Juris Doctor Palacio on SB 689: Anti-Discrimination Act 2019 (SOGIE Equality Bill) (Negative)

Last Friday, the Christian Worldview Project was privileged to have Juris Doctor Deborah Palacio with us to discuss the SOGIE Bill with Atty. Zigfred Macaren Diaz. To follow up on the podcast, and to gain better understanding on the non-practicability, non-necessity, and non-beneficiality of SOGIE Bill, we asked permission to post here Atty. Palacio’s article on SOGIE Bill.

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Participatio legis aeternaet in rationali creatura lex naturalis dicitire
(Natural law is the rational creature’s participation in the Eternal Law – Aquinas)
By: Deborah B. Palacio

Backgrounder

Senate Bill 689 entitled, An Act Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity or Expression (SOGIE) and Providing Penalties Therefor, otherwise known as Anti-Discrimination Act was introduced by Senator Francis Pangilinan to address all forms of discrimination and violence on the basis of sexual orientation and gender identity.¹

The proponent ratiocinates that the passage of the bill will remedy the predicament of LGBT+ community in relation to abuse, recognition, and discrimination. To persuade, his explanatory note states:

It is high time for the Philippines to join the long list of countries with a national anti-discrimination law. With the hopes of giving the LGBT community full acceptance, and not just tolerance, this proposed legislation aims to finally eliminate the hate and discrimination against them. This bill also seeks to create an environment that is safe, equal, and reasonable for everyone regardless of their sexual orientation and gender identity or expression.2

It has almost been two decades since the first version of SOGIE equality bill was filed under 11th Congress, and since then, various proponents insisted on its passage with SB 689 as the latest.³

Amidst differing views on the matter at hand, the aim of equality through the bill’s passage begs the question, is this bill lawful for all intents and purposes?

What the law is

The legal philosophical question of what the law is is foundational in every human legal system. Jurist Crisolito Pascual in his book on Legal Philosophy advances that a comprehension of the nature and elements of the law helps people to first understand the interplay among governmental acts, laws, and community, and second to discover the basis for them in order to perpetuate humanity.⁴

The schools of thought in relation to this question are variously formulated and intricately woven to advance its answer, to wit: (a) Historical school of jurisprudence advances that traditional legal materials of a people cannot be ignored;⁵ (b) Teleological school puts forward that the law is ordained for the fulfilment of righteousness, justice, fairness, and equity;⁶ (c) Positivist perspective posits that the law is not a moral concept but should be approached through comparative analysis and critical thinking;⁷ (d) Functional school considers the law on what it does in promoting the interest of the society;⁸ (e) Modern Legal Realist Theory takes the law as something which the courts lay down as rules of conduct;⁹
and (f) Policy Science Perspective considers law in relation to the degree of success of a community in achieving certain socio-legal values.¹⁰

An analysis of the foregoing leads to the conclusion that the common thread among these perspectives is the attainment of common good. Also, invocation of reason is the determining factor to resolve the present pressing evils hounding our society. Thus, what the law is is what would reasonably realize common good.

Non-practicability and non-necessity

In the Philippine jurisdiction, constitutional expert and framer Joaquin G. Bernas S.J. ratiocinated that the reason the phrase common good¹¹ replaced general welfare¹² in the Preamble of the 1987 Constitution is because the latter could be interpreted as the greatest good for the greatest number which is problematic because what if the greatest number wanted violence against the inferior?; whereas, the former projects the idea of social order that enables every citizen to attain his or her fullest development holistically. ¹³ Accordingly, the Constitution, and any legislation, reflects and should reflect not only the will but the best interest of the people.

The bill’s proponent advances that a survey showed that 73% of Filipino adults agree that homosexuality should be accepted by the society.¹⁴ This statement begs the question, how should the law define acceptance?

Section 5 of the bill provides the definition of discrimination and discriminatory practices respectively:

Refers to any distinction, exclusion, restriction, preference based on the grounds of sex, sexual orientation and gender identity or expression, x x x, and has purpose or effect of nullifying or impairing the recognition, access to, enjoyment, or exercise by all persons on an equal footing of all rights and freedoms.

Promote and encourage stigma on the basis of SOGIE in the media, in educational textbooks, and other medium.15

To understand this provision, stigma was defined as:

Refer to the dynamic devaluation and dehumanization of an individual in the eyes of others which may be based on attributes that are arbitrarily defined by others as discreditable or unworthy and which result in discrimination when acted upon.16

These provisions are problematic because the obvious aim of which is to eradicate dissenting beliefs from certain sectors of the society. It is basic in constitutional law that provisions of law which runs afoul with religious beliefs and freedom should be strike down as unconstitutional. The case of Imbong v. Ochoa¹⁷ is instructional in discussing the theory of benevolent neutrality-accommodation, to wit:

The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. x x x What is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its ‘burdensome effect,’ whether by the legislature or the courts.

The bill would inevitably pose a burdensome effect in a state comprised of over 80%, 9%, 11%, and less than 1% of the population as Roman Catholics, Protestants, Muslims, and other sects respectively.¹⁸ These religions in one way or another take homosexuality and sodomy as a sin and abomination as set forth in their considered sacred books. If these beliefs would amount to stigma or discriminatory act as defined in the bill because of its inclination to impair the recognition, enjoyment, and exercise of the rights and freedoms of the LGBT+ community, then the belief and the expression of such beliefs through preaching and printed works would be penalized under the bill. Accordingly, a democratic and republican state, which gives pre-eminence to fundamental rights guaranteed by the constitution, will be distorted for recognizing a liberty that the Framers would not have recognized, to the detriment of the same liberty they sought to protect.¹⁹

Non-beneficiality

Parallel jurisdictions with full-blown recognitions and operating laws as the SOGIE bill is instructive in the determination of its repercussion if the bill would be passed into law in the Philippines. The measure of beneficiality in this article labors to consider its benefits to both adherents and non-adherents of the bill as a prudent and unbiased measure.

