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    GR. No. 217910 (Jesus Fatsis 111 v, Civil Registrar General). Promulgated: si ber 3, 22, Septenber 3, 2019 SEPARATE OPINION PERAL The Court ought to dismiss the case outright on the ground that there is no actual case or controversy ripe for judicial determination, Also, the petitioner does not have any focus stand! And even if we were to touch on the merits, he has not made out a clear case for a declaration of the unconstitutionality of the peovisions of the Family Code (Executive Order No. 209) relative to its definition of marriage as a union between a man and awoman, AL the outset, it is to be pointed out that the role of the Court in constitutional adjudication is to determine the rigitts of the people under the Constitution, an undertaking that demands, among others, he presence of an actual case of controversy ripe for judicial pronouncement, and thal the case must be raised by one who has the personality or standing to do so. Here, the petitioner fails to satisfy both requisites. He is practically beseeching the Court to come up with an advisory opinion about the presence of constitutionally protected right to same-sex marriages in effect seeking 10 “convert the Court into an Office of Ombudsman lor the ventilation of generalized grievances.”! An actual case or vontroversy refers ta an existing case or controversy that is appropriate or ripe for determination, not conjectural or antiviputory. ‘The controversy needs to be definite and concrete, bearing upon the legal relations of parties who are pitted against cach other due to their adverse legal interests! Further, “[aJn aspect of the ‘caso-or-controversy’ requirement is the requisite of ‘ripeness,’ In the United States, courts are centrally concerned with whether a case involves unceriain contingent future events that may not occur as anticipated, or indeed may not accur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the ae Y Sepanite Opinion 22+ GR. Ny. 217910 issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication whan the act being challenged has had a direct adverse effect on the individual challenging it.”* Tt has been held that “as to the clement of injury, such aspect is not something that just anybody with some griewanve or pain may assert. It has to be direet and substantial to make it worth the court’s time, as well as the effort of inquiry into the constitutionalily of the acts of another department of government. If the asserted injury is more imagined than real, or is merely superficial and insubstantial, then the courts may end up being importuned to decide @ matucr thal does not really justify such an excursion into constitutional adjudication. The vationale for this constitutional requirement of focus sfandi is by no meuns trifle. Not only does i ussure the vigorous adversary presentation of the case; more importantly, it must suffice to warrant the Judiciary’s overruling the determination of a coordinate. democratically ¢lected organ of government, such us the President, and the clear approval by Congress, in this case. Indeed, the rationale goes to the very essence of representative democracies.”* Intrinsieally related to the presence of an actual case or controversy ripe for udjudication is the requirement that the issue be raised by the proper party, or the issue of locus standi. Even as this Court is the repository of the final word on what the law is, we should always be aware of the need for some restraint on the exercise of the power of judicial review. As then Associate Justice, later Chief Justice, Reynaw S. Puno then intoned in one of his dissents: “Stated otherwise, courts ure neither free to decide aif kinds of cases dumped into their laps nor are they free to open their doors to aif parties or calities claiming a grievance. The rationale for this constitutional requirement of focus srandi is by na means trifle, It is intended ‘to assure a vigorous adversary presentation of the ease, and, perhaps more importantly to warrant the judiciary’s overruling the determination of a coordinate, democratically elected organ of government.” It, thus, goes to the very essence of representutive democracies." Otherwise slated, “lal party must show that he has been, or is about to be denied some personal right or privilege to which he is lawfully entitled. A party must also show that he has a real interest in the suit. By ‘real interest” is meant a present substantial interest. as distinguished fiom x mere expectancy or future, contingent, subordinale, or inconsequential interest."