REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC

JESUS NICARDO M. FALCIS

III,
Petitioner,

-versus- G.R. No. 217910

CIVIL REGISTRAR-GENERAL,
Responde
nt.
x------------------------------------------------x

MEMORANDUM

Petitioner Jesus M. Falcis, through undersigned counsel,

respectfully states, by way of Memorandum:

1. Petitioner was directed by this Honorable Supreme Court,

in its Order dated 15 November 2018, to submit a Memorandum
discussing the following issues:

Whether or not the Petition should be dismissed on due to lack of

an actual case or controversy, lack of standing or lack of direct
injury on the part of petitioner?

Whether or not Articles 1 and 2 of the Family Code, insofar as

they define a valid marriage as between a man and a woman,
violate the equal protection and due process clauses of the
Constitution.

2. In compliance with the said Order, Petitioner hereby

submits this Memorandum, arguing as follows:

Whether or not the

Petition should be
dismissed on due to lack
of an actual case or
controversy, lack of
standing or lack of direct
injury on the part of
petitioner?

1. Petitioner respectfully submits that this case should not be

dismissed due to lack of an actual case or controversy.

1.1. In the case of Guingona v. Court of Appeals, this honorable

court stated that there is an actual case or controversy that is
ripe for judicial review when there is “a conflict of rights, an
assertion of opposite legal claims which can be resolved on the
basis of existing law and jurisprudence,”1

1.2. It is clear in this present case that there is a conflict of rights

wherein heterosexual individuals are afforded rights that are
not awarded to members of the LGBTQ community and that
existing laws infringe on the rights of members of the LGBTQ
community to enter into a legally binding union with an
individual of their choice.

1.3. In John Hay People’s Alternative Coalition vs. Lim, this

respected court ruled that an actual controversy exists if it is
“definite and concrete, bearing upon the legal relations of
parties who are pitted against each other due to their adverse
legal interests,”2

1.4. It is clear your excellencees that there is an actual controversy

due to the fact that the interests of the LGTBQ community are
adverse to that of the states policy to exclude it’s members
from forming a family which is the most basic social institution
existing in our society. This exclusion is definite and concrete
as it is stated in Articles 1 and 2 of the Family code that it limits
the citizens of the philippines who may enter into such social
institution to that of a man and woman. This is a clear
encroachment on the freedom of choice of individuals and that
it curtails the very humanity of the members of the LGBTQ.

1.5. In the case of Belgica vs Ochoa, this court ruled that “the
requirement of contrariety of legal rights is clearly satisfied by
the antagonistic positions of the parties on the constitutionality

1 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998

2 John Hay People’s Alternative Coalition v. Lim, G.R. No. 119775, October 24,2003
 of the law,”3 and that “there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of
the public funds.”4

1.6. The positions of the government of the philippines and the

members of the LGBTQ community are clearly antagonistic on
this issue of marriage exclusivity and that there are funds that
are clearly allocated to programs that are geared towards that
maintenance of families that exclude the members of the
LGBTQ community from accessing because of their choice of
partner.

2. Petitioner respectfully submits that petitioner does indeed have

standing and that direct harm is caused by the existing law to the
petitioner and other members of the LGBTQ community.

2.1. In the case of David vs Macapagal-Arroyo5 decided by this

court, the rule on locus standi was summarized:

Taxpayers, voters, concerned citizens, and legislators may be

accorded standing to sue, provided that the following
requirements are met:

(1) The cases involve constitutional issues;

(2) For taxpayers, there must be a claim of illegal disbursement

of public funds or that the tax measure is unconstitutional;

(3) For voters, there must be a showing of obvious interest in

the validity of the election law in question;

(4) For concerned citizens, there must be a showing that the

issues raised are of transcendental importance which must be
settled early; and

(5) For legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.

2.2. In the case at bar, the issue of standing is clearly slated under
the first, second and third requisites established in the case of
David vs. Macapagal- Arroyo.
3 Belgica v. Ochoa, G.R. No. 208566, November 19, 2013
4 Ibid.
5 David v. Macapagal- Arroyo, G.R. No. 171396, May 3. 2006
 2.3. The current case involves constitutional issues wherein the
rights of the members of the LGBTQ under Article XV, section
1 and section 2 of the constitution are being infringed by the
current Family code of the Philippines by denying such right to
same-sex couples.

