Republic of the Philippines Republic of the Philippines SUPREME COURT SUPREME COURT Baguio City Baguio City EN BANC EN BANC G.R.
G.R. No. No. 190582 190582 April April 8, 8, 20102010
ANG LADLAD LGBT PARTY repree!"e# $erei! %& i" C$'ir, DANTON REMOTO,
ANG LADLAD LGBT PARTY repree!"e# $erei! %& i" C$'ir, DANTON REMOTO, Petitioner, Petitioner, vs.
vs.
COMM(SS(ON ON ELECT(ONS
COMM(SS(ON ON ELECT(ONS Respondent. Respondent. D E C I I ! N
D E C I I ! N DEL CAST(LLO, DEL CAST(LLO,J.:J.:
... "#$reedo% to differ is not li%ited to things that do not %atter %uch. &hat 'ould be a %ere shado' ... "#$reedo% to differ is not li%ited to things that do not %atter %uch. &hat 'ould be a %ere shado' of freedo%. &he test of its substance is the right to differ as to things that touch the heart of the of freedo%. &he test of its substance is the right to differ as to things that touch the heart of the e(isting order.
e(isting order.
)ustice Robert A. )ac*son )ustice Robert A. )ac*son West Virginia State Board of
West Virginia State Board of Education v. BarnetteEducation v. Barnette++
!ne unavoidable conseuence of everyone having the freedo% to choose is that others %ay %a*e !ne unavoidable conseuence of everyone having the freedo% to choose is that others %ay %a*e different choices - choices 'e 'ould not %a*e for ourselves, choices 'e %ay disapprove of, even different choices - choices 'e 'ould not %a*e for ourselves, choices 'e %ay disapprove of, even choices that %ay shoc* or offend or anger us. o'ever, choices are not to be legally prohibited choices that %ay shoc* or offend or anger us. o'ever, choices are not to be legally prohibited %erely because they are different, and the right to disagree and debate about i%portant uestions of %erely because they are different, and the right to disagree and debate about i%portant uestions of public policy is a core value protected by our Bill of Rights. Indeed, our de%ocracy is built on public policy is a core value protected by our Bill of Rights. Indeed, our de%ocracy is built on genuine recognition of, and respect for, diversity and difference in opinion.
genuine recognition of, and respect for, diversity and difference in opinion. in
ince ce ancancienient t ti%ti%es, es, socsocietiety y has has gragrapplppled ed 'it'ith h deedeep p disdisagragree%ee%entents s aboabout ut the the defdefiniinitiotions ns andand de%ands of %orality. In %any cases, 'here %oral convictions are
de%ands of %orality. In %any cases, 'here %oral convictions are concerned, har%ony a%ong thoseconcerned, har%ony a%ong those the
theoreoretictically ally oppopposeosed d is is an an insinsur%ur%ounountabtable le goagoal. l. //et et herherein ein lielies s the the parparadoado( ( - - phiphiloslosophophicaicall 0ustifications
0ustifications about about 'hat 'hat is is %oral %oral are are indispensable indispensable and and yet yet at at the the sa%e sa%e ti%e ti%e po'erless po'erless to to createcreate agree%ent. &his Court recogni1es, ho'ever, that practical solutions are preferable to ideological agree%ent. &his Court recogni1es, ho'ever, that practical solutions are preferable to ideological stale%ates2 acco%%odation is better than intransigence2 reason %ore 'orthy than rhetoric. &his 'ill stale%ates2 acco%%odation is better than intransigence2 reason %ore 'orthy than rhetoric. &his 'ill allo' persons of
allo' persons of diverse vie'points to diverse vie'points to live together, if not har%oniously, then, at least, civilly.live together, if not har%oniously, then, at least, civilly. #actual Bac*ground
#actual Bac*ground &his is a
&his is a PetitPetition forion for Certiorari Certiorari unde under Rule r Rule 34 of 34 of the Rules of Court, 'ith an the Rules of Court, 'ith an applicapplication for a 'rit ation for a 'rit of of pre
preli%li%inarinary y %an%andatdatory ory in0uin0unctnctionion, , filfiled ed byby Ang Ang Ladlad Ladlad 5656B& B& PaPartrty y 77 Ang Ang Ladlad Ladlad 8 8 agagaiainsnst t ththee Resolutions of the Co%%ission on Elections 7C!9E5EC8 dated Nove%ber ++, :;;<
Resolutions of the Co%%ission on Elections 7C!9E5EC8 dated Nove%ber ++, :;;<:: 7the #irst 7the #irst
Assailed Resolution8 and
Assailed Resolution8 and Dece%ber +3, :;;<Dece%ber +3, :;;<== 7the econd Assailed Resolution8 in PP No. ;<>::? 7the econd Assailed Resolution8 in PP No. ;<>::?
7P58 7collectively, the Assailed Resolutions8. &he case has its roots in the C!9E5EC@s refusal to 7P58 7collectively, the Assailed Resolutions8. &he case has its roots in the C!9E5EC@s refusal to
accredit Ang Ladlad as a party>list organi1ation under Republic Act 7RA8 No. <+, other'ise *no'n as the Party>5ist yste% Act.
Ang Ladlad is an organi1ation co%posed of %en and 'o%en 'ho identify the%selves as lesbians, gays, bise(uals, or trans>gendered individuals 756B&s8. Incorporated in :;;=, Ang Ladlad first applied for registration 'ith the C!9E5EC in :;;3. &he application for accreditation 'as denied on the ground that the organi1ation had no substantial %e%bership base. !n August +, :;;<, Ang Ladlad again filed a Petition4 for registration 'ith the C!9E5EC.
Before the C!9E5EC, petitioner argued that the 56B& co%%unity is a %arginali1ed and under> represented sector that is particularly disadvantaged because of their se(ual orientation and gender identity2 that 56B&s are victi%s of e(clusion, discri%ination, and violence2 that because of negative societal attitudes, 56B&s are constrained to hide their se(ual orientation2 and that Ang Ladlad co%plied 'ith the ?>point guidelines enunciated by this Court in Ang Bagong Bayani>!# 5abor Party v. Co%%ission on Elections.3 Ang Ladlad laid out its national %e%bership base
consisting of individual %e%bers and organi1ational supporters, and outlined its platfor% of governance.
