Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make different
choices – choices we would not make for ourselves, choices we may disapprove of, even choices that may
shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different,
and the right to disagree and debate about important questions of public policy is a core value protected by our
Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference
in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason
more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously,
then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission
on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and December 16,
20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The
case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list organization under Republic
Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration
with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with
the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented
sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated
by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out its
national membership base consisting of individual members and organizational supporters, and outlined its
platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division) dismissed
the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same gender, or more than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into that
which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust
one toward another; men with men working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those
who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief"
(29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F: ‘Consensual
partnerships or relationships by gays and lesbians who are already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied
with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides that ‘Contracts whose cause, object or
purpose is contrary to law, morals, good customs, public order or public policy’ are inexistent and void from the
beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes
‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall
be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;
 (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral
plays, scenes, acts or shows, it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue
hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion;
(4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not
being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A.
said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government,
ours too is the State’s avowed duty under Section 13, Article II of the Constitution to protect our youth from moral
and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners
voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle,
and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate
Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual
orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose 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. Until the
time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize
lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has
also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the
U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual
relations," as in the case of race or religion or belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no denying
that Ladlad constituencies are still males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there
any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a
society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly
accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised
Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines
openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and
indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petition’s
paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age’ It is
further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance"
as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x."
These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the issuance ex
parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG filed
a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat surprisingly,
the OSG later filed a Comment in support of petitioner’s application.13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own comment.14 The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,
2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease
and desist from implementing the Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as
Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang
Ladlad’spetition on moral grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On
January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on
February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of the Philippines’ international obligations against
discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s
application for registration since there was no basis for COMELEC’s allegations of immorality. It also opined that
LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as
a separate classification. However, insofar as the purported violations of petitioner’s freedom of speech,
expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these
rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that
petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-represented sectors is
not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had
nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner does
not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is
a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of
its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections." Nowhere was this ground for denial of petitioner’s accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s
alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondent’s theory,
and a serious violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial petition
shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates
and members around the country, and 4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed
of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

 § Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that
they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings are to be
believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s principal place of
business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on
whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. 1avv phi 1

In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian
or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be
religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because of the
danger it poses to the people especially the youth. Once it is recognized by the government, a sector which
believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of
moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this
censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike
or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines
has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public
morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the
OSG agrees that "there should have been a finding by the COMELEC that the group’s members have committed
or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one
gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s admission
into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of
course, do not suggest that the state is wholly without authority to regulate matters concerning morality,
sexuality, and sexual relations, and we recognize that the government will and should continue to restrict
behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly
with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go
through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly
then, the bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for
which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement
without judicial proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires
proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on
purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool
to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of similar persons."33 The equal
protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws
which is enjoyed by other persons or other classes in the same place and in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class,
we will uphold the classification as long as it bears a rational relationship to some legitimate government
end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that "[i]n our
jurisdiction, the standard of analysis of equal protection challenges x x x have followed the ‘rational basis’ test,
coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is
a showing of a clear and unequivocal breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral
and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the
respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public
opinion is as the COMELEC describes it, the asserted state interest here – that is, moral disapproval of an
unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the
equal protection clause. The COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other
than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest
in participating in the party-list system on the same basis as other political parties similarly situated. State
intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and
under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar as
the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree with the OSG’s position that
homosexuals are a class in themselves for the purposes of the equal protection clause.38 We are not prepared to
single out homosexuals as a separate class meriting special or differentiated treatment. We have not received
sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has
merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the
COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the
case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of
the validity of its position through normal democratic means.39 It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to
the public square where people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies – including protection of religious freedom "not only for a
minority, however small – not only for a majority, however large – but for each of us" – the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom
applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling
state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved
message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It
follows that both expressions concerning one’s homosexuality and the activity of forming a political association
that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in foreign and international texts.42 To the extent
that there is much to learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were caused by "something more than a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party
may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic
means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas
may seem shocking or unacceptable to the authorities or the majority of the population.44 A political group should
not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions
capable of satisfying everyone concerned.45 Only if a political party incites violence or puts forward policies that
are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or
even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in
all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far
as this Court is concerned, our democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that
this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court
and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to
affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang
Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4,
Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in
the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlad’s
petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to
fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed
by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal basis in
the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a
transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights
law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and governmental support, international human
rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be
applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation."48Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual
orientation to be prohibited under various international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and
the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.

xxxx

15. The effective implementation 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
minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage
of any kind because of that person's candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective office.50
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the
Philippines’ international law obligations, the blanket invocation of international law is not the panacea for all
social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which petitioner
declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory
on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of the sources of international law enumerated
under Article 38(1) of the Statute of the International Court of Justice.52 Petitioner has not undertaken any
objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from
at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that
identifies many social desires as rights in order to further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are
couched in "rights" language, then they are no longer controversial. 1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are – at best – de lege ferenda – and do not constitute binding obligations
on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law"
nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and
respect for human rights, most of which amount to no more than well-meaning desires, without the support of
either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This
Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws
as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient
enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission
on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

MARIANO C. DEL CASTILLO

Footnotes

1 319 U.S. 624, 640-42 (1943).

2 Rollo, pp. 33-40.

3 Id. at 41-74.

4An Act Providing For The Election Of Party-List Representatives Through The Party-List System, And
Appropriating Funds Therefor (1995).

5 Rollo, pp. 89-101.

6 412 Phil. 308 (2001).

7 Ang Ladlad outlined its platform, viz:

As a party-list organization, Ang Ladlad is willing to research, introduce, and work for the
passage into law of legislative measures under the following platform of government:
 a) introduction and support for an anti-discrimination bill that will ensure equal rights for LGBTs in
employment and civil life;

b) support for LGBT-related and LGBT-friendly businesses that will contribute to the national
economy;

c) setting up of micro-finance and livelihood projects for poor and physically challenged LGBT
Filipinos;

d) setting up of care centers that will take care of the medical, legal, pension, and other needs of
old and abandoned LGBTs. These centers will be set up initially in the key cities of the country;
and

e) introduction and support for bills seeking the repeal of laws used to harass and legitimize
extortion against the LGBT community. Rollo, p. 100.

8 Id. at 36-39. Citations omitted. Italics and underscoring in original text.

9 Id. at 77-88.

10 Id. at 50-54. Emphasis and underscoring supplied.

11 Id. at 121.

12 Id. at 129-132.

13 Id. at 151-283.

14 Id. at 284.

15 Id. at 301-596.

16 Id. at 126.

17 Id. at 133-160.

18 Id. at 288-291.

19 Id. at 296.

20 Supra note 6.

21It appears that on September 4, 2009, the Second Division directed the various COMELEC Regional
Offices to verify the existence, status, and capacity of petitioner. In its Comment, respondent submitted
copies of various reports stating that ANG LADLAD LGBT or LADLAD LGBT did not exist in the following
areas: Batangas (October 6, 2009); Romblon (October 6, 2009); Palawan (October 16, 2009); Sorsogon
(September 29, 2009); Cavite, Marinduque, Rizal (October 12, 2009); Basilan, Maguindanao, Lanao del
Sur, Sulu, Tawi Tawi (October 19, 2009); Biliran, Leyte, Southern Leyte, Samar, Eastern Samar,
Northern Samar (October 19, 2009); Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate,
Sorsogon (October 25, 2009); Ilocos Sur, Ilocos Norte, La Union, Pangasinan (October 23, 2009); North
Cotabato, Sarangani, South Cotabato, Sultan Kudarat (October 23, 2009); Aklan, Antique, Iloilo and
Negros Occidental (October 25, 2009); Bohol, Cebu, Siquijor (October 24, 2009); Negros Oriental
(October 26, 2009); Cordillera Administrative Region (October 30, 2009); Agusan del Norte, Agusan del
Sur, Dinagat Islands, Surigao del Norte, Surigao del Sur (October 26, 2009); Cagayan de Oro, Bukidnon,
Camiguin, MIsamis Oriental, Lanao del Norte (October 31, 2009); Laguna (November 2, 2009);
Occidental Mindoro, Oriental Mindoro (November 13, 2009); Quezon (November 24, 2009); Davao City,
Davao del Sur, Davao del Norte, Compostela Valley, Davao Oriental (November 19, 2009); Caloocan,
Las Pinas, Makati, Mandaluyong, Manila, Marikina, Muntinlupa, Navotas, Paranaque, Pasay, Pasig,
Pateros, Quezon City, San Juan, Taguig, Valenzuela (December 16, 2009). Rollo, pp.323-596.
22 Id. at 96.

