

marriage to Bettsy gave rise to a conflict of interest. Tecsons
superiors reminded him that he and Bettsy should decide which
one of them would resign from their jobs, although they told him
that they wanted to retain him as much as possible because he
was performing his job well.

The Employee Code of Conduct of Glaxo similarly provides that

an employee is expected to inform management of any existing
or future relationship by consanguinity or affinity with coemployees or employees of competing drug companies. If
management perceives a conflict of interest or a potential
conflict between such relationship and the employees

HUMAN RIGHTS LAW

Tecson requested for time to comply with the company policy

against entering into a relationship with an employee of a
competitor company. He explained that Astra, Bettsys employer,

21

was planning to merge with Zeneca, another drug company; and

Bettsy was planning to avail of the redundancy package to be
offered by Astra. With Bettsys separation from her company, the
potential conflict of interest would be eliminated. At the same
time, they would be able to avail of the attractive redundancy
package from Astra.

Because the parties failed to resolve the issue at the grievance

machinery level, they submitted the matter for voluntary
arbitration. Glaxo offered Tecson a separation pay of one-half
() month pay for every year of service, or a total of P50,000.00
but he declined the offer. On November 15, 2000, the National
Conciliation and Mediation Board (NCMB) rendered its
Decision declaring as valid Glaxos policy on relationships
between its employees and persons employed with competitor
companies, and affirming Glaxos right to transfer Tecson to
another sales territory.

In August 1999, Tecson again requested for more time resolve

the problem. In September 1999, Tecson applied for a transfer in
Glaxos milk division, thinking that since Astra did not have a
milk division, the potential conflict of interest would be
eliminated. His application was denied in view of Glaxos "leastmovement-possible" policy.

Aggrieved, Tecson filed a Petition for Review with the Court of

Appeals assailing the NCMB Decision.

In November 1999, Glaxo transferred Tecson to the Butuan

City-Surigao City-Agusan del Sur sales area. Tecson asked
Glaxo to reconsider its decision, but his request was denied.

On May 19, 2003, the Court of Appeals promulgated its

Decision denying the Petition for Review on the ground that the
NCMB did not err in rendering its Decision. The appellate court
held that Glaxos policy prohibiting its employees from having
personal relationships with employees of competitor companies
is a valid exercise of its management prerogatives.4

Tecson sought Glaxos reconsideration regarding his transfer and

brought the matter to Glaxos Grievance Committee. Glaxo,
however, remained firm in its decision and gave Tescon until
February 7, 2000 to comply with the transfer order. Tecson
defied the transfer order and continued acting as medical
representative in the Camarines Sur-Camarines Norte sales area.

Tecson filed a Motion for Reconsideration of the appellate

courts Decision, but the motion was denied by the appellate
court in its Resolution dated March 26, 2004.5

During the pendency of the grievance proceedings, Tecson was

paid his salary, but was not issued samples of products which
were competing with similar products manufactured by Astra.
He was also not included in product conferences regarding such
products.

HUMAN RIGHTS LAW

Petitioners filed the instant petition, arguing therein that (i) the
Court of Appeals erred in affirming the NCMBs finding that the
Glaxos policy prohibiting its employees from marrying an
employee of a competitor company is valid; and (ii) the Court of
Appeals also erred in not finding that Tecson was constructively

22

dismissed when he was transferred to a new sales territory, and

deprived of the opportunity to attend products seminars and
training sessions.6

sale of pharmaceutical products, it has a genuine interest in

ensuring that its employees avoid any activity, relationship or
interest that may conflict with their responsibilities to the
company. Thus, it expects its employees to avoid having
personal or family interests in any competitor company which
may influence their actions and decisions and consequently
deprive Glaxo of legitimate profits. The policy is also aimed at
preventing a competitor company from gaining access to its
secrets, procedures and policies.10

Petitioners contend that Glaxos policy against employees

marrying employees of competitor companies violates the equal
protection clause of the Constitution because it creates invalid
distinctions among employees on account only of marriage.
They claim that the policy restricts the employees right to
marry.7

It likewise asserts that the policy does not prohibit marriage per
se but only proscribes existing or future relationships with
employees of competitor companies, and is therefore not
violative of the equal protection clause. It maintains that
considering the nature of its business, the prohibition is based on
valid grounds.11

They also argue that Tecson was constructively dismissed as

shown by the following circumstances: (1) he was transferred
from the Camarines Sur-Camarines Norte sales area to the
Butuan-Surigao-Agusan sales area, (2) he suffered a diminution
in pay, (3) he was excluded from attending seminars and training
sessions for medical representatives, and (4) he was prohibited
from promoting respondents products which were competing
with Astras products.8

According to Glaxo, Tecsons marriage to Bettsy, an employee

of Astra, posed a real and potential conflict of interest. Astras
products were in direct competition with 67% of the products
sold by Glaxo. Hence, Glaxos enforcement of the foregoing
policy in Tecsons case was a valid exercise of its management
prerogatives.12 In any case, Tecson was given several months to
remedy the situation, and was even encouraged not to resign but
to ask his wife to resign form Astra instead.13

In its Comment on the petition, Glaxo argues that the company

policy prohibiting its employees from having a relationship with
and/or marrying an employee of a competitor company is a valid
exercise of its management prerogatives and does not violate the
equal protection clause; and that Tecsons reassignment from the
Camarines Norte-Camarines Sur sales area to the Butuan CitySurigao City and Agusan del Sur sales area does not amount to
constructive dismissal.9

Glaxo also points out that Tecson can no longer question the
assailed company policy because when he signed his contract of
employment, he was aware that such policy was stipulated
therein. In said contract, he also agreed to resign from

Glaxo insists that as a company engaged in the promotion and

HUMAN RIGHTS LAW

23

respondent if the management finds that his relationship with an

employee of a competitor company would be detrimental to the
interests of Glaxo.14

The Court is tasked to resolve the following issues: (1) Whether

the Court of Appeals erred in ruling that Glaxos policy against
its employees marrying employees from competitor companies
is valid, and in not holding that said policy violates the equal
protection clause of the Constitution; (2) Whether Tecson was
constructively dismissed.

Glaxo likewise insists that Tecsons reassignment to another

sales area and his exclusion from seminars regarding
respondents new products did not amount to constructive
dismissal.

The Court finds no merit in the petition.

It claims that in view of Tecsons refusal to resign, he was

relocated from the Camarines Sur-Camarines Norte sales area to
the Butuan City-Surigao City and Agusan del Sur sales area.
Glaxo asserts that in effecting the reassignment, it also
considered the welfare of Tecsons family. Since Tecsons
hometown was in Agusan del Sur and his wife traces her roots to
Butuan City, Glaxo assumed that his transfer from the Bicol
region to the Butuan City sales area would be favorable to him
and his family as he would be relocating to a familiar territory
and minimizing his travel expenses.15

The stipulation in Tecsons contract of employment with Glaxo

being questioned by petitioners provides:

10. You agree to disclose to management any existing or future

relationship you may have, either by consanguinity or affinity
with co-employees or employees of competing drug companies.
Should it pose a possible conflict of interest in management
discretion, you agree to resign voluntarily from the Company as
a matter of Company policy.

In addition, Glaxo avers that Tecsons exclusion from the

seminar concerning the new anti-asthma drug was due to the fact
that said product was in direct competition with a drug which
was soon to be sold by Astra, and hence, would pose a potential
conflict of interest for him. Lastly, the delay in Tecsons receipt
of his sales paraphernalia was due to the mix-up created by his
refusal to transfer to the Butuan City sales area (his
paraphernalia was delivered to his new sales area instead of
Naga City because the supplier thought he already transferred to
Butuan).16

HUMAN RIGHTS LAW

17
The same contract also stipulates that Tescon agrees to abide by
the existing company rules of Glaxo, and to study and become
acquainted with such policies.18 In this regard, the Employee
Handbook of Glaxo expressly informs its employees of its rules
regarding conflict of interest:
1. Conflict of Interest

24

Employees should avoid any activity, investment relationship, or

interest that may run counter to the responsibilities which they
owe Glaxo Wellcome.

counter checking position, or by career preparation toward

outside employment after Glaxo Wellcome. Employees must be
prepared for possible resignation within six (6) months, if no
other solution is feasible.19

Specifically, this means that employees are expected:

No reversible error can be ascribed to the Court of Appeals when
it ruled that Glaxos policy prohibiting an employee from having
a relationship with an employee of a competitor company is a
valid exercise of management prerogative.

a. To avoid having personal or family interest, financial or

otherwise, in any competitor supplier or other businesses which
may consciously or unconsciously influence their actions or
decisions and thus deprive Glaxo Wellcome of legitimate profit.

Glaxo has a right to guard its trade secrets, manufacturing

formulas, marketing strategies and other confidential programs
and information from competitors, especially so that it and Astra
are rival companies in the highly competitive pharmaceutical
industry.

b. To refrain from using their position in Glaxo Wellcome or

knowledge of Company plans to advance their outside personal
interests, that of their relatives, friends and other businesses.
c. To avoid outside employment or other interests for income
which would impair their effective job performance.

The prohibition against personal or marital relationships with

employees of competitor companies upon Glaxos employees is
reasonable under the circumstances because relationships of that
nature might compromise the interests of the company. In laying
down the assailed company policy, Glaxo only aims to protect its
interests against the possibility that a competitor company will
gain access to its secrets and procedures.

d. To consult with Management on such activities or

relationships that may lead to conflict of interest.
1.1. Employee Relationships
Employees with existing or future relationships either by
consanguinity or affinity with co-employees of competing drug
companies are expected to disclose such relationship to the
Management. If management perceives a conflict or potential
conflict of interest, every effort shall be made, together by
management and the employee, to arrive at a solution within six
(6) months, either by transfer to another department in a non-

HUMAN RIGHTS LAW

That Glaxo possesses the right to protect its economic interests

cannot be denied. No less than the Constitution recognizes the
right of enterprises to adopt and enforce such a policy to protect
its right to reasonable returns on investments and to expansion
and growth.20 Indeed, while our laws endeavor to give life to the
constitutional policy on social justice and the protection of labor,

25

it does not mean that every labor dispute will be decided in favor
of the workers. The law also recognizes that management has
rights which are also entitled to respect and enforcement in the
interest of fair play.21

the policy was made in an impartial and even-handed manner,

with due regard for the lot of the employee.
In any event, from the wordings of the contractual provision and
the policy in its employee handbook, it is clear that Glaxo does
not impose an absolute prohibition against relationships between
its employees and those of competitor companies. Its employees
are free to cultivate relationships with and marry persons of their
own choosing. What the company merely seeks to avoid is a
conflict of interest between the employee and the company that
may arise out of such relationships. As succinctly explained by
the appellate court, thus:

As held in a Georgia, U.S.A case,22 it is a legitimate business

practice to guard business confidentiality and protect a
competitive position by even-handedly disqualifying from jobs
male and female applicants or employees who are married to a
competitor. Consequently, the court ruled than an employer that
discharged an employee who was married to an employee of an
active competitor did not violate Title VII of the Civil Rights Act
of 1964.23The Court pointed out that the policy was applied to
men and women equally, and noted that the employers business
was highly competitive and that gaining inside information
would constitute a competitive advantage.

The policy being questioned is not a policy against marriage. An

employee of the company remains free to marry anyone of his or
her choosing. The policy is not aimed at restricting a personal
prerogative that belongs only to the individual. However, an
employees personal decision does not detract the employer from
exercising management prerogatives to ensure maximum profit
and business success. . .28

The challenged company policy does not violate the equal

protection clause of the Constitution as petitioners erroneously
suggest. It is a settled principle that the commands of the equal
protection clause are addressed only to the state or those acting
under color of its authority.24 Corollarily, it has been held in a
long array of U.S. Supreme Court decisions that the equal
protection clause erects no shield against merely private
conduct, however, discriminatory or wrongful.25 The only
exception occurs when the state29 in any of its manifestations or
actions has been found to have become entwined or involved in
the wrongful private conduct.27 Obviously, however, the
exception is not present in this case. Significantly, the company
actually enforced the policy after repeated requests to the
employee to comply with the policy. Indeed, the application of

HUMAN RIGHTS LAW

The Court of Appeals also correctly noted that the assailed

company policy which forms part of respondents Employee
Code of Conduct and of its contracts with its employees, such as
that signed by Tescon, was made known to him prior to his
employment. Tecson, therefore, was aware of that restriction
when he signed his employment contract and when he entered
into a relationship with Bettsy. Since Tecson knowingly and
voluntarily entered into a contract of employment with Glaxo,
the stipulations therein have the force of law between them and,

26

thus, should be complied with in good faith."29 He is therefore

estopped from questioning said policy.

participation in the market war characterized as it is by stiff

competition among pharmaceutical companies. Moreover, and
this is significant, petitioners sales territory covers Camarines
Sur and Camarines Norte while his wife is supervising a branch
of her employer in Albay. The proximity of their areas of
responsibility, all in the same Bicol Region, renders the conflict
of interest not only possible, but actual, as learning by one
spouse of the others market strategies in the region would be
inevitable. [Managements] appreciation of a conflict of interest
is therefore not merely illusory and wanting in factual basis31

The Court finds no merit in petitioners contention that Tescon

was constructively dismissed when he was transferred from the
Camarines Norte-Camarines Sur sales area to the Butuan CitySurigao City-Agusan del Sur sales area, and when he was
excluded from attending the companys seminar on new
products which were directly competing with similar products
manufactured by Astra. Constructive dismissal is defined as a
quitting, an involuntary resignation resorted to when continued
employment becomes impossible, unreasonable, or unlikely;
when there is a demotion in rank or diminution in pay; or when a
clear discrimination, insensibility or disdain by an employer
becomes unbearable to the employee.30 None of these conditions
are present in the instant case. The record does not show that
Tescon was demoted or unduly discriminated upon by reason of
such transfer. As found by the appellate court, Glaxo properly
exercised its management prerogative in reassigning Tecson to
the Butuan City sales area:

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations

Commission,32 which involved a complaint filed by a medical
representative against his employer drug company for illegal
dismissal for allegedly terminating his employment when he
refused to accept his reassignment to a new area, the Court
upheld the right of the drug company to transfer or reassign its
employee in accordance with its operational demands and
requirements. The ruling of the Court therein, quoted hereunder,
also finds application in the instant case:

. . . In this case, petitioners transfer to another place of

assignment was merely in keeping with the policy of the
company in avoidance of conflict of interest, and thus valid
Note that [Tecsons] wife holds a sensitive supervisory position
as Branch Coordinator in her employer-company which requires
her to work in close coordination with District Managers and
Medical Representatives. Her duties include monitoring sales of
Astra products, conducting sales drives, establishing and
furthering relationship with customers, collection, monitoring
and managing Astras inventoryshe therefore takes an active

HUMAN RIGHTS LAW

By the very nature of his employment, a drug salesman or

medical representative is expected to travel. He should anticipate
reassignment according to the demands of their business. It
would be a poor drug corporation which cannot even assign its
representatives or detail men to new markets calling for opening
or expansion or to areas where the need for pushing its products
is great. More so if such reassignments are part of the
employment contract.33

27

As noted earlier, the challenged policy has been implemented by

Glaxo impartially and disinterestedly for a long period of time.
In the case at bar, the record shows that Glaxo gave Tecson
several chances to eliminate the conflict of interest brought
about by his relationship with Bettsy. When their relationship
was still in its initial stage, Tecsons supervisors at Glaxo
constantly reminded him about its effects on his employment
with the company and on the companys interests. After Tecson
married Bettsy, Glaxo gave him time to resolve the conflict by
either resigning from the company or asking his wife to resign
from Astra. Glaxo even expressed its desire to retain Tecson in
its employ because of his satisfactory performance and
suggested that he ask Bettsy to resign from her company instead.
Glaxo likewise acceded to his repeated requests for more time to
resolve the conflict of interest. When the problem could not be
resolved after several years of waiting, Glaxo was constrained to
reassign Tecson to a sales area different from that handled by his
wife for Astra. Notably, the Court did not terminate Tecson from
employment but only reassigned him to another area where his
home province, Agusan del Sur, was included. In effecting
Tecsons transfer, Glaxo even considered the welfare of Tecsons
family. Clearly, the foregoing dispels any suspicion of unfairness
and bad faith on the part of Glaxo.34

concur.