!n Nove%ber ++, :;;<, after ad%itting the petitioner@s evidence, the C!9E5EC 7econd Division8 dis%issed the Petition on %oral grounds, stating that
( ( ( &his Petition is dis%issible on %oral grounds. Petitioner defines the #ilipino 5esbian, 6ay, Bise(ual and &ransgender 756B&8 Co%%unity, thus
( ( ( a %arginali1ed and under>represented sector that is particularly disadvantaged because of their se(ual orientation and gender identity.
and proceeded to define se(ual orientation as that 'hich
( ( ( refers to a person@s capacity for profound e%otional, affectional and se(ual attraction to, and inti%ate and se(ual relations 'ith, individuals of a different gender, of the sa%e gender, or %ore than one gender.
&his definition of the 56B& sector %a*es it crystal clear that petitioner tolerates i%%orality 'hich offends religious beliefs. In Ro%ans +:3, :, Paul 'rote
#or this cause 6od gave the% up into vile affections, for even their 'o%en did change the natural use into that 'hich is against nature And li*e'ise also the %en, leaving the natural use of the 'o%an, burned in their lust one to'ard another2 %en 'ith %en 'or*ing that 'hich is unsee%ly, and receiving in the%selves that reco%pense of their error 'hich 'as %eet.
In the Foran, the hereunder verses are pertinent
#or ye practice your lusts on %en in preference to 'o%en ye are indeed a people transgressing beyond bounds. 7.?+8 And 'e rained do'n on the% a sho'er 7of bri%stone8 &hen see 'hat 'as
the end of those 'ho indulged in sin and cri%eG 7?8 e said ! %y 5ordG elp &hou %e against people 'ho do %ischief 7:<=;8.
As correctly pointed out by the 5a' Depart%ent in its Co%%ent dated !ctober :, :;;?
&he AN6 5AD5AD apparently advocates se(ual i%%orality as indicated in the Petition@s par. 3# HConsensual partnerships or relationships by gays and lesbians 'ho are already of age@. It is further indicated in par. : of the Petition 'hich 'aves for the record HIn :;;, 9en aving e( 'ith 9en or 99s in the Philippines 'ere esti%ated as 3;,;;; 76enesis +< is the history of odo% and 6o%orrah8.
5a's are dee%ed incorporated in every contract, per%it, license, relationship, or accreditation. ence, pertinent provisions of the Civil Code and the Revised Penal Code are dee%ed part of the reuire%ent to be co%plied 'ith for accreditation.
AN6 5AD5AD collides 'ith Article 3<4 of the Civil Code 'hich defines nuisance as HAny act, o%ission, establish%ent, business, condition of property, or anything else 'hich ( ( ( 7=8 shoc*s, defies2 or disregardsdecency or %orality ( ( (
It also collides 'ith Article +=;3 of the Civil Code H&he contracting parties %ay establish such stipulations, clauses, ter%s and conditions as they %ay dee% convenient, provided they are not contrary to la', %orals, good custo%s, public order or public policy. Art +;< of the Civil Code provides that HContracts 'hose cause, ob0ect or purpose is contrary to la', %orals, good custo%s, public order or public policy@ are ine(istent and void fro% the beginning.
#inally to safeguard the %orality of the #ilipino co%%unity, the Revised Penal Code, as a%ended, penali1es HI%%oral doctrines, obscene publications and e(hibitions and indecent sho's@ as follo's Art. :;+. I%%oral doctrines, obscene publications and e(hibitions, and indecent sho's. &he
penalty of prision %ayor or a fine ranging fro% si( thousand to t'elve thousand pesos, or both such i%prison%ent and fine, shall be i%posed upon
+. &hose 'ho shall publicly e(pound or proclai% doctrines openly contrary to public %orals2 :. 7a8 &he authors of obscene literature, published 'ith their *no'ledge in any for%2 the editors publishing such literature2 and the o'nersJoperators of the establish%ent selling the sa%e2
7b8 &hose 'ho, in theaters, fairs, cine%atographs or any other place, e(hibit indecent or i%%oral plays, scenes, acts or sho's, it being understood that the obscene literature or indecent or i%%oral plays, scenes, acts or sho's, 'hether live or in fil%, 'hich are prescribed by virtue hereof, shall include those 'hich 7+8 glorify cri%inals or condone cri%es2 7:8 serve no other purpose but to satisfy the %ar*et for violence, lust or pornography2 7=8 offend any race or religion2 78 tend to abet traffic in and use of prohibited drugs2 and 748 are contrary to la', public order, %orals, good custo%s,established policies, la'ful orders, decrees and edicts.
=. &hose 'ho shall sell, give a'ay or e(hibit fil%s, prints, engravings, sculpture or literature 'hich are offensive to %orals.
Petitioner should li*e'ise be denied accreditation not only for advocating i%%oral doctrines but li*e'ise for not being truthful 'hen it said that it or any of its no%ineesJparty>list representatives have not violated or failed to co%ply 'ith la's, rules, or regulations relating to the elections.
#urther%ore, should this Co%%ission grant the petition, 'e 'ill be e(posing our youth to an environ%ent that does not confor% to the teachings of our faith. 5eh%an trauss, a fa%ous bible teacher and 'riter in the K..A. said in one article that older practicing ho%ose(uals are a threat to the youth. As an agency of the govern%ent, ours too is the tate@s avo'ed duty under ection +=, Article II of the Constitution to protect our youth fro% %oral and spiritual degradation.?
hen Ang Ladlad sought reconsideration,< three co%%issioners voted to overturn the #irst Assailed
Resolution 7Co%%issioners 6regorio /. 5arra1abal, Rene L. ar%iento, and Ar%ando Lelasco8, 'hile three co%%issioners voted to deny Ang Ladlad’s 9otion for Reconsideration 7Co%%issioners Nicode%o &. #errer, 5ucenito N. &agle, and Elias R. /usoph8. &he C!9E5EC Chair%an, brea*ing the tie and spea*ing for the %a0ority in his eparate !pinion, upheld the #irst Assailed Resolution, stating that
I. &he pirit of Republic Act No. <+
5adlad is applying for accreditation as a sectoral party in the party>list syste%. Even assu%ing that it has properly proven its under>representation and %arginali1ation, it cannot be said that 5adlad@s e(pressed se(ual orientations per se 'ould benefit the nation as a 'hole.
ection : of the party>list la' uneuivocally states that the purpose of the party>list syste% of electing congressional representatives is to enable #ilipino citi1ens belonging to %arginali1ed and under>represented sectors, organi1ations and parties, and 'ho lac* 'ell>defined political constituencies but 'ho could contribute to the for%ulation and enact%ent of appropriate legislation that 'ill benefit the nation as a 'hole, to beco%e %e%bers of the ouse of Representatives.