23 Id. at 96-97.

24 Bernas, The 1987 Constitution of the Philippines: A Commentary 346 (2009).

Estrada v. Escritor, 455 Phil. 411 (2003), citing Smith, S., "The Rise and Fall of Religious Freedom in
25

Constitutional Discourse", 140 University of Pennsylvania Law Review, 149, 160 (1991).

26 455 Phil. 411 (2003).

27 Id. at 588-589.

28 Rollo, p. 315.

29In Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007, 541 SCRA 12, citing Concerned
Employee v. Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448, we ruled that immorality
cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be
grounded on "cultural" values not convincingly demonstrated to have been recognized in the realm of
public policy expressed in the Constitution and the laws. At the same time, the constitutionally
guaranteed rights (such as the right to privacy) should be observed to the extent that they protect
behavior that may be frowned upon by the majority.

30 Rollo, pp. 178.

31 Id. at 179-180.

32 Civil Code of the Philippines, Art. 699.

33 Politics VII. 14.

34Abakada Guro Party v. Executive Secretary, G.R. No. 168056, September 1, 2005, 2005, 469 SCRA
1, 139.

In Bernas, The 1987 Constitution of the Philippines: A Commentary 139-140 (2009), Fr. Joaquin
35

Bernas, S.J. writes:

For determining the reasonableness of classification, later jurisprudence has developed three
kinds of test[s] depending on the subject matter involved. The most demanding is the strict
scrutiny test which requires the government to show that the challenged classification serves a
compelling state interest and that the classification is necessary to serve that interest. This [case]
is used in cases involving classifications based on race, national origin, religion, alienage, denial
of the right to vote, interstate migration, access to courts, and other rights recognized as
fundamental.

Next is the intermediate or middle-tier scrutiny test which requires government to show that the
challenged classification serves an important state interest and that the classification is at least
substantially related to serving that interest. This is applied to suspect classifications like gender
or illegitimacy.

The most liberal is the minimum or rational basis scrutiny according to which government need
only show that the challenged classification is rationally related to serving a legitimate state
interest. This is the traditional rationality test and it applies to all subjects other than those listed
above.

36 487 Phil. 531, 583 (2004).

37 Id. at 584. See also Mid-States Freight Lines v. Bates, 111 N.Y.S. 2d 568.
38The OSG argues that "[w]hile it is true that LGBTs are immutably males and females, and they are
protected by the same Bill of Rights that applies to all citizens alike, it cannot be denied that as a sector,
LGBTs have their own special interests and concerns." Rollo, p. 183.

39Article III, Section 4 of the Constitution provides that "[n]o law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances."

40 Supra note 26.

41In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court first upheld the constitutionality of
a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults when
applied to homosexuals. Seventeen years later the Supreme Court directly
overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), holding that "Bowers was not correct
when it was decided, and it is not correct today."

In Lawrence, the US Supreme Court has held that the liberty protected by the Constitution allows
homosexual persons the right to choose to enter into intimate relationships, whether or not said
relationships were entitled to formal or legal recognition.

Our prior cases make two propositions abundantly clear. First, the fact that the governing
majority in a State has traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice; neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack. Second, individual decisions by married
persons, concerning the intimacies of their physical relationship, even when not intended to
produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to intimate choices by unmarried as well as
married persons.

The present case does not involve minors. It does not involve persons who might be injured or
coerced or who are situated in relationships where consent might not easily be refused. It does
not involve public conduct or prostitution. It does not involve whether the government must give
formal recognition to any relationship that homosexual persons seek to enter. The case does
involve two adults who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The petitioners are entitled to respect for their
private lives. The State cannot demean their existence or control their destiny by making their
private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of the government. "It is a promise of
the Constitution that there is a realm of personal liberty which the government may not enter."
The Texas statute furthers no legitimate state interest which can justify its intrusion into the
personal and private life of the individual.

In similar fashion, the European Court of Human Rights has ruled that the avowed state interest
in protecting public morals did not justify interference into private acts between homosexuals. In
Norris v. Ireland, the European Court held that laws criminalizing same-sex sexual conduct
violated the right to privacy enshrined in the European Convention.

The Government are in effect saying that the Court is precluded from reviewing Ireland’s
observance of its obligation not to exceed what is necessary in a democratic society when the
contested interference with an Article 8 (Art. 8) right is in the interests of the "protection of
morals". The Court cannot accept such an interpretation. x x x.

x x x The present case concerns a most intimate aspect of private life. Accordingly, there must
exist particularly serious reasons before interferences on the part of public authorities can be
legitimate x x x.

x x x Although members of the public who regard homosexuality as immoral may be shocked,
offended or disturbed by the commission by others of private homosexual acts, this cannot on its
own warrant the application of penal sanctions when it is consenting adults alone who are
involved. (Norris v. Ireland(judgment of October 26, 1988, Series A no. 142, pp. 20-21, §
46); Marangos v. Cyprus (application no. 31106/96, Commission's report of 3 December 1997,
unpublished)).
 The United Nations Human Rights Committee came to a similar conclusion in Toonen v.
Australia (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc.
CCPR/c/50/D/488/1992 (1994)), involving a complaint that Tasmanian laws criminalizing
consensual sex between adult males violated the right to privacy under Article 17 of the
International Covenant on Civil and Political Rights. The Committee held:

x x x it is undisputed that adult consensual sexual activity in private is covered by the concept of
‘privacy’ x x x any interference with privacy must be proportional to the end sought and be
necessary in the circumstances of any given case.

42 See Toonen v. Australia, (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc.
CCPR/c/50/D/488/1992 (1994)); Dudgeon v. United Kingdom, 45 Eur. H.R. Rep. 52 (1981) (decision by
the European Court of Human Rights, construing the European Convention on Human Rights and
Fundamental Freedoms); Norris v. Ireland, 13 Eur. Ct. H.R. 186 (1991); Modinos v. Cyprus, 16 Eur. H.R.
Rep. 485 (1993). See also, L. and V. v Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-
I 71; (2003) 37 EHRR 39), where the European Court considered that Austria’s differing age of consent
for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the
part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient
justification for the differential treatment any more than similar negative attitudes towards those of a
different race, origin or colour’.

43See Fricke v. Lynch, 491 F. Supp. 381 (1980) and Gay Student Services v. Texas A&M University, 737
F. 2d 1317 (1984).

44Case of the United Macedonian Organisation Ilinden and Others v. Bulgaria Application No. 5941/00;
Judgment of January 20, 2006. Note that in Baczkowski and Others v. Poland, Application No. 1543/06;
Judgment of May 3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in
Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides:

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.

It also found that banning LGBT parades violated the group’s freedom of assembly and
association. Referring to the hallmarks of a "democratic society", the Court has attached
particular importance to pluralism, tolerance and broadmindedness. In that context, it has held
that although individual interests must on occasion be subordinated to those of a group,
democracy does not simply mean that the views of the majority must always prevail: a balance
must be achieved which ensures the fair and proper treatment of minorities and avoids any
abuse of a dominant position.

Case of Freedom & Democracy Party (OZDEP) v. Turkey, Application No. 23885/94; Judgment of
45

December 8, 1999.

46Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention) provides:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with
others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national security
or public safety, for the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by members of the armed forces,
of the police or of the administration of the State. Convention for the Protection of Human Rights
and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as
amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on September 21, 1970,
December 20, 1971, January 1, 1990, and November 1, 1998, respectively.
* Note that while the state is not permitted to discriminate against homosexuals, private individuals
cannot be compelled to accept or condone homosexual conduct as a legitimate form of behavior.
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557 (1995)), the
US Supreme Court discussed whether anti-discrimination legislation operated to require the organizers
of a private St. Patrick’s Day parade to include among the marchers an Irish-American gay, lesbian, and
bisexual group. The court held that private citizens organizing a public demonstration may not be
compelled by the state to include groups that impart a message the organizers do not want to be
included in their demonstration. The court observed:

"[A] contingent marching behind the organization’s banner would at least bear witness to the fact that
some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest
their view that people of their sexual orientations have as much claim to unqualified social acceptance as
heterosexuals x x x. The parade’s organizers may not believe these facts about Irish sexuality to be so,
or they may object to unqualified social acceptance of gays and lesbians or have some other reason for
wishing to keep GLIB’s message out of the parade. But whatever the reason, it boils down to the choice
of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the
government’s power to control."

So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the
Boy Scouts of America could not be compelled to accept a homosexual as a scoutmaster, because "the
Boy Scouts believe that homosexual conduct is inconsistent with the values it seeks to instill in its youth
members; it will not "promote homosexual conduct as a legitimate form of behavior."

When an expressive organization is compelled to associate with a person whose views the group does
not accept, the organization’s message is undermined; the organization is understood to embrace, or at
the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence "would, at
the very least, force the organization to send a message, both to the youth members and the world, that
the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

47 Rollo, pp. 197-199.

48In Toonen v. Australia, supra note 42, the Human Rights Committee noted that "in its view the
reference to ‘sex’ in Articles 2, paragraph 2, and 26 is to be taken as including sexual orientation."

49The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its
General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the
Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right
to work) (Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to
work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic,
Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, November 26,
2002) and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on
Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable
standard of health, E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant proscribes any
discrimination on the basis of, inter-alia, sex and sexual orientation.

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General
Comment. In its General Comment No. 4 of 2003, it stated that, "State parties have the obligation
to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the
Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin, property, disability,
birth or other status’’. These grounds also cover [inter alia] sexual orientation". (Committee on
the Rights of the Child, General Comment No. 4: Adolescent health and development in the
context of the Convention on the Rights of the Child, July 1, 2003, CRC/GC/2003/4).

The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a

number of occasions, criticized States for discrimination on the basis of sexual orientation. For
example, it also addressed the situation in Kyrgyzstan and recommended that, "lesbianism be
reconceptualized as a sexual orientation and that penalties for its practice be abolished"
(Concluding Observations of the Committee on the Elimination of Discrimination Against Women
regarding Kyrgyzstan, February 5, 1999, A/54/38 at par. 128).
 50General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal
access to public service (Art. 25) December 16, 1996. CCPR/C/21/Rev.1/Add.7.

51
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity is a set of international principles relating to sexual orientation and
gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual,
and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and
experts, together with recommendations to governments, regional intergovernmental institutions, civil
society, and the United Nations.

52 One example is Principle 3 (The Right to Recognition Before the Law), which provides:

Everyone has the right to recognition everywhere as a person before the law. Persons of
diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects
of life. Each person’s self-defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-determination, dignity and
freedom. No one shall be forced to undergo medical procedures, including sex
reassignment surgery, sterilization or hormonal therapy, as a requirement for legal
recognition of their gender identity. No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a person’s gender identity. No one
shall be subjected to pressure to conceal, suppress or deny their sexual orientation or
gender identity.

States shall:

a) Ensure that all persons are accorded legal capacity in civil matters, without
discrimination on the basis of sexual orientation or gender identity, and the opportunity to
exercise that capacity, including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and dispose of property;

b) Take all necessary legislative, administrative and other measures to fully respect and
legally recognise each person’s self-defined gender identity;

c) Take all necessary legislative, administrative and other measures to ensure that
procedures exist whereby all State-issued identity papers which indicate a person’s
gender/sex — including birth certificates, passports, electoral records and other
documents — reflect the person’s profound self-defined gender identity;

d) Ensure that such procedures are efficient, fair and non-discriminatory, and respect the
dignity and privacy of the person concerned;

e) Ensure that changes to identity documents will be recognized in all contexts where the
identification or disaggregation of persons by gender is required by law or policy;

f) Undertake targeted programmes to provide social support for all persons experiencing
gender transitioning or reassignment. (Emphasis ours)

53See Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health, G.R.
No. 173034, October 9, 2007, 535 SCRA 265, where we explained that "soft law" does not fall into any
of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice. It is, however, an expression of non-binding norms, principles, and
practices that influence state behavior. Certain declarations and resolutions of the UN General Assembly
fall under this category.

SEPARATE CONCURRING OPINION

PUNO, C.J.:

I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C. del Castillo.
Nonetheless, I respectfully submit this separate opinion to underscore some points that I deem significant.
FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the non-
establishment clause1 of the Constitution. There was cypher effort on the part of the COMELEC to couch its
reasoning in legal – much less constitutional – terms, as it denied Ang Ladlad’s petition for registration as a
sectoral party principally on the ground that it "tolerates immorality which offends religious (i.e., Christian2 and
Muslim3) beliefs." To be sure, the COMELEC’s ruling is completely antithetical to the fundamental rule that "[t]he
public morality expressed in the law is necessarily secular[,] for in our constitutional order, the religion clauses
prohibit the state from establishing a religion, including the morality it sanctions."4 As we explained in Estrada v.
Escritor,5 the requirement of an articulable and discernible secular purpose is meant to give flesh to the
constitutional policy of full religious freedom for all, viz.:

Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in
accordance with man's "views of his relations to His Creator." But the Establishment Clause puts a negative bar
against establishment of this morality arising from one religion or the other, and implies the affirmative
"establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral
order is the social contract produced by religious truce.

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers, or "public morals" in the Revised Penal Code, or "morals" in the New Civil Code, or
"moral character" in the Constitution, the distinction between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind. The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed
in public debate may influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies
and morals, the resulting policies and morals would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion;" anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby
also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent
with this policy of neutrality.6 (citations omitted and italics supplied)

Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive that no
religious test shall be required for the exercise of civil or political rights.7 Ang Ladlad’s right of political
participation was unduly infringed when the COMELEC, swayed by the private biases and personal prejudices of
its constituent members, arrogated unto itself the role of a religious court or worse, a morality police.

The COMELEC attempts to disengage itself from this "excessive entanglement"8 with religion by arguing that we
"cannot ignore our strict religious upbringing, whether Christian or Muslim"9 since the "moral precepts espoused
by [these] religions have slipped into society and … are now publicly accepted moral norms."10 However, as
correctly observed by Mr. Justice del Castillo, the Philippines has not seen fit to disparage homosexual conduct
as to actually criminalize it. Indeed, even if the State has legislated to this effect, the law is vulnerable to
constitutional attack on privacy grounds.11 These alleged "generally accepted public morals" have not, in reality,
crossed over from the religious to the secular sphere.