Duncan Assoc. of Detailman-PTGWO vs. Glaxo Wellcome

Phils., Inc.
FACTS:
Tecson was hired by Glaxo as a medical representative on Oct.
24, 1995. Contract of employment signed by Tecson stipulates,
among others, that he agrees to study and abide by the existing
company rules; to disclose to management any existing future
relationship by consanguinity or affinity with co-employees or
employees with competing drug companies and should
management find that such relationship poses a prossible
conflict of interest, to resign from the company. Company's
Code of Employee Conduct provides the same with stipulation
that management may transfer the employee to another
department in a non-counterchecking position or preparation for
employment outside of the company after 6 months.

WHEREFORE, the Petition is DENIED for lack of merit.

Costs against petitioners.
SO ORDERED.

Tecson was initially assigned to market Glaxo's products in the

Camarines Sur-Camarines Norte area and entered into a
romantic relationship with Betsy, an employee of Astra, Glaxo's

Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario*, JJ.,

HUMAN RIGHTS LAW

28

competition. Before getting married, Tecson's District Manager

reminded him several times of the conflict of interest but
marriage took place in Sept. 1998. In Jan. 1999, Tecson's
superiors informed him of conflict of intrest. Tecson asked for
time to comply with the condition (that either he or Betsy resign
from their respective positions). Unable to comply with
condition, Glaxo transferred Tecson to the Butuan-Surigao CityAgusan del Sur sales area. After his request against transfer was
denied, Tecson brought the matter to Glaxo's Grievance
Committee and while pending, he continued to act as medical
representative in the Camarines Sur-Camarines Norte sales area.
On Nov. 15, 2000, the National Conciliation and Mediation
Board ruled that Glaxo's policy was valid...

compromise the interests of the company. That Glaxo possesses

the right to protect its economic interest cannot be denied.
It is the settled principle that the commands of the equal
protection clause are addressed only to the state or those acting
under color of its authority. Corollarily, it has been held in a long
array of US Supreme Court decisions that the equal protection
clause erects to shield against merely privately conduct,
however, discriminatory or wrongful.
The company actually enforced the policy after repeated
requests to the employee to comply with the policy. Indeed the
application of the policy was made in an impartial and evenhanded manner, with due regard for the lot of the employee.

ISSUE:
Whether or not the policy of a pharmaceutical company
prohibiting its employees from marrying employees of any
competitor company is valid

On Constructive Dismissal
Constructive dismissal is defined as a quitting, an involuntary
resignation resorted to when continued employment becomes
impossible, unreasonable or unlikely; when there is demotion in
rank, or diminution in pay; or when a clear discrimination,
insensibility, or disdain by an employer becomes unbearable to
the employee. None of these conditions are present in the instant
case.

RULING:
On Equal Protection
Glaxo has a right to guard its trade secrets, manufacturing
formulas, marketing strategies, and other confidential programs
and information from competitors. The prohibition against
pesonal or marital relationships with employees of competitor
companies upon Glaxo's employees is reasonable under the
circumstances because relationships of that nature might

HUMAN RIGHTS LAW

HELD:
The challenged policy has been implemented by Glaxo

29

denied, Tecson brought the matter to Glaxos Grievance Committee

and while pending, he continued to act as medical representative in
the Camarines Sur-Camarines Norte sales area. The National
Conciliation and Mediation Board (NCMB) rendered its Decision
declaring as valid Glaxos policy on relationships between its
employees and persons employed with competitor companies, and
affirming Glaxos right to transfer Tecson to another sales territory.
Upon appeal for petition for certiorari. The Court of Appeals
promulgated its Decision denying the Petition for Review on the
ground that the NCMB did not err in rendering its Decision. The
appellate court held that Glaxos policy prohibiting its employees from
having personal relationships with employees of competitor
companies is a valid exercise of its management prerogatives. Hence,
the petition.

impartially and disinterestedly for a long period of time. In the

case at bar, the record shows that Glaxo gave Tecson several
chances to eliminate the conflict of interest brought about by his
relationship with Betsy, but he never availed of any of them.
DISPOSITIVE:
"WHEREFORE, the petition is DENIED for lack of merit."
DUNCAN VS. GLAXO
G.R. No. 162994 September 17, 2004

Issue: Whether or not policy prohibiting its employees from

having personal relationships with employees of competitor
companies is a valid exercise of management prerogatives

Facts: Petitioner, Tecson was hired by Glaxo as a medical

representative. The Contract of employment signed by Tecson
stipulates, among others, that he agrees to study and abide by the
existing company rules; to disclose to managementany existing future
relationship by consanguinity or affinity with co-employees or
employees with competing drug companies and should management
find that such relationship poses a prossible conflict of interest, to
resign from the company. Companys Code of Employee Conduct
provides the same with stipulation that management may transfer the
employee to another department in a non-counterchecking position or
preparation for employment outside of the company after 6 months.

Ruling: Yes.Glaxo has a right to guard its trade secrets,

manufacturing formulas, marketing strategies and other
confidential programs and information from competitors,
especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry. The prohibition against
personal or marital relationships with employees of competitor
companies upon Glaxos employees is reasonable under the
circumstances because relationships of that nature might
compromise the interests of the company. In laying down the
assailed company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will gain
access to its secrets and procedures. That Glaxo possesses the
right to protect its economic interests cannot be denied. No less
than the Constitution recognizes the right of enterprises to adopt

Tecson was initially assigned to market Glaxos products in the

Camarines Sur- Camarines Norte area and entered into a romantic
relationship with Betsy, an employee of Astra, Glaxos competition.
Before getting married, Tecsons District Manager reminded him
several times of the conflict of interest but marriage took place in Sept.
1998. In Jan. 1999, Tecsons superiors informed him of conflict of
interest. Tecson asked for time to comply with the condition. Unable to
comply with condition, Glaxo transferred Tecson to the Butuan-Surigao
City-Agusan del Sur sales area. After his request against transfer was

HUMAN RIGHTS LAW

30

and enforce such a policy to protect its right to reasonable

returns on investments and to expansion and growth. Indeed,
while our laws endeavor to give life to the constitutional policy
on social justice and the protection of labor, it does not mean
that every labor dispute will be decided in favor of the workers.
The law also recognizes that management has rights which are
also entitled to respect and enforcement in the interest of fair
play.
Republic of the Philippines
SUPREME COURT
Manila

management prerogative.
At bar is a Petition for Review on Certiorari of the Decision of
the Court of Appeals dated August 3, 2004 in CA-G.R. SP No.
73477 reversing the decision of the National Labor Relations
Commission (NLRC) which affirmed the ruling of the Labor
Arbiter.
Petitioner Star Paper Corporation (the company) is a corporation
engaged in trading principally of paper products. Josephine
Ongsitco is its Manager of the Personnel and Administration
Department while Sebastian Chua is its Managing Director.

SECOND DIVISION
G.R. No. 164774

The evidence for the petitioners show that respondents Ronaldo

D. Simbol (Simbol), Wilfreda N. Comia (Comia) and Lorna E.
Estrella (Estrella) were all regular employees of the company.1

April 12, 2006

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO

& SEBASTIAN CHUA, Petitioners,
vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA &
LORNA E. ESTRELLA, Respondents.

Simbol was employed by the company on October 27, 1993. He

met Alma Dayrit, also an employee of the company, whom he
married on June 27, 1998. Prior to the marriage, Ongsitco
advised the couple that should they decide to get married, one of
them should resign pursuant to a company policy promulgated in
1995,2 viz.:

DECISION

1. New applicants will not be allowed to be hired if in case

he/she has [a] relative, up to [the] 3rd degree of relationship,
already employed by the company.

PUNO, J.:
We are called to decide an issue of first impression: whether the
policy of the employer banning spouses from working in the
same company violates the rights of the employee under the
Constitution and the Labor Code or is a valid exercise of

HUMAN RIGHTS LAW

2. In case of two of our employees (both singles [sic], one male

and another female) developed a friendly relationship during the

31

course of their employment and then decided to get married, one

of them should resign to preserve the policy stated above.3

separated man. After he got her pregnant, she discovered that he

was not separated. Thus, she severed her relationship with him
to avoid dismissal due to the company policy. On November 30,
1999, she met an accident and was advised by the doctor at the
Orthopedic Hospital to recuperate for twenty-one (21) days. She
returned to work on December 21, 1999 but she found out that
her name was on-hold at the gate. She was denied entry. She was
directed to proceed to the personnel office where one of the staff
handed her a memorandum. The memorandum stated that she
was being dismissed for immoral conduct. She refused to sign
the memorandum because she was on leave for twenty-one (21)
days and has not been given a chance to explain. The
management asked her to write an explanation. However, after
submission of the explanation, she was nonetheless dismissed by
the company. Due to her urgent need for money, she later
submitted a letter of resignation in exchange for her thirteenth
month pay.8

Simbol resigned on June 20, 1998 pursuant to the company

policy.4
Comia was hired by the company on February 5, 1997. She met
Howard Comia, a co-employee, whom she married on June 1,
2000. Ongsitco likewise reminded them that pursuant to
company policy, one must resign should they decide to get
married. Comia resigned on June 30, 2000.5
Estrella was hired on July 29, 1994. She met Luisito Zuiga
(Zuiga), also a co-worker. Petitioners stated that Zuiga, a
married man, got Estrella pregnant. The company allegedly
could have terminated her services due to immorality but she
opted to resign on December 21, 1999.6

Respondents later filed a complaint for unfair labor practice,

constructive dismissal, separation pay and attorneys fees. They
averred that the aforementioned company policy is illegal and
contravenes Article 136 of the Labor Code. They also contended
that they were dismissed due to their union membership.

The respondents each signed a Release and Confirmation

Agreement. They stated therein that they have no money and
property accountabilities in the company and that they release
the latter of any claim or demand of whatever nature.7

On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario

dismissed the complaint for lack of merit, viz.:

Respondents offer a different version of their dismissal. Simbol

and Comia allege that they did not resign voluntarily; they were
compelled to resign in view of an illegal company policy. As to
respondent Estrella, she alleges that she had a relationship with
co-worker Zuiga who misrepresented himself as a married but

HUMAN RIGHTS LAW

[T]his company policy was decreed pursuant to what the

respondent corporation perceived as management prerogative.
This management prerogative is quite broad and encompassing

32

for it covers hiring, work assignment, working method, time,

place and manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations, transfer
of employees, work supervision, lay-off of workers and the
discipline, dismissal and recall of workers. Except as provided
for or limited by special law, an employer is free to regulate,
according to his own discretion and judgment all the aspects of
employment.9 (Citations omitted.)

(2) Ordering private respondents to pay petitioners attorneys

fees amounting to 10% of the award and the cost of this suit.13
On appeal to this Court, petitioners contend that the Court of
Appeals erred in holding that:
1. x x x the subject 1995 policy/regulation is violative of the
constitutional rights towards marriage and the family of
employees and of Article 136 of the Labor Code; and

On appeal to the NLRC, the Commission affirmed the decision

of the Labor Arbiter on January 11, 2002. 10

2. x x x respondents resignations were far from voluntary.14

Respondents filed a Motion for Reconsideration but was denied

by the NLRC in a Resolution 11 dated August 8, 2002. They
appealed to respondent court via Petition for Certiorari.

We affirm.
The 1987 Constitution15 states our policy towards the protection
of labor under the following provisions, viz.:

In its assailed Decision dated August 3, 2004, the Court of

Appeals reversed the NLRC decision, viz.:

Article II, Section 18. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and
promote their welfare.

WHEREFORE, premises considered, the May 31, 2002 (sic)12

Decision of the National Labor Relations Commission is hereby
REVERSED and SET ASIDE and a new one is entered as
follows:

xxx
Article XIII, Sec. 3. The State shall afford full protection to
labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment
opportunities for all.

(1) Declaring illegal, the petitioners dismissal from employment

and ordering private respondents to reinstate petitioners to their
former positions without loss of seniority rights with full
backwages from the time of their dismissal until actual
reinstatement; and

HUMAN RIGHTS LAW

It shall guarantee the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful concerted

33

activities, including the right to strike in accordance with law.

They shall be entitled to security of tenure, humane conditions
of work, and a living wage. They shall also participate in policy
and decision-making processes affecting their rights and benefits
as may be provided by law.

Art. 136. It shall be unlawful for an employer to require as a

condition of employment or continuation of employment that a
woman employee shall not get married, or to stipulate expressly
or tacitly that upon getting married a woman employee shall be
deemed resigned or separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman employee merely
by reason of her marriage.

The State shall promote the principle of shared responsibility

between workers and employers, recognizing the right of labor
to its just share in the fruits of production and the right of
enterprises to reasonable returns on investments, and to
expansion and growth.

Respondents submit that their dismissal violates the above

provision. Petitioners allege that its policy "may appear to be
contrary to Article 136 of the Labor Code" but it assumes a new
meaning if read together with the first paragraph of the rule. The
rule does not require the woman employee to resign. The
employee spouses have the right to choose who between them
should resign. Further, they are free to marry persons other than
co-employees. Hence, it is not the marital status of the
employee, per se, that is being discriminated. It is only intended
to carry out its no-employment-for-relatives-within-the-thirddegree-policy which is within the ambit of the prerogatives of
management.16

The Civil Code likewise protects labor with the following

provisions:
Art. 1700. The relation between capital and labor are not merely
contractual. They are so impressed with public interest that labor
contracts must yield to the common good. Therefore, such
contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages,
working conditions, hours of labor and similar subjects.

It is true that the policy of petitioners prohibiting close relatives

from working in the same company takes the nature of an antinepotism employment policy. Companies adopt these policies to
prevent the hiring of unqualified persons based on their status as
a relative, rather than upon their ability.17 These policies focus
upon the potential employment problems arising from the
perception of favoritism exhibited towards relatives.

Art. 1702. In case of doubt, all labor legislation and all labor
contracts shall be construed in favor of the safety and decent
living for the laborer.
The Labor Code is the most comprehensive piece of legislation
protecting labor. The case at bar involves Article 136 of the
Labor Code which provides:

HUMAN RIGHTS LAW

With more women entering the workforce, employers are also

34

enacting employment policies specifically prohibiting spouses

from working for the same company. We note that two types of
employment policies involve spouses: policies banning only
spouses from working in the same company (no-spouse
employment policies), and those banning all immediate family
members, including spouses, from working in the same company
(anti-nepotism employment policies).18

which spouse will be required to transfer or leave the company,

the policy often disproportionately affects one sex.23
The state courts rulings on the issue depend on their
interpretation of the scope of marital status discrimination within
the meaning of their respective civil rights acts. Though they
agree that the term "marital status" encompasses discrimination
based on a person's status as either married, single, divorced, or
widowed, they are divided on whether the term has a broader
meaning. Thus, their decisions vary.24

Unlike in our jurisdiction where there is no express prohibition

on marital discrimination,19 there are twenty state statutes20 in the
United States prohibiting marital discrimination. Some state
courts21 have been confronted with the issue of whether nospouse policies violate their laws prohibiting both marital status
and sex discrimination.

The courts narrowly25 interpreting marital status to refer only to

a person's status as married, single, divorced, or widowed reason
that if the legislature intended a broader definition it would have
either chosen different language or specified its intent. They hold
that the relevant inquiry is if one is married rather than to whom
one is married. They construe marital status discrimination to
include only whether a person is single, married, divorced, or
widowed and not the "identity, occupation, and place of
employment of one's spouse." These courts have upheld the
questioned policies and ruled that they did not violate the marital
status discrimination provision of their respective state statutes.