If entry into the party>list syste% 'ould depend only on the ability of an organi1ation to represent its constituencies, then all representative organi1ations 'ould have found the%selves into the party>list race. But that is not the intention of the fra%ers of the la'. &he party>list syste% is not a tool to advocate tolerance and acceptance of %isunderstood persons or groups of persons. Rather, the party>list syste% is a tool for the reali1ation of aspirations of %arginali1ed individuals 'hose interests are also the nation@s - only that their interests have not been brought to the attention of the nation because of their under representation. Kntil the ti%e co%es 'hen 5adlad is able to 0ustify that having %i(ed se(ual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party>list syste% 'ill re%ain 0ust that.
II. No substantial differentiation
In the Knited tates, 'hose eual protection doctrine pervades Philippine 0urisprudence, courts do not recogni1e lesbians, gays, ho%ose(uals, and bise(uals 756B&8 as a special class of individuals.
( ( ( ignificantly, it has also been held that ho%ose(uality is not a constitutionally protected funda%ental right, and that nothing in the K.. Constitution discloses a co%parable intent to protect or pro%ote the social or legal euality of ho%ose(ual relations, as in the case of race or religion or belief.
( ( ( (
&hus, even if society@s understanding, tolerance, and acceptance of 56B&@s is elevated, there can be no denying that 5adlad constituencies are still %ales and fe%ales, and they 'ill re%ain either %ale or fe%ale protected by the sa%e Bill of Rights that applies to all citi1ens ali*e.
( ( ( (
IL. Public 9orals
( ( ( &here is no uestion about not i%posing on 5adlad Christian or 9usli% religious practices. Neither is there any atte%pt to any particular religious group@s %oral rules on 5adlad. Rather, 'hat are being adopted as %oral para%eters and precepts are generally accepted public %orals. &hey are possibly religious>based, but as a society, the Philippines cannot ignore its %ore than 4;; years of 9usli% and Christian upbringing, such that so%e %oral precepts espoused by said religions have sipped "sic$ into society and these are not publicly accepted %oral nor%s.
L. 5egal Provisions
But above %orality and social nor%s, they have beco%e part of the la' of the land. Article :;+ of the Revised Penal Code i%poses the penalty of prision %ayor upon &hose 'ho shall publicly e(pound or proclai% doctrines openly contrary to public %orals. It penali1es i%%oral doctrines, obscene publications and e(hibition and indecent sho's. Ang 5adlad apparently falls under these legal provisions. &his is clear fro% its Petition@s paragraph 3# Consensual partnerships or relationships by gays and lesbians 'ho are already of age@ It is further indicated in par. : of the Petition 'hich 'aves for the record HIn :;;, 9en aving e( 'ith 9en or 99s in the Philippines 'ere esti%ated as 3;,;;;. 9oreoever, Article 3< of the Civil Code defines nuisance as any act, o%ission ( ( ( or anything else ( ( ( 'hich shoc*s, defies or disregards decency or %orality ( ( (. &hese are all unla'ful.+;
!n )anuary , :;+;, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the C!9E5EC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the issuance e( parte of a preli%inary %andatory in0unction against the C!9E5EC, 'hich had previously announced that it 'ould begin printing the final ballots for the 9ay :;+; elections by )anuary :4, :;+;.
!n )anuary 3, :;+;, 'e ordered the !ffice of the olicitor 6eneral 7!68 to file its Co%%ent on behalf of C!9E5EC not later than +:;; noon of )anuary ++, :;+;.++ Instead of filing a Co%%ent,
ho'ever, the !6 filed a 9otion for E(tension, reuesting that it be given until )anuary +3, :;+; to Co%%ent.+:o%e'hat surprisingly, the !6 later filed a Co%%ent in support of petitioner@s
reuired it to file its o'n co%%ent.+&he C!9E5EC, through its 5a' Depart%ent, filed its Co%%ent
on #ebruary :, :;+;.+4
In the %eanti%e, due to the urgency of the petition, 'e issued a te%porary restraining order on )anuary +:, :;+;, effective i%%ediately and continuing until further orders fro% this Court, directing the C!9E5EC to cease and desist fro% i%ple%enting the Assailed Resolutions.+3
Also, on )anuary +=, :;+;, the Co%%ission on u%an Rights 7CR8 filed a 9otion to Intervene or to Appear as A%icus Curiae, attaching thereto its Co%%ent>in>Intervention.+ &he CR opined that the
denial of Ang Ladlad’spetition on %oral grounds violated the standards and principles of the Constitution, the Kniversal Declaration of u%an Rights 7KDR8, and the International Covenant on Civil and Political Rights 7ICCPR8. !n )anuary + <, :;+;, 'e granted the CR@s %otion to in tervene. !n )anuary :3, :;+;, Epifanio D. alonga, )r. filed his 9otion to Intervene+? 'hich %otion 'as
granted on #ebruary :, :;+;.+<
&he Parties@ Argu%ents
Ang Ladlad argued that the denial of accreditation, insofar as it 0ustified the e(clusion by using religious dog%a, violated the constitutional guarantees against the establish%ent of religion. Petitioner also clai%ed that the Assailed Resolutions contravened its constitutional rights to privacy, freedo% of speech and asse%bly, and eual protection of la's, as 'ell as constituted violations of the Philippines@ international obligations against discri%ination based on se(ual orientation.