Some people may find homosexuality and bisexuality deviant, odious, and offensive. Nevertheless, private
discrimination, however unfounded, cannot be attributed or ascribed to the State. Mr. Justice Kennedy, speaking
for the United States (U.S.) Supreme Court in the landmark case of Lawrence v. Texas,12 opined:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries
there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been
shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.
For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and
moral principles to which they aspire and which thus determine the course of their lives. These considerations do
not answer the question before us, however. The issue is whether the majority may use the power of the State to
enforce these views on the whole society through operation of the … law. "Our obligation is to define the liberty
of all, not to mandate our own moral code."13

SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual orientation," 14 as well as its
citation of the number of Filipino men who have sex with men,15 as basis for the declaration that the party
espouses and advocates sexual immorality. This position, however, would deny homosexual and bisexual
individuals a fundamental element of personal identity and a legitimate exercise of personal liberty. For, the
"ability to [independently] define one’s identity that is central to any concept of liberty" cannot truly be exercised
in a vacuum; we all depend on the "emotional enrichment from close ties with others."16 As Mr. Justice Blackmun
so eloquently said in his stinging dissent in Bowers v. Hardwick17 (overturned by the United States Supreme
Court seventeen years later in Lawrence v. Texas18):

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of
human existence, central to family life, community welfare, and the development of human personality[.]"19 The
fact that individuals define themselves in a significant way through their intimate sexual relationships with others
suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships,
and that much of the richness of a relationship will come from the freedom an individual has to choose the form
and nature of these intensely personal bonds.20

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to
choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.
For example, in holding that the clearly important state interest in public education should give way to a
competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court
declared: "There can be no assumption that today's majority is ‘right’ and the Amish and others like them are
‘wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be
condemned because it is different."21 The Court claims that its decision today merely refuses to recognize a
fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the
fundamental interest all individuals have in controlling the nature of their intimate associations with others. (italics
supplied)

It has been said that freedom extends beyond spatial bounds.22 Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate conduct.23 These matters, involving the
most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the due process clause.24 At the heart of liberty is the right to
define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.25 Beliefs
about these matters could not define the attributes of personhood were they formed under compulsion of the
State.26 Lawrence v. Texas27 is again instructive:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the
individual put forward, just as it would demean a married couple were it to be said marriage is simply about the
right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to
do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct, sexual behavior, and in the most private of
places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the
relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It
suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their
homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one element in a personal bond that
is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this
choice. (italics supplied)

THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals as a class
in themselves for purposes of the equal protection clause. Accordingly, it struck down the assailed Resolutions
using the most liberal basis of judicial scrutiny, the rational basis test, according to which government need only
show that the challenged classification is rationally related to serving a legitimate state interest.

I humbly submit, however, that a classification based on gender or sexual orientation is a quasi-suspect
classification, as to trigger a heightened level of review.

Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the main have
followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.28 However,
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,29 carved out an exception to this
general rule, such that prejudice to persons accorded special protection by the Constitution requires stricter
judicial scrutiny than mere rationality, viz.:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded
recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference
stops where the classification violates a fundamental right, or prejudices persons accorded special protection by
the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations.
Rational basis should not suffice. (citations omitted and italics supplied)

Considering thus that labor enjoys such special and protected status under our fundamental law, the Court ruled
in favor of the Central Bank Employees Association, Inc. in this wise:

While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the enactment of
subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity out of the challenged
proviso.

xxxx

According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the equal
protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were also
amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL. Thus, within the
class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the
amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz.:

xxxx

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this
common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or
impliedly...

xxxx

The abovementioned subsequent enactments, however, constitute significant changes in circumstance that
considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of
Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to
the constitutionality of the classification — albeit made indirectly as a consequence of the passage of eight other
laws — between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be
reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and
impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust
distinctions between persons who are without differences.

Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to
exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file
employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-
and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to sanction unequal and
discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt act,
but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection of the
law bounded in time and space that: (a) the right can only be invoked against a classification made directly and
deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and
(b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance
(where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the
lack thereof, among several similar enactments made over a period of time?

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each
exemption (granted to the seven other GFIs) rests "on a policy determination by the legislature." All legislative
enactments necessarily rest on a policy determination — even those that have been declared to contravene the
Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process
and equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy
determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of
the Constitution.

xxxx

In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics
peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file
employees were denied (not to mention the anomaly of the SEC getting one). The distinction made by the law is
not only superficial, but also arbitrary. It is not based on substantial distinctions that make real differences
between the BSP rank-and-file and the seven other GFIs.

xxxx

The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely
bears the unmistakable badge of invidious discrimination — no one can, with candor and fairness, deny the
discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL
when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis.

xxxx

Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of
unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of
other jurisdictions and in international law. There should be no hesitation in using the equal protection clause as
a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the social
justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, compel
this approach.

Apropos the special protection afforded to labor under our Constitution and international law, we held in
International School Alliance of Educators v. Quisumbing:

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect
the policy against these evils. The Constitution in the Article on Social Justice and Human Rights exhorts
Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people
to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code
requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give
everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes discrimination. General
principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test
of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic,
Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation — all embody the general principle against discrimination, the very
antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part
of its national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality
and discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are
not restricted to the physical workplace — the factory, the office or the field — but include as well the manner by
which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the
Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It
would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation
to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and
conditions of employment.

xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and
[favorable] conditions of work, which ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal
pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility,
under similar conditions, should be paid similar salaries.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality,
recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be
based on the "rational basis" test, and the legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of
prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more
strict. A weak and watered down view would call for the abdication of this Court's solemn duty to strike down any
law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts
will be struck down regardless of the character or nature of the actor.

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It
is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that
are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by
the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented
rates of the SSL while employees higher in rank — possessing higher and better education and opportunities for
career advancement — are given higher compensation packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and
limited, especially in terms of job marketability, it is they — and not the officers — who have the real economic
and financial need for the adjustment. This is in accord with the policy of the Constitution "to free the people from
poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of
life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by
this Court before it can pass muster. (citations omitted and italics supplied)

Corollarily, American case law provides that a state action questioned on equal protection grounds is subject to
one of three levels of judicial scrutiny. The level of review, on a sliding scale basis, varies with the type of
classification utilized and the nature of the right affected.30

If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a "fundamental
right," then the courts will employ strict scrutiny and the statute must fall unless the government can demonstrate
that the classification has been precisely tailored to serve a compelling governmental interest.31 Over the years,
the United States Supreme Court has determined that suspect classes for equal protection purposes include
classifications based on race, religion, alienage, national origin, and ancestry.32 The underlying rationale of this
theory is that where legislation affects discrete and insular minorities, the presumption of constitutionality fades
because traditional political processes may have broken down.33 In such a case, the State bears a heavy burden
of justification, and the government action will be closely scrutinized in light of its asserted purpose.34

On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring
constitutional difficulties, or if a classification disadvantages a "quasi-suspect class," it will be treated under
intermediate or heightened review.35 To survive intermediate scrutiny, the law must not only further an important
governmental interest and be substantially related to that interest, but the justification for the classification must
be genuine and must not depend on broad generalizations.36 Noteworthy, and of special interest to us in this
case, quasi-suspect classes include classifications based on gender or illegitimacy.37

If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere rationality.38 This
is a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines which creates
distinctions is peculiarly a legislative task and an unavoidable one.39 The presumption is in favor of the
classification, of the reasonableness and fairness of state action, and of legitimate grounds of distinction, if any
such grounds exist, on which the State acted.40

Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more
demanding constitutional analysis, the United States Supreme Court has looked to four factors,41 thus:

(1) The history of invidious discrimination against the class burdened by the legislation;42

(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to
contribute to society;43

(3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control;44 and

(4) The political power of the subject class.45

These factors, it must be emphasized, are not constitutive essential elements of a suspect or quasi-suspect
class, as to individually demand a certain weight.46 The U.S. Supreme Court has applied the four factors in a
flexible manner; it has neither required, nor even discussed, every factor in every case.47 Indeed, no single
talisman can define those groups likely to be the target of classifications offensive to the equal protection clause
and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary
guide.48

In any event, the first two factors – history of intentional discrimination and relationship of classifying
characteristic to a person's ability to contribute – have always been present when heightened scrutiny has been
applied.49 They have been critical to the analysis and could be considered as prerequisites to concluding a group
is a suspect or quasi-suspect class.50 However, the last two factors – immutability of the characteristic and
political powerlessness of the group – are considered simply to supplement the analysis as a means to discern
whether a need for heightened scrutiny exists.51

Guided by this framework, and considering further that classifications based on sex or gender – albeit on a
male/female, man/woman basis – have been previously held to trigger heightened scrutiny, I respectfully submit
that classification on the basis of sexual orientation (i.e., homosexuality and/or bisexuality) is a quasi-suspect
classification that prompts intermediate review.