> Phil, Fawyers dganst 4 69 (200125, Galkete ino HE, 683 Vhil. 141, 192 (2012), citing Gurospe. Revisiting Lower Stuewt! in Ligh Of The Pore Power Provssnane Of flee 1987 Consitation, UST LAVE RFY bo. (5-16. citing ley Pivdl Service Comnassivin, 419 Phil $24 Hiege, Ine». Coe! of Agents, fa then Associcts Indice Reyzato §. Puno’e Di ‘19a 998), al, Quingomas Jb, wae ee Conaantecion at Eien, 433 i Hy and Poo (LAME) v. Secretary of Buses andl Management, 685 ong, Singers gnc Shadow 4 #21, 635.636 (2002), Separate Opinion Sa Relative to the foregoing matter is the need to give the legislature space to do its job of determining policies as an aspect of the democratic process, [a this reward, then Associace Justice Santiago M. Kapunan noted: “Phe idea that a norm of constitutional adjudication could be lightly brushed aside on the mere supposition that un issue before the Court is ol paramount public concern does great harm to a democratic system which espouses a delicate balance between three separale bur co-equal branches ol! government. It is equally of paramount public concern, certainly paraniount to the survival of aur democracy, that acts of the other branches of government are accorded due respect by this Court. xx x. Notwithstanding, Article VII, Section | of the Constitution, sinew the exercise of the power of judicial review by this Court is inherently anti-democratic, this Court should exercise a becoming modesty in acting a3 @ revisor of an act of the executive or legislative branch,”* Prudential considerations should caution the Court from having to accept and decide each and every case presented to it just because the questions raised may be interesting, novel or challenging, There is a time for cofte table discussions of exotic ideas, but the Court does nol sit to do such a discourse. In undertaking judicial review, it decides in aceardance with the Fundamental Law issues that have particular relevance and application to actual facts and circumstances, not imagined or anticipated situations, Petidoncr Falsis does not assert that he has been directly injured by the provisions of the Family Cade. If ever he would be prevented from marrying, thal is still in the uncerwin future, a contingency that may never happen. However, he tries to rectify this problem by making reference to the pelition-in-intervention filed by LGBTS Christian Church, Inc., et al. who allegedly were prevented from having a same-sex martiage ceremony when the same-sex couple was not granted a murriage license. In this connection. intervention should never be allowed to be utilized as a means to correet a fatal omission in the principal action, Intervention is only ancillary to the main case and it should not be conveniently resorted to us a means to save the day lor an intrinsically flawed petition. And even if we were to go to the merits, [ would like to call attention to the fact that the laws and judicial decisions are reflective of the reality in society — a recognition of the valucs and norms that the people hold, recognize and cherish. Congress is the democratic institution which initially inay tackle issues and policies about interpersonal relations and iustitutions affecting its citizens, including the propriety or desirability of same-sex marriage. It is not for the courts to jwiup into the fray on the pretext that i Dissenting opinion Bmyphasis supeisay . wane, Je, wpe oie A, at 31 Separate Opinion GR, No. 217910 merely reading for the people the rights and Tiberties under the Constitution. ‘Only in the presence of a clear violation of the tenets of the Fundamental Law may the courts proceed to declare that an unmistakable constitutional right has been impaired or otherwise trampled upoa by the governme the absence of such, the courts should stey their hand, In this pert instance, 1 do not see any such violation that would justify the Court getting into this social and political debate on same-sex marriages. In any case, what is not (o be overlooked is the reality that ji adjudication has to be rooted in the Constintion and the laws which ure expressions or manifestations of what society and the people aspire tor, and the courts must necessarily get their bearings from them. Des be oblivious to, nor detached from, what is the reality in society. In this particular instance, the petitioner keeps harking on the fundamental right to marry and by extension, right to same-sex marriage, claiming that it is a constitutional right pursuant to the guarantee of equal protection. However, there is nothing in the text or background of the constitutional provision that would allow for such an expansive reading. ‘'o society, the framers of the Fundamental Law, and the people who ratified it, there is no indication that they understood marriage to be other than the union between people of the opposite sex. This has been the traditional, history-bound understanding of marriage in Philippine setting. Accordingly. if'u radieal or seismic departure from the commonly understood notion of matriage is to be had, the same has to be decreed by Congress and the President, and not imposed by judicial fiat, Debates about policy on maticrs like this are for the. political departinents, as elected representatives of the people, to decide on. ‘ions cannot ia regard to the American case recognizing same-sex murriages, the US. Supreme Court itself was quite careful to make reference to the changing social milica which allowed fora shifi in legal thinking, We do not have a similar situation here. Whut the U.S, Supreme Court said in this tegard is quite instructive: the ancieer origins of marriage confirm its eenteality, but it has not isolation from developments in law and society. The history of marriage is one of