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SUPREME COURT
MANILA
EN BANC
-versus-
CIVIL REGISTRAR-GENERAL,
Respondent.
x-----------------------------------------------------------------------------------x
COMMENT
(AD CAUTELAM)
I.
STATEMENT OF THE CASE
II.
MATERIAL DATES
1
Velanle v. Soda/ Soiiety o/Jesus, G.R. No. 159357, 28 April 2004.
2 Bakerv. Carr; 369 U.S. 186 (1962).
3 Petition, p. 13.
4 Petition, p. 2.
Comment Ad Cat1te!am 3 G.R. No. 217910
III.
ISSUE
IV.
ARGUMENTS
s Petition, p. 8.
6 Resolution dated 28 July 2015.
Comment Ad Catttelam 4 G.R. No. 217910
v.
DISCUSSION
13. Petitioner also argues that his "ability to find and enter into
long-tenn monogamous same-sex relationships is impaired because of the
absence of a legal incentive for gay individuals to seek such relationship."
Not only is this non-sequitur, it also demeans the capacity of homosexuals
to enter into committed relationships. Even if this claim rises to the level
of an argument, no additional argu1nent is presented as to why the
creation of an across-the-board, systemic incentive through the
recognition of same-sex marriage will lead specific gay individuals to
choose petitioner over any other homosexual.
7 IJetition, p. 10.
8 ]umami! v. Cafe, G.R. No. 144570, 21 September 2005.
Comment Ad Caute!am 5 G.R. No. 217910
14. It is notable that petitioner has also failed to couch his suit in
the form of a class action. Given that petitioner does not seek to
represent the class of human beings who may have been injured by the
absence of a law recognizing same-sex marriages, the merits of his petition
must be judged on the basis of the particular details of his case which, on
its face, are devoid of allegations of injury in fact.
15. Other than a political dispute with the terms of the Family
Code, petitioner does not provide any evidence of how the law was
specifically brought to bear upon his person. For one, he does not show
how an act of his chosen respondent-the Civil Registrar-General-has
impaired any of his rights. For another, he makes no claim that any officer
supervised by the Civil Registrar-General-any local civil registrar in the
country-has been ordered in any manner to impede petitioner in the
exercise of his rights such as, for exa1nple, by way of denial of his request
for the issuance of a marriage license.
5. Articles 52, 53, and 54 of the Civil Code did not define
and limit marriage as between man and woman.
9
Atc~atu v. Elecioml Commfrsion,
63 Phil. 139 (1936).
10 Muskmtv. Umted States, 219 U.S. 346 (1911).
11 G.R. No. 153059, 14 August 2007.
Comment Ad Caute!atn 7 G.R. No. 217910
25. Under Rule 65, Section 1 of the Rules of Court, a petition for
certiorari tnust allege with specificity the jurisdictional errors committed by
the respondent in the performance of its functions. The petitioner can
only avail of a writ of certiorari "[w]hen any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law."13
12 Id.
13 RUI.FS OF COU!tr, Rule 65, Sec. 1.
Comment Ad Cautelam 8 G.R. No. 217910
The Secretary of Agra1ian Reform does not fall 'W'ithin the ambit of a
tribunal, board, or officer exercising judicial or quasi-judicial
functions. The issuance and enforcement by the Secretary of
Agrarian Reform of the questioned DAR AO No. 01-02, as
amended, and J\femorandum No. 88 were done in the exercise of his
quasi-legislative and administrative functions and not of judicial or
quasi-judicial functions ...
33. It also bears emphasis that it is the local civil registrar, not the
Civil Registrar-General, who issues a marriage license to couples who
intend to marry in the Philippines. Article 9 of the Family Code provides
that "[a] marriage license shall be issued by the local civil registrar of the
city or municipality where either contracting party habitually resides ... " In
any case, the ministerial duty of local civil registrars is to issue marriage
licenses to heterosexual couples, and not to couples of the same sex.
15 E111phasis supplied.
18 F.\Wl.Y CODE. Art. 11. \\11ere a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar which shall
specify the follo\.ving:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
(6) Present residence and citizenship;
(TJ Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) l.:.'ull na1ne, residence and citizenship of the mother; and
(10) Full na1nc, residence and citizenship of the guardian or petson having charge, in case
the contracting party has neither father nor mother and is under the age of t\venty-one years.
'l 'he applicants, their parents or guardians shall not be required to exhibit their residence
certificates in any formality in connection with the securing of the rnarriage license.
Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the
original birth certificates or, in default thereof, the baptisn1al certificates of the contracting parties or
copies of such documents duly attested hy the persons having custody of the originals. These
certificates or certified copies of the documents by this 1\rticle need not be sworn to and shall be
cxctnpt frotn the docutnentary statnp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptistnal certificate or a
certified copy of either because of the destruction or loss of the original or if it is shown by an
affi<laYit of such party or of any other person that such birth or baptistnal certificate has not yet been
received tl1ough the san1e has been required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu thereof his current residence
certificate or an instrurr1ent drawn up and S'\vorn to before the local civil registrar concerned or any
public official authorized to administer oaths. Such instnunent shall contain the S\vom declaration of
two \Vitnesses of la\vful age, setting forth tl1e full 11an1e, residence and citizenship of such contracting
party and of his or her parents, if known, and the place and date of hirth of such party. The nearest
of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.