&he !6 concurred 'ith Ang Ladlad’s petition and argued that the C!9E5EC erred in denying petitioner@s application for registration since there 'as no basis for C!9E5EC@s allegations of i%%orality. It also opined that 56B&s have their o'n special interests and concerns 'hich should have been recogni1ed by the C!9E5EC as a separate classification. o'ever, insofar as the purported violations of petitioner@s freedo% of speech, e(pression, and asse%bly 'ere concerned, the !6 %aintained that there had b een no restrictions on these rights.
In its Co%%ent, the C!9E5EC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition 'as validly dis%issed on %oral grounds. It also argued for the first ti%e that the 56B& sector is not a%ong the sectors enu%erated by the Constitution and RA <+, and that petitioner %ade untruthful state%ents in its petition 'hen it alleged its national e(istence contrary to actual verification reports by C!9E5EC@s field personnel. O)r R)li!*
e grant the petition.
Co%pliance 'ith the Reuire%ents of the Constitution and Republic Act No. <+
&he C!9E5EC denied Ang Ladlad’s application for registration on the ground that the 56B& sector is neither enu%erated in the Constitution and RA <+, nor is it associated 'ith or related to any of the sectors in the enu%eration.
Respondent %ista*enly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enu%erated in the la' or related to said sectors 7labor, peasant, fisherfol*, urban poor, indigenous cultural co%%unities, elderly, handicapped, 'o%en, youth, veterans, overseas 'or*ers, and professionals8 %ay be registered under the party>list syste%. As 'e e(plicitly ruled in Ang Bagong Bayani-OFW Labor arty v. Co!!ission on Elections,:; the
enu%eration of %arginali1ed and under>represented sectors is not e(clusive. &he crucial ele%ent is not 'hether a sector is specifically enu%erated, but 'hether a particular organi1ation co%plies 'ith the reuire%ents of the Constitution and RA <+.
Respondent also argues that Ang Ladlad %ade untruthful state%ents in its petition 'hen it alleged that it had nation'ide e(istence through its %e%bers and affiliate organi1ations. &he C!9E5EC clai%s that upon verification by its field personnel, it 'as sho'n that save for a fe' isolated places in the country, petitioner does not e(ist in al%ost all provinces in the country.:+
&his argu%ent that petitioner %ade untruthful state%ents in its petition 'hen it alleged its national e(istence is a ne' one2 previously, the C!9E5EC clai%ed that petitioner 'as not being truthful 'hen it said that it or any of its no%ineesJparty>list representatives have not violated or failed to co%ply 'ith la's, rules, or regulations relating to the elections. No'here 'as this ground for denial of petitioner@s accreditation %entioned or even alluded to in the Assailed Resolutions. &his, in itself, is uite curious, considering that the reports of petitioner@s alleged non>e(istence 'ere already available to the C!9E5EC prior to the issuance of the #irst Assailed Resolution. At best, this is irregular procedure2 at 'orst, a belated afterthought, a change in respondent@s theory, and a serious violation of petitioner@s right to procedural due process.
Nonetheless, 'e find that there has been no %isrepresentation. A cursory perusal of Ang Ladlad’s initial petition sho's that it never clai%ed to e(ist in each province of the Philippines. Rather, petitioner alleged that the 56B& co%%unity in the Philippines 'as esti%ated to constitute at least 3;,;;; persons2 that it had +3,+;; affiliates and %e%bers around the country, and ,; %e%bers in its electronic discussion group.:: Ang Ladlad also represented itself to be a national
56B& u%brella organi1ation 'ith affiliates around the Philippines co%posed of the follo'ing 56B& net'or*s
M Abra 6ay Association
M A*lan Butterfly Brigade 7ABB8 - A*lan M Albay 6ay Association
M Arts Center of Cabanatuan City - Nueva Eci0a M Boys 5egion - 9etro 9anila
M Cagayan de !ro People 5i*e Ks 7CD! P5K8 M Can@t 5ive in the Closet, Inc. 7C5IC8 - 9etro 9anila
M Cebu Pride - Cebu City M Circle of #riends
M Dipolog 6ay Association - a%boanga del Norte
M 6ay, Bise(ual, O &ransgender /outh Association 76ABA/8
M 6ay and 5esbian Activists Net'or* for 6ender Euality 76A5AN68 - 9etro 9anila M 6ay 9en@s upport 6roup 76968 - 9etro 9anila
M 6ay Knited for Peace and olidarity 76KP8 - 5anao del Norte M Iloilo City 6ay Association - Iloilo City
M Fabulig riter@s 6roup - Ca%arines ur M 5esbian Advocates Philippines, Inc. 75EAP8 M 5K9INA - Baguio City
M 9ari*ina 6ay Association - 9etro 9anila
M 9etropolitan Co%%unity Church 79CC8 - 9etro 9anila M Naga City 6ay Association - Naga City
M !NE BACARDI
M !rder of t. Aelred 7!Ae8 - 9etro 9anila M PKP 5AFAN
M RADAR PRIDEEAR
M Rainbo' Rights Pro0ect 7R>Rights8, Inc. - 9etro 9anila M an )ose del 9onte 6ay Association - Bulacan
M ining Fayu%anggi Royal #a%ily - Ri1al
M ociety of &ranse(ual o%en of the Philippines 7&RAP8 - 9etro 9anila M oul )ive - Antipolo, Ri1al
M &he 5in* - Davao City
M &ayabas 6ay Association - ue1on
M o%en@s Bise(ual Net'or* - 9etro 9anila
M a%boanga 6ay Association - a%boanga City:=
ince the C!9E5EC only searched for the na%es A"# LA$LA$ 56B& or LA$LA$ 56B&, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if C!9E5EC@s findings are to be believed, petitioner does not even e(ist in ue1on City, 'hich is registered as Ang Ladlad’s principal place of business.