both comlinuily and change, That institution—even as ul Lo opponite-sex relations—hes evolved over time. For example, mantiage was onve viewod as an arrangement by the couple's parents baset! an political, religious, and financial concems; but ‘by the time of the Nation's fumding it Was understood fo be a voluntary: contract between a man and 2 woman. Sec N, Cott, Public Vows: A History of Marriage und the Notion 9 17 (2000); S. Coontz, Marriave, A History 1$ 16 (2005). As the role and stulus of women chauged, the institution finther evolved. Under the centuries-old doctrine of coverture, a married man ancl woman were treated by the State as a single, male- dor ued logal entity. See | W. Blackstone. Commentaries on the Laws of Tnghind 430 (17633. As women gaince legal, political, and prope! rights, and as society began to understand that wornen have their own, Sepurate Opinion : GR Nv. 217910 equal dignity, the law of covertice was abandoned. Sce Brief for Hisiorinns of Marriage et al, ag Amici Curiae 16-19, These and other developments in the instituden of mariage ower the past centuries were ol mere superficial changes. Rulher, they worked deep transformesious in its structure, allecting aspects uf marriage long viewed Sy muny as essential, Sex genorally N. Cott, Public Vows; S. Coontz, Marriage; H. Haring, Man & Wile in America: A [listory (2600). These new insights have strengthened, nol weakened, the institution of marriage. Indeod. changed understaadings of marriaye ane shuucteristic of a Nation where new dimensions of freedom become Apparent « new goncrations, often through perspectives thal heyin in ple: or protests and then are considered in the political sphere and the judi Drocess. ‘This dynamic can be seen in the Nation's experiences with the righly of gays axel lesbians, Until che mid-20ch century, same-sex inlimacy long had heen condemned as iminorsl by the state insel' in most Westen nations, & belief ofien embodied in the criminal law. Mor this reuson, among others, many persons did not deom homosexuals to have digaity in their own distinet identity, A trothful declaratiun by same-sex couples of” ‘hat was in their hearts hag tj remain urspoken, Piven when a greater awareness of the humanity and integrity of homosexual persons came in the period after World Wur TI, the argument thal yays and lesbians had a iust claim to dignity was in coolficl with both law and widespread social couventions. Same-sex tiinacy remained a crivre in many and lesbians were prohibited from most goverment employment, barred from military servies, excluded under immigration kiws, targeted by policy, and dundened in their tights to wssociate. See Brief for Organization of American Historians a3 Aoniews Curiae 328 For much of the 20th century, morcover, bomusexuality was Grevted as an illness, Whoa the American Psychiatric Association Published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered 10 until 1979. See Position Statement on Homosexuality anil Civil Rights, 1973, in 131 Am, J. Psychiatry 497 (1974), Only in mare recent years have psychiatrists aed others recognized that seauul urieniation is, bath a normal expression of human sexuality and imunulable. See Brief’ for American Psychological Axsaciation ct al. as Amied Cherige F-1 In the late 20th century, following substantial cultural ase political Gevolopments, same-sex couples heysn 10 Iead more open and public lives and to establish families, This development was followed by a quite extensive discussion of the issue in hoch governmental and private sectors and by a shift in public attitudes toward greater (olerance. Ax a result, questions about the rights of gays and lesbians yon reached the courts, ‘where the issue could he discussed in Uae formal discourse of the law. This Court fst gave detild eomedertion wo the egal status of homosexuals in Bowers v, Hard U.S. 186 (1986). I here it upbeld the constitulionslity of a Geargia law tees 1 criminalize cestain homosexual ucts. “Ton years tales, in Romer vm. Evans, 317 WLS, 620 (1996), the Court inveliduted an amendment 10 Colorado’s Constitution Ghat sought to foreclose any branes or political subdivision ef the State from protectins persons against diserimination based on sexual 5 orientation, Then, in 2002, the Court overruled Bowers, holding that laws Separate Opinion 0. 217910. raking same-sex intimacy & ctiewe “letwea] the tives of homosexual persons.” Lawrenve v, Texas, 539 U.S. 358, x eK ‘The right @ mary is fundumenual as 9 matter of history and tradition, but rights come not from ancient sources alone, ‘Ihey rise, too, Fom a hetsor informed understanding of how constitorional imperatives define 2 liberty that remains urgent in cur own era. Many who dvem sare- sex marriage ly be wrong reach that conclusion bated on decent and honorabie religious or philesaphical premises, and neither they nor their beliefs ure disparaged here, But when that sincere, personal opposition becomes enavteil Tay and public policy, the necessury consequerice is 10 pur the impeimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, ssime-nex couples scek in marriage the sume legal treatment as opposite-sex couples, aril il would disparage their choices und diminish their personhood to deny them this righi.