'Ihe presentation of birth or baptismal certificate shall not be required if the parents of the
contracting parties appear personally before the local civil registrar concerned and s\vear to the
correctness of the la\.vful age of said parties, as stated in the application, or when the local civil
registrar shall, hy merely looking at the applicants upon their personally appearing before him, be
convinced that either or both of then1 have the required age.
i\rt. 13. In case either of the contracting parties has been previously n1arried, the applicant shall be
required to flirnish, instead of the birth or baptistnal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the
judicial decree of annuh11e11t or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall 111ake an affidavit setting forth
this circumstance and his or her actual civil status and the name and date of death of the deceased
spouse.
Comment Ad Cautelam 11 G.R. No. 217910
the local civil re1:,risttar shall take in processing applications for a marriage
license. These are bureaucratic procedures, not quasi-judicial actions.
There can be no grave abuse of discretion when a government office
perfonns its ministerial duty under the law.
Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous
n1arriage, are behveen the ages of eighteen and hventy~one, they shall, in addition to the requiren1cnts
of the preceding articles, exhibit to the local civil registrar, the consent to their n1arriage of their
father, mother, surviving pa.tent or guardian, or persons having legal charge of them, in the order
111entioned. Such consent shall be manifested in "\Vt.icing by the interested party, who personally
appears before the proper local civil registrar, or in the forrn of an affidavit 1nade in the presence of
t\vo "\v-1tnesscs and attested before any official authorized by law to administer oaths. The personal
n1anifestation shall be recorded in both applications for tnarriage license, and the affidavit, if one is
executed instead, shall be attached to said applications.
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask
their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or
if it be unfa\'orable, the marriage license shall tiot be issued till after three n1onths follo"\ving the
cornpletion of the publication of the application therefor. A S\Votn staten1ent by the contracting
parties to the effect tl1at such advice has been sought, together with the "\Vritten adv"ice given, if any,
shall be attached to the application for marriage license. Should the parents or guardian refuse to give
any advice, this fact shall be stated in the s\vorn statetnent.
.L\rt. 16. In the cases where parental consent or parental advice is needed, the party or parties
concerned shall, in addition to the requiren1ents of the preceding articles, attach a certificate issued by
a priest, llnatn or n1inister authorized to soletnnize n1arriage under Article 7 of this (~ode or a
marriage counselor duly accredited by tl1e proper governn1ent agency to the effect that the
contracting parties have undergone marriage counseling. Failure to attach said certificates of martiage
counseling shall suspend the issuance of the n1arriage license for a period of three months fron1 the
con1pletion of the publication of the application. Issuance of the n1arriage license within the
prohibited period shall subject the issuing officer to adtninistrative sanctions but shall not affect the
valic-lity of the 111arriage.
Should only one of the contracting parties need parental consent or parental advice, the
other party tnust be present at the counseling refetred to in the preceding paragraph.
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a n1arriage license and other data given in the applications. The notice
shall be posted for ten consecutive days on a bu1lctin boatd outside the office of the local civil
registrar located in a conspicuous place within the building and accessible to the general public. This
notice shall request all persons having kno\"\dedge of any itnpeditnent to the marriage to advise the
local civil registtar thereof. 'I'he marriage license shall be issued after the completion of the period of
publication.
Art. 18. In case of any impecl1111ent known to the local civil rcgistrat or brought to his attention, he
shall note dov.'n the particulars thereof and his findings thereon in t11e application for n1arriage
license, but shall nonetheless issue said license after the con1pletion of the period of publication,
unless ordered othet\vise by a co111petent court at his O\.VU instance or that of any interest party. No
filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the
order.
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations
before the issuance of the marriage license. No other sun1 sha11 be collected in the nature of a fee or
tax of any kind for tl1e issuance of said license. It shall, ho\vever, be issued free of charge to it1digent
parties, that is those "\vho have no visible means of incotne or "\vhose income is insufficient for their
subsistence a fact established by their affidavit, or by their oath before the local civil registrar.
Comment Ad Cautelam 12 G.R. No. 217910
35. Error in Relief Sought. Indeed, the grant of the reliefs sought in
the petition will not lead to the establishment "of a legal incentive for gay
individuals to seek [same-sex] rclationship[s]." This is because petitioner
has not sought a writ of manda1nus as part of his requested set of relief.
Any male of the age of sixteen years or upwards, and any female of
the age of fourteen years or upwards, not under any of the
impediments mentioned in articles 80 to 84, may contract marriage.
19 J\rt. 53. No n1arriage shall be solen1nized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) 1\uthority of the person perforn1ing the marriage; and
(4) A n1arriage license, except in a marriage of exceptional character (Sec. la, art.