In challenging the anti-nepotism employment policies in the

United States, complainants utilize two theories of employment
discrimination: the disparate treatment and the disparate
impact. Under the disparate treatment analysis, the plaintiff
must prove that an employment policy is discriminatory on its
face. No-spouse employment policies requiring an employee of
a particular sex to either quit, transfer, or be fired are facially
discriminatory. For example, an employment policy prohibiting
the employer from hiring wives of male employees, but not
husbands of female employees, is discriminatory on its face.22

The courts that have broadly26 construed the term "marital

status" rule that it encompassed the identity, occupation and
employment of one's spouse. They strike down the no-spouse
employment policies based on the broad legislative intent of the
state statute. They reason that the no-spouse employment policy
violate the marital status provision because it arbitrarily
discriminates against all spouses of present employees without

On the other hand, to establish disparate impact, the

complainants must prove that a facially neutral policy has a
disproportionate effect on a particular class. For example,
although most employment policies do not expressly indicate

HUMAN RIGHTS LAW

35

regard to the actual effect on the individual's qualifications or

work performance.27 These courts also find the no-spouse
employment policy invalid for failure of the employer to present
any evidence of business necessity other than the general
perception that spouses in the same workplace might adversely
affect the business.28 They hold that the absence of such a bona
fide occupational qualification29 invalidates a rule denying
employment to one spouse due to the current employment of the
other spouse in the same office.30 Thus, they rule that unless the
employer can prove that the reasonable demands of the business
require a distinction based on marital status and there is no better
available or acceptable policy which would better accomplish
the business purpose, an employer may not discriminate against
an employee based on the identity of the employees spouse.31
This is known as the bona fide occupational qualification
exception.

ofreasonableness of the company policy which is parallel to the

bona fide occupational qualification requirement. In the recent
case of Duncan Association of Detailman-PTGWO and Pedro
Tecson v. Glaxo Wellcome Philippines, Inc.,34 we passed on
the validity of the policy of a pharmaceutical company
prohibiting its employees from marrying employees of any
competitor company. We held that Glaxo has a right to guard its
trade secrets, manufacturing formulas, marketing strategies and
other confidential programs and information from competitors.
We considered the prohibition against personal or marital
relationships with employees of competitor companies upon
Glaxos employeesreasonable under the circumstances because
relationships of that nature might compromise the interests of
Glaxo. In laying down the assailed company policy, we
recognized that Glaxo only aims to protect its interests against
the possibility that a competitor company will gain access to its
secrets and procedures.35

We note that since the finding of a bona fide occupational

qualification justifies an employers no-spouse rule, the
exception is interpreted strictly and narrowly by these state
courts. There must be a compelling business necessity for which
no alternative exists other than the discriminatory practice. 32 To
justify a bona fide occupational qualification, the employer must
prove two factors: (1) that the employment qualification is
reasonably related to the essential operation of the job involved;
and, (2) that there is a factual basis for believing that all or
substantially all persons meeting the qualification would be
unable to properly perform the duties of the job.33

The requirement that a company policy must be reasonable

under the circumstances to qualify as a valid exercise of
management prerogative was also at issue in the 1997 case of
Philippine Telegraph and Telephone Company v. NLRC.36 In
said case, the employee was dismissed in violation of
petitioners policy of disqualifying from work any woman
worker who contracts marriage. We held that the company
policy violates the right against discrimination afforded all
women workers under Article 136 of the Labor Code, but
established a permissible exception, viz.:

The concept of a bona fide occupational qualification is not

foreign in our jurisdiction. We employ the standard

[A] requirement that a woman employee must remain unmarried

could be justified as a "bona fide occupational qualification,"

HUMAN RIGHTS LAW

36

or BFOQ, where the particular requirements of the job would

justify the same, but not on the ground of a general principle,
such as the desirability of spreading work in the workplace. A
requirement of that nature would be valid provided it reflects an
inherent quality reasonably necessary for satisfactory job
performance.37 (Emphases supplied.)

Selecting Department, who married Howard Comia, then a

helper in the cutter-machine. The policy is premised on the mere
fear that employees married to each other will be less efficient.
If we uphold the questioned rule without valid justification, the
employer can create policies based on an unproven presumption
of a perceived danger at the expense of an employees right to
security of tenure.

The cases of Duncan and PT&T instruct us that the requirement

of reasonableness must be clearly established to uphold the
questioned employment policy. The employer has the burden to
prove the existence of a reasonable business necessity. The
burden was successfully discharged in Duncan but not in PT&T.

Petitioners contend that their policy will apply only when one
employee marries a co-employee, but they are free to marry
persons other than co-employees. The questioned policy may not
facially violate Article 136 of the Labor Code but it creates a
disproportionate effect and under the disparate impact theory, the
only way it could pass judicial scrutiny is a showing that it is
reasonable despite the discriminatory, albeit disproportionate,
effect. The failure of petitioners to prove a legitimate business
concern in imposing the questioned policy cannot prejudice the
employees right to be free from arbitrary discrimination based
upon stereotypes of married persons working together in one
company.40

We do not find a reasonable business necessity in the case at bar.

Petitioners sole contention that "the company did not just want
to have two (2) or more of its employees related between the
third degree by affinity and/or consanguinity" 38 is lame. That the
second paragraph was meant to give teeth to the first paragraph
of the questioned rule39 is evidently not the valid reasonable
business necessity required by the law.

Lastly, the absence of a statute expressly prohibiting marital

discrimination in our jurisdiction cannot benefit the petitioners.
The protection given to labor in our jurisdiction is vast and
extensive that we cannot prudently draw inferences from the
legislatures silence41 that married persons are not protected
under our Constitution and declare valid a policy based on a
prejudice or stereotype. Thus, for failure of petitioners to present
undisputed proof of a reasonable business necessity, we rule that
the questioned policy is an invalid exercise of management
prerogative. Corollarily, the issue as to whether respondents

It is significant to note that in the case at bar, respondents were

hired after they were found fit for the job, but were asked to
resign when they married a co-employee. Petitioners failed to
show how the marriage of Simbol, then a Sheeting Machine
Operator, to Alma Dayrit, then an employee of the Repacking
Section, could be detrimental to its business operations. Neither
did petitioners explain how this detriment will happen in the
case of Wilfreda Comia, then a Production Helper in the

HUMAN RIGHTS LAW

37

Simbol and Comia resigned voluntarily has become moot and

academic.

reinstatement. We have held that in voluntary resignation, the

employee is compelled by personal reason(s) to dissociate
himself from employment. It is done with the intention of
relinquishing an office, accompanied by the act of abandonment.
44
Thus, it is illogical for Estrella to resign and then file a
complaint for illegal dismissal. Given the lack of sufficient
evidence on the part of petitioners that the resignation was
voluntary, Estrellas dismissal is declared illegal.

As to respondent Estrella, the Labor Arbiter and the NLRC

based their ruling on the singular fact that her resignation letter
was written in her own handwriting. Both ruled that her
resignation was voluntary and thus valid. The respondent court
failed to categorically rule whether Estrella voluntarily resigned
but ordered that she be reinstated along with Simbol and Comia.

IN VIEW WHEREOF, the Decision of the Court of Appeals in

CA-G.R. SP No. 73477 dated August 3, 2004
isAFFIRMED.1avvphil.net

Estrella claims that she was pressured to submit a resignation

letter because she was in dire need of money. We examined the
records of the case and find Estrellas contention to be more in
accord with the evidence. While findings of fact by
administrative tribunals like the NLRC are generally given not
only respect but, at times, finality, this rule admits of
exceptions,42 as in the case at bar.

SO ORDERED.
REYNATO S. PUNO

Estrella avers that she went back to work on December 21, 1999
but was dismissed due to her alleged immoral conduct. At first,
she did not want to sign the termination papers but she was
forced to tender her resignation letter in exchange for her
thirteenth month pay.
The contention of petitioners that Estrella was pressured to
resign because she got impregnated by a married man and she
could not stand being looked upon or talked about as immoral 43
is incredulous. If she really wanted to avoid embarrassment and
humiliation, she would not have gone back to work at all. Nor
would she have filed a suit for illegal dismissal and pleaded for

HUMAN RIGHTS LAW

38

which states that she was being dismissed for immoral

conduct.She refused to sign the memo because she was on leave
for 21 days and wasnt given chance to explain. When she
finally submitted her explanation, she wasnonetheless dismissed
by the company. Due to her urgent need for money, she
submitted a letter a of resignation in exchange for her 13Th
month pay.

STAR PAPER CORPORATION VS. SIMBOL

G.R No. 164774 April 12, 2006
Facts: Simbol, one of the employees of Star Paper Corporation
met Alma Dayrit, also an employee of the company, whom he
married. prior to their marriage, the manager of the Personnel
and Administration Department, Ongsito, advised the couple that
should they get married, one of them resigned because of a
company policy. Simbol then resigned before they got married.
A similar occurrence happened to Comia and she also resigned
before her marriage to Howard Comia Estrella met Luisito
Zuniga, also a co-worker, a married man got her pregnant. The
company allegedly could have terminated her services due to
immorality but she opted to resign. The three respondents
Simbol, Comia, and Estrella, on separate instances signed a
Release and Confirmation agreement.

The respondents filed a complaint for unfair labor practices,

constructive dismissal. The Labor Arbiter dismissed the
complaint for lack of merit, The NLRC affirmed the decision
however, the CA reversed the NLRCs ruling. Hence, the
petition.
Issue: Whether or not the companys policy is violative of the
constitutional rights towards marriage and the family of
employees and of Article 136 of the Labor Code.
Ruling: Yes.It is significant to note that in the case at bar,
respondents were hired after they were found fit for the job, but
were asked to resign when they married a co-employee.
Petitioners failed to show how the marriage of Simbol, then a
Sheeting Machine Operator, to Alma Dayrit, then an employee
of the Repacking Section, could be detrimental to its business
operations. Neither did petitioners explain how this detriment
will happen in the case of Wilfreda Comia, then a Production
Helper in the Selecting Department, who married Howard
Comia, then a helper in the cutter-machine. The policy is
premised on the mere fear that employees married to each other

Simbol and Comia allege that they did not resign voluntarily and
that they were only compelled to resign because of an illegal
company policy. Estrella alleges that she had a relationship with
Zuniga who misrepresented himself a married but separated
man. After she got pregnant, she found out that he was not
separated. She severed her relationship with him to avoid
dismissal due to company policy. Sometime, she got into an
accident which necessitated her to recuperate for 21 days and
necessitated to recuperate for 21 days. When she returned to
work, she was denied entry into the the office. She was directed
to proceed to the personnel office where shewas handed a memo

HUMAN RIGHTS LAW

39

will be less efficient. If we uphold the questioned rule without

valid justification, the employer can create policies based on an
unproven presumption of a perceived danger at the expense of
an employees right to security of tenure.

academic.
STARPAPER VS. SIMBOL
G.R. No. 164774, April 12, 2006

Petitioners contend that their policy will apply only when one
employee marries a co-employee, but they are free to marry
persons other than co-employees. The questioned policy may not
facially violate Article 136 of the Labor Code but it creates a
disproportionate effect and under the disparate impact theory, the
only way it could pass judicial scrutiny is a showing that it is
reasonable despite the discriminatory, albeit disproportionate,
effect. The failure of petitioners to prove a legitimate business
concern in imposing the questioned policy cannot prejudice the
employees right to be free from arbitrary discrimination based
upon stereotypes of married persons working together in one
company.

Facts:
At bar is a Petition for Review on Certiorari of the Decision of
the Court of Appeals dated August 03, 2004 in CA-G.R. SP No.
73477 reversing the decision of the National Labor Relations
Commission (NLRC) which affirmed the ruling of the Labor
Arbiter. The following facts were presented:
(a) The respondents were all regular employees of the company;
(b) On October 27, 1993, Simbol was hired by the company. He
met Alma Dayrit, also an employee of the company. He married
her on June 27, 1998. Prior to the marriage, Ongsitco advised
the couple that should they decide to get married, one of them
should resign pursuant to a company policy promulgated in
1995. Simbol resigned on June 20, 1998.

Lastly, the absence of a statute expressly prohibiting marital

discrimination in our jurisdiction cannot benefit the petitioners.
The protection given to labor in our jurisdiction is vast and
extensive that we cannot prudently draw inferences from the
legislatures silence that married persons are not protected under
our Constitution and declare valid a policy based on a prejudice
or stereotype. Thus, for failure of petitioners to present
undisputed proof of a reasonable business necessity, we rule that
the questioned policy is an invalid exercise of management
prerogative. Corollarily, the issue as to whether respondents
Simbol and Comia resigned voluntarily has become moot and

HUMAN RIGHTS LAW

(c) On February 5, 1997, Comia was hired by the company. She

met Howard Comia, a co-employee whom she married on June
1, 2000. Ongsitco likewise reminded them pursuant to the
aforementioned company policy. Comia resigned on June 30,
2000.
(d) Simbol and Comia alleged that they did not resign

40

voluntarily; they were compelled to resign in view of an illegal

company policy.

On August 8, 2002, NLRC denied the respondents Motion for

Reconsideration through a Resolution.

(e) On July 29, 1994, Estrella was hired by the company. She
met Luisito Zuniga, also a co-worker, whom petitioners claimed
to be a married man who got Estrella impregnated. The company
allegedly could have terminated her services due to immorality
but she opted to resign on December 21, 1999.

On August 3, 2004, the CA reversed the NLRC decision and

declared that:
(a) The petitioners dismissal from employment was illegal:
(b) The private respondents are ordered to reinstate the
petitioners to their former positions without loss of seniority
rights with full backwages from the time of their dismissal until
actual reinstatement; and

(f) Estrella alleged that she had a relationship with co-worker

Zuniga who misrepresented himself as a married but a separated
man. After he got her pregnant, she discovered that he was not
separated. Thus, she severed her relationship with him to avoid
dismissal due to company policy.

(c) The private respondents are to pay petitioners attorneys fees

amounting to 10% of the award and the cost of the suit.

(g) On November 30, 1999, Estrella met an accident and had to

recuperate for twenty-one (21) days as advised by the doctor of
the Orthopaedic Hospital. On December 21, 1999 but she found
out that her name was on hold at the gate. She was directed to
the personnel office and handed a memorandum that stated that
she was being dismissed for immoral conduct. Estrella was
asked to submit an explanation but she was dismissed
nonetheless. She resigned because she was in dire need of
money and resignation could give her the thirteenth month pay.

Hence, this petition.

Issues:
The issues raised by this petition are:
(1) Whether or not the CA erred in holding that the subject 1995
policy/ regulation is violative of the constituional rights towards
marriage and the family of employees and of Article 136 of the
Labor Code: and

On May 31, 2001, Labor Arbiter Del Rosario dismissed the

complaint for lack of merit.

(2) Whether or not the respondents resignations were far from

voluntary.

On January, 11, 2002, NLRC affirmed the decision of the Labor

Arbiter.

HUMAN RIGHTS LAW

41

Held:
(1) No. The CA did not err in holding that the subject 1995
policy/ regulation is violative of the constitutional rights towards
marriage and the family of employees and or Article 136 of the
Labor Code:
(ARTICLE 136. Stipulation against marriage. It shall be
unlawful for an employer to require as a condition of
employment or continuation of employment that a woman
employee shall not get married, or to stipulate expressly or
tacitly that upon getting married, a woman employee shall be
deemed resigned or separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman employee merely
by reason of her marriage.)

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

HUMAN RIGHTS LAW

42

G.R. No. 168081

October 17, 2008

The Facts

ARMANDO G. YRASUEGUI, petitioners,

vs.
PHILIPPINE AIRLINES, INC., respondents.

Petitioner Armando G. Yrasuegui was a former international

flight steward of Philippine Airlines, Inc. (PAL). He stands five
feet and eight inches (58") with a large body frame. The proper
weight for a man of his height and body structure is from 147 to
166 pounds, the ideal weight being 166 pounds, as mandated by
the Cabin and Crew Administration Manual1 of PAL.

DECISION
REYES, R.T., J.:

The weight problem of petitioner dates back to 1984. Back then,

PAL advised him to go on an extended vacation leave from
December 29, 1984 to March 4, 1985 to address his weight
concerns. Apparently, petitioner failed to meet the companys
weight standards, prompting another leave without pay from
March 5, 1985 to November 1985.

THIS case portrays the peculiar story of an international flight

steward who was dismissed because of his failure to adhere to
the weight standards of the airline company.
He is now before this Court via a petition for review on
certiorari claiming that he was illegally dismissed. To buttress
his stance, he argues that (1) his dismissal does not fall under
282(e) of the Labor Code; (2) continuing adherence to the
weight standards of the company is not a bona fide occupational
qualification; and (3) he was discriminated against because other
overweight employees were promoted instead of being
disciplined.

After meeting the required weight, petitioner was allowed to

return to work. But petitioners weight problem recurred. He
again went on leave without pay from October 17, 1988 to
February 1989.
On April 26, 1989, petitioner weighed 209 pounds, 43 pounds
over his ideal weight. In line with company policy, he was
removed from flight duty effective May 6, 1989 to July 3, 1989.
He was formally requested to trim down to his ideal weight and
report for weight checks on several dates. He was also told that
he may avail of the services of the company physician should he
wish to do so. He was advised that his case will be evaluated on
July 3, 1989.2

After a meticulous consideration of all arguments pro and con,

We uphold the legality of dismissal. Separation pay, however,
should be awarded in favor of the employee as an act of social
justice or based on equity. This is so because his dismissal is not
for serious misconduct. Neither is it reflective of his moral
character.