Baby, you weren’t born this way

A study conducted by a team led by Zietsch of the University of Queensland, Australia with 477,000 participants and with massive genome data banks indicates that homosexuality has no genetic origins, and thus cannot be justified scientifically. This study was published in the Journal Science. ²⁰ This is the death blow of the born this way and gay gene argument. This argument had been a potent argument of human rights advocates and proponents of such equality bills.21 Now that it has been rebutted and the LGBT+ are in the minority (of course with equal human rights but not in the context of SOGIE rights), it is the burden of the advocates to justify that such bills are not the product self-serving ideals and agenda.

AIDS and lifespan numeric of homosexuals

Several studies’ glaring numeric provides the appalling sexual activity of homosexuals, to wit: (a) 28% of homosexual men respondents had more than 1000 partners;22 (b) the modal range for number of sexual partners of homosexual respondents was 101-500;23 (c) 79% of a survey stated that over half of their sexual partners were strangers; 24 and by far the worse effect is, (d) the life expectancy for gay and bisexual men is 8 to 20 years less than for heterosexuals in general because of HIV disease. ²⁵

The implied and the inevitable effect of SOGIE and like bills is the pursuit to desensitize the society of homosexual promiscuity which is counterproductive and self-destructive especially among the LGBT+ themselves. In light of the foregoing, the author would like to pose an evoking rhetorical question for the reader: Are you willing to leave to your child a society where homosexual promiscuity and premarital sex is normalized and praised?

Historicity of SOGIE rights

We cannot turn a blind eye to the disposition of the bill’s advocates to make the passage of SOGIE as the first step towards state’s recognition of same-sex union.²⁶ In the landmark case of Obergefell v. Hodges,²⁷ US Supreme Court discussed the novelty of same-sex rights and privileges. The majority justices of their highest tribunal ratiocinated that changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations. On the other hand, vehement dissent of other justices and their own Chief Justice Roberts stated:

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. (emphasis supplied)

The Philippine Constitution can trace its origins to that of the United States.²⁸ The equal protection and the due process clause, being identical to the latter’s provisions, may be invoked by adherents of SOGIE rights and consequently, the repudiation such as the above-mentioned human history argument is rational and commonsensical at best.

Natural law: what the law is

Going back to the introductory of what the law is, the author advances that the passage of the SOGIE Bill is inimical to the fundamental freedoms which the bill apparently upholds. The common good concept is arrived at through learned discourse and level-headed debates on the subject matter and should not be based on whims and current hype (the controversial incident involving transgender Diez’ denial of his comfort room preference).

The author concurs with Jurist Jorge R. Coquia on what will resolve the insoluble difficulties and inescapable inadequacies caused by present philosophies of law advanced in our society, to wit:

There has been a sudden increase of law schools, but a meager few have ever attempted seriously what legal philosophy they should stress to students. What is still more unfortunate is that the problems of national life have arisen directly from an ultra materialistic and positivist attitude toward law and life. We are approaching, we fear, a stage when ethical and moral content of our philosophy will be abandoned, when citizens and even public officials will feel free to assert, without restraint, their personal and class selfishness and avarice. x x x No other philosophy of law has so much molded and shaped civilizations as has natural law. In Coke’s classic Calvin’s case, he said: “The law of nature is that which God at the time of creation of man infused into his heart for his preservation and direction and this is the eternal law… called also the law of nature.”29 (emphasis supplied)

One humble article as this may not change the view of magistrates, but let it be known, to you reader, that whatever you choose to support now will shape tomorrow and your children’s heritage. If we choose the perversion of Divinely ordained natural law, be ready to behold Divine retribution against a sodomised and sodomy tolerating state. God forbid.

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20 Sarah Reardon, ”Massive Study Finds No Single Genetic Cause of Same-Sex Sexual Behavior,” Scientific American, August 29,
2019, https://www.scientificamerican.com/article/massive-study-finds-no-single-genetic-cause-of-same-sex-sexualbehavior/ (accessed September, 2019).
21 Albert Mohler, “Is Homosexuality Genetic?” albertmohler.com, August 30, 2019,
https://albertmohler.com/2019/08/30/briefing-8-30-19/ (accessed September, 2019).
22 Alan P. Bell and Martin S. Weinberg, Homosexualities: A Study of Diversity Among Men and Women (New York, Simon and
Shuster, 1978), 314.
23 Paul Van de Vel et al., “A Comparative Demographic and Sexual Profile of Older Homosexually Active Men,” Journal
of Sex Research, 34 (1997): 354.
24 Id. at 309.
25 Robert S. Hogg et al., “Modeling the Impact of HIV Disease on Mortality in Gay and Bisexual Men,” International
Journal of Epidemiology, 26 (1997): 657.
26 Micah Arvy guiao, “A look at SOGIE anti-discrimination laws around the world,” rappler.com, August 31, 2019,
https://www.rappler.com/newsbreak/iq/238762-sogie-anti-discrimination-laws-worldwide/ (accessed September,
2019).
27 576 U.S., June 26, 2015.

28 Francisco v. HR, G.R. No. 160261, November 10, 2003.
29 Jorge R. Coquia, “For a Revival of Natural Law Doctrine in Philippine Jurisprudence,” Readings in Legal Philosophy and Theory
2005 ed. (Manila Philippines: Rex Bookstore, 2005) 238, 243.