Against this bac*drop, 'e find that Ang Ladlad has sufficiently de%onstrated its co%pliance 'ith the legal reuire%ents for accreditation. Indeed, aside fro% C!9E5EC@s %oral ob0ection and the belated allegation of non>e(istence, no'here in the records has the respondent ever foundJruled that Ang Ladlad is not ualified to register as a party>list organi1ation under any of the reuisites under RA <+ or the guidelines in Ang Bagong Bayani. &he difference, C!9E5EC clai%s, lies in Ang Ladlad’s %orality, or lac* thereof.
%eligion as t&e Basis for %efusal to Acce't Ang Ladlad’s etition for %egistration
!ur Constitution provides in Article III, ection 4 that "n$o la' shall be %ade respecting an establish%ent of religion, or prohibiting the free e(ercise thereof. At botto%, 'hat our non> establish%ent clause calls for is govern%ent neutrality in religious %atters.: Clearly, govern%ental
reliance on religious 0ustification is i nconsistent 'ith this policy of neutrality.:4 e thus find that it 'as
grave violation of the non>establish%ent clause for the C!9E5EC to utili1e the Bible and the Foran to 0ustify the e(clusion of Ang Ladlad .
Rather than relying on religious belief, the legiti%acy of the Assailed Resolutions should depend, instead, on 'hether the C!9E5EC is able to advance so%e 0ustification for its rulings beyond %ere confor%ity to religious doctrine. !ther'ise stated, govern%ent %ust act for secular purposes and in 'ays that have pri%arily secular effects. As 'e held in Estrada v. Escritor:3
( ( ( &he %orality referred to in the la' is public and necessarily secular, not religious as the dissent of 9r. )ustice Carpio holds. Religious teachings as e(pressed in public debate %ay influence the civil public order but public %oral disputes %ay be resolved only on grounds articulable in secular ter%s. !ther'ise, if govern%ent relies upon religious beliefs in for%ulating public policies and %orals, the resulting policies and %orals 'ould reuire confor%ity to 'hat so%e %ight regard as religious progra%s or agenda. &he non>believers 'ould therefore be co%pelled to confor% to a standard of conduct buttressed by a religious belief, i.e., to a co%pelled religion, anathe%a to religious freedo%. 5i*e'ise, if govern%ent based its actions upon religious beliefs, it 'ould tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non>religious vie's that 'ould not support the polic y. As a result, govern%ent 'ill not provide full religi ous freedo% for all its citi1ens, or even %a*e it appear that those 'hose beliefs are disapproved are second>class citi1ens.(avv'&i(
In other 'ords, govern%ent action, including its proscription of i%%orality as e(pressed in cri%inal la' li*e concubinage, %ust have a secular purpose. &hat is, the govern%ent proscribes this conduct because it is detri%ental 7or dangerous8 to those conditions upon 'hich depend the e(istence and progress of hu%an society and not because the conduct is proscribed by the beliefs of one religion or the other. Although ad%ittedly, %oral 0udg%ents based on religion %ight have a co%pelling influence on those engaged in public deliberations over 'hat actions 'ould be considered a %oral disapprobation punishable by la'. After all, they %ight also be adherents of a religion and thus have religious opinions and %oral codes 'ith a co%pelling influence on the%2 the hu%an %ind endeavors to regulate the te%poral and spiritual institutions of society in a unifor% %anner, har%oni1ing earth 'ith heaven. uccinctly put, a la' could be religious or Fantian or Auinian or utilitarian in its deepest roots, but it %ust have an articulable and discernible secular purpose and 0ustification to pass scrutiny of the religion clauses. ( ( ( Recogni1ing the religious nature of the #ilipinos and the elevating influence of religion in society, ho'ever, the Philippine constitutionQs religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recogni1es that govern%ent %ust pursue its secular goals and interests but at the sa%e ti%e strive to uphold religious liberty to the greatest e(tent possible 'ithin fle(ible constitutional li%its. &hus, although the %orality conte%plated by la's is secular, benevolent neutrality could allo' for acco%%odation of %orality based on religion, provided it does not offend co%pelling state interests.:
ublic )orals as a #round to $eny Ang Ladlad’s etition for %egistration
Respondent suggests that although the %oral conde%nation of ho%ose(uality and ho%ose(ual conduct %ay be religion>based, it has long been transplanted into generally accepted public %orals. &he C!9E5EC argues
Petitioner@s accreditation 'as denied not necessarily because their group consists of 56B&s but because of the danger it poses to the people especially the youth. !nce it is recogni1ed by the govern%ent, a sector 'hich believes that there is nothing 'rong in having se(ual relations 'ith individuals of the sa%e gender is a bad e(a%ple. It 'ill bring do'n the standard of %orals 'e cherish in our civili1ed society. Any society 'ithout a set of %oral precepts is in danger of losing its o'n e(istence.:?
e are not blind to the fact that, through the years, ho%ose(ual conduct, and perhaps ho%ose(uals the%selves, have borne the brunt of societal disapproval. It is not difficult to i%agine the reasons behind this censure - religious beliefs, convictions about the preservation of %arriage, fa%ily, and procreation, even disli*e or distrust of ho%ose(uals the%selves and their perceived lifestyle. Nonetheless, 'e recall that the Philippines has not seen fit to cri%inali1e ho%ose(ual conduct. Evidently, therefore, these generally accepted public %orals have not been convincingly transplanted into the real% of la'.:<
&he Assailed Resolutions have not identified any specific overt i%%oral act perfor%ed by Ang Ladlad . Even the !6 agrees that there should have been a finding by the C!9E5EC that the group@s %e%bers have co%%itted or are co%%itting i%%oral acts.=; &he !6 argues
( ( ( A person %ay be se(ually attracted to a person of the sa%e gender, of a different gender, or %ore than one gender, but %ere attraction does not translate to i%%oral acts. &here is a great divide
bet'een thought and action. Reduction ad absurdu%. If i%%oral thoughts could be penali1ed, C!9E5EC 'ould have its hands full of disualification cases against both the straights and the gays. Certainly this is not the intend%ent of the la'.=+
Respondent has failed to e(plain 'hat societal ills are sought to be prevented, or 'hy special protection is reuired for the youth. Neither has the C!9E5EC condescended to 0ustify its position that petitioner@s ad%ission into the party>list syste% 'ould be so har%ful as to irreparably da%age the %oral fabric of society. e, of course, do not suggest that the state is 'holly 'ithout authority to regulate %atters concerning %orality, se(uality, and se(ual relations, and 'e recogni1e that the govern%ent 'ill and should continue to restrict behavior considered detri%ental to society. Nonetheless, 'e cannot countenance advocates 'ho, undoubtedly 'ith the loftiest of intentions, situate %orality on one end of an argu%ent or another, 'ithout bothering to go through the rigors of legal reasoning and e(planation. In this, the notion of %orality is robbed of all value. Clearly then, the bare invocation of %orality 'ill not re%ove an issue fro% our scrutiny.