HUMAN RIGHTS LAW

43

On February 25, 1989, petitioner underwent weight check. It

was discovered that he gained, instead of losing, weight. He was
overweight at 215 pounds, which is 49 pounds beyond the limit.
Consequently, his off-duty status was retained.

1990, he was informed of the PAL decision for him to remain

grounded until such time that he satisfactorily complies with the
weight standards. Again, he was directed to report every two
weeks for weight checks.

On October 17, 1989, PAL Line Administrator Gloria Dizon

personally visited petitioner at his residence to check on the
progress of his effort to lose weight. Petitioner weighed 217
pounds, gaining 2 pounds from his previous weight. After the
visit, petitioner made a commitment3 to reduce weight in a letter
addressed to Cabin Crew Group Manager Augusto Barrios. The
letter, in full, reads:

Petitioner failed to report for weight checks. Despite that, he was

given one more month to comply with the weight requirement.
As usual, he was asked to report for weight check on different
dates. He was reminded that his grounding would continue
pending satisfactory compliance with the weight standards.5
Again, petitioner failed to report for weight checks, although he
was seen submitting his passport for processing at the PAL Staff
Service Division.

Dear Sir:
I would like to guaranty my commitment towards a weight loss
from 217 pounds to 200 pounds from today until 31 Dec. 1989.

On April 17, 1990, petitioner was formally warned that a

repeated refusal to report for weight check would be dealt with
accordingly. He was given another set of weight check dates.6
Again, petitioner ignored the directive and did not report for
weight checks. On June 26, 1990, petitioner was required to
explain his refusal to undergo weight checks.7

From thereon, I promise to continue reducing at a reasonable

percentage until such time that my ideal weight is achieved.
Likewise, I promise to personally report to your office at the
designated time schedule you will set for my weight check.

When petitioner tipped the scale on July 30, 1990, he weighed at

212 pounds. Clearly, he was still way over his ideal weight of
166 pounds.

Respectfully Yours,

From then on, nothing was heard from petitioner until he

followed up his case requesting for leniency on the latter part of
1992. He weighed at 219 pounds on August 20, 1992 and 205
pounds on November 5, 1992.

F/S Armando Yrasuegui4

Despite the lapse of a ninety-day period given him to reach his
ideal weight, petitioner remained overweight. On January 3,

HUMAN RIGHTS LAW

44

On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled 13

that petitioner was illegally dismissed. The dispositive part of
the Arbiter ruling runs as follows:

On November 13, 1992, PAL finally served petitioner a Notice

of Administrative Charge for violation of company standards on
weight requirements. He was given ten (10) days from receipt of
the charge within which to file his answer and submit
controverting evidence.8

WHEREFORE, in view of the foregoing, judgment is hereby

rendered, declaring the complainants dismissal illegal, and
ordering the respondent to reinstate him to his former position or
substantially equivalent one, and to pay him:

On December 7, 1992, petitioner submitted his Answer.9

Notably, he did not deny being overweight. What he claimed,
instead, is that his violation, if any, had already been condoned
by PAL since "no action has been taken by the company"
regarding his case "since 1988." He also claimed that PAL
discriminated against him because "the company has not been
fair in treating the cabin crew members who are similarly
situated."

a. Backwages of Php10,500.00 per month from his dismissal on

June 15, 1993 until reinstated, which for purposes of appeal is
hereby set from June 15, 1993 up to August 15, 1998 at
P651,000.00;
b. Attorneys fees of five percent (5%) of the total award.

On December 8, 1992, a clarificatory hearing was held where

petitioner manifested that he was undergoing a weight reduction
program to lose at least two (2) pounds per week so as to attain
his ideal weight.10

SO ORDERED.14
The Labor Arbiter held that the weight standards of PAL are
reasonable in view of the nature of the job of petitioner.15
However, the weight standards need not be complied with under
pain of dismissal since his weight did not hamper the
performance of his duties.16 Assuming that it did, petitioner
could be transferred to other positions where his weight would
not be a negative factor.17 Notably, other overweight employees,
i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted
instead of being disciplined.18

On June 15, 1993, petitioner was formally informed by PAL that

due to his inability to attain his ideal weight, "and considering
the utmost leniency" extended to him "which spanned a period
covering a total of almost five (5) years," his services were
considered terminated "effective immediately."11
His motion for reconsideration having been denied, 12 petitioner
filed a complaint for illegal dismissal against PAL.

Both parties appealed to the National Labor Relations

Commission (NLRC).19

Labor Arbiter, NLRC and CA Dispositions

HUMAN RIGHTS LAW

45

On October 8, 1999, the Labor Arbiter issued a writ of execution

directing the reinstatement of petitioner without loss of seniority
rights and other benefits.20

uncontrollably regardless of the amount of food intake, is a

disease in itself."26 As a consequence, there can be no intentional
defiance or serious misconduct by petitioner to the lawful order
of PAL for him to lose weight.27

On February 1, 2000, the Labor Arbiter denied 21 the Motion to

Quash Writ of Execution22 of PAL.

Like the Labor Arbiter, the NLRC found the weight standards of
PAL to be reasonable. However, it found as unnecessary the
Labor Arbiter holding that petitioner was not remiss in the
performance of his duties as flight steward despite being
overweight. According to the NLRC, the Labor Arbiter should
have limited himself to the issue of whether the failure of
petitioner to attain his ideal weight constituted willful defiance
of the weight standards of PAL.28

On March 6, 2000, PAL appealed the denial of its motion to

quash to the NLRC.23
On June 23, 2000, the NLRC rendered judgment 24 in the
following tenor:
WHEREFORE, premises considered[,] the Decision of the
Arbiter dated 18 November 1998 as modified by our findings
herein, is hereby AFFIRMED and that part of the dispositive
portion of said decision concerning complainants entitlement to
backwages shall be deemed to refer to complainants entitlement
to his full backwages, inclusive of allowances and to his other
benefits or their monetary equivalent instead of simply
backwages, from date of dismissal until his actual reinstatement
or finality hereof. Respondent is enjoined to manifests (sic) its
choice of the form of the reinstatement of complainant, whether
physical or through payroll within ten (10) days from notice
failing which, the same shall be deemed as complainants
reinstatement through payroll and execution in case of nonpayment shall accordingly be issued by the Arbiter. Both appeals
of respondent thus, are DISMISSEDfor utter lack of merit.25

PAL moved for reconsideration to no avail. 29 Thus, PAL elevated

the matter to the Court of Appeals (CA) via a petition for
certiorari under Rule 65 of the 1997 Rules of Civil Procedure.30
By Decision dated August 31, 2004, the CA reversed 31 the
NLRC:
WHEREFORE, premises considered, we hereby GRANT the
petition. The assailed NLRC decision is declared NULL and
VOID and is hereby SET ASIDE. The private respondents
complaint is hereby DISMISSED. No costs.
SO ORDERED.32
The CA opined that there was grave abuse of discretion on the
part of the NLRC because it "looked at wrong and irrelevant

According to the NLRC, "obesity, or the tendency to gain weight

HUMAN RIGHTS LAW

46

considerations"33 in evaluating the evidence of the parties.

Contrary to the NLRC ruling, the weight standards of PAL are
meant to be a continuing qualification for an employees
position.34 The failure to adhere to the weight standards is an
analogous cause for the dismissal of an employee under Article
282(e) of the Labor Code in relation to Article 282(a). It is not
willful disobedience as the NLRC seemed to suggest. 35 Said the
CA, "the element of willfulness that the NLRC decision cites is
an irrelevant consideration in arriving at a conclusion on
whether the dismissal is legally proper." 36 In other words, "the
relevant question to ask is not one of willfulness but one of
reasonableness of the standard and whether or not the employee
qualifies or continues to qualify under this standard."37

posed for resolution:

I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THATPETITIONERS OBESITY CAN
BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e)
OF ARTICLE 282 OF THE LABOR CODE OF THE
PHILIPPINES;
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THATPETITIONERS DISMISSAL
FOR OBESITY CAN BE PREDICATED ON THE "BONA
FIDE
OCCUPATIONAL
QUALIFICATION
(BFOQ)
DEFENSE";

Just like the Labor Arbiter and the NLRC, the CA held that the
weight standards of PAL are reasonable.38 Thus, petitioner was
legally dismissed because he repeatedly failed to meet the
prescribed weight standards.39 It is obvious that the issue of
discrimination was only invoked by petitioner for purposes of
escaping the result of his dismissal for being overweight.40

III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THAT PETITIONER WAS NOT
UNDULY DISCRIMINATED AGAINST WHEN HE WAS
DISMISSED WHILE OTHER OVERWEIGHT CABIN
ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR
PROMOTED;

On May 10, 2005, the CA denied petitioners motion for

reconsideration.41 Elaborating on its earlier ruling, the CA held
that the weight standards of PAL are a bona fide occupational
qualification which, in case of violation, "justifies an employees
separation from the service."42
Issues

IV.

In this Rule 45 petition for review, the following issues are

HUMAN RIGHTS LAW

WHETHER OR NOT THE COURT OF APPEALS GRAVELY

47

ERRED WHEN IT BRUSHED ASIDE PETITIONERS

CLAIMS
FOR REINSTATEMENT [AND] WAGES
ALLEGEDLY FOR BEING MOOT AND ACADEMIC.43
(Underscoring supplied)

By its nature, these "qualifying standards" are norms that apply

prior to and after an employee is hired. They apply prior to
employment because these are the standards a job applicant must
initially meet in order to be hired. They apply after hiring
because an employee must continue to meet these standards
while on the job in order to keep his job. Under this perspective,
a violation is not one of the faults for which an employee can be
dismissed pursuant to pars. (a) to (d) of Article 282; the
employee can be dismissed simply because he no longer
"qualifies" for his job irrespective of whether or not the failure to
qualify was willful or intentional. x x x45

Our Ruling
I. The obesity of petitioner is a ground for dismissal under
Article 282(e) 44 of the Labor Code.
A reading of the weight standards of PAL would lead to no other
conclusion than that they constitute a continuing qualification of
an employee in order to keep the job. Tersely put, an employee
may be dismissed the moment he is unable to comply with his
ideal weight as prescribed by the weight standards. The
dismissal of the employee would thus fall under Article 282(e)
of the Labor Code. As explained by the CA:

Petitioner, though, advances a very interesting argument. He

claims that obesity is a "physical abnormality and/or illness." 46
Relying on Nadura v. Benguet Consolidated, Inc.,47 he says his
dismissal is illegal:
Conscious of the fact that Naduras case cannot be made to fall
squarely within the specific causes enumerated in subparagraphs
1(a) to (e), Benguet invokes the provisions of subparagraph 1(f)
and says that Naduras illness occasional attacks of asthma is
a cause analogous to them.

x x x [T]he standards violated in this case were not mere

"orders" of the employer; they were the "prescribed weights"
that a cabin crew must maintain in order to qualify for and keep
his or her position in the company. In other words, they were
standards that establish continuing qualifications for an
employees position. In this sense, the failure to maintain these
standards does not fall under Article 282(a) whose express terms
require the element of willfulness in order to be a ground for
dismissal. The failure to meet the employers qualifying
standards is in fact a ground that does not squarely fall under
grounds (a) to (d) and is therefore one that falls under Article
282(e) the "other causes analogous to the foregoing."

HUMAN RIGHTS LAW

Even a cursory reading of the legal provision under

consideration is sufficient to convince anyone that, as the trial
court said, "illness cannot be included as an analogous cause by
any stretch of imagination."
It is clear that, except the just cause mentioned in sub-paragraph
1(a), all the others expressly enumerated in the law are due to

48

the voluntary and/or willful act of the employee. How Naduras

illness could be considered as "analogous" to any of them is
beyond our understanding, there being no claim or pretense that
the same was contracted through his own voluntary act.48

True, petitioner claims that reducing weight is costing him "a lot
of expenses."50 However, petitioner has only himself to blame.
He could have easily availed the assistance of the company
physician, per the advice of PAL. 51He chose to ignore the
suggestion. In fact, he repeatedly failed to report when required
to undergo weight checks, without offering a valid explanation.
Thus, his fluctuating weight indicates absence of willpower
rather than an illness.

The reliance on Nadura is off-tangent. The factual milieu in

Nadura is substantially different from the case at bar.First,
Nadura was not decided under the Labor Code. The law applied
in that case was Republic Act (RA) No. 1787.Second, the issue
of flight safety is absent in Nadura, thus, the rationale there
cannot apply here. Third, in Nadura, the employee who was a
miner, was laid off from work because of illness, i.e., asthma.
Here, petitioner was dismissed for his failure to meet the weight
standards of PAL. He was not dismissed due to illness. Fourth,
the issue in Nadura is whether or not the dismissed employee is
entitled to separation pay and damages. Here, the issue centers
on the propriety of the dismissal of petitioner for his failure to
meet the weight standards of PAL. Fifth, in Nadura, the
employee was not accorded due process. Here, petitioner was
accorded utmost leniency. He was given more than four (4) years
to comply with the weight standards of PAL.

Petitioner cites Bonnie Cook v. State of Rhode Island,

Department
of
Mental
Health,
Retardation
and
Hospitals,52decided by the United States Court of Appeals (First
Circuit). In that case, Cook worked from 1978 to 1980 and from
1981 to 1986 as an institutional attendant for the mentally
retarded at the Ladd Center that was being operated by
respondent. She twice resigned voluntarily with an unblemished
record. Even respondent admitted that her performance met the
Centers legitimate expectations. In 1988, Cook re-applied for a
similar position. At that time, "she stood 52" tall and weighed
over 320 pounds." Respondent claimed that the morbid obesity
of plaintiff compromised her ability to evacuate patients in case
of emergency and it also put her at greater risk of serious
diseases.

In the case at bar, the evidence on record militates against

petitioners claims that obesity is a disease. That he was able to
reduce his weight from 1984 to 1992 clearly shows that it is
possible for him to lose weight given the proper attitude,
determination, and self-discipline. Indeed, during the
clarificatory hearing on December 8, 1992, petitioner himself
claimed that "[t]he issue is could I bring my weight down to
ideal weight which is 172, then the answer is yes. I can do it
now."49

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Cook contended that the action of respondent amounted to

discrimination on the basis of a handicap. This was in direct
violation of Section 504(a) of the Rehabilitation Act of 1973,53
which incorporates the remedies contained in Title VI of the
Civil Rights Act of 1964. Respondent claimed, however, that
morbid obesity could never constitute a handicap within the
purview of the Rehabilitation Act. Among others, obesity is a

49

mutable condition, thus plaintiff could simply lose weight and

rid herself of concomitant disability.

but is nonetheless voluntary. As the CA correctly puts it,

"[v]oluntariness basically means that the just cause is solely
attributable to the employee without any external force
influencing or controlling his actions. This element runs through
all just causes under Article 282, whether they be in the nature of
a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks
the element of intent found in Article 282(a), (c), and (d)."54

The appellate Court disagreed and held that morbid obesity is a

disability under the Rehabilitation Act and that respondent
discriminated against Cook based on "perceived" disability. The
evidence included expert testimony that morbid obesity is a
physiological disorder. It involves a dysfunction of both the
metabolic system and the neurological appetite suppressing
signal system, which is capable of causing adverse effects within
the musculoskeletal, respiratory, and cardiovascular systems.
Notably, the Court stated that "mutability is relevant only in
determining the substantiality of the limitation flowing from a
given impairment," thus "mutability only precludes those
conditions that an individual can easily and quickly reverse by
behavioral alteration."

II. The dismissal of petitioner can be predicated on the bona fide

occupational qualification defense.
Employment in particular jobs may not be limited to persons of
a particular sex, religion, or national origin unless the employer
can show that sex, religion, or national origin is an actual
qualification for performing the job. The qualification is called a
bona fide occupational qualification (BFOQ).55 In the United
States, there are a few federal and many state job discrimination
laws that contain an exception allowing an employer to engage
in an otherwise unlawful form of prohibited discrimination when
the action is based on a BFOQ necessary to the normal operation
of a business or enterprise.56

Unlike Cook, however, petitioner is not morbidly obese. In the

words of the District Court for the District of Rhode Island,
Cook was sometime before 1978 "at least one hundred pounds
more than what is considered appropriate of her height."
According to the Circuit Judge, Cook weighed "over 320
pounds" in 1988. Clearly, that is not the case here. At his
heaviest, petitioner was only less than 50 pounds over his ideal
weight.