* Tn fine, the claim of alleged unconstitutionality of the Family Code provisions defining murriage as a union between a man and a woman has no leg to stand on. Itis not for this Court ww write into the law purported rights when they are not expressly or by clear implication deemed available under the Fundamental Law. Same-sex marriage is a policy matter better left to the deliberations of the elected officials of the country. Associate Justice Clerk of ourr En ane ‘Shyareme Court 1 Gherysfeli Haden, 56S. ROIS, a6, Sip Dein thups:swwre:sunsznecues puvtopinienss|éRHELASSh TL et ccosead : Fd st 18-18, ip Opin GR. No. 217910 — JE: CIVIL REGE CHURCH, SUS NICARDO M. FALCIS UL, Petitioner y. IERAL, Respondent; LGUYS CHRISTIAN REVEREND CRESCENCIO “CFFJAY" RLON FELIPE. d MARIA ARLYN “SUGAR” it i FERNANDO P. PERITO, . REYES, JEREMY L A A. MONTES, AND RUFINO POLICAPRIO GATDULA, CRIST UL, fatervenors-oppositors. Promulgated: ptember CONCURRING OPINION % JARDELEZA, 4: when did il beeoake when the Fourteen Amendme was adapter? xx” Ted: “When — niay [answer dhis in the form of a dueworical quahey When die it become unconstitutional ous there are constitutional rights when they have before thems a case tha presents te issue, and when they know — amd society kavws — enongh about the issue to make informed decisions T vote to DISMISS the petition, not the idea of marriage equality. _ Petitioner Jesus Nicardo M, Faleis IIT (petitioner) ts not the proper ra liberty interest in same-sex marriage. He did not suffer any forcement of Articles | and 2 of Exceutive Order (EO) No. 209, otherwise known as “The Fumily Code of the Philippines” Wamily Code), ‘The subsequent intervention by Revercad Cresconcio ® Avbayani, Jr. (Rev. Ceejay}. Marlon Velipe (Marlon) of LGLBS Church (LGTS Church), aad Maria Arlyn “Sugar” batiez (collectively, the two couples), did not cure this defect in the = sexu rolationsp yom Singar ev filing the poi ame avin Concurring Opinion, 2 GR. No. 217910 [also find dismissal to be proper because direct recourse to the Court in this case ix unwarranted. Petitioner asserts that he raises legal questions, principally thal Ardeles | and 2 of the Family Code violate his fundamental fight to enter into a same-sex marriage. This, however, eunnot be farther from the truth. Ihe issues he mises implicate underly which, in turn, condition the canstitutionality of the legal provi questions.’ In his exuberant rash to bring this case directly to the Court as both lead party and counsel, petitioner chase wo skip building a factual foundation of record upon which the Court can make an informed judgment. The underlying questions of fact that underpin bis legal argument include whether: (a) couples of the same-sex can satisfy the essential requirements of marriage equally us heterosexual couples; (b) procreation is an essential requirement of marriage: {c} couples of the same-sex can raise children equally as well as heterosexual couples; (d) Filipino tradition accepts same- sex marriage; and (e) the LGRTS Church is a religion whose members, including the two couples, hold a sincere belief in same-sex marriage as.a central (enet of their faith A The petition presents no actual case or controversy. There is an actual case or controversy when the case iy appropriate of ripe for determination, wot conjectural or anticipatory, lest the decision of the cont would amount to an advisory opinion.’ This means that there must be a conflict of legal rights or an assertion of opposite leal eluims which can be resolved on the basis of existing law and jurisprudence. An abstract dispute, in stark contrast, only seeks for an opinion that advises what the law would be on hypothetical stale of fucts.? Furthermore, a case is ripe tor adjudication when the act being challenged has had a direct adverse effect an the individual challenging, it. Something must have been accomplished or performed by either branch of Goverment before a court may came into the picture, and a petitioner must allege the caistence of an immediate or threatoned injury to him/her as a result of the challenged action.® On its face, it sents a hypothetical and contingent event, not ripe for adjudication, which is hinged on petitioncr’s fulure plan of settling down ha person of the same-sex. me assnciarion, tne at af v The Hanarabte Cine Maswe of Odtober 3, 196%, 21 SCRA 449, ASTH=1S2, citing "Garman & Young % o., 283 U.S, 251.1031), ere ngogemamt Sop wark frat \ catt Toeraed an Conc Miondia, GR. No. Sonate GR.No, 12, Qouber 0, 1998 292 SCRA 402, 41-44, #,G.R, No, 183591, Qelubor 14, 448, $84 SCRA 402. 451 Concurring Opinion GAR. No. 217910. Pelitioner alleged that “the prohibition against the right to marry the same-sex injures [his] plans to settle down and have a compunion for life in his beloved country.” Yet as of the filing of the petition, petitioner has ne partner, He lamented that bis “ubility to find and enter into a long-term monogamous same-sex relationship is impaired because of the absence of a legal incentive for gay individuals to seek such relationship.” Significantly, however, even if he has a partner, petitioner admiued in open court that it is not automatic that his partner might want to marry him.’ ‘Thus, petitioner cannot, did not or even atempted to, file an application for marriage license belore the civil registry of his residence. Consequently. the Civil Registrar General (CRG) or any ather official in any of the branches of the government has nothing to act upon. They could not and have not performed an act which injured or would injure petitioner's asserted right. It is clear that petitioner’s cause of action does not enist. B Petitioner has mo legal standing Lo tile the suit, Standing or foews sianeli is defined us the right of appearance in a court of justice on a given question,” Lo determine whether a party has standing, the direcr iajucy test iy applicd,' Under this test, the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a resull of its enforeement.'* Despite this, however, there have been cases wherein the Court has allowed the follovsing non-traditional suitors to bring a case before it despite lack of direct injury: 1. For taxpayers, hore must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; 2. Vor voters, there must be a showing of obvious interest in the validity of the election law in question: 3. For concerned citizens, there must be a showing thal the issues taised are of transcendental importance which must be settled early: 4. For legislators, there inust be a claim that the official action complained of infringes upon their prerogutives as legislaters;!” 5. For associations, its members must be aflected by the action:!" and dé TSN ode OF Davaly, Moos ab 207, Mera. 63 Phil, $6, 891937 retin gine ane HDL 220 Aciqumnonss dated Jane 19.2611, 29. 47-68. sah Arregey GUN CTASS, Magy 3, 206.289 SCRA 140, 216 Coneurring Opinion 4 GR.No. 217910 6. Tor those bringing suit on behalf of third parties, the litigant must have suffered an ‘injury-in-facl” thus giving him or her a “sulficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party amd there must exist some hindrance to the third purty’s ability to protcet his or her own interests.!° In this case, petitioner is not in a long-term monogamous same-sex relutionsiip. He has not attempted to marry nor was prevented by the State trom doing so. This makes his lack of direct interest in the enforcement of jons of the Family Code patent. Neither does petitioner qualify as a taxpayer as he has not. alleged illegal disbursement of public funds or that a tax measure is involved in this case, Lle does not assail the validity of an election law, so he alsa docs nol have standing as u voter, Finally, he is nota legislator nor sat association and Iherefore cannot claim standing as such. © ‘The petition-in-intervention cannot cure the defects of the petition. An intervention is merely ancillary and supplemental to an existing litigation. It is not an independent action, It presupposes the pendency of & suil in a court of competent jurisdiction; in other words, jurisdiction over the same is governed by jurisdiction over the main action. Perforce, a court which has ao jurisdiction over the principal action has no jurisdiction over a complaint-in-intervention.!” requisites Court of jurisdiction lo take cognizance of the same, More, jurisprudence instructs that petition-in-intervention cannol create an actual controversy for the main petition. The cause of action must be made out by the allegations of the petition withoul the aid of any other pleading. for jt In any event, the petition-in-intervention is, in itself, wanting and cannot lend any validity to the main petition, ‘The TGBTS Chureh, while claiming to intervene on behalf of its members, failed 10 satisfy the following requirements lo successfillly maintain third-party standing: (1) the retary. Conet of Appeots, GR Nu, DF 9, May 2: ret af Apgroats, GR, No. 154530, Pebruary 1S, 2004 dog, tne Foie, CIR, No. 135092, May 4, 2006, 489 SCI anita, G.R, No, 1P2BA6, ADP SIR I, 9A, See also. RA 24 and Povab GR. No. 185579, March 16, 2016. TAT SCRA 476, 98, “No. 166901, Qevabes 27. 2006, 508 SCRA TAK, 763 ena a 1 Adiaginvisda ng hen, Mindanae of Pisa, OR. 17, BEA SCRA S51, 520, Concurring Opinion s GR.No, 217910 litigant must have suffered an “injury-in-fact,’ thus giving hinvher a “sufficiently concrete interest” in the outcome of the case in dispute; (2) the litigant must have a close relation to the third party; und (3) there snust be some hindrance to the third parly’s ability to protect his*her awn interesis.'