The first consideration is whether homosexuals have suffered a history of purposeful unequal treatment because
of their sexual orientation.52 One cannot, in good faith, dispute that gay and lesbian persons historically have
been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual
orientation.53Paragraphs 6 and 7 of Ang Ladlad’s Petition for Registration for party-list accreditation in fact state:

6. There have been documented cases of discrimination and violence perpetuated against the LGBT
Community, among which are:

(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them
conform to standard gender norms of behavior;

(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, so
as] to "cure" them into becoming straight women;

(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of
their identity;

(d) Effeminate youths and masculine young women are refused admission from (sic) certain
schools, are suspended or are automatically put on probation;
 (e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual orientation
and gender identity is (sic) revealed;

(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are
broken up by their parents or guardians using the [A]nti-kidnapping [L]aw;

(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to
"reform" them;

(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to cure
them[,] despite the de-listing (sic) of homosexuality and lesbianism as a mental disorder by the
American Psychiatric Association;

(i) Transgenders, or individuals who were born mail but who self-identity as women and dress as
such, are denied entry or services in certain restaurants and establishments; and

(j) Several murders from the years 2003-3006 were committed against gay men, but were not
acknowledged by police as hate crimes or violent acts of bigotry.

7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young gay person in
the Philippines, he was subjected to a variety of sexual abuse and violence, including repeated rapes[,]
which he could not report to [the] police [or speak of] to his own parents.

Accordingly, this history of discrimination suggests that any legislative burden placed on lesbian and gay people
as a class is "more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit
of some legitimate objective."54

A second relevant consideration is whether the character-in-issue is related to the person’s ability to contribute
to society.55 Heightened scrutiny is applied when the classification bears no relationship to this ability; the
existence of this factor indicates the classification is likely based on irrelevant stereotypes and
prejudice.56 Insofar as sexual orientation is concerned, it is gainful to repair to Kerrigan v. Commissioner of
Public Health,57 viz.:

The defendants also concede that sexual orientation bears no relation to a person's ability to participate in or
contribute to society, a fact that many courts have acknowledged, as well. x x x If homosexuals were afflicted
with some sort of impediment to their ability to perform and to contribute to society, the entire phenomenon of
‘staying in the [c]loset’ and of ‘coming out’ would not exist; their impediment would betray their status. x x x In
this critical respect, gay persons stand in stark contrast to other groups that have been denied suspect or quasi-
suspect class recognition, despite a history of discrimination, because the distinguishing characteristics of those
groups adversely affect their ability or capacity to perform certain functions or to discharge certain
responsibilities in society.58

Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to [an]
individual's ability to contribute fully to society."59 Indeed, because an individual's homosexual orientation
"implies no impairment in judgment, stability, reliability or general social or vocational capabilities";60 the
observation of the United States Supreme Court that race, alienage and national origin -all suspect classes
entitled to the highest level of constitutional protection- "are so seldom relevant to the achievement of any
legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and
antipathy"61 is no less applicable to gay persons. (italics supplied)

Clearly, homosexual orientation is no more relevant to a person's ability to perform and contribute to society than
is heterosexual orientation.62

A third factor that courts have considered in determining whether the members of a class are entitled to
heightened protection for equal protection purposes is whether the attribute or characteristic that distinguishes
them is immutable or otherwise beyond their control.63 Of course, the characteristic that distinguishes gay
persons from others and qualifies them for recognition as a distinct and discrete group is the characteristic that
historically has resulted in their social and legal ostracism, namely, their attraction to persons of the same sex.64

Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to
change a characteristic that is used to justify different treatment makes the discrimination violative of the rather
"‘basic concept of our system that legal burdens should bear some relationship to individual
responsibility.’"65 However, the constitutional relevance of the immutability factor is not reserved to those
instances in which the trait defining the burdened class is absolutely impossible to change.66 That is, the
immutability prong of the suspectness inquiry surely is satisfied when the identifying trait is "so central to a
person's identity that it would be abhorrent for government to penalize a person for refusing to change [it]."67

Prescinding from these premises, it is not appropriate to require a person to repudiate or change his or her
sexual orientation in order to avoid discriminatory treatment, because a person's sexual orientation is so integral
an aspect of one's identity.68 Consequently, because sexual orientation "may be altered [if at all] only at the
expense of significant damage to the individual’s sense of self," classifications based thereon "are no less
entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to
exhibit an immutable characteristic."69 Stated differently, sexual orientation is not the type of human trait that
allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help.70

The final factor that bears consideration is whether the group is "a minority or politically powerless."71 However,
the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political
powerlessness.72 Rather, the touchstone of the analysis should be "whether the group lacks sufficient political
strength to bring a prompt end to the prejudice and discrimination through traditional political means."73

Applying this standard, it would not be difficult to conclude that gay persons are entitled to heightened
constitutional protection despite some recent political progress.74 The discrimination that they have suffered has
been so pervasive and severe – even though their sexual orientation has no bearing at all on their ability to
contribute to or perform in society – that it is highly unlikely that legislative enactments alone will suffice to
eliminate that discrimination.75 Furthermore, insofar as the LGBT community plays a role in the political process,
it is apparent that their numbers reflect their status as a small and insular minority.76

It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and trans-genders
out for disparate treatment is subject to heightened judicial scrutiny to ensure that it is not the product of
historical prejudice and stereotyping.77

In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level of review.
Regrettably, they betray no more than bigotry and intolerance; they raise the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons affected78 (that is, lesbian, gay, bisexual
and trans-gendered individuals). In our constitutional system, status-based classification undertaken for its own
sake cannot survive.79

FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system because it
is not a "marginalized and underrepresented sector" enumerated either in the Constitution80 or Republic Act No.
(RA) 7941.81 However, this position is belied by our ruling in Ang Bagong Bayani-OFW Labor Party v.
COMELEC,82where we clearly held that the enumeration of marginalized and underrepresented sectors in RA
7941 is not exclusive.

I likewise see no logical or factual obstacle to classifying the members of the LGBT community as marginalized
and underrepresented, considering their long history (and indeed, ongoing narrative) of persecution,
discrimination, and pathos. In my humble view, marginalization for purposes of party-list representation
encompasses social marginalization as well. To hold otherwise is tantamount to trivializing socially marginalized
groups as "mere passive recipients of the State’s benevolence" and denying them the right to "participate
directly [in the mainstream of representative democracy] in the enactment of laws designed to benefit
them."83 The party-list system could not have been conceptualized to perpetuate this injustice.

Accordingly, I vote to grant the petition.

REYNATO S. PUNO
Chief Justice

Footnotes
1Section 5, Article III of the 1987 Constitution states: "No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights."

2The November 11, 2009 Resolution of the COMELEC cited the following passage from the Bible to
support its holding: "For this cause God gave them up into vile affections: for even their women did
change the natural use into that which is against nature: And likewise also the men, leaving the natural
use of the woman, burned in their lust one toward another; men with men working that which is
unseemly, and receiving in themselves that recompense of their error which was meet." (Romans 1:26-
27)

3The November 11, 2009 Resolution of the COMELEC cited the following passages from the Koran to
support its holding:

 "For ye practice your lusts on men in preference to women: ye are indeed a people
transgressing beyond bounds." (7:81)

 "And we rained down on them a shower (of brimstone): Then see what was the end of those
who indulged in sin and crime!" (7.84)

 "He said: "O my Lord! Help Thou me against people who do mischief!" (29:30)

4 Estrada v. Escritor, 455 Phil. 411 (2003).

5 Id.

6 Id.

7 Section 5, Article III of the 1987 Constitution.

8
Lemon v. Kurtzman, 403 U.S. 602 (1971).

9 COMELEC’s Comment, p. 13.

10 Id.

11 See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472.

12 Id.

13Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d
674 (1992).

14Ang Ladlad defined "sexual orientation" as a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender." (italics supplied)

Paragraph 24 of Ang Ladlad’s Petition for Registration stated, in relevant part: "In 2007, Men Having
15

Sex with Men or MSMs in the Philippines were estimated at 670,000."

Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, as cited in the Dissenting Opinion of
16

Mr. Justice Blackmun in Bowers v. Hardwick, infra.

17 478 U.S. 186, 106 S.Ct. 2841.

18 Supra note 11.

19Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973); See also
Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675
(1977).

20See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird,
405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S., at 153, 93
S.Ct., at 726.

21 Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 1537, 32 L.Ed.2d 15 (1972).