e also find the C!9E5EC@s reference to purported violations of our penal and civil la's fli%sy, at best2 disingenuous, at 'orst. Article 3< of the Civil Code defines a nuisance as any act, o%ission, establish%ent, condition of property, or anything else 'hich shoc*s, defies, or disregards decency or %orality, the re%edies for 'hich are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abate%ent 'ithout 0udicial proceedings.=: A violation of Article :;+ of the
Revised Penal Code, on the other hand, reuires proof beyond reasonable doubt to support a cri%inal conviction. It hardly needs to be e%phasi1ed that %ere allegation of violation of la's is not proof, and a %ere blan*et invocation of public %orals cannot replace the institution of civil or cri%inal proceedings and a 0udicial deter%ination of liability or culpability.
As such, 'e hold that %oral disapproval, 'ithout %ore, is not a sufficient govern%ental interest to 0ustify e(clusion of ho%ose(uals fro% participation in the party>list syste%. &he denial of Ang
Ladlad’s registration on purely %oral grounds a%ounts %ore to a state%ent of disli*e and disapproval of ho%ose(uals, rather than a tool to further any substantial public interest. Respondent@s blan*et 0ustifications give rise to the inevitable conclusion that the C!9E5EC targets ho%ose(uals the%selves as a class, not because of any particular %orally reprehensible act. It is this selective targeting that i%plicates our eual protection clause.
E*ual rotection
Despite the absolutis% of Article III, ection + of our Constitution, 'hich provides nor shall any person be denied eual protection of the la's, courts have never interpreted the provision as an absolute prohibition on classification. Euality, said Aristotle, consists in the sa%e treat%ent of si%ilar persons.== &he eual protection clause guarantees that no person or class of persons shall
be deprived of the sa%e protection of la's 'hich is en0oyed by other persons or other classes in the sa%e place and in li*e circu%stances.=
Recent 0urisprudence has affir%ed that if a la' neither burdens a funda%ental right nor targets a suspect class, 'e 'ill uphold the classification as long as it bears a rational relationship to so%e legiti%ate govern%ent end.=4In Central Ban* E%ployees Association, Inc. v. Ban*o entral ng
challenges ( ( ( have follo'ed the Hrational basis@ test, coupled 'ith a deferential attitude to legislative classifications and a reluctance to invalidate a la' unless there is a sho'ing of a clear and uneuivocal breach of the Constitution.=
&he C!9E5EC posits that the %a0ority of the Philippine population considers ho%ose(ual conduct as i%%oral and unacceptable, and this constitutes sufficient reason to disualify the petitioner. Knfortunately for the respondent, the Philippine electorate has e(pressed no such belief. No la' e(ists to cri%inali1e ho%ose(ual behavior or e(pressions or parties about ho%ose(ual behavior. Indeed, even if 'e 'ere to assu%e that public opinion is as the C!9E5EC describes it, the asserted state interest here - that is, %oral disapproval of an unpopular %inority - is not a legiti%ate state interest that is sufficient to satisfy rational basis revie' under the eual protection clause. &he C!9E5EC@s differentiation, and its unsubstantiated clai% that Ang Ladlad cannot contribute to the for%ulation of legislation that 'ould benefit the nation, furthers no legiti%ate state interest other than disapproval of or disli*e for a disfavored group.
#ro% the standpoint of the political process, the lesbian, gay, bise(ual, and transgender have the sa%e interest in participating in the party>list syste% on the sa%e basis as other political parties si%ilarly situated. tate intrusion in this case is eually burdenso%e. ence, la's of general application should apply 'ith eual force to 56B&s, and they deserve to participate in the party>list syste% on the sa%e basis as other %arginali1ed and under>represented sectors.
It bears stressing that our finding that C!9E5EC@s act of differentiating 56B&s fro% heterose(uals insofar as the party>list syste% is concerned does not i%ply that any other la' distinguishing bet'een heterose(uals and ho%ose(uals under different circu%stances 'ould si%ilarly fail. e disagree 'ith the !6@s position that ho%ose(uals are a class in the%selves for the purposes of the eual protection clause.=? e are not prepared to single out ho%ose(uals as a separate class
%eriting special or differentiated treat%ent. e have not received sufficient evidence to this effect, and it is si%ply unnecessary to %a*e such a ruling today. Petitioner itself has %erely de%anded that it be recogni1ed under the sa%e basis as all other groups si%ilarly situated, and that the C!9E5EC %ade an un'arranted and i%per%issible classification not 0ustified by the circu%stances of the case.
Freedo! of E+'ression and Association
Knder our syste% of la's, every group has the right to pro%ote its agenda and atte%pt to persuade society of the validity of its position through nor%al de%ocratic %eans.=< It is in the public suare that
deeply held convictions and differing opinions should be distilled and deliberated upon. As 'e held in Estrada v. Escritor;
In a de%ocracy, this co%%on agree%ent on political and %oral ideas is distilled in the public suare. here citi1ens are free, every opinion, every pre0udice, every aspiration, and every %oral discern%ent has access to the public suare 'here people deliberate the order of their life together. Citi1ens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citi1ens have eual access to the public suare. In this representative de%ocracy, the state is prohibited fro% deter%ining 'hich convictions and %oral 0udg%ents %ay be proposed for public deliberation. &hrough a constitutionally designed process, the people deliberate and decide. 9a0ority
rule is a necessary principle in this de%ocratic governance. &hus, 'hen public deliberation on %oral 0udg%ents is finally crystalli1ed into la', the la's 'ill largely reflect the beliefs and preferences of the
%a0ority, i.e., the %ainstrea% or %edian groups. Nevertheless, in the very act of adopting and accepting a constitution and the li%its it specifies - including protection of religious freedo% not only for a %inority, ho'ever s%all - not only for a %a0ority, ho'ever large - but for each of us - the %a0ority i%poses upon itself a self>denying ordinance. It pro%ises not to do 'hat it other'ise could do to ride roughshod over the dissenting %inorities.