* The first and third clements ure missing, As will be discussed in dewil Luter, the LGBTS Church failed to show how the chulleuged law injures it and its members, Qn the other hand, the filing of die petition-in-intervention by the two couples, who are members of the LGBTS Church, proved that they are sufficiently cupable to acting to protect their own interest. Any invocation of third party-standing is thus misplaced. dD Neither can the transeendental importance doctrine save the petition and the petition-in-intervention. [his doctrine dispenses only with Ure juirement of docus standi. |. does not override the requirements of actus! and justiciable controversy, a condition size qua non lor the exercise of judicial power." Very recently in Gies-Sumar, Inc. 1, Department af Transportation and Communications, the Court held that mere invocation of the transcendental importance doctrine eannot, absent a showing, that the issue raised is one of law, excuse « violation of the rule on hierarchy of courts, Hence, when a question before the Court involves the determination of fictual issues indispensable to the resolution of a leg: issue, the Court will refuse to tesolve the factual question regardless of the invecation of the transcendental or paramount importance of the cuse.”" As stated at the outset, the petition and the petition-in-intervention raise issues which the Court cannot resolve in the absence of a factual foundation of record. Their decision to bring the case directly before the Court is unwarranted and constitutes ground for the outright dismissal of the petition. While the Court has original and concurrent jurisdiction with the Regional Trial Court (RTC) and the Court of Appeals (CA} over petitions seeking the issuance of writs of certiorari and prohibision, litigants do not have unfettered discretion to invoke the Court's original jurisdiction, Lhe doctrine of hierarchy of courts dictates that direct recourse to this Court is allowed only to resolve questions of law Whine Laghy Corponaiion 2 asi. Bo Bagh w Pinutaten ao Up sore 17 a 528, C lations united. 2 G.R. Ro. 219158, Mach 1, 2018, ‘oticns ont Phormnuricatics aesSionnte ti.» uf trang sara nls 20 6 GRNo. 217910 I aote thal petitioner did couch his petition and the petition-in- intervention in a inanner a5 to purport to present a pure legal question, that is, whether Articles | and 2 of the Family Code are constitutional. Hw argued that the assailed provisions are unconstitutional because they violate his (and other homosexuals’): (1) due process rightiliherty Lo marry a person of the sanie-sex;*" (2) right to equal protection of the laws:"* and (3) right to found family within a marriage in accord with their religious convictions under Section 3(1), Article VX of the Constitution.” Before this Court can reach the issue of constitutionality, however, it first uveds w determine whether petitioner's asserted liberty interest exists. The query at the outset is, therefore, is: “Did petitioner lose something that fits into one of the three protected categories of life, liberty, or property?” If in the affirmative, the next question to ask is; “Es it a fundamental right protected by the Constitution?” T had ovcasion to express my views on the concept of fundamental righls under constitutional law in my Concurring and Dissenting Opinion in Fersoza v. People af the Philinpines, et al! decided loday. They bear some repetition here, A ‘The concept of fundamental rights, once described as “liberties that operate as trumps," wus first extensively covered hy the Courl, through Chief Justice Puna, in Central Bank Eniployees Association, Inc. v. Bangho Sentral ng Pilipinas? There, the Coutt, citing Gerald Gunther, traced its history and development in the context of American constitutional equal protection analysis.” ‘The recognition of an asserted liberty interest as “fundamental” has significant legal consequences. ‘Traditionally, liberty interests are protected only against arbitrary government interference, If the government can show a rational basis for believing, that its interference advances a legitimate Rollo, p. V6. I at 2 Fa 1-12: Section 3 prnvicew: Une State sll seen (Vier spusvs to found family on ae ral responsible parsnthond: xs Seo Penis ¥. Larvariayg. GR No, LEEST4, Peornony 1 2004, 421 SCRA S90, 355.556 200%. evaluating # due pracess claim, the court mast determine wherher life, Uberey, oy interest exits, and if so. wine! proseduces swe ccnstitnionally required to protect that sight 12 an alleges rebre wit thai rl jus conviztions.and the demand 20, aii che plaintiff receive the minimurt measure ef pracediral poke £90 (Rnphosis suppl) Pauechmi Polioy (1987), pp. 91-02, G.R-No. M208. Decomper 15. fa ab 371-376, inhise) Asmcveioa.” Vol 10 Harvard Jourrel uf Low and Pi mol 1) SCRA 299, Concurring Opinion GR. No. 217910 legislative objective, « claim to a libery interest may fail.’! Where, however, a liberty inierest fas been accorded an “elevated” status — that is, by characterizing it as a right (or a fimdamental right), then the government is subject a a jigher burden ol proof to justify intrusions inta these inter: namely, the requirements of strict scrutiny in equal protection cases that of compelling, state interest in due process cases,”” As the United States Supreme Court (US Supreme Court) has warmed, affixing the lubel “fundamental” to such liberty invests would place them outside the urea of public debate and legislative action. Resultantly, and as is also true in his jurisdiction, fundamental rights have been deemed to include only those basic liberties explicitly or implicitly guaranteed by the Bill of Rights of the Constitution. B There seems to me little disagreement as to the “fundamental” nature of an asserted liberty interest when the same ean