22 Lawrence v. Texas, supra note 11.

23 Id.

24 Planned Parenthood of Southeastern Pa. v. Casey, supra note 13.

25 Id.

26 Id.

27 Supra note 11.

28 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583 (2004).

29 Id.

30 Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504.

31 16B Am. Jur. 2d Constitutional Law § 857, citing Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L.
Ed. 2d 465 (1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L.
Ed. 2d 794, 9 Ed. Law Rep. 23 (1983); Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997); Baker
v. City of Ottumwa, 560 N.W.2d 578 (Iowa 1997); Zempel v. Uninsured Employers' Fund, 282 Mont. 424,
938 P.2d 658 (1997); Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384 (N.D. 1997).

32 Murray v. State of Louisiana, 2010 WL 334537. See Burlington N. R.R. Co. v. Ford, 112 S.Ct. 2184,
2186 (1992) (holding classification based on religion is a suspect classification); Graham v. Richardson,
91 S.Ct. 1848, 1852 (1971) (holding classification based on alienage is a suspect classification); Loving
v. Virginia, 87 S.Ct. 1817, 1823 (1967) (holding classification based on race is a suspect classification);
Oyama v. California, 68 S.Ct. 269, 274-74 (1948) (holding classification based on national origin is a
suspect classification); Hirabayashi v. U.S., 63 S.Ct. 1375 (1943) (holding classification based on
ancestry is a suspect classification).

33 Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).

34Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393 U.S.
385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969); McLaughlin v. State of Fla., 379 U.S. 184, 85 S. Ct. 283, 13
L. Ed. 2d 222 (1964).

35 Supra note 31.

36 United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996).

37Murray v. State of Louisiana, supra note 32. See Mississippi University for Women v. Hogan, 102 S.Ct.
3331, 3336 (1982) (holding classifications based on gender calls for heightened standard of review);
Trimble v. Gordon, 97 S.Ct. 1459, 1463 (1977) (holding illegitimacy is a quasi-suspect classification).

38 Supra note 31.

39Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513
(1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520
(1976); Costner v. U.S., 720 F.2d 539 (8th Cir. 1983).

40Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Cornerstone Christian Schools v. University
Interscholastic League, 563 F.3d 127, 243 Ed. Law Rep. 609 (5th Cir. 2009); Independent Charities of
America, Inc. v. State of Minn., 82 F.3d 791 (8th Cir. 1996); Bah v. City of Atlanta, 103 F.3d 964 (11th
Cir. 1997).

41Varnum v. Brien, 763 N.W.2d 862 (2009) citing the following passage from Plyler v. Doe, 457 U.S.
202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982):

Several formulations might explain our treatment of certain classifications as "suspect." Some
classifications are more likely than others to reflect deep-seated prejudice rather than legislative
rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is
easily recognized as incompatible with the constitutional understanding that each person is to be
judged individually and is entitled to equal justice under the law. Classifications treated as
suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely
the same groups, have historically been "relegated to such a position of political powerlessness
as to command extraordinary protection from the majoritarian political process." The experience
of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our
response to that experience is reflected in the Equal Protection Clause of the Fourteenth
Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of
circumstances beyond their control suggests the kind of "class or caste" treatment that the
Fourteenth Amendment was designed to abolish.

42 See United States v. Virginia, 518 U.S. at 531-32, 116 S.Ct. at 2274-75, 135 L.Ed.2d at 750 (observing
‘long and unfortunate history of sex discrimination" (quoting Frontiero v. Richardson, 411 U.S. 677, 684,
93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477
U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527, 533 (1986) (noting subject class had "not been
subjected to discrimination"); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 at 443, 105 S.Ct. at
3256, 87 L.Ed.2d at 332 (mentally retarded not victims of "continuing antipathy or prejudice"); Mass. Bd.
of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976) (considering
"history of purposeful unequal treatment" (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.
1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40 (1973))).

43See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain classifications
merely "reflect prejudice and antipathy"); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct.
3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) ("Care must be taken in ascertain-ing whether the statutory
objective itself reflects archaic and stereotypic notions."); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49
L.Ed.2d at 525 (considering whether aged have "been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities"); Frontiero, 411 U.S. at 686, 93 S.Ct. at
1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ("[T]he sex characteristic frequently bears no
relation to ability to perform or contribute to society.").

44Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives "do not exhibit obvious,
immutable, or distinguishing characteristics that define them as a discrete group"); Cleburne Living Ctr.,
473 U.S. at 442, 105 S.Ct. at 3255-56, 87 L.Ed.2d at 322 (mentally retarded people are different from
other classes of people, "immutably so, in relevant respects"); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396,
72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have "legal characteristic[s] over which
children can have little control"); Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d
651, 660 (1976) (status of illegitimacy "is, like race or national origin, a characteristic determined by
causes not within the control of the illegitimate individual"); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770,
36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ("[S]ex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth....").

45Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household are
"not a minority or politically powerless"); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87
L.Ed.2d at 324 (refusing to find "that the mentally retarded are politically powerless"); San Antonio Indep.
Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40 (considering whether minority and poor
school children were "relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process").
46Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d
407 (2008).

47
Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466 U.S. 429, 433-34, 104 S.Ct. 1879,
1882-83, 80 L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S.
1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning immutability
requirement and scrutinizing classification of resident aliens closely despite aliens' voluntary status as
residents); Mathews, 427 U.S. at 505-06, 96 S.Ct. at 2762-63, 49 L.Ed.2d at 660-61 (according
heightened scrutiny to classifications based on illegitimacy despite mutability and political power of
illegitimates); Murgia, 427 U.S. at 313-14, 96 S.Ct. at 2567, 49 L.Ed.2d at 525 (omitting any reference to
immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at 1292, 36 L.Ed.2d at 38 (omitting
any reference to immutability); Frontiero, 411 U.S. at 685-88, 93 S.Ct. at 1770-71, 36 L.Ed.2d at 591-92
(Brennan, J., plurality opinion) (scrutinizing classification based on gender closely despite political power
of women); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541-42
(1971) (foregoing analysis of immutability); see also Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91
L.Ed.2d at 533 (referring to whether members of the class "exhibit obvious, immutable, or distinguishing
characteristics that define them as a discrete group").

Concurring and Dissenting Opinion of Mr. Justice Thurgood Marshall in Cleburne v. Cleburne Living
48

Center, Inc., infra.

49 Varnum v. Brien, supra note 41.

50 Id.

51 Id.

52 Id.; Kerrigan v. Commissioner of Public Health, supra note 46.

53 Kerrigan v. Commissioner of Public Health, id.

54 Varnum v. Brien, supra note 41.

55 Id.

56 Id.

57 Supra note 46.

58 See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 442, 105 S.Ct. 3249 (for purposes of
federal constitution, mental retardation is not quasi-suspect classification because, inter alia, "it is
undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in
the everyday world"); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 315, 96 S.Ct. 2562 (age
is not suspect classification because, inter alia, "physical ability generally declines with age"); see also
Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ("[i]t is an unfortunate
fact of life that physical [capacity] and mental capacity sometimes diminish with age").

59 L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-33, p. 1616.

60Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991) (quoting 1985 Resolution of the American
Psychological Association), 976 F.2d 623 (10th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445,
124 L.Ed.2d 662 (1993).

61 Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 440, 105 S.Ct. 3249.

62 Kerrigan v. Commissioner of Public Health, supra note 46.

63 Id.

64 Id.
 65 Varnum v. Brien, supra note 41.

66 Id.

67 Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

68 Id. citing In re Marriage Cases, 183 P.3d at 442.

69 Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

70 Id.

71 Kerrigan v. Commissioner of Public Health, supra note 46.

72 Varnum v. Brien, supra note 41, citing Kerrigan v. Commissioner of Public Health, supra note 46.

73 Id.

74 Kerrigan v. Commissioner of Public Health, supra note 46.

75 Id.

76
Id.

77 Id.

78 Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620.