Petitioner contends that BFOQ is a statutory defense. It does not

exist if there is no statute providing for it.57Further, there is no
existing BFOQ statute that could justify his dismissal.58

In fine, We hold that the obesity of petitioner, when placed in the

context of his work as flight attendant, becomes an analogous
cause under Article 282(e) of the Labor Code that justifies his
dismissal from the service. His obesity may not be unintended,

HUMAN RIGHTS LAW

Both arguments must fail.

First, the Constitution,59 the Labor Code,60 and RA No. 727761 or

50

the Magna Carta for Disabled Persons62 contain provisions

similar to BFOQ.

employees from marrying employees of a rival company. It was

held that the company policy is reasonable considering that its
purpose is the protection of the interests of the company against
possible competitor infiltration on its trade secrets and
procedures.

Second, in British Columbia Public Service Employee

Commission (BSPSERC) v. The British Columbia Government
and Service Employees Union (BCGSEU), 63 the Supreme Court
of Canada adopted the so-called "Meiorin Test" in determining
whether an employment policy is justified. Under this test, (1)
the employer must show that it adopted the standard for a
purpose rationally connected to the performance of the job; 64 (2)
the employer must establish that the standard is reasonably
necessary65 to the accomplishment of that work-related purpose;
and (3) the employer must establish that the standard is
reasonably necessary in order to accomplish the legitimate workrelated purpose. Similarly, in Star Paper Corporation v.
Simbol,66 this Court held that in order to justify a BFOQ, the
employer must prove that (1) the employment qualification is
reasonably related to the essential operation of the job involved;
and (2) that there is factual basis for believing that all or
substantially all persons meeting the qualification would be
unable to properly perform the duties of the job.67

Verily, there is no merit to the argument that BFOQ cannot be

applied if it has no supporting statute. Too, the Labor Arbiter, 71
NLRC,72 and CA73 are one in holding that the weight standards
of PAL are reasonable. A common carrier, from the nature of its
business and for reasons of public policy, is bound to observe
extraordinary diligence for the safety of the passengers it
transports.74 It is bound to carry its passengers safely as far as
human care and foresight can provide, using the utmost
diligence of very cautious persons, with due regard for all the
circumstances.75
The law leaves no room for mistake or oversight on the part of a
common carrier. Thus, it is only logical to hold that the weight
standards of PAL show its effort to comply with the exacting
obligations imposed upon it by law by virtue of being a common
carrier.

In short, the test of reasonableness of the company policy is used

because it is parallel to BFOQ.68 BFOQ is valid "provided it
reflects an inherent quality reasonably necessary for satisfactory
job performance."69

The business of PAL is air transportation. As such, it has

committed itself to safely transport its passengers. In order to
achieve this, it must necessarily rely on its employees, most
particularly the cabin flight deck crew who are on board the
aircraft. The weight standards of PAL should be viewed as
imposing strict norms of discipline upon its employees.

In Duncan Association of Detailman-PTGWTO v. Glaxo

Wellcome Philippines, Inc.,70 the Court did not hesitate to pass
upon the validity of a company policy which prohibits its

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51

The rationale in Western Air Lines v. Criswell76 relied upon by

petitioner cannot apply to his case. What was involved there
were two (2) airline pilots who were denied reassignment as
flight engineers upon reaching the age of 60, and a flight
engineer who was forced to retire at age 60. They sued the
airline company, alleging that the age-60 retirement for flight
engineers violated the Age Discrimination in Employment Act of
1967. Age-based BFOQ and being overweight are not the same.
The case of overweight cabin attendants is another matter. Given
the cramped cabin space and narrow aisles and emergency exit
doors of the airplane, any overweight cabin attendant would
certainly have difficulty navigating the cramped cabin area.

In other words, the primary objective of PAL in the imposition

of the weight standards for cabin crew is flight safety. It cannot
be gainsaid that cabin attendants must maintain agility at all
times in order to inspire passenger confidence on their ability to
care for the passengers when something goes wrong. It is not
farfetched to say that airline companies, just like all common
carriers, thrive due to public confidence on their safety records.
People, especially the riding public, expect no less than that
airline companies transport their passengers to their respective
destinations safely and soundly. A lesser performance is
unacceptable.
The task of a cabin crew or flight attendant is not limited to
serving meals or attending to the whims and caprices of the
passengers. The most important activity of the cabin crew is to
care for the safety of passengers and the evacuation of the
aircraft when an emergency occurs. Passenger safety goes to the
core of the job of a cabin attendant. Truly, airlines need cabin
attendants who have the necessary strength to open emergency
doors, the agility to attend to passengers in cramped working
conditions, and the stamina to withstand grueling flight
schedules.

In short, there is no need to individually evaluate their ability to

perform their task. That an obese cabin attendant occupies more
space than a slim one is an unquestionable fact which courts can
judicially recognize without introduction of evidence. 77 It would
also be absurd to require airline companies to reconfigure the
aircraft in order to widen the aisles and exit doors just to
accommodate overweight cabin attendants like petitioner.
The biggest problem with an overweight cabin attendant is the
possibility of impeding passengers from evacuating the aircraft,
should the occasion call for it. The job of a cabin attendant
during emergencies is to speedily get the passengers out of the
aircraft safely. Being overweight necessarily impedes mobility.
Indeed, in an emergency situation, seconds are what cabin
attendants are dealing with, not minutes. Three lost seconds can
translate into three lost lives. Evacuation might slow down just
because a wide-bodied cabin attendant is blocking the narrow
aisles. These possibilities are not remote.

On board an aircraft, the body weight and size of a cabin

attendant are important factors to consider in case of emergency.
Aircrafts have constricted cabin space, and narrow aisles and
exit doors. Thus, the arguments of respondent that "[w]hether the
airlines flight attendants are overweight or not has no direct
relation to its mission of transporting passengers to their
destination"; and that the weight standards "has nothing to do
with airworthiness of respondents airlines," must fail.

HUMAN RIGHTS LAW

52

prove his affirmative allegation.81

Petitioner is also in estoppel. He does not dispute that the weight

standards of PAL were made known to him prior to his
employment. He is presumed to know the weight limit that he
must maintain at all times.78 In fact, never did he question the
authority of PAL when he was repeatedly asked to trim down his
weight. Bona fides exigit ut quod convenit fiat. Good faith
demands that what is agreed upon shall be done. Kung ang tao
ay tapat kanyang tutuparin ang napagkasunduan.

Since the burden of evidence lies with the party who asserts an
affirmative allegation, petitioner has to prove his allegation with
particularity. There is nothing on the records which could
support the finding of discriminatory treatment. Petitioner
cannot establish discrimination by simply naming the supposed
cabin attendants who are allegedly similarly situated with him.
Substantial proof must be shown as to how and why they are
similarly situated and the differential treatment petitioner got
from PAL despite the similarity of his situation with other
employees.

Too, the weight standards of PAL provide for separate weight

limitations based on height and body frame for both male and
female cabin attendants. A progressive discipline is imposed to
allow non-compliant cabin attendants sufficient opportunity to
meet the weight standards. Thus, the clear-cut rules obviate any
possibility for the commission of abuse or arbitrary action on the
part of PAL.

Indeed, except for pointing out the names of the supposed

overweight cabin attendants, petitioner miserably failed to
indicate their respective ideal weights; weights over their ideal
weights; the periods they were allowed to fly despite their being
overweight; the particular flights assigned to them; the
discriminating treatment they got from PAL; and other relevant
data that could have adequately established a case of
discriminatory treatment by PAL. In the words of the CA, "PAL
really had no substantial case of discrimination to meet."82

III. Petitioner failed to substantiate his claim that he was

discriminated against by PAL.
Petitioner next claims that PAL is using passenger safety as a
convenient excuse to discriminate against him.79 We are
constrained, however, to hold otherwise. We agree with the CA
that "[t]he element of discrimination came into play in this case
as a secondary position for the private respondent in order to
escape the consequence of dismissal that being overweight
entailed. It is a confession-and-avoidance position that impliedly
admitted the cause of dismissal, including the reasonableness of
the applicable standard and the private respondents failure to
comply."80 It is a basic rule in evidence that each party must

HUMAN RIGHTS LAW

We are not unmindful that findings of facts of administrative

agencies, like the Labor Arbiter and the NLRC, are accorded
respect, even finality.83 The reason is simple: administrative
agencies are experts in matters within their specific and
specialized jurisdiction.84 But the principle is not a hard and fast
rule. It only applies if the findings of facts are duly supported by
substantial evidence. If it can be shown that administrative

53

bodies grossly misappreciated evidence of such nature so as to

compel a conclusion to the contrary, their findings of facts must
necessarily be reversed. Factual findings of administrative
agencies do not have infallibility and must be set aside when
they fail the test of arbitrariness.85

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a
dismissed or separated employee, insofar as the reinstatement
aspect is concerned, shall immediately be executory, even
pending appeal. The employee shall either be admitted back to
work under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely
reinstated in the payroll. The posting of a bond by the employer
shall not stay the execution for reinstatement provided herein.

Here, the Labor Arbiter and the NLRC inexplicably

misappreciated evidence. We thus annul their findings.
To make his claim more believable, petitioner invokes the equal
protection clause guaranty86 of the Constitution. However, in the
absence of governmental interference, the liberties guaranteed
by the Constitution cannot be invoked. 87 Put differently, the Bill
of Rights is not meant to be invoked against acts of private
individuals.88 Indeed, the United States Supreme Court, in
interpreting the Fourteenth Amendment,89 which is the source of
our equal protection guarantee, is consistent in saying that the
equal protection erects no shield against private conduct,
however discriminatory or wrongful.90 Private actions, no matter
how egregious, cannot violate the equal protection guarantee.91

The law is very clear. Although an award or order of

reinstatement is self-executory and does not require a writ of
execution,93 the option to exercise actual reinstatement or payroll
reinstatement belongs to the employer. It does not belong to the
employee, to the labor tribunals, or even to the courts.
Contrary to the allegation of petitioner that PAL "did everything
under the sun" to frustrate his "immediate return to his previous
position,"94 there is evidence that PAL opted to physically
reinstate him to a substantially equivalent position in accordance
with the order of the Labor Arbiter.95 In fact, petitioner duly
received the return to work notice on February 23, 2001, as
shown by his signature.96

IV. The claims of petitioner for reinstatement and wages are

moot.
As his last contention, petitioner avers that his claims for
reinstatement and wages have not been mooted. He is entitled to
reinstatement and his full backwages, "from the time he was
illegally dismissed" up to the time that the NLRC was reversed
by the CA.92

HUMAN RIGHTS LAW

Petitioner cannot take refuge in the pronouncements of the Court

in a case97 that "[t]he unjustified refusal of the employer to
reinstate the dismissed employee entitles him to payment of his
salaries effective from the time the employer failed to reinstate
him despite the issuance of a writ of execution" 98 and ""even if

54

employee as an act "social justice,"101 or based on "equity."102 In

both instances, it is required that the dismissal (1) was not for
serious misconduct; and (2) does not reflect on the moral
character of the employee.103

the order of reinstatement of the Labor Arbiter is reversed on

appeal, it is obligatory on the part of the employer to reinstate
and pay the wages of the employee during the period of appeal
until reversal by the higher court." 99 He failed to prove that he
complied with the return to work order of PAL. Neither does it
appear on record that he actually rendered services for PAL from
the moment he was dismissed, in order to insist on the payment
of his full backwages.

Here, We grant petitioner separation pay equivalent to one-half

(1/2) months pay for every year of service.104 It should include
regular allowances which he might have been receiving.105 We
are not blind to the fact that he was not dismissed for any serious
misconduct or to any act which would reflect on his moral
character. We also recognize that his employment with PAL
lasted for more or less a decade.

In insisting that he be reinstated to his actual position despite

being overweight, petitioner in effect wants to render the issues
in the present case moot. He asks PAL to comply with the
impossible. Time and again, the Court ruled that the law does
not exact compliance with the impossible.100

WHEREFORE, the appealed Decision of the Court of Appeals

is AFFIRMED but MODIFIED in that petitioner Armando G.
Yrasuegui is entitled to separation pay in an amount equivalent
to one-half (1/2) months pay for every year of service, which
should include his regular allowances.

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.
Normally, a legally dismissed employee is not entitled to
separation pay. This may be deduced from the language of
Article 279 of the Labor Code that "[a]n employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and to his other benefits
or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement." Luckily for petitioner, this is not an ironclad rule.

SO ORDERED.

Exceptionally, separation pay is granted to a legally dismissed

Yrasuegui v. PAL, 569 SCRA 467 (2008)

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55

Yrasuegui vs. PAL

Facts: Petitioner was a former international flight steward of

PAL, herein respondent. Petitioner was dismissed because of his
failure to adhere to the weight standards of the airline company.
Petitioner claims that he was illegally dismissed.

[G.R. No. 168081. Oct. 17, 2008]

Facts:
Complainant was an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the airline
company.

Issue: Whether or not petitioner was discriminated against when

he was dismissed.

Issue:

Held: Petition denied. To make his claim more believable,

petitioner invokes the equal protection clause guaranty of the
Constitution. However, in the absence of governmental
interference, the liberties guaranteed by the Constitution cannot
be invoked. Put differently, the Bill of Rights is not meant to be
invoked against acts of private individuals. Indeed, the US
Supreme Court, in interpreting the 14th Amendment, which is
the source of our equal protection guarantee, is consistent in
saying that the equal protection erects no shield against private
conduct, however discriminatory or wrongful. Private actions,
no matter how egregious, cannot violate the equal protection
guarantee.

Was the dismissal valid?

Held:
SC upheld the legality of dismissal. Separation pay, however, should
be awarded in favor of the employee as an act of social justice or
based on equity. This is so because his dismissal is not for serious
misconduct. Neither is it reflective of his moral character.
The obesity of petitioner, when placed in the context of his work as
flight attendant, becomes an analogous cause under Article 282(e) of
the Labor Code.His obesity may not be unintended, but is nonetheless
voluntary. [v]oluntarinessbasically means that the just cause is solely
attributable to the employee without any external force influencing or
controlling his actions. This element runs through all just causes under
Article 282, whether they be in the nature of a wrongful action or
omission. Gross and habitual neglect, a recognized just cause, is
considered voluntary although it lacks the element of intent found in
Article 282(a), (c), and (d).
Bona fide occupational qualification (BFOQ)

HUMAN RIGHTS LAW

56

Employment in particular jobs may not be limited to persons of a

particular sex, religion, or national origin unless the employer can
show that sex, religion, or national origin is an actual qualification for
performing the job.

BFOQ is valid provided it reflects an inherent quality reasonably

necessary for satisfactory job performance.

Argument that BFOQ is a statutory defense must fail

bound to observe extraordinary diligence for the safety of the

passengers it transports.

The weight standards of PAL are reasonable. A common carrier, from

the nature of its business and for reasons of public policy, is

The Constitution,the Labor Code, and RA No. 7277or the Magna Carta
for Disabled Persons contain provisions similar to BFOQ.

The primary objective of PAL in the imposition of the weight

standards for cabin crew is flight safety. It cannot be gainsaid
that cabin attendants must maintain agility at all times in order to
inspire passenger confidence on their ability to care for the
passengers when something goes wrong.

MeiorinTest (US jurisprudence) in determining whether an employment

policy is justified.
(1) the employer must show that it adopted the standard for a purpose
rationally connected to the performance of the job;

Entitled to separation pay, even if terminated for just cause

(2) the employer must establish that the standard is reasonably

necessary to the accomplishment of that work-related purpose; and

Exceptionally, separation pay is granted to a legally dismissed

employee as an act social justice, or based on equity.
Provided the dismissal:

(3) the employer must establish that the standard is reasonably

necessary in order to accomplish the legitimate work-related purpose.

(1) was not for serious misconduct; and

In Star Paper Corporation v. Simbol,this Court held that in order to

justify a BFOQ, the employer must prove:

(2) does not reflect on the moral character of the employee.

(1) the employment qualification is reasonably related to the essential

operation of the job involved; and

Thus, he was granted separation pay equivalent to one-half (1/2)

months pay for every year of service

(2) that there is factual basis for believing that all or substantially all
persons meeting the qualification would be unable to properly perform
the duties of the job.
In short, the test of reasonableness of the company policy is used
because it is parallel to BFOQ.

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57

VALERIA TANCO, et al., PETITIONERS

14562v.
BILL HASLAM, GOVERNOR OF TENNESSEE, et al.;
APRIL DeBOER, et al., PETITIONERS
14571v.
SUPREME COURT OF THE UNITED STATES

RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND

_________________

GREGORY BOURKE, et al., PETITIONERS

Nos. 14556, 14-562, 14-571 and 14574

14574v.