be read from the text of the Bill of Rights of the Constitution itsell: Thus, when a state act is alleged to have implicated an explicit “fundamental right,” ée., a rivht texwally found in the Bill of Rights, the Court hus been weut to subject the government to a higher burden Ww justily its challenged action: This the Court did in Fbratinag v. The Division Superintenctont af Schools of Cebu,® (on veligious belicls); Legensypi v. Civil Service Comunission,”* (on the right of the people to information on matters of public cone); Disini, Jr x. Secretary of Justice, (on the right Lo freedom of expression, right to privacy, and right agtinst unreasonable searches and seigures); Samahan ng mgt Progresibo Kabataan (SPARK) v, Quezon City>” (on the right to travel); Chavez y Gonzaies.” (on the frsedom of the press Mewsounds Brogadecsiing runveraoed Prandanemtal OF (990), 3p 799-9 his. Maras. G.R. No. 221129, Agsil 26,2011, enn: Brion, Sep J, GR Mo, 199938) Drcainbwe 7, 2010, 6 Marck |, 1948, 719 SCRA 258, The Coust aemulles 6x2 towers trom seinool, luerecy uphaie under the Constitut Piitppie logos aucrncee unde Sect 5, 1 GIL Nu. L P2114 May 29, OR?, 158 SCRA tepiste: of cligibles fr the position of ante ° es, the civil servies sligiblity of of Cabu City, ia Aurtierense oF Opinion ia Browe SCRA 8, 350-260. sot nexte oder sxpellites wo roltse 1o sate the wck down as unceastitutiowal of Sexsiurs <, 3, and 2 respectively, of Actice U1 wi of Lana Separate pin GR Nu, 2544, aupust &, 2 foeginences for inom tar being, viuluiive uf See: ra Mroreracibog 7, 835 SCRA 350. Th Fr Siakeress aia rotor fam Tht, the Const n &, Ansele IIL of the Const chose to apply the stks seruuny fest and fouag chat walle the govecnment was able tw stow a cup 08, stike plete, it failed lo shaw thot the rexalatica cet tonh wes lie lene! resistin eneans to proweet suck, 505 SCRA 41. The Court aull:cied sre otfie vol winclypged conversation bot pt to rest shcerents waning che media sn ether personeclivss. Acca ng tw the Cum, a Concurring Opinion 8 GR, No. 217910 jetwork, Inc. v. Dy," Con the right to free speech and freedom al the press}; and Kabataan Party-List v. Commission on Elect tions.” (on the right to vote}. c Hove should the Court proceed if the right asserted to be fundamental ig not explicitly found in the Bill of Rights or other provisions of the Constitution, or where the fundamental right is assed to flow from generally-stated rights such ax due process and equal protection’? Justice Harlan of the US Supreme Court has famously noted that “the full scope of the Tibeny yuaranteed by the Due Process Clause cannot be found in, or limited by, the precige terms of the specific guarantees elsewhere provided in the Constitution.” In this jurisdiction, this Court has had occasion to role on assertions of unenumerated fundamental rights: In the 1924 case of People + Pomar." and reminiscent of the Loetmer-era wulines, this Court declared unconstitutional provisions of law which required employers to pay # woman employve, who may become pregnant, her wages for 30 days betore and 30 days afier confinement. Citing a long Tine of US Supreme Court Lochner-era decisions, this Court found that the right to liberty includes the right to enter into (and terminate) contracts.” Soction 4, Auisle IIL mast 2¢ nie! with ‘an oeaminaon su eriteal that only a danger thar is elear and PME UL fe alized to carta i" ‘S 136411, April 2, 2009, 583 SCRA 333, i ranged trom wiilundlng, germs to operat be th dalee of egal cori, Caled to pas the flu vet sen gaged vestricoans on speech. Aconing tw tbe Curt,“ mm camer be Gore ihe ohyence oF eny compelling rsason. the harden lies wilt de povernmert to essablish euch compelling, wor the right ta free exsression.” Des to the government's falere to show a womsiling wate lincrest, the Cou psaired potittonsr’s prayer for weit of mandamus seal ovteced vespandens ko lannuadicsly Iseye he ecets te portals. GR, New resolution sei (of Republic Act No. 8189 2, The: Court holt cha resgpondents! jats to ase 7 SCRA £74, A dualloage was made aaainst a COMELEC ‘wier epitraton, QO outside alte period provided by Sex a ine ad "V's Ragin At 996." The Cow the power Wo ix other perods and dat -loction uti nly i ese cant 3e reasonably ele within the period provide by lv. Since the COMLLTC was inehks to ustify why fie mirubsk: af sorvinuiag voter regis ion eannot be reasonably Hel within the Feria piv ged he Court ali set by ths COMELEC fr bein andy retrictve of the Peeples rphn voe Poe ¥. Litman, 367 US, 492, M3 £1961), J. Harley (9ienting Opinion: see alo amy Cons Opinion in Verscon om how the (IS Supreme Cout bas given “tumdimestal” status to ethers Unssumenaed rights. GR. No, L300, 46 Phi, 440 (1925) 38% [Spi sect oh creeks a tore oF condition in eery contrast male by every person, Fa, oF hhacore presnint ore & {> iclude iM stid coptmict the uerms [ised by the lave, makes the weislayer orieanelly Hie jest w «fing or impr sorrtert. Cascy, Nrortine, tho lane hus deprived, eery person, firs, or vrporaeh ovaing or managing @ ficury, st a plage of bor uf incon wihin die Philippine stands, of his sil po cash teen i ne and the eriployee may sgrce tpn, The ret, without the conser ifthe partes. Salt persons ave, there i amnnions fa every Supls 49. 