79 Id.

80 Section 5(2), Article VI of the 1987 Constitution states, in relevant part:

SECTION 5. x x x x

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous
cultural communities, women, youth, and such other sectors as may be provided by law, except
the religious sector. (italics supplied)

81 On the other hand, Section 5 of RA 7941 provides:

SECTION 5. Registration. — Any organized group of persons may register as a party,

organization or coalition for purposes of the party-list system by filing with the COMELEC not
later than ninety (90) days before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national, regional or sectoral party or
organization or a coalition of such parties or organizations, attaching thereto its constitution, by-
laws, platform or program of government, list of officers, coalition agreement and other relevant
information as the COMELEC may require: Provided, That the sectors shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals. (italics supplied)

82 G.R. No. 147589, June 26, 2001, 359 SCRA 698.

83 Id.

The Lawphil Project - Arellano Law Foundation

 DISSENTING OPINION

CORONA, J.:

Stripped of the complicated and contentious issues of morality and religion, I believe the basic issue here is
simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of the Constitution and RA 7941, as a
marginalized and underrepresented sector in the party-list system?

The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the respondent
Commission on Elections as a political organization of a marginalized and underrepresented sector under the
party-list system. Finding that petitioner is not a marginalized sector under RA 7941, the Commission on
Elections denied its petition.

A System For Marginalized

And Underrepresented Sectors

The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the advancement of
social justice with the fundamental purpose of affording opportunity to marginalized and underrepresented
sectors to participate in the shaping of public policy and the crafting of national laws. It is premised on the
proposition that the advancement of the interests of the marginalized sectors contributes to the advancement of
the common good and of our nation’s democratic ideals.

But who are the marginalized and underrepresented sectors for whom the party-list system was designed?

The Texts of the Constitution

And of RA1 7941

The resolution of a constitutional issue primarily requires that the text of the fundamental law be consulted.
Section 5(2), Article VI of the Constitution directs the course of our present inquiry. It provides:

SEC. 5. x x x

(2) The party-list representatives shall constitute twenty per centum of the total number of Representatives
including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half
of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector. (emphasis supplied)

The Constitution left the matter of determining the groups or sectors that may qualify as "marginalized" to the
hands of Congress. Pursuant to this constitutional mandate, RA 7941 or the Party-List System Act was enacted
in 1995. The law provides:

Section 2. Declaration of policy. — The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State
shall develop and guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives by enhancing their chances
to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

xxx xxx xxx

Section 5. Registration. — Any organized group of persons may register as a party, organization or coalition for
purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election
a petition verified by its president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching
thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and
other relevant information as the COMELEC may require: Provided, That the sectors shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it
was submitted for decision but in no case not later than sixty (60) days before election.

Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu propio or upon verified
complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national,
regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered. (emphasis supplied)

The Court’s Previous Pronouncements

As the oracle of the Constitution, this Court divined the intent of the party-list system and defined its meaning in
Ang Bagong Bayani-OFW Labor Party v. Commission on Elections:2

That political parties may participate in the party-list elections does not mean, however, that any political party --
or any organization or group for that matter -- may do so. The requisite character of these parties or
organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and
RA 7941. x x x

The Marginalized and Underrepresented to Become Lawmakers Themselves

[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by means of the
Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino
citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole.
The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack
[of] well-defined constituencies."

"Proportional representation" here does not refer to the number of people in a particular district, because the
party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed
group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the
enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and underrepresented,
because representation is easy to claim and to feign. The party-list organization or party must factually and truly
represent the marginalized and underrepresented constituencies mentioned in Section 5. Concurrently, the
persons nominated by the party-list candidate-organization must be "Filipino citizens belonging to marginalized
and underrepresented sectors, organizations and parties."

Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable electoral group,
like voters of a congressional district or territorial unit of government. Rather, it points again to those with
disparate interests identified with the "marginalized or underrepresented."

In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and
underrepresented" become members of Congress under the party-list system, Filipino-style.

The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those
who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with
this intent, the policy of the implementing law, we repeat, is likewise clear: "to enable Filipino citizens belonging
to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the
House of Representatives." Where the language of the law is clear, it must be applied according to its express
terms.

The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in
Section 5 of RA 7941, which states:

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for
purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election
a petition verified by its president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching
thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and
other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear
intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle
of statutory construction that words employed in a statute are interpreted in connection with, and their meaning
is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the
meaning of a term in a statute may be limited, qualified or specialized by those in immediate association.

xxx xxx xxx

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated
by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the
OSG’s position to treat them similarly defies reason and common sense. In contrast, and with admirable candor,
Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that a group of bankers, industrialists and sugar
planters could not join the party-list system as representatives of their respective sectors.

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither
marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power
more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from
the size of one’s constituency; indeed, it is likely to arise more directly from the number and amount of one’s
bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in
poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to give them not only
genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific
concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of
the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for
genuine change. Verily, it invites those marginalized and underrepresented in the past – the farm hands, the
fisher folk, the urban poor, even those in the underground movement – to come out and participate, as indeed
many of them came out and participated during the last elections. The State cannot now disappoint and frustrate
them by disabling and desecrating this social justice vehicle.

xxx xxx xxx

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list
system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary
to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the
law could not have given the same tool to others, to the prejudice of the intended beneficiaries.

This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither
marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must
permeate every discussion of the qualification of political parties and other organizations under the party-list
system. (emphasis and underscoring supplied)

Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is reserved only
for those sectors marginalized and underrepresented in the past (e.g., labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
professionals and even those in the underground movement who wish to come out and participate). They are
those sectors traditionally and historically marginalized and deprived of an opportunity to participate in the
formulation of national policy although their sectoral interests are also traditionally and historically regarded as
vital to the national interest. That is why Section 2 of RA 7941 speaks of "marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will benefit the nation as a whole."

How should the matter of whether a particular sectoral interest is vital to national interest (and therefore
beneficial to the nation as a whole) be determined? Chief Justice Reynato S. Puno’s opinion3 in Barangay
Association for National Advancement and Transparency (BANAT) v. Commission on Elections4 offers valuable
insight:

… Similarly, limiting the party-list system to the marginalized and excluding the major political parties from
participating in the election of their representatives is aligned with the constitutional mandate to "reduce social,
economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political
power for the common good"; the right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making; the right of women to opportunities
that will enhance their welfare and enable them to realize their full potential in the service of the nation; the right
of labor to participate in policy and decision-making processes affecting their rights and benefits in keeping with
its role as a primary social economic force; the right of teachers to professional advancement; the rights of
indigenous cultural communities to the consideration of their cultures, traditions and institutions in the
formulation of national plans and policies, and the indispensable role of the private sector in the national
economy.

As such, the interests of marginalized sectors are by tradition and history vital to national interest and therefore
beneficial to the nation as a whole because the Constitution declares a national policy recognizing the role of
these sectors in the nation’s life. In other words, the concept of marginalized and underrepresented sectors
under the party-list scheme has been carefully refined by concrete examples involving sectors deemed to be
significant in our legal tradition. They are essentially sectors with a constitutional bond, that is, specific sectors
subject of specific provisions in the Constitution, namely, labor,5 peasant,6 urban poor,7 indigenous cultural
communities,8 women,9youth,10 veterans,11 fisherfolk,12 elderly,13 handicapped,14 overseas workers15 and
professionals.16

The premise is that the advancement of the interests of these important yet traditionally and historically
marginalized sectors promotes the national interest. The Filipino people as a whole are benefited by the
empowerment of these sectors.
The long-muffled voices of marginalized sectors must be heard because their respective interests are intimately
and indispensably woven into the fabric of the national democratic agenda. The social, economic and political
aspects of discrimination and marginalization should not be divorced from the role of a particular sector or group
in the advancement of the collective goals of Philippine society as a whole. In other words, marginalized sectors
should be given a say in governance through the party-list system, not simply because they desire to say
something constructive but because they deserve to be heard on account of their traditionally and historically
decisive role in Philippine society.