2.4. The constitution itself does not put a limitation as to the

individuals who may form a family unit and that the current
evolution of social relationships require the abolition of a
qualification that holds no basis in the constitution from the
family code.

2.5. The petitioner likewise posits that as a citizen tax payer he is

likewise capable of pursuing this suit due to the fact that there
exists programs in the philippine government that are limited
to hetero-sexual families.

2.6. The government by not recognizing same-sex unions or

couples, creates an inequality denies members of such unions
access to government programs that are otherwise enjoyed by
hetero-sexual couples.

2.7. As a citizen of the Philippines, the petitioner is likewise

entitled to such standing due to the transcendental importance
of this issue that would not only impact the lives of the current
generation of LGBTQ members but likewise those members
who have yet to be born.

2.8. Unlike the case of Cutaran vs. DENR wherein this court
denied the parties standing due to the fact that they failed to
show “A direct adverse effect on the legal right of the person
contesting its legality,”6 it is clear in this case that the
prohibition of same-sex marriage between same-sex couples
impedes their capability to enter such inviolable social
institution.

2.9. In the end, this respected court has ruled in numerous

occasions as stated in the case of Kilosbayan vs. Guingona, “A
party’s standing in court is a procedural technicality which
may be set aside by the court in view of the importance of the
issues involved. Thus where the issues raised by the
petitioners are of paramount public interest, the court may, in
6 Cutaran v. DENR, GR. No. 134958, January 31, 2001
 the exercise of its discretion, brush asis the procedural
barrier.”7

2.10. The issues raised in the current case by the petitioners is

of paramount importance wherein the existence of the
provisions of the family code barring same-sex couples from
entering into a marriage will not only continue to marginalize
an entire social group within the Philippines but would
likewise deny them one of the most basic human right.

3. Petitioner respectfully submits that

Whether or not Articles

1 and 2 of the Family
Code, insofar as they
define a valid marriage
as between a man and a
woman, violate the equal
protection and due
process clauses of the
Constitution.

1. The petitioner respectfully submits that Articles 1 and 2 of the

Family code, insofar as they define a valid marriage between a
man and woman, violates the equal protection clause of the
constitution.

1.1. The petioner posits that there is no substantial distinction

between heterosexual and same-sex couples. The case of
People vs Cayat8 provides that for a classification to be valid
and constitutional it must:

(1) must rest on substantial distinctions; (2) must be

germane to the purposes of the law; (3) must not be
limited to existing conditions only; and (4) must apply
equally to all members of the same class.

7 Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994

8 People v. Cayat, G.R.No. L-45987, May 5, 1939
 1.2. The Philippine Constitution provides under Art XIII, Section 1
“The Congress shall give highest priority to the enactment of
measures that protect and ennhance the right of all people to
human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.9”

1.3. It is clear that case law provides that there are allowable
distinctions between classes of individuals for as long as they
are valid classifications. In the case of hetero-sexual couples
and same-sex couples there exists no substantial difference as
to their capabilities of fulfilling the basic marital obligations

1.4. Under the family code, the rights and obligations of a married
couple are painted in broad strokes that a hetero-sexual couple
are not exclusive as to the fulfillment of such obligations.

1.5. A homo-sexual couple may under the family code, live

together, observe mutual love, respect and fidelity, render
mutual help and support. These obligations are not bound to a
particular sex and that they are traits that a human being with
a modicum decency is capable of accomplishing.

1.6. In the case of Chi Ming Tsoi vs Court Appeals, this court ruled
that “Marriage is definitely not for children but for two
consenting adults who view the relationship with love amor
gignit amorem, respect, sacrifice and a continuing commitment
to compromise, conscious of its value as a sublime social
institution.”10

1.7. Although the government argues that the distinction of

hetero-sexual couples is that they have the ability to procreate
is a misnomer due to the fact that there exists countless
heterosexual couples that are sterile which would render them
incapable of creating a biological child.