________________

STEVE BESHEAR, GOVERNOR OF KENTUCKY

JAMES OBERGEFELL, et al., PETITIONERS

on writs of certiorari to the united states court of appeals for the

sixth circuit

14556v.

[June 26, 2015]

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, et al.;

HUMAN RIGHTS LAW

58

Chief Justice Roberts, with whom Justice Scalia and Justice

requiring such an extension are not. The fundamental right to

Thomas join, dissenting.

marry does not include a right to make a State change its

definition of marriage. And a States decision to maintain the

Petitioners make strong arguments rooted in social policy and

meaning of marriage that has persisted in every culture

considerations of fairness. They contend that same-sex couples

throughout human history can hardly be called irrational. In

should be allowed to affirm their love and commitment through

short, our Constitution does not enact any one theory of

marriage, just like opposite-sex couples. That position has

marriage. The people of a State are free to expand marriage to

undeniable appeal; over the past six years, voters and legislators

include same-sex couples, or to retain the historic definition.

in eleven States and the District of Columbia have revised their

laws to allow marriage between two people of the same sex.

Today, however, the Court takes the extraordinary step of

ordering every State to license and recognize same-sex marriage.

But this Court is not a legislature. Whether same-sex marriage is

Many people will rejoice at this decision, and I begrudge none

a good idea should be of no concern to us. Under the

their celebration. But for those who believe in a government of

Constitution, judges have power to say what the law is, not what

laws, not of men, the majoritys approach is deeply

it should be. The people who ratified the Constitution authorized

disheartening. Supporters of same-sex marriage have achieved

courts to exercise neither force nor will but merely judgment.

considerable success persuading their fellow citizensthrough

The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.

the democratic processto adopt their view. That ends today.

Hamilton) (capitalization altered).

Five lawyers have closed the debate and enacted their own
vision of marriage as a matter of constitutional law. Stealing this

Although the policy arguments for extending marriage to same-

issue from the people will for many cast a cloud over same-sex

sex couples may be compelling, the legal arguments for

HUMAN RIGHTS LAW

marriage, making a dramatic social change that much more

59

difficult to accept.

today neglects that restrained conception of the judicial role. It

seizes for itself a question the Constitution leaves to the people,

The majoritys decision is an act of will, not legal judgment. The

at a time when the people are engaged in a vibrant debate on that

right it announces has no basis in the Constitution or this Courts

question. And it answers that question based not on neutral

precedent. The majority expressly disclaims judicial caution

principles of constitutional law, but on its own understanding of

and omits even a pretense of humility, openly relying on its

what freedom is and must become. Ante, at 19. I have no choice

desire to remake society according to its own new insight into

but to dissent.

the nature of injustice. Ante, at 11, 23. As a result, the Court

invalidates the marriage laws of more than half the States and

Understand well what this dissent is about: It is not about

orders the transformation of a social institution that has formed

whether, in my judgment, the institution of marriage should be

the basis of human society for millennia, for the Kalahari

changed to include same-sex couples. It is instead about

Bushmen and the Han Chinese, the Carthaginians and the

whether, in our democratic republic, that decision should rest

Aztecs. Just who do we think we are?

with the people acting through their elected representatives, or

with five lawyers who happen to hold commissions authorizing

It can be tempting for judges to confuse our own preferences

them to resolve legal disputes according to law. The Constitution

with the requirements of the law. But as this Court has been

leaves no doubt about the answer.

reminded throughout our history, the Constitution is made for

people of fundamentally differing views. Lochner v. New York,

198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly,

courts are not concerned with the wisdom or policy of

Petitioners and their amici base their arguments on the right to

legislation. Id., at 69 (Harlan, J., dissenting). The majority

marry and the imperative of marriage equality. There is no

HUMAN RIGHTS LAW

60

serious dispute that, under our precedents, the Constitution

same-sex marriage before 2001). As the Court explained two

protects a right to marry and requires States to apply their

Terms ago, until recent years, . . . marriage between a man and

marriage laws equally. The real question in these cases is what

a woman no doubt had been thought of by most people as

constitutes marriage, ormore preciselywho decides what

essential to the very definition of that term and to its role and

constitutes marriage?

function throughout the history of civilization. United States

v.Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).

The majority largely ignores these questions, relegating ages of

human experience with marriage to a paragraph or two. Even if

This universal definition of marriage as the union of a man and a

history and precedent are not the end of these cases, ante, at 4,

woman is no historical coincidence. Marriage did not come

I would not sweep away what has so long been settled without

about as a result of a political movement, discovery, disease,

showing greater respect for all that preceded us. Town of Greece

war, religious doctrine, or any other moving force of world

v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8).

historyand certainly not as a result of a prehistoric decision to

exclude gays and lesbians. It arose in the nature of things to

meet a vital need: ensuring that children are conceived by a

mother and father committed to raising them in the stable

As the majority acknowledges, marriage has existed for

conditions of a lifelong relationship. See G. Quale, A History of

millennia and across civilizations. Ante, at 3. For all those

Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W.

millennia, across all those civilizations, marriage referred to

Miller transl. 1913) (For since the reproductive instinct is by

only one relationship: the union of a man and a woman. See

natures gift the common possession of all living creatures, the

ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners

first bond of union is that between husband and wife; the next,

conceding that they are not aware of any society that permitted

HUMAN RIGHTS LAW

that between parents and children; then we find one home, with

61

everything in common.).

41 (2002).

The premises supporting this concept of marriage are so

This singular understanding of marriage has prevailed in the

fundamental that they rarely require articulation. The human

United States throughout our history. The majority accepts that

race must procreate to survive. Procreation occurs through

at the time of the Nations founding [marriage] was understood

sexual relations between a man and a woman. When sexual

to be a voluntary contract between a man and a woman. Ante, at

relations result in the conception of a child, that childs prospects

6. Early Americans drew heavily on legal scholars like William

are generally better if the mother and father stay together rather

Blackstone, who regarded marriage between husband and wife

than going their separate ways. Therefore, for the good of

as one of the great relations in private life, and philosophers

children and society, sexual relations that can lead to procreation

like John Locke, who described marriage as a voluntary

should occur only between a man and a woman committed to a

compact between man and woman centered on its chief end,

lasting bond.

procreation and the nourishment and support of children. 1

W. Blackstone, Commentaries *410; J. Locke, Second Treatise

Society has recognized that bond as marriage. And by bestowing

of Civil Government 7879, p. 39 (J. Gough ed. 1947). To

a respected status and material benefits on married couples,

those who drafted and ratified the Constitution, this conception

society encourages men and women to conduct sexual relations

of marriage and family was a given: its structure, its stability,

within marriage rather than without. As one prominent scholar

roles, and values accepted by all. Forte, The Framers Idea of

put it, Marriage is a socially arranged solution for the problem

Marriage and Family, in The Meaning of Marriage 100, 102 (R.

of getting people to stay together and care for children that the

George & J. Elshtain eds. 2006).

mere desire for children, and the sex that makes children
possible, does not solve. J. Q. Wilson, The Marriage Problem

HUMAN RIGHTS LAW

The Constitution itself says nothing about marriage, and the

62

Framers thereby entrusted the States with [t]he whole subject of

a civil status, existing in one man and one woman legally

the domestic relations of husband and wife. Windsor, 570 U. S.,

united for life for those civil and social purposes which are

at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586 594

based in the distinction of sex. J. Bishop, Commentaries on the

(1890)). There is no dispute that every State at the founding

Law of Marriage and Divorce 25 (1852). The first edition of

and every State throughout our history until a dozen years ago

Blacks Law Dictionary defined marriage as the civil status of

defined marriage in the traditional, biologically rooted way. The

one man and one woman united in law for life. Blacks Law

four States in these cases are typical. Their laws, before and after

Dictionary 756 (1891) (emphasis deleted). The dictionary

statehood, have treated marriage as the union of a man and a

maintained essentially that same definition for the next century.

woman. See DeBoer v. Snyder, 772 F. 3d 388, 396399 (CA6

2014). Even when state laws did not specify this definition

This Courts precedents have repeatedly described marriage in

expressly, no one doubted what they meant. See Jones v.

ways that are consistent only with its traditional meaning. Early

Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning

cases on the subject referred to marriage as the union for life of

of marriage went without saying.

one man and one woman, Murphy v. Ramsey, 114 U. S. 15, 45

(1885) , which forms the foundation of the family and of

Of course, many did say it. In his first American dictionary,

society, without which there would be neither civilization nor

Noah Webster defined marriage as the legal union of a man and

progress, Maynard v. Hill, 125 U. S. 190, 211 (1888) . We later

woman for life, which served the purposes of preventing the

described marriage as fundamental to our very existence and

promiscuous intercourse of the sexes, . . . promoting domestic

survival,

felicity, and . . . securing the maintenance and education of

procreative component. Loving v. Virginia, 388 U. S. 1, 12

children. 1 An American Dictionary of the English Language

(1967) ; see Skinner v. Oklahoma ex rel. Williamson, 316 U. S.

(1828). An influential 19th-century treatise defined marriage as

535, 541 (1942) . More recent cases have directly connected the

HUMAN RIGHTS LAW

63

an

understanding

that

necessarily

implies

right to marry with the right to procreate. Zablocki v.Redhail,

may be right that the history of marriage is one of both

434 U. S. 374, 386 (1978) .

continuity and change, but the core meaning of marriage has

endured. Ante, at 6.

As the majority notes, some aspects of marriage have changed

over time. Arranged marriages have largely given way to

pairings based on romantic love. States have replaced coverture,

the doctrine by which a married man and woman became a

Shortly after this Court struck down racial restrictions on

single legal entity, with laws that respect each participants

marriage in Loving, a gay couple in Minnesota sought a

separate status. Racial restrictions on marriage, which arose as

marriage license. They argued that the Constitution required

an incident to slavery to promote White Supremacy, were

States to allow marriage between people of the same sex for the

repealed by many States and ultimately struck down by this

same reasons that it requires States to allow marriage between

Court. Loving, 388 U. S., at 67.

people of different races. The Minnesota Supreme Court rejected

their analogy to Loving, and this Court summarily dismissed an

The majority observes that these developments were not mere

appeal. Baker v. Nelson, 409 U. S. 810 (1972) .

superficial changes in marriage, but rather worked deep

transformations in its structure. Ante, at 67. They did not,

In the decades after Baker, greater numbers of gays and lesbians

however, work any transformation in the core structure of

began living openly, and many expressed a desire to have their

marriage as the union between a man and a woman. If you had

relationships recognized as marriages. Over time, more people

asked a person on the street how marriage was defined, no one

came to see marriage in a way that could be extended to such

would ever have said, Marriage is the union of a man and a

couples. Until recently, this new view of marriage remained a

woman, where the woman is subject to coverture. The majority

minority position. After the Massachusetts Supreme Judicial

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64

Court in 2003 interpreted its State Constitution to require

Petitioners brought lawsuits contending that the Due Process and

recognition of same-sex marriage, many Statesincluding the

Equal Protection Clauses of the Fourteenth Amendment compel

four at issue hereenacted constitutional amendments formally

their States to license and recognize marriages between same-

adopting the longstanding definition of marriage.

sex couples. In a carefully reasoned decision, the Court of

Appeals acknowledged the democratic momentum in favor of

Over the last few years, public opinion on marriage has shifted

expand[ing] the definition of marriage to include gay couples,

rapidly. In 2009, the legislatures of Vermont, New Hampshire,

but concluded that petitioners had not made the case for

and the District of Columbia became the first in the Nation to

constitutionalizing the definition of marriage and for removing

enact laws that revised the definition of marriage to include

the issue from the place it has been since the founding: in the

same-sex couples, while also providing accommodations for

hands of state voters. 772 F. 3d, at 396, 403. That decision

religious believers. In 2011, the New York Legislature enacted a

interpreted the Constitution correctly, and I would affirm.

similar law. In 2012, voters in Maine did the same, reversing the
result of a referendum just three years earlier in which they had

II

upheld the traditional definition of marriage.

Petitioners first contend that the marriage laws of their States
In all, voters and legislators in eleven States and the District of

violate the Due Process Clause. The Solicitor General of the

Columbia have changed their definitions of marriage to include

United States, appearing in support of petitioners, expressly

same-sex couples. The highest courts of five States have decreed

disowned that position before this Court. See Tr. of Oral Arg. on

that same result under their own Constitutions. The remainder of

Question 1, at 3839. The majority nevertheless resolves these

the States retain the traditional definition of marriage.

cases for petitioners based almost entirely on the Due Process

Clause.

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65

The majority purports to identify four principles and traditions

Companionship and Understanding or Nobility and Dignity

in this Courts due process precedents that support a

Clause in the Constitution. See ante, at 3, 14. They argue instead

fundamental right for same-sex couples to marry. Ante, at 12. In

that the laws violate a right implied by the Fourteenth

reality, however, the majoritys approach has no basis in

Amendments requirement that liberty may not be deprived

principle or tradition, except for the unprincipled tradition of

without due process of law.

judicial policymaking that characterized discredited decisions

such as Lochner v. New York, 198 U. S. 45 . Stripped of its shiny

This Court has interpreted the Due Process Clause to include a

rhetorical gloss, the majoritys argument is that the Due Process

substantive component that protects certain liberty interests

Clause gives same-sex couples a fundamental right to marry

against state deprivation no matter what process is provided.

because it will be good for them and for society. If I were a

Reno v. Flores, 507 U. S. 292, 302 (1993) . The theory is that

legislator, I would certainly consider that view as a matter of

some liberties are so rooted in the traditions and conscience of

social policy. But as a judge, I find the majoritys position

our people as to be ranked as fundamental, and therefore cannot

indefensible as a matter of constitutional law.

be deprived without compelling justification. Snyder v.

Massachusetts, 291 U. S. 97, 105 (1934).

A
Allowing unelected federal judges to select which unenumerated
Petitioners fundamental right claim falls into the most

rights rank as fundamentaland to strike down state laws on

sensitive category of constitutional adjudication. Petitioners do

the basis of that determinationraises obvious concerns about

not contend that their States marriage laws violate an

the judicial role. Our precedents have accordingly insisted that

enumerated constitutional right, such as the freedom of speech

judges exercise the utmost care in identifying implied

protected by the First Amendment. There is, after all, no

fundamental rights, lest the liberty protected by the Due

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66

Process Clause be subtly transformed into the policy preferences

himself or brought his property into a particular Territory of the

of the Members of this Court. Washington v. Glucksberg, 521

United States . . . could hardly be dignified with the name of due

U. S. 702, 720 (1997) (internal quotation marks omitted); see

process of law. Id., at 450. In a dissent that has outlasted the

Kennedy, Unenumerated Rights and the Dictates of Judicial

majority opinion, Justice Curtis explained that when the fixed

Restraint 13 (1986) (Address at Stanford) (One can conclude

rules which govern the interpretation of laws [are] abandoned,

that certain essential, or fundamental, rights should exist in any

and the theoretical opinions of individuals are allowed to

just society. It does not follow that each of those essential rights

control the Constitutions meaning, we have no longer a

is one that we as judges can enforce under the written

Constitution; we are under the government of individual men,

Constitution. The Due Process Clause is not a guarantee of every

who for the time being have power to declare what the

right that should inhere in an ideal system.).

Constitution is, according to their own views of what it ought to

mean. Id., at 621.

The need for restraint in administering the strong medicine of

substantive due process is a lesson this Court has learned the

Dred Scotts holding was overruled on the battlefields of the

hard way. The Court first applied substantive due process to

Civil War and by constitutional amendment after Appomattox,

strike down a statute in Dred Scott v. Sandford, 19 How. 393

but its approach to the Due Process Clause reappeared. In a

(1857). There the Court invalidated the Missouri Compromise

series of early 20th-century cases, most prominently Lochner v.

on the ground that legislation restricting the institution of slavery

New York, this Court invalidated state statutes that presented

violated the implied rights of slaveholders. The Court relied on

meddlesome interferences with the rights of the individual,

its own conception of liberty and property in doing so. It

and undue interference with liberty of person and freedom of

asserted that an act of Congress which deprives a citizen of the

contract. 198 U. S., at 60, 61. In Lochner itself, the Court struck

United States of his liberty or property, merely because he came

down a New York law setting maximum hours for bakery

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67

employees, because there was in our judgment, no reasonable

In the decades after Lochner, the Court struck down nearly 200

foundation for holding this to be necessary or appropriate as a

laws as violations of individual liberty, often over strong dissents

health law. Id., at 58.

contending that [t]he criterion of constitutionality is not

whether we believe the law to be for the public good. Adkins v.

