Thoughts & talking points; on US decision on gay “marriage” – from Atty. Jemy Gatdula

 [Thoughts & talking points]
The full text of the decision in Obergefell (pdf form) can be found here. The dissents of Justices Roberts, Scalia, Thomas, and Alito start at the 35th page. The dissents can be summarized as follows:
- the decision has no actual basis in the Constitution;
- the decision stretched out words in the Constitution to create a right that is not mentioned in the Constitution;
- the 5 Justices ruling in favor of Obergefell engaged in judicial activism and legislated from the Bench;
- the proper institution to legislate for or against gay “marriage” (under the US system) is definitely not the Supreme Court, not even the US Congress, but rather the individual 50 State congresses.
- the decision ignored the entire history of marriage and also the philosophical underpinnings of the common good of the US Constitution.
Justice Antonin Scalia rightly puts it that Justice Kennedy’s ponente (written ruling) has all the intelligence of a “fortune cookie” (apologies for starting out with this one but it’s really true and a reference to the overly poetic writing of Justice Kennedy that really has no basis in law or logic);
A cursory glance of countries ranking high in ratings indexes (economy, development, quality of life, etc), the following are just some countries that do not nationally recognize gay ‘marriage’: Switzerland, Australia, Germany, Austria, Singapore, Japan, Hong Kong, Taiwan, South Korea, United Arab Emirates, Czech Republic, Poland, Chile, Kuwait, Italy, Israel, Malaysia, Saudi Arabia, Thailand, China, Russia. Then there’s still India, Indonesia, Jordan. And on and on. The Philippines, a country that ranks amongst the highest in terms gender equality and treatment of women in the workplace, is therefore in very good company;
Despite the media hype of Obergefell, still only 22 (out of 200) countries in the world legally recognize same sex ‘marriage’ at the national level. This means that in terms of treaty or customary international law, there is clearly no demandable right to such; that it is not an international human right (regardless of human rights activists harping about human rights laws being ‘sui generis’);
In the ‘Global Well Being’ index (see here), only 5 of the top 20 countries allow for gay ‘marriage’;
The US is not the Philippines: they legalized abortion, we didn’t;
This distinction is important: the US constitution is silent on marriage. the Philippine constitution isn’t;
The Philippine Constitution unfortunately does not specifically define marriage as being between a man and a woman; it does mention marriage as an inviolable institution and within the context of the family, and connected to the development of children, and related as well to religious convictions (see Articles II and XV). Not to mention that the members of the 1987 ConCom and – more importantly – the Filipino people when it ratified the same in 1987, saw marriage as only between a man and a woman (this can be borne out by the records of the ConCom, and research or surveys relating to that period).
The only way same sex ‘marriage’ can be legally recognized here is for progressives to import the same hubris and arrogance of reading something that is not present in our Constitution, developing the fiction of the Constitution’s words having “evolved” with “penumbras and emanations” (i.e., the “living” Constitution theory as opposed to originalist reading), encouraging an “activist” Supreme Court that instead of merely judging (which is its essentially only mandated job) takes over the functions of Congress and legislates from the Bench, ignoring Philippine marriage history and culture, ignoring the wi
ll of the Filipino people, and setting aside our democratic structures (i.e., that if marriage is to be redefined to allow for gay “marriage”, then that requires constitutional amendment to be ratified directly by the Filipino people; we should not allow the Congress or even the Supreme Court to impose their own ideological or personal views, no matter how well intentioned, on the Constitution).
The words of Sen. Ted Cruz is a good summing up and his description of the constitutional system is very applicable to us: ”Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.
Atty. Jemy Gatdula
UA&P School of Law and Governance


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