1.8. Jurisprudence in the philippines such as the case of Jimenez vs

Cañizares highlight the fact that it is impotency and not
sterility that breaks the marital bond. Homo-sexual couples
should likewise be given the same presumption of potency
albeit their situation is that of a sterility.

9 The 1987 Philippine Constitution

10 Chi Ming Tsoi v. CA, G.R. No. 119190, January 16, 1997
 1.9. The government argues that the family code’s purpose is
procreation as a policy under the law and that by the mere fact
that same-sex couples are incapable of such act renders them
incapable of fulfilling the purpose of the law.

1.10. Such view not only affects homo-sexual couples but likewise
heterosexual couples wherein such distinction would lead to
heterosexual couples who are proven to be sterile to have not
fulfilled their basic marital obligations.

1.11. This distinction likewise negates the legal fiction that adoption
creates between an adopter and adoptee under article 189 of
the family code that for all intents and purposes an adopted
child is a legitimate child of the adopter. If the purpose of the
law is to ensure the furtherance of the family as a social unit
then adoption by same-sex couples is a means of
accomplishing such goal.

2. The petitioner respectfully submits that Articles 1 and 2 of the

Family code, insofar as they define a valid marriage between a
man and woman, violates the due process clause of the
constitution.

1. Articles 1 and 2 of the Family code violate the due process clause
of the constitution

1.1. As stated in the case of Smith, Bell & Company vs. Natividad,
“The first paragraph of the Philippine Bill of Rights, are
universal in their application to all person within the territorial
jurisdiction, without regard to any differences of race, color, or
nationality.”11

1.2. This universal application is curtailed by the application of a

valid exercise of police power by the state as stated in the case
Smith, Bell & Company vs. Natividad, “To prescribe
regulations to promote the health, peace, morals, education,
and good order of the people, and legislate so as to increase the
industries of the State, develop its resources and add to its
wealth and prosperity.”12

11 Smith, Bell & Company vs Natividad, G.R. No. 15574, September 17, 1919
12 Ibid.
 1.3. Under the concept of Police power, not only must it have a
lawful subject but also likewise the means of its
implementation must likewise be lawful. It is clear that the
regulation of marriage is a lawful subject due to the fact that
such subject would impact the whole Philippine Society. It is
the second limitation for the valid exercise of police power that
petitioner questions.

1.4. It is clear that there exists no substantial distinction between

hetero-sexual couples and same-sex couples in their ability to
fulfill the basic marital obligations therefore barring same-sex
couples from engaging in the act of marriage goes beyond the
protection of the sanctity of marriage but borders
discrimination based on sex.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that this Memorandum be admitted.

Quezon City for City of Manila, 21 December 2018.

Atty. Ben Johnson Bulac

Counsel for Petitioner

Roll of Attorneys No. xxxxx

MCLE Exemption No. N/A

IBP Lifetime Member No. xxxxxx

PTR No. xxxxxxxx

I, Jesus NIcardo M. Falcis, of legal age, after having been duly sworn
in accordance with law, depose and state that:

1. I am a plaintiff in the above-stated case;

2. I caused the preparation of the foregoing complaint;

3. I have read the contents thereof and the facts stated therein are true
and correct of my personal knowledge and/or on the basis of copies
of documents and records in my possession;

4. I have not commenced any other action or proceeding involving

the same issues in the Supreme Court, the Court of Appeals, or any
other tribunal or agency;

5. To the best of my knowledge and belief, no such action or

proceeding is pending in the Supreme Court, the Court of Appeals,
or any other tribunal or agency;

6. If I should thereafter learn that a similar action or proceeding has

been filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to report that
fact within five (5) days therefrom to this Honorable Court.

______________________
_____

Affiant

SUBSCRIBED AND SWORN to before me this ___ day of

__________ 200_ at _________________ affiant exhibiting to me his
Community Tax Certificate No.____________________ issued on
________________ 200_ at ______________ City.

Doc. No. ;
Page No. ;
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Series of 200_.