The dissenting Justices in Lochner explained that the New York

Childrens Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion

law could be viewed as a reasonable response to legislative

of Holmes, J.). By empowering judges to elevate their own

concern about the health of bakery employees, an issue on which

policy judgments to the status of constitutionally protected

there was at least room for debate and for an honest difference

liberty, the Lochner line of cases left no alternative to

of opinion.Id., at 72 (opinion of Harlan, J.). The majoritys

regarding the court as a . . . legislative chamber. L. Hand, The

contrary conclusion required adopting as constitutional law an

Bill of Rights 42 (1958).

economic theory which a large part of the country does not

entertain. Id., at 75 (opinion of Holmes, J.). As Justice Holmes

Eventually, the Court recognized its error and vowed not to

memorably put it, The Fourteenth Amendment does not enact

repeat it. The doctrine that . . . due process authorizes courts to

Mr. Herbert Spencers Social Statics, a leading work on the

hold laws unconstitutional when they believe the legislature has

philosophy of Social Darwinism. Ibid. The Constitution is not

acted unwisely, we later explained, has long since been

intended to embody a particular economic theory . . . . It is made

discarded. We have returned to the original constitutional

for people of fundamentally differing views, and the accident of

proposition that courts do not substitute their social and

our finding certain opinions natural and familiar or novel and

economic beliefs for the judgment of legislative bodies, who are

even shocking ought not to conclude our judgment upon the

elected to pass laws. Ferguson v. Skrupa, 372 U. S. 726, 730

question whether statutes embodying them conflict with the

(1963) ; see Day-Brite Lighting, Inc. v.Missouri, 342 U. S. 421,

Constitution. Id., at 7576.

423 (1952) (we do not sit as a super-legislature to weigh the

HUMAN RIGHTS LAW

68

wisdom of legislation). Thus, it has become an accepted rule

Glucksberg, many other cases both before and after have

that the Court will not hold laws unconstitutional simply because

adopted the same approach. See, e.g., District Attorneys Office

we find them unwise, improvident, or out of harmony with a

for Third Judicial Dist. v.Osborne, 557 U. S. 52, 72 (2009) ;

particular school of thought. Williamson v. Lee Optical of

Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S.

Okla., Inc., 348 U. S. 483, 488 (1955) .

739, 751 (1987) ; Moore v. East Cleveland, 431 U. S. 494, 503

(1977) (plurality opinion); see also id., at 544 (White, J.,

Rejecting Lochner does not require disavowing the doctrine of

dissenting) (The Judiciary, including this Court, is the most

implied fundamental rights, and this Court has not done so. But

vulnerable and comes nearest to illegitimacy when it deals with

to avoid repeating Lochners error of converting personal

judge-made constitutional law having little or no cognizable

preferences into constitutional mandates, our modern substantive

roots in the language or even the design of the Constitution.);

due process cases have stressed the need for judicial self-

Troxel v. Granville, 530 U. S. 57 101 (2000) (Kennedy, J.,

restraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) .

dissenting) (consulting [o]ur Nations history, legal traditions,

Our precedents have required that implied fundamental rights be

and practices and concluding that [w]e owe it to the Nations

objectively, deeply rooted in this Nations history and

domestic relations legal structure . . . to proceed with caution

tradition, and implicit in the concept of ordered liberty, such

(quoting Glucksberg, 521 U. S., at 721)).

that neither liberty nor justice would exist if they were

sacrificed. Glucksberg, 521 U. S., at 720721 (internal

Proper reliance on history and tradition of course requires

quotation marks omitted).

looking beyond the individual law being challenged, so that

every restriction on liberty does not supply its own constitutional

Although the Court articulated the importance of history and

justification. The Court is right about that. Ante, at 18. But given

tradition to the fundamental rights inquiry most precisely in

the few guideposts for responsible decisionmaking in this

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69

unchartered area, Collins, 503 U. S., at 125, an approach

substantive due process breaks sharply with decades of

grounded in history imposes limits on the judiciary that are more

precedent and returns the Court to the unprincipled approach of

meaningful than any based on [an] abstract formula, Moore,

Lochner.

431 U. S., at 504, n. 12 (plurality opinion). Expanding a right

1

suddenly and dramatically is likely to require tearing it up from

its roots. Even a sincere profession of discipline in identifying

The majoritys driving themes are that marriage is desirable and

fundamental rights, ante, at 1011, does not provide a

petitioners desire it. The opinion describes the transcendent

meaningful constraint on a judge, for what he is really likely to

importance of marriage and repeatedly insists that petitioners

be discovering, whether or not he is fully aware of it, are his

do not seek to demean, devalue, denigrate, or disrespect

own values, J. Ely, Democracy and Distrust 44 (1980). The

the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points.

only way to ensure restraint in this delicate enterprise is

Indeed, the compelling personal accounts of petitioners and

continual insistence upon respect for the teachings of history,

others like them are likely a primary reason why many

solid recognition of the basic values that underlie our society,

Americans have changed their minds about whether same-sex

and wise appreciation of the great roles [of] the doctrines of

couples should be allowed to marry. As a matter of constitutional

federalism and separation of powers.Griswold v. Connecticut,

law, however, the sincerity of petitioners wishes is not relevant.

381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).

When the majority turns to the law, it relies primarily on

precedents discussing the fundamental right to marry. Turner

The majority acknowledges none of this doctrinal background,

v. Safley, 482 U. S. 78, 95 (1987) ; Zablocki, 434 U. S., at 383;

and it is easy to see why: Its aggressive application of

see Loving, 388 U. S., at 12. These cases do not hold, of course,

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70

that anyone who wants to get married has a constitutional right

schools changed what a school was. As the majority admits, the

to do so. They instead require a State to justify barriers to

institution of marriage discussed in every one of these cases

marriage as that institution has always been understood. In

presumed a relationship involving opposite-sex partners. Ante,

Loving, the Court held that racial restrictions on the right to

at 11.

marry lacked a compelling justification. InZablocki, restrictions

based on child support debts did not suffice. In Turner,

In short, the right to marry cases stand for the important but

restrictions based on status as a prisoner were deemed

limited proposition that particular restrictions on access to

impermissible.

marriage as traditionally defined violate due process. These

precedents say nothing at all about a right to make a State

None of the laws at issue in those cases purported to change the

change its definition of marriage, which is the right petitioners

core definition of marriage as the union of a man and a woman.

actually seek here. See Windsor, 570 U. S., at ___ (Alito, J.,

The laws challenged in Zablocki and Turner did not define

dissenting) (slip op., at 8) (What Windsor and the United States

marriage as the union of a man and a woman, where neither

seek . . . is not the protection of a deeply rooted right but the

party owes child support or is in prison. Nor did the interracial

recognition of a very new right.). Neither petitioners nor the

marriage ban at issue in Loving define marriage as the union of

majority cites a single case or other legal source providing any

a man and a woman of the same race. See Tragen, Comment,

basis for such a constitutional right. None exists, and that is

Statutory Prohibitions Against Interracial Marriage, 32 Cal. L.

enough to foreclose their claim.

Rev. 269 (1944) (at common law there was no ban on

2

interracial marriage); post, at 1112, n. 5 (Thomas, J.,

dissenting). Removing racial barriers to marriage therefore did

The majority suggests that there are other, more instructive

not change what a marriage was any more than integrating

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71

precedents informing the right to marry. Ante, at 12. Although

at 562, 567.

not entirely clear, this reference seems to correspond to a line of

cases discussing an implied fundamental right of privacy.

Neither Lawrence nor any other precedent in the privacy line of

Griswold, 381 U. S., at 486. In the first of those cases, the Court

cases supports the right that petitioners assert here. Unlike

invalidated a criminal law that banned the use of contraceptives.

criminal laws banning contraceptives and sodomy, the marriage

Id., at 485486. The Court stressed the invasive nature of the

laws at issue here involve no government intrusion. They create

ban, which threatened the intrusion of the police to search the

no crime and impose no punishment. Same-sex couples remain

sacred precincts of marital bedrooms. Id., at 485. In the Courts

free to live together, to engage in intimate conduct, and to raise

view, such laws infringed the right to privacy in its most basic

their families as they see fit. No one is condemned to live in

sense: the right to be let alone.Eisenstadt v. Baird, 405 U. S.

loneliness by the laws challenged in these casesno one. Ante,

438 454, n. 10 (1972) (internal quotation marks omitted); see

at 28. At the same time, the laws in no way interfere with the

Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis,

right to be let alone.

J., dissenting).

The majority also relies on Justice Harlans influential dissenting

The Court also invoked the right to privacy in Lawrence v.

opinion in Poe v. Ullman, 367 U. S. 497 (1961) . As the majority

Texas, 539 U. S. 558 (2003) , which struck down a Texas statute

recounts, that opinion states that [d]ue process has not been

criminalizing homosexual sodomy. Lawrence relied on the

reduced to any formula. Id., at 542. But far from conferring the

position that criminal sodomy laws, like bans on contraceptives,

broad interpretive discretion that the majority discerns, Justice

invaded

government

Harlans opinion makes clear that courts implying fundamental

intrusions that touc[h] upon the most private human conduct,

rights are not free to roam where unguided speculation might

sexual behavior . . . in the most private of places, the home. Id.,

take them. Ibid. They must instead have regard to what history

privacy

HUMAN RIGHTS LAW

by

inviting

unwarranted

72

teaches and exercise not only judgment but restraint. Ibid.

and no basis for striking down the laws at issue here.

Of particular relevance, Justice Harlan explained that laws

3

regarding marriage which provide both when the sexual powers

may be used and the legal and societal context in which children

Perhaps recognizing how little support it can derive from

are born and brought up . . . form a pattern so deeply pressed

precedent, the majority goes out of its way to jettison the

into the substance of our social life that any Constitutional

careful approach to implied fundamental rights taken by this

doctrine in this area must build upon that basis.Id., at 546.

Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is

In sum, the privacy cases provide no support for the majoritys

revealing that the majoritys position requires it to effectively

position, because petitioners do not seek privacy. Quite the

overrule Glucksberg, the leading modern case setting the bounds

opposite, they seek public recognition of their relationships,

of substantive due process. At least this part of the majority

along with corresponding government benefits. Our cases have

opinion has the virtue of candor. Nobody could rightly accuse

consistently refused to allow litigants to convert the shield

the majority of taking a careful approach.

provided by constitutional liberties into a sword to demand

Ultimately, only one precedent offers any support for the

positive entitlements from the State. See DeShaney v.

majoritys methodology: Lochner v. New York, 198 U. S. 45 .

Winnebago County Dept. of Social Servs., 489 U. S. 189, 196

The majority opens its opinion by announcing petitioners right

(1989) ; San Antonio Independent School Dist. v.Rodriguez, 411

to define and express their identity. Ante, at 12. The majority

U. S. 1 37 (1973); post, at 913 (Thomas, J., dissenting). Thus,

later explains that the right to personal choice regarding

although the right to privacy recognized by our precedents

marriage is inherent in the concept of individual autonomy.

certainly plays a role in protecting the intimate conduct of same-

Ante, at 12. This freewheeling notion of individual autonomy

sex couples, it provides no affirmative right to redefine marriage

HUMAN RIGHTS LAW

73

echoes nothing so much as the general right of an individual to

best).

be free in his person and in his power to contract in relation to

The majority recognizes that todays cases do not mark the first

his own labor. Lochner, 198 U. S., at 58 (emphasis added).

time the Court has been asked to adopt a cautious approach to

To be fair, the majority does not suggest that its individual

recognizing and protecting fundamental rights. Ante, at 25. On

autonomy right is entirely unconstrained. The constraints it sets

that much, we agree. The Court was askedand it agreedto

are precisely those that accord with its own reasoned

adopt a cautious approach to implying fundamental rights after

judgment, informed by its new insight into the nature of

the debacle of the Lochner era. Today, the majority casts caution

injustice, which was invisible to all who came before but has

aside and revives the grave errors of that period.

become clear as we learn [the] meaning of liberty. Ante, at 10,

11. The truth is that todays decision rests on nothing more than

One immediate question invited by the majoritys position is

the majoritys own conviction that same-sex couples should be

whether States may retain the definition of marriage as a union

allowed to marry because they want to, and that it would

of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170

disparage their choices and diminish their personhood to deny

(Utah 2013), appeal pending, No. 14-4117 (CA10). Although the

them this right. Ante, at 19. Whatever force that belief may

majority randomly inserts the adjective two in various places,

have as a matter of moral philosophy, it has no more basis in the

it offers no reason at all why the two-person element of the core

Constitution than did the naked policy preferences adopted in

definition of marriage may be preserved while the man-woman

Lochner. See 198 U. S., at 61 (We do not believe in the

element may not. Indeed, from the standpoint of history and

soundness of the views which uphold this law, which is an

tradition, a leap from opposite-sex marriage to same-sex

illegal interference with the rights of individuals . . . to make

marriage is much greater than one from a two-person union to

contracts regarding labor upon such terms as they may think

plural unions, which have deep roots in some cultures around the

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74

world. If the majority is willing to take the big leap, it is hard to

Lesbian Throuple Expecting First Child, N. Y. Post, Apr. 23,

see how it can say no to the shorter one.

2014; Otter, Three May Not Be a Crowd: The Case for a

Constitutional Right to Plural Marriage, 64 Emory L. J. 1977

It is striking how much of the majoritys reasoning would apply

(2015).

with equal force to the claim of a fundamental right to plural

marriage. If [t]here is dignity in the bond between two men or

I do not mean to equate marriage between same-sex couples

two women who seek to marry and in their autonomy to make

with plural marriages in all respects. There may well be relevant

such profound choices, ante, at 13, why would there be any less

differences that compel different legal analysis. But if there are,

dignity in the bond between three people who, in exercising their

petitioners have not pointed to any. When asked about a plural

autonomy, seek to make the profound choice to marry? If a

marital union at oral argument, petitioners asserted that a State

same-sex couple has the constitutional right to marry because

doesnt have such an institution. Tr. of Oral Arg. on Question

their children would otherwise suffer the stigma of knowing

2, p. 6. But that is exactly the point: the States at issue here do

their families are somehow lesser, ante, at 15, why wouldnt the

not have an institution of same-sex marriage, either.

same reasoning apply to a family of three or more persons

4

raising children? If not having the opportunity to marry serves

to disrespect and subordinate gay and lesbian couples, why

Near the end of its opinion, the majority offers perhaps the

wouldnt the same imposition of this disability, ante, at 22,

clearest insight into its decision. Expanding marriage to include

serve to disrespect and subordinate people who find fulfillment

same-sex couples, the majority insists, would pose no risk of

in polyamorous relationships? See Bennett, Polyamory: The

harm to themselves or third parties. Ante, at 27. This argument

Next Sexual Revolution? Newsweek, July 28, 2009 (estimating

again echoesLochner, which relied on its assessment that we

500,000 polyamorous families in the United States); Li, Married

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75

think that a law like the one before us involves neither the safety,

certainly does not enact any one concept of marriage.

the morals nor the welfare of the public, and that the interest of
the public is not in the slightest degree affected by such an act.

The majoritys understanding of due process lays out a

198 U. S., at 57.

tantalizing vision of the future for Members of this Court: If an

unvarying social institution enduring over all of recorded history

Then and now, this assertion of the harm principle sounds

cannot inhibit judicial policymaking, what can? But this

more in philosophy than law. The elevation of the fullest

approach is dangerous for the rule of law. The purpose of

individual self-realization over the constraints that society has

insisting that implied fundamental rights have roots in the

expressed in law may or may not be attractive moral philosophy.

history and tradition of our people is to ensure that when

But a Justices commission does not confer any special moral,

unelected judges strike down democratically enacted laws, they

philosophical, or social insight sufficient to justify imposing

do so based on something more than their own beliefs. The

those perceptions on fellow citizens under the pretense of due

Court today not only overlooks our countrys entire history and

process. There is indeed a process due the people on issues of

tradition but actively repudiates it, preferring to live only in the

this sortthe democratic process. Respecting that understanding

heady days of the here and now. I agree with the majority that

requires the Court to be guided by law, not any particular school

the nature of injustice is that we may not always see it in our

of social thought. As Judge Henry Friendly once put it, echoing

own times. Ante, at 11. As petitioners put it, times can blind.