9453, conpicwign ofith any sroeriey whos ime, durieg the coutse of her er bi Concurring Opinion * GR, Bo. 217910 Philippine adherence to this ruling would, howeves, be short-lived As Justice Fernando would Later explain in Fay v. Aricta,” the decision in Pome was largely brought sbout by the fact that “our Supreme Court had no cther choice ax the Philippines was then under the United States.” where only a year before Pomar, a statute providing {or minimum wayes: was declared in Adkins to be constitutionally infirm, The Cour (and the Constitutional Convention) would adopt a more deferential attitude towards government regulation of economic relutions and cowering such subjects as “collective bargaining, security of tenure, minimum wages, compulsory arbitration, the rewulation of tenancy as well as the issuance of securities, aud cantrol of pnblic sarviees.” © in the meantime, and taking ils cue from the US Supreme Court, thi Court would also go on to recognize unenumerated, yet fundamental, non- economic rights. For example, although the Bill of Rights speaks only of a right of privacy over communication and correspondence, the Court, in the 1968 case of Morfo v. Mute," adopted the reasoning in Griswold and recognized a constitutional right to personal privacy. ln Oposa v, Factoran, Jr this Court accorded fundamental right status to an asserted liberty interest in “a balanced and healthful ecoloxy” under Section 16, Article Tl ot the 1987 Constitution. In dmbong v. Ochoa, Jr," which involved a number of challenges against the constilutionality of Republic Act No. 10354.° this Court recognized the constitutional right ol” parents lo exercise parental contol over their minorchild and a liberty interest in the acess to safe and eer contraceptives hinged on a right to health under Section 15, Article 1" and other sections | of the Constitution. In Capin-Cadiz v Brent Hisphal and Colleges, Ine?" the Court held that the constitutional jane, 7) Phil 724 (1040); Antonio’ Ctatafoiets 3 TUPI HEE SAO) Swe alse J, | ermal» phi it RA 76. 32302, Septe G.R.No, 1-32 170, 35 SCRASS I 495, Ckwions umiltes. ast oe Feenanda further writes: 2.x [T]o erase ans doubts, ths Constkuticnal Converion save tae the concept of farsertere ws {entrusted tg our goverment tbe responsibility of coping with social und econam hrokems with the eninensurate power of conceal over ceonentic affairs, Thstsby It could five > ta its comentrwent to promote tre pened wullane thesiagh state ation, Nor constitutional objection measures adversely affecting property rights, especially so when public safety ts che ain, is likely do be hvwded, ants Tenures an the clearest and inasi satisfactory proof of invasion brights yuarramtved! try dhe Constitution. 9% sex fre yin Hisint Har during the Caminonwealth sea, no wots av rollectise leargpining, sea nity of terane, wirinuwn wages, eompuise sg as wel as the issuance of securities, and cumnrel ul public services. Se il my ihewive wrwer the Repu slic Hs, von the seal apptoval to hove favorable renaney favs, nationalization of il sate OF Lybut, snipesition of prey cowl, requircn st separate schema. (Erapicsis supplied: citetions 5, a A193, nary 31, 1968, 22 SCRA, 2a tov one No. 11083, July 5, 1893, 204 SCRA, © GAR. No 204819, Api 8, 2014, 72) SCRA Ln. Also known ane Kespons bls Pateuthood and Reproductive Health Act of 20:2. COMSTITETION, Art Tl See. 15 sapre note $B et BGO, ta Rove duets, Cie US Buprerte Court apheld a Goong Coneurting Opinion 12 GR. No. 207910 shocks the conscience:™ (5) are necessarily implied from the structure of government” or from the structure of the Constitution” (6) provide necessary acess ly govemnment processes: * and (7) ure identified in previous Supreme Court precedents.” sodomy sistrte: LLelatned “aflhomossxucks to engage th nee of sadomy” was nut considered findamtenta with:n he uetion’s history eulitons, as ts ordered try aslew of anti ‘he time of the srsctmsta of the Bill of Rights to shou the time the ease was elocided. Sse also the 193A ease Of Saneter », Akncieizusctls, 294 uy calleuge his conviction for the erimie of murder on the jah was ordered by the cet nn riesion Ot Ute phssecition, te openiey, of the Wil, Tie Jezus. «nd a sworn Sol, visite the Acco ofthe exh fascompaniad hy the judge, the counsel for hath pacics, and the eoaet senoyrahes. ‘he Coon affimst there was ny showing thar There was a history ur tnelitinn in the State of Massackesetts Commorscalth of Mascctusetis we the axtientic forms through wnich the sease uf justioe of “he Posple vs tha, Commonwealth expremses itself in lew, We are not iv supersede fers on the ground tat thoy deny the essentials of 4 tri! hccmse opinions mey vifer 4% tv their policy or fuirness. violet Hv, Garalt 12, 11 US. 119, 134 (1989) wad Was US. 702 11907). See however, J! Keumedy's Opinion in Obert. Morigen, 338 Ls Bases of thet Kai ‘ ete 58 a¢ 235.737, nthe caso Rowihin Celfome, $82 U.S. 165 (1922, tbe L ‘he 26) of the polis in arranging, «live a suspect’ stomaca py

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