A Unifying Thread

Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function as official
interpreter of the Constitution, the Court should always bear in mind that judicial prudence means that it is safer
to construe the Constitution from what appears upon its face.17

With regard to the matter of what qualifies as marginalized and underrepresented sectors under the party-list
system, Section 5(2), Article VI of the Constitution mentions "the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except the religious sector." On
the other hand, the law speaks of "labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals."18

Surely, the enumeration of sectors considered as marginalized and underrepresented in the fundamental law
and in the implementing law (RA 7941) cannot be without significance. To ignore them is to disregard the texts
of the Constitution and of RA 7941. For, indeed, the very first of Ang Bagong Bayani-OFW Labor Party’s eight
guidelines for screening party-list participants is this: the parties, sectors or organizations "must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941."19

For this reason, I submit the majority’s decision is cryptic and wanting when it makes short shrift of the issue of
whether petitioner is a marginalized and underrepresented sector in the following manner:

The crucial element is not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.

The resolution of petitions for accreditation in the party-list system on a case-to-case basis not tethered to the
enumeration of the Constitution and of RA 7941 invites the exercise of unbridled discretion. Unless firmly
anchored on the fundamental law and the implementing statute, the party-list system will be a ship floating
aimlessly in the ocean of uncertainty, easily tossed by sudden waves of flux and tipped by shifting winds of
change in societal attitudes towards certain groups. Surely, the Constitution and RA 7941 did not envision such
kind of a system.

Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Section 5 of RA
7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party:

"Proportional representation" here does not refer to the number of people in a particular district, because the
party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed
group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the
enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and underrepresented,
because representation is easy to claim and to feign. The party-list organization or party must factually and truly
represent the marginalized and underrepresented constituencies mentioned in Section 5. Concurrently, the
persons nominated by the party-list candidate-organization must be "Filipino citizens belonging to marginalized
and underrepresented sectors, organizations and parties."

xxx xxx xxx

The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in
Section 5 of RA 7941, which states:

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for
purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election
a petition verified by its president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching
thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and
other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear
intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle
of statutory construction that words employed in a statute are interpreted in connection with, and their meaning
is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the
meaning of a term in a statute may be limited, qualified or specialized by those in immediate
association.20(emphasis and underscoring supplied)

More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits "marginalized and
underrepresented sectors" and expressly refers to the list in Section 5 thereof:

Section 3. Definition of Terms. — x x x

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in
Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector, x x x.
(emphasis supplied)

Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its charges of violation of
non-establishment of religion, equal protection, free speech and free association are all leveled at the assailed
resolutions of the Commission on Elections.) Thus, petitioner admits and accepts that its case must rise or fall
based on the aforementioned provisions of RA 7941.

Following the texts of the Constitution and of RA 7941, and in accordance with established rules of statutory
construction and the Court’s pronouncement in Ang Bagong Bayani-OFW Labor Party, the meaning of
"marginalized sectors" under the party list system is limited and qualified. Hence, other sectors that may qualify
as marginalized and underrepresented should have a close connection to the sectors mentioned in the
Constitution and in the law. In other words, the marginalized and underrepresented sectors qualified to
participate in the party-list system refer only to the labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, professionals and other related
or similar sectors.

This interpretation is faithful to and deeply rooted in the language of the fundamental law and of its implementing
statute. It is coherent with the mandate of the Constitution that marginalized sectors qualified to participate in the
party-list system but not mentioned in Section 5(2), Article VI are "such other sectors as may be provided by
law" duly enacted by Congress. It is also consistent with the basic canon of statutory construction, ejusdem
generis, which requires that a general word or phrase that follows an enumeration of particular and specific
words of the same class, the general word or phrase should be construed to include, or to be restricted to
persons, things or cases, akin to, resembling, or of the same kind or class as those specifically
mentioned.21 Moreover, it reins in the subjective elements of passion and prejudice that accompany discussions
of issues with moral or religious implications as it avoids the need for complex balancing and undue policy-
making.

What is the unifying thread that runs through the marginalized and underrepresented sectors under the party-list
system? What are the family resemblances that would characterize them?22

Based on the language of the Constitution and of RA 7941 and considering the pronouncements of this Court in
Ang Bagong Bayani-OFW Labor Party and BANAT, the following factors are significant:

(a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5 of
RA 7941;

(b) they must be sectors whose interests are traditionally and historically regarded as vital to the national
interest but they have long been relegated to the fringes of society and deprived of an opportunity to
participate in the formulation of national policy;
 (c) the vinculum that will establish the close connection with or similarity of sectors to those expressly
mentioned in Section 5 of RA 7941 is a constitutional provision specifically recognizing the special
significance of the said sectors (other than people’s organizations, unless such people’s organizations
represent sectors mentioned in Section 5 of RA 7941)23 to the advancement of the national interest and

(d) while lacking in well-defined political constituencies, they must have regional or national presence to
ensure that their interests and agenda will be beneficial not only to their respective sectors but, more
importantly, to the nation as a whole.

For Purposes of the Party-List System,

Petitioner is Not a Marginalized Sector

In this case, petitioner asserts that it is entitled to accreditation as a marginalized and underrepresented sector
under the party-list system. However, the Commission on Elections disagrees.

The majority reverses the Commission on Elections. While it focuses on the contentious issues of morality,
religion, equal protection, and freedom of expression and association, by granting the petition, the majority
effectively rules that petitioner is a qualified marginalized and underrepresented sector, thereby allowing its
accreditation and participation in the party-list system.

I disagree.

Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals and
transsexuals (LGBT) is underrepresented, it cannot be properly considered as marginalized under the party-list
system. First, petitioner is not included in the sectors mentioned in Section 5(2), Article VI of the Constitution and
Section 5 of RA 7941. Unless an overly strained interpretation is resorted to, the LGBT sector cannot establish a
close connection to any of the said sectors. Indeed, petitioner does not even try to show its link to any of the said
sectors. Rather, it represents itself as an altogether distinct sector with its own peculiar interests and agenda.

Second, petitioner’s interest as a sector, which is basically the legal recognition of its members’ sexual
orientation as a right, cannot be reasonably considered as an interest that is traditionally and historically
considered as vital to national interest. At best, petitioner may cite an emergent awareness of the implications of
sexual orientation on the national human rights agenda. However, an emergent awareness is but a confirmation
of lack of traditional and historical recognition.24 Moreover, even the majority admits that there is no "clear cut
consensus favorable to gay rights claims."25

Third, petitioner is cut off from the common constitutional thread that runs through the marginalized and
underrepresented sectors under the party-list system. It lacks the vinculum, a constitutional bond, a provision in
the fundamental law that specifically recognizes the LGBT sector as specially significant to the national interest.
This standard, implied in BANAT, is required to create the necessary link of a particular sector to those sectors
expressly mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941.

Finally, considering our history and tradition as a people, to consider the promotion of the LGBT agenda and
"gay rights" as a national policy as beneficial to the nation as a whole is debatable at best. Even the majority
(aside from extensively invoking foreign practice and international conventions rather than Philippine laws)
states:

We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus favorable to
gay rights claims….26

This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are, without doubt,
indisputable.

Regardless of the personal beliefs and biases of its individual members, this Court can only apply and interpret
the Constitution and the laws. Its power is not to create policy but to recognize, review or reverse the policy
crafted by the political departments if and when a proper case is brought before it. Otherwise, it will tread on the
dangerous grounds of judicial legislation.

In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the Constitution,
enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it enumerated certain sectors
as qualified marginalized and underrepresented sectors under the party-list system. Respect for that policy and
fidelity to the Court’s duty in our scheme of government require us to declare that only sectors expressly
mentioned or closely related to those sectors mentioned in Section 5 of RA 7941 are qualified to participate in
the party-list system. That is the tenor of the Court’s rulings in Ang Bagong Bayani-OFW Labor Party and
BANAT. As there is no strong reason for the Court to rule otherwise, stare decisis compels a similar conclusion
in this case.

The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather than expanding,
legislative policy on the matter of marginalized sectors as expressed in the enumeration in Section 5 of RA 7941.
The Court has no power to amend and expand Sections 2, 3(d) and 5 of RA 7941 in the guise of interpretation.
The Constitution expressly and exclusively vests the authority to determine "such other [marginalized] sectors"
qualified to participate in the party-list system to Congress. Thus, until and unless Congress amends the law to
include the LGBT and other sectors in the party-list system, deference to Congress’ determination on the matter
is proper.

A Final Word

To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of discriminatory and
oppressive