3613). (Emphasis supplied).
20 C!Vll. CODE, Art. 67.
Conunent Ad Cautelam 13 G.R. No. 217910
(1) the character of the funds or other assets involved in the case; (2)
the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in the questions being
raised. 25
21 Banez. v. C011eepdo11, G.R. Nos. 99289-90, 27 January 1993; Daa1dao v. Semtary Raul Gonzales, G.R.
No. 188056, 8 January 2013.
22 Philippine Anodation of Co/legeJ mzd Unfrmities v. Semla1y of Education, G.R. No. L-5279, 31 October
1955.
23 G.R. No. 174697, 8July 2010.
24 Concurring Opinion in Kzlsobayan v. Guingona, G.R. No. 113375, 5 May 1994.
''Id
26 576 U.S._ (2015).
United States Court of Appeals in recent years."29 Thus, the U.S. Supreme
Court stated that-
45. In the present case, the Honorable Court would have no case
law, much less any factual elements mixed in the judicial cauldron, that
would help it "explain and formulate the underlying principles" about the
constitutional status of same-sex marriage in the Philippines. To decide
here would be to brew with missing ingredients.
... Petitioner James Obergefell, a plaintiff in the Ohio case, met John
Arthur over two decades ago. They fell in love and started a life
together, establishing a lasting, committed relation. In 2011,
however, Arthur was diagnosed with amyotrophic lateral sclerosis, or
ALS. This debilitating disease is progressive, with no known cure.
Two years ago, Obergefell and Arthur decided to commit to one
another, resolving to marry before Arthur died. To fulfill their
mutual promise, they traveled from Ohio to Maryland, where same-
sex marriage was legal. It was difficult for Arthur to move, and so
the couple were wed inside a medical transport plane as it remained
on the tarmac in Baltimore. Three months later, Arthur died. Ohio
law does not permit Obergefell to be listed as the surviving spouse
on Arthur's death certificate. By statute, they must remain strangers
even in death, a state-imposed separation Obergefell deems "hurtful
for the rest of time." ... He brought suit to be shown as the surviving
spouse on Arthur's death certificate.
z9 Id.
30 Id
3! Peope v. Vera, G.R. No. L-45685, 16 November 1937.
Comment Ad Cattle/am 15 C.R. No. 217910
47. In Ober:gefell, there were actual cases where persons were being
injured by State laws which targeted the rights of a married couple. The
suits therein took decades of litigation, planning, political advocacy,
legislative debates, and coalition-building. In contrast, petitioner-all by
himself, unassisted-puts on the line the future of a social movement and
gambles the right of homosexuals in an ill-timed suit that might
underwhelm even well-meaning sympathizers.
48. At the turn of the 20<h century, James Bradley Thayer wrote
that the "[t]endency of a common and easy resort to [the] great function
[of judicial review], now lamentably too common, is to dwarf the political
capacity of the people, and deaden its sense of moral responsibility."33 We
invoke Thayer's wisdom in seeking the dis1nissal of the present suit.
2
' Supra note 26, 4-6.
33 J.B. T!LWER,JOllN lvlARSfL\LJ. 106-107 (1901).
Comment Ad Cautelam 16 G.R. No. 217910
PRAYER
MAXI~b-'P:f\ULI~-:-S~
Ojficer-in-Charge, Lorenzo Tafiada Division
Roll No. 59301
IBP Lifetime No. 012977
MCLE Compliance No. IV-0025306, 08-13-2015
GER
Associate Solicitor
Roll No. 59797
IBP No. 987719; 1-07-2015
MCLE Compliance No. V-0011787; 11-10-15
Comment Ad Caute!am 17 G.R. No. 217910
LILIBE'~12l~EREZ
Associate Solicitor
Roll No. 62428
IBP No. 1005409, 15
MCLE Exempt, Admitted 2013
Copies furnished:
Civil Registrar-General
Public 1'espondent
3'd Floor, NSO-C:VEA Bldg.
East .Avenue, Diliman
Quezon City
Fernando P. Petito
Intervenor
Rm. 14, Bldg. 2, Plaza Pacita
Brgy. Nueva, Pacita Complex
San Pedro, Laguna
EXPLANATION
(Pursuant to Rule 13, Section 11 of the Rules of Court)
;/:.- ~
LILIBETH C. PEREZ
Assoliate So!idtor
REPUBLIC OF THE PHILIPPINES
AFFIDAVIT OF SERVICE
A. ESIGl!'ffi\i§ftdi!§Of April 1992)
pursuant to Section 3,4,5 and 10, Rule 13 of the Rules of Court, as follows:
(A~
' '· ~,, c.•·.>
SUBSCRIBED AND SWORN to before me this . 0( .· . . .. . . ·,p~. at Makati
City, Philippines. Affiant exhibiting to me his _ _ _ _ _ _ _ _ _ _ _ _ __ say City.
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LIL~tt. PEREZ
Associate Sofiiitor
29 lVIarch 2016