#reedo% of e(pression constitutes one of the essential foundations of a de%ocratic society, and this freedo% applies not only to those that are favorably received but also to those that offend, shoc*, or disturb. Any restriction i%posed in this sphere %ust be proportionate to the legiti%ate ai% pursued. Absent any co%pelling state interest, it is not for the C!9E5EC or this Court to i%pose its vie's on the populace. !ther'ise stated, the C!9E5EC is certainly not free to interfere 'ith speech for no better reason than pro%oting an approved %essage or discouraging a disfavored one.
&his position gains even %ore force if one considers that ho%ose(ual conduct is not illegal in this country. It follo's that both e(pressions concerning one@s ho%ose(uality and the activity of for%ing a political association that supports 56B& individuals are protected as 'ell.
!ther 0urisdictions have gone so far as to categorically rule that even over'hel%ing public perception that ho%ose(ual conduct violates public %orality does not 0ustify cri%inali1ing sa%e>se( conduct.+ European and Knited Nations 0udicial decisions have ruled in favor of gay rights clai%ants
on both privacy and euality grounds, citing general privacy and eual protection provisions in foreign and international te(ts.: &o the e(tent that there is %uch to learn fro% other 0urisdictions that
have reflected on the issues 'e face here, such 0urisprudence is certainly illu%inating. &hese foreign authorities, 'hile not for%ally binding on Philippine courts, %ay nevertheless have persuasive influence on the Court@s analysis.
In the area of freedo% of e(pression, for instance, Knited tates courts have ruled that e(isting free speech doctrines protect gay and lesbian rights to e(pressive conduct. In order to 0ustify the prohibition of a particular e(pression of opinion, public institutions %ust sho' that their actions 'ere caused by so%ething %ore than a %ere desire to avoid the disco%fort and unpleasantness that al'ays acco%pany an unpopular vie'point.=
ith respect to freedo% of association for the advance%ent of ideas and beliefs, in Europe, 'ith its vibrant hu%an rights tradition, the European Court of u%an Rights 7ECR8 has repeatedly stated that a political party %ay ca%paign for a change in the la' or the constitutional structures of a state if it uses legal and de%ocratic %eans and the changes it proposes are consistent 'ith de%ocratic principles. &he ECR has e%phasi1ed that political ideas that challenge the e(isting order and 'hose reali1ation is advocated by peaceful %eans %ust be afforded a proper opportunity of e(pression through the e(ercise of the right of association, even if such ide as %ay see% shoc*ing or unacceptable to the authorities or the %a0ority of the population. A political group should not be
hindered solely because it see*s to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned.4 !nly if a political party incites violence or puts
for'ard policies that are inco%patible 'ith de%ocracy does it fall outside the protection of the freedo% of association guarantee.3
e do not doubt that a nu%ber of our citi1ens %ay believe that ho%ose(ual conduct is distasteful, offensive, or even defiant. &hey are entitled to hold and e(press that vie'. !n the other hand, 56B&s and their supporters, in all li*elihood, believe 'ith eual fervor that relationships bet'een individuals of the sa%e se( are %orally euivalent to heterose(ual relationships. &hey, too, are entitled to hold and e(press that vie'. o'ever, as far as this Court is concerned, our de%ocracy precludes using the religious or %oral vie's of one part of the co%%unity to e(clude fro% consideration the values of other %e%bers of the co%%unity.
!f course, none of this suggests the i%pending arrival of a golden age for gay rights litigants. It 'ell %ay be that this Decision 'ill only serve to highlight the discrepancy bet'een the rigid constitutional analysis of this Court and the %ore co%ple( %oral senti%ents of #ilipinos. e do not suggest that public opinion, even at its %ost liberal, reflect a clear>cut strong consensus favorable to gay rights clai%s and 'e neither atte%pt nor e(pect to affect individual perceptions of ho%ose(uality through this Decision.
&he !6 argues that since there has been neither prior restraint nor subseuent punish%ent i%posed on Ang Ladlad , and its %e%bers have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedo% of e(pression or association. &he !6 argues that
&here 'as no utterance restricted, no publication censored, or any asse%bly denied. "C!9E5EC$ si%ply e(ercised its authority to revie' and verify the ualifications of petitioner as a sectoral party applying to participate in the party>list syste%. &his la'ful e(ercise of duty cannot be said to be a transgression of ection , Article III of the Constitution.
( ( ( (
A denial of the petition for registration ( ( ( does not deprive the %e%bers of the petitioner to freely ta*e part in the conduct of elections. &heir right to vote 'ill not be ha%pered by said denial. In fact, the right to vote is a constitutionally>guaranteed right 'hich cannot be li%ited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang 5adlad@s petition has the clear and i%%ediate effect of li%iting, if not outrightly nullifying the capacity of its %e%bers to fully and eually participate in public life through engage%ent in the party list elections.
&his argu%ent is puerile. &he holding of a public office is not a right but a privilege sub0ect to li%itations i%posed by la'. ( ( (
&he !6 fails to recall that petitioner has, in fact, established its ualifications to participate in the party>list syste%, and - as advanced by the !6 itself - the %oral ob0ection offered by the C!9E5EC 'as not a li%itation i%posed by la'. &o the e(tent, therefore, that the petitioner has been precluded, because of C!9E5EC@s action, fro% publicly e(pressing its vie's as a political party and participating on an eual basis in the political process 'ith other eually>ualified party>list candidates, 'e find that there has, indeed, been a transgression of petitioner@s funda%ental rights.