Justice Holmess dissent in Lochner, the Fourteenth Amendment

Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to

does not enact John Stuart Mills On Liberty any more than it

history is both prideful and unwise. The past is never dead. Its

enacts Herbert Spencers Social Statics. See Randolph, Before

not even past. W. Faulkner, Requiem for a Nun 92 (1951).

Roe v. Wade: Judge Friendlys Draft Abortion Opinion, 29 Harv.

III

J. L. & Pub. Poly 1035, 10361037, 1058 (2006). And it

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In addition to their due process argument, petitioners contend

and reach of the other. In any particular case one Clause may be

that the Equal Protection Clause requires their States to license

thought to capture the essence of the right in a more accurate and

and recognize same-sex marriages. The majority does not

comprehensive way, even as the two Clauses may converge in

seriously engage with this claim. Its discussion is, quite frankly,

the identification and definition of the right. Ante, at 19.

difficult to follow. The central point seems to be that there is a

synergy between the Equal Protection Clause and the Due

The majority goes on to assert in conclusory fashion that the

Process Clause, and that some precedents relying on one Clause

Equal Protection Clause provides an alternative basis for its

have also relied on the other. Ante, at 20. Absent from this

holding. Ante, at 22. Yet the majority fails to provide even a

portion of the opinion, however, is anything resembling our

single sentence explaining how the Equal Protection Clause

usual framework for deciding equal protection cases. It is

supplies independent weight for its position, nor does it attempt

casebook doctrine that the modern Supreme Courts treatment

to justify its gratuitous violation of the canon against

of equal protection claims has used a means-ends methodology

unnecessarily resolving constitutional questions. See Northwest

in which judges ask whether the classification the government is

Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193,

using is sufficiently related to the goals it is pursuing. G. Stone,

197 (2009) . In any event, the marriage laws at issue here do not

L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan,

violate the Equal Protection Clause, because distinguishing

Constitutional Law 453 (7th ed. 2013). The majoritys approach

between opposite-sex and same-sex couples is rationally related

today is different:

to the States legitimate state interest in preserving the

traditional institution of marriage. Lawrence, 539 U. S., at 585

Rights implicit in liberty and rights secured by equal protection

(OConnor, J., concurring in judgment).

may rest on different precepts and are not always co-extensive,

It is important to note with precision which laws petitioners have

yet in some instances each may be instructive as to the meaning

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challenged. Although they discuss some of the ancillary legal

Over and over, the majority exalts the role of the judiciary in

benefits that accompany marriage, such as hospital visitation

delivering social change. In the majoritys telling, it is the courts,

rights and recognition of spousal status on official documents,

not the people, who are responsible for making new dimensions

petitioners lawsuits target the laws defining marriage generally

of freedom . . . apparent to new generations, for providing

rather than those allocating benefits specifically. The equal

formal discourse on social issues, and for ensuring neutral

protection analysis might be different, in my view, if we were

discussions, without scornful or disparaging commentary. Ante,

confronted with a more focused challenge to the denial of certain

at 79.

tangible benefits. Of course, those more selective claims will not

arise now that the Court has taken the drastic step of requiring

Nowhere is the majoritys extravagant conception of judicial

every State to license and recognize marriages between same-

supremacy more evident than in its descriptionand dismissal

sex couples.

of the public debate regarding same-sex marriage. Yes, the

majority concedes, on one side are thousands of years of human

IV

history in every society known to have populated the planet. But

on the other side, there has been extensive litigation, many

The legitimacy of this Court ultimately rests upon the respect

thoughtful District Court decisions, countless studies, papers,

accorded to its judgments. Republican Party of Minn. v. White,

books, and other popular and scholarly writings, and more

536 U. S. 765, 793 (2002) (Kennedy, J., concurring). That

than 100 amicus briefs in these cases alone. Ante, at 9, 10, 23.

respect flows from the perceptionand realitythat we

What would be the point of allowing the democratic process to

exercise humility and restraint in deciding cases according to the

go on? It is high time for the Court to decide the meaning of

Constitution and law. The role of the Court envisioned by the

marriage,

majority today, however, is anything but humble or restrained.

understanding of a liberty that remains urgent in our own era.

HUMAN RIGHTS LAW

78

based

on

five

lawyers

better

informed

Ante, at 19. The answer is surely there in one of those amicus

democratic process to presume that voters are not capable of

briefs or studies.

deciding an issue of this sensitivity on decent and rational

grounds. Schuette v. BAMN, 572 U. S. ___, ___ ___ (2014)

Those who founded our country would not recognize the

(slip op., at 1617).

majoritys conception of the judicial role. They after all risked

their lives and fortunes for the precious right to govern

The Courts accumulation of power does not occur in a vacuum.

themselves. They would never have imagined yielding that right

It comes at the expense of the people. And they know it. Here

on a question of social policy to unaccountable and unelected

and abroad, people are in the midst of a serious and thoughtful

judges. And they certainly would not have been satisfied by a

public debate on the issue of same-sex marriage. They see voters

system empowering judges to override policy judgments so long

carefully considering same-sex marriage, casting ballots in favor

as they do so after a quite extensive discussion. Ante, at 8. In

or opposed, and sometimes changing their minds. They see

our democracy, debate about the content of the law is not an

political leaders similarly reexamining their positions, and either

exhaustion requirement to be checked off before courts can

reversing course or explaining adherence to old convictions

impose their will. Surely the Constitution does not put either

confirmed anew. They see governments and businesses

the legislative branch or the executive branch in the position of a

modifying policies and practices with respect to same-sex

television quiz show contestant so that when a given period of

couples, and participating actively in the civic discourse. They

time has elapsed and a problem remains unresolved by them, the

see countries overseas democratically accepting profound social

federal judiciary may press a buzzer and take its turn at

change, or declining to do so. This deliberative process is

fashioning a solution. Rehnquist, The Notion of a Living

making people take seriously questions that they may not have

Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of

even regarded as questions before.

this Court explained just last year, It is demeaning to the

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When decisions are reached through democratic means, some

handed judicial intervention was difficult to justify and appears

people will inevitably be disappointed with the results. But those

to have provoked, not resolved, conflict. Ginsburg, Some

whose views do not prevail at least know that they have had

Thoughts on Autonomy and Equality in Relation to Roe v. Wade,

their say, and accordingly arein the tradition of our political

63 N. C. L. Rev. 375, 385386 (1985) (footnote omitted).

culturereconciled to the result of a fair and honest debate. In

Indeed, however heartened the proponents of same-sex marriage

addition, they can gear up to raise the issue later, hoping to

might be on this day, it is worth acknowledging what they have

persuade enough on the winning side to think again. That is

lost, and lost forever: the opportunity to win the true acceptance

exactly how our system of government is supposed to work.

that comes from persuading their fellow citizens of the justice of

Post, at 23 (Scalia, J., dissenting).

their cause. And they lose this just when the winds of change
were freshening at their backs.

But today the Court puts a stop to all that. By deciding this
question under the Constitution, the Court removes it from the

Federal courts are blunt instruments when it comes to creating

realm of democratic decision. There will be consequences to

rights. They have constitutional power only to resolve concrete

shutting down the political process on an issue of such profound

cases or controversies; they do not have the flexibility of

public significance. Closing debate tends to close minds. People

legislatures to address concerns of parties not before the court or

denied a voice are less likely to accept the ruling of a court on an

to anticipate problems that may arise from the exercise of a new

issue that does not seem to be the sort of thing courts usually

right. Todays decision, for example, creates serious questions

decide. As a thoughtful commentator observed about another

about religious liberty. Many good and decent people oppose

issue, The political process was moving . . . , not swiftly

same-sex marriage as a tenet of faith, and their freedom to

enough for advocates of quick, complete change, but

exercise religion isunlike the right imagined by the majority

majoritarian institutions were listening and acting. Heavy-

actually spelled out in the Constitution. Amdt. 1.

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Respect for sincere religious conviction has led voters and

before this Court. Unfortunately, people of faith can take no

legislators in every State that has adopted same-sex marriage

comfort in the treatment they receive from the majority today.

democratically to include accommodations for religious practice.

The majoritys decision imposing same-sex marriage cannot, of

Perhaps the most discouraging aspect of todays decision is the

course, create any such accommodations. The majority

extent to which the majority feels compelled to sully those on

graciously suggests that religious believers may continue to

the other side of the debate. The majority offers a cursory

advocate and teach their views of marriage. Ante, at 27. The

assurance that it does not intend to disparage people who, as a

First Amendment guarantees, however, the freedom to

matter of conscience, cannot accept same-sex marriage. Ante, at

exercise religion. Ominously, that is not a word the majority

19. That disclaimer is hard to square with the very next sentence,

uses.

in which the majority explains that the necessary consequence

of laws codifying the traditional definition of marriage is to

Hard questions arise when people of faith exercise religion in

demea[n] or stigmatiz[e] same-sex couples. Ante, at 19. The

ways that may be seen to conflict with the new right to same-sex

majority reiterates such characterizations over and over. By the

marriagewhen, for example, a religious college provides

majoritys account, Americans who did nothing more than

married student housing only to opposite-sex married couples, or

follow the understanding of marriage that has existed for our

a religious adoption agency declines to place children with

entire historyin particular, the tens of millions of people who

same-sex married couples. Indeed, the Solicitor General

voted to reaffirm their States enduring definition of marriage

candidly acknowledged that the tax exemptions of some

have acted to lock . . . out, disparage, disrespect and

religious institutions would be in question if they opposed same-

subordinate, and inflict [d]ignitary wounds upon their gay

sex marriage. See Tr. of Oral Arg. on Question 1, at 3638.

and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent

There is little doubt that these and similar questions will soon be

assaults on the character of fairminded people will have an

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effect, in society and in court. See post, at 67 (Alito, J.,

***

dissenting). Moreover, they are entirely gratuitous. It is one thing

for the majority to conclude that the Constitution protects a right

If you are among the many Americansof whatever sexual

to same-sex marriage; it is something else to portray everyone

orientationwho favor expanding same-sex marriage, by all

who

means celebrate todays decision. Celebrate the achievement of a

does

not

share

the

majoritys

better

informed

desired goal. Celebrate the opportunity for a new expression of

understanding as bigoted. Ante, at 19.

commitment to a partner. Celebrate the availability of new

In the face of all this, a much different view of the Courts role is

benefits. But do not celebrate the Constitution. It had nothing to

possible. That view is more modest and restrained. It is more

do with it.

skeptical that the legal abilities of judges also reflect insight into
I respectfully dissent.

moral and philosophical issues. It is more sensitive to the fact

that judges are unelected and unaccountable, and that the

Disclaimer: Official Supreme Court case law is only found in

legitimacy of their power depends on confining it to the exercise

the print version of the United States Reports. Justia case law is

of legal judgment. It is more attuned to the lessons of history,

provided for general informational purposes only, and may not

and what it has meant for the country and Court when Justices

reflect current legal developments, verdicts or settlements. We

have exceeded their proper bounds. And it is less pretentious

make no warranties or guarantees about the accuracy,

than to suppose that while people around the world have viewed

completeness, or adequacy of the information contained on this

an institution in a particular way for thousands of years, the

site or information linked to from this site. Please check official

present generation and the present Court are the ones chosen to

sources.

burst the bonds of that history and tradition.

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26 June, 2015
FACTS:
Two individuals, James Obergefell and John Arthur James filed a
lawsuit challenging the states refusal to recognize same-sex
marriage on death certificates. The two were legally married in
Maryland in 2013. Mr. Arthur, who suffered from a terminal
illness, died several months after litigation began. Due to Ohio
law, under both the Ohio Constitution and the Ohio Revised
Code, plaintiffs believed that state officials would refuse to
indicate Mr. Arthur was married at the time of his death and that
Mr. Obergefell was his spouse.
The plaintiffs filed the case on July 19, 2013 in the United States
District Court for the Southern District of Ohio, and the case was
assigned to Judge Timothy S. Black. The original defendants
were Governor John Kasich, Attorney General Mike DeWine
and Registrar of the City of Cincinnati Health Department,
Office of Vital Records, Dr. Camille Jones. On July 22, 2013,
Judge Black granted a temporary restraining order that required
the state to recognize the marriage of Mr. Obergefell and Mr.
Arthur on Mr. Arthurs death certificate.
On September 26, 2013, the plaintiffs filed an amended
complaint adding two additional plaintiffs, David Michener and
Robert Grunn. Mr. David Michener had also married his samesex partner in 2013. Mr. Micheners spouse passed away nearly
a month later. The third plaintiff, Robert Grunn, is a licensed
funeral director who operates his business in Cincinnati. Mr.

OBERGEFELL V. HODGES

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Grunn, whose clients included married gay couples, feared

prosecution for making false statements on a death certificate, if
he were to classify a legally married same-sex couple as wedded
spouses.

performed out of state on death certificates violates due process

and the Equal Protection Clause of the Fourteenth Amendment.
The right to have ones marriage recognized by the state is a
fundamental liberty interest protected by due process, and the
state cannot infringe this right without substantial justification.
Ohio cannot assert a substantial, or even rational, justification
for its refusal to recognize same-sex marriages.

The plaintiffs amended complaint named as defendants Dr.

Camille Jones, Registrar of the City of Cincinnati Health
Department, Office of Vital Records, and Dr. Theodore
Wymyslo, the Director of the Ohio Department of Health.

Further, the states refusal to recognize these marriages violates

the Equal Protection Clause. Ohio recognizes marriages of
opposite sex individuals lawfully performed in other states that
would otherwise have been illegal to perform in Ohio. However,
Ohio does not recognize same-sex marriages that are lawfully
performed in other states. Ohios inconsistent treatment of
recognizing marriages performed in other states violates the
Equal Protection Clause because the state cannot justify its
unequal treatment by any rational or legitimate basis.

In the amended complaint, the plaintiffs sought a declaration

from the court that Ohios practice of denying recognition of
marriages lawfully performed in other states on death certificates
is unconstitutional and requested an injunction to stop this
practice.
On December 23, 2013, Judge Black held that Ohios refusal to
recognize same-sex marriages performed in other states violates
the substantive due process and equal protection rights of the
parties to those marriages.

STATUS:
Defendant Wymyslo filed his notice of appeal to the Sixth
Circuit Court of Appeals on January 16, 2014, and on April 10,
2014, filed his Appellant Brief.

Judge Black also declared the ban on recognizing same-sex

marriages legally performed outside Ohio to be unconstitutional
and prohibited the State from enforcing the ban on the plaintiffs.
Wymyslo appealed the case to the Sixth Circuit Court of
Appeals.

Shortly after Appellants brief was filed, Mr. Lance Himes was
substituted for Dr. Wymyslo, as Dr. Wymyslo stepped down as
the Director of the Ohio Department of Health and Mr. Himes
took his place as Interim Director. Richard Hodges replaced Mr.
Himes as Defendant after being appointed Director of the Ohio
Department of Health in August 2014.

LEGAL THEORY:
The states refusal to recognize same-sex marriages lawfully

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On April 24, 2014 Appellee Obergefell filed the Appellee Brief.

Appellant Himes filed a Reply Brief on May 12, 2014. During
this period, numerous amicus briefs were filed to support each
side. Oral arguments took place on August 6, 2014. On
November 6, the Court of Appeals reversed the decision. Judge
Sutton wrote the opinion of the court, in which Judge Cook
joined. Judge Daughtrey dissented.
On November 14, 2014, Obergefell filed a Petition for a Writ of
Certiorari with the U.S. Supreme Court. On January 16, 2014,
the U.S. Supreme Court issued an order granting certiorari and
agreeing to hear the case. In its order, the Supreme Court
consolidated this case with other Sixth Circuit cases challenging
same-sex marriage restrictions. The Court ordered that each
party brief one of two issues that pertain to its respective case: 1)
Whether the Fourteenth Amendment requires a state to license a
marriage between two people of the same sex; and 2) Whether
the Fourteenth Amendment requires a state to recognize a
marriage between two people of the same sex when their
marriage was lawfully licensed and performed out of state.
This case addresses the second question, and we filed our merit
brief on February 27, 2015. The respondents briefs were filed
on March 27, 2015, and our Reply brief was filed on April 17,
2015. The case was heard on April 28, 2015.
On June 26, 2015, the United States Supreme Court ruled in a
landmark decision that the 14th Amendment requires all states to
license marriages between same-sex couples and to recognize all
marriages that were lawfully performed out of state.

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