Non>Discri%ination and International 5a'
In an age that has seen international la' evolve geo%etrically in scope and pro%ise, international hu%an rights la', in particular, has gro'n dyna%ically in its atte%pt to bring about a %ore 0ust and hu%ane 'orld order. #or individuals and groups struggling 'ith inadeuate structural and govern%ental support, international hu%an rights nor%s are particularly significant, and should be effectively enforced in do%estic legal syste%s so that such nor%s %ay beco%e actual, rather than ideal, standards of conduct.
!ur Decision today is fully in accord 'ith our international obligations to protect and pro%ote hu%an rights. In particular, 'e e(plicitly recogni1e the principle of non>discri%ination as it relates to the right to electoral participation, enunciated in the KDR and the ICCPR.
&he principle of non>discri%ination is la id out in Article :3 of the ICCPR, as follo's Ar"i+le 2
All persons are eual before the la' and are entitled 'ithout any discri%ination to the eual protection of the la'. In this respect, the la' shall prohibit any discri%ination and guarantee to all persons eual and effective protection against discri%ination on any ground such as race, colour, se(, language, religion, political or other opinion, national or social origin, property, birth or other status.
In this conte(t, the principle of non>discri%ination reuires that la's of general application relating to elections be applied eually to all persons, regardless of se(ual orientation. Although se(ual orientation is not specifically enu%erated as a status or ratio for discri%ination in Article :3 of the ICCPR, the ICCPR u%an Rights Co%%ittee has opined that the reference to se( in Article :3 should be construed to include se(ual orientation.? Additionally, a variety of Knited Nations bodies
have declared discri%ination on the basis of se(ual orientation to be prohibited under various international agree%ents.<
&he KDR provides Article :+.
7+8 Everyone has the right to ta*e part in the govern%ent of his country, directly or through freely chosen representatives.
5i*e'ise, the ICCPR states Ar"i+le 25
Every citi1en shall have the right and the opportunity, 'ithout any of the distinctions %entioned in article : and 'ithout unreasonable restrictions
7a8 &o ta*e part in the conduct of public affairs, directly or through freely chosen representatives2
7b8 &o vote and to be elected at genuine periodic elections 'hich shall be by universal and eual suffrage and shall be held by secret ballot, guaranteeing the free e(pression of the 'ill of the electors2
7c8 &o have access, on general ter%s of euality, to public service in his country.
As stated by the CR in its Co%%ent>in>Intervention, the scope of the right to electoral participation is elaborated by the u%an Rights Co%%ittee in its 6eneral Co%%ent No. :4 7Participation in Public Affairs and the Right to Lote8 as follo's
+. Article :4 of the Covenant recogni1es and protects the right of every citi1en to ta*e part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. hatever for% of constitution or govern%ent is in force, the Covenant reuires tates to adopt such legislative and other %easures as %ay be necessary to ensure that citi1ens have an effective opportunity to en0oy the rights it protects. Article :4 lies at the core of de%ocratic govern%ent based on the consent of the people and in confor%ity 'ith the principles of the Covenant.
( ( ( (
+4. &he effective i%ple%entation 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 %ini%u% age, %ust be 0ustifiable on ob0ective and reasonable criteria. Persons 'ho are other'ise eligible to stand for election should not be e(cluded by unreasonable or discri%inatory reuire%ents such as education, residence or descent, or by reason of political affiliation. No person should suffer discri%ination or disadvantage of any *ind because of that personQs candidacy. tates parties should indicate and e(plain the legislative provisions 'hich e(clude any group or category of persons fro% elective office.4;
e stress, ho'ever, that although this Court stands 'illing to assu%e the responsibility of giving effect to the Philippines@ international la' obligations, the blan*et invocation of international la' is not the panacea for all social ills. e refer no' to the petitioner@s invocation of the /ogya*arta Principles 7the Application of International u%an Rights 5a' In Relation to e(ual !rientation and 6ender Identity8,4+ 'hich petitioner declares to reflect binding principles of international la'.
At this ti%e, 'e are not prepared to declare that these ,ogyaarta rinci'les contain nor%s that are obligatory on the Philippines. &here are declarations and obligations outlined in said Principles 'hich are not reflective of the current state of international la', and do not find basis in any of the sources of international la' enu%erated under Article =?7+8 of the tatute of the International Court of )ustice.4:Petitioner has not underta*en any ob0ective and rigorous analysis of these alleged
e also hasten to add that not everything that society - or a certain seg%ent of society - 'ants or de%ands is auto%atically a hu%an right. &his is not an arbitrary hu%an intervention that %ay be added to or subtracted fro% at 'ill. It is unfortunate that %uch of 'hat passes for hu%an rights today is a %uch broader conte(t of needs that identifies %any social desires as rights in order to further clai%s that international la' obliges states to sanction these innovations. &his has the effect of diluting real hu%an rights, and is a result of the notion that if 'ants are couched in rights language, then they are no longer controversial.(avv'&i(
Ksing even the %ost liberal of lenses, these ,ogyaarta rinci'les, consisting of a declaration for%ulated by various international la' professors, are - at best - de lege ferenda - and do not constitute binding obligations on the Philippines. Indeed, so %uch of conte%porary international la' is characteri1ed by the soft la' no%enclature, i.e., international la' is full of principles that pro%ote international cooperation, har%ony, and respect for hu%an rights, %ost of 'hich a%ount to no %ore than 'ell>%eaning desires, 'ithout the support of either tate practice or opinio 0uris.4=
As a final note, 'e cannot help but observe that the social issues presented by this case are e%otionally charged, societal attitudes are in flu(, even the psychiatric and religious co%%unities are divided in opinion. &his Court@s role is not to i%pose its o'n vie' of acceptable behavior. Rather, it is to apply the Constitution and la's as best as it can, uninfluenced by public opinion, and confident in the *no'ledge that our de%ocracy is resilient enough to 'ithstand vigorous debate.
-ERE/ORE, the Petition is hereby GRANTED. &he Resolutions of the Co%%ission on Elections dated Nove%ber ++, :;;< and Dece%ber +3, :;;< in PP No. ;<>::? 7P58 are hereby SET AS(DE. &he Co%%ission on Elections is directed to GRANT petitioner@s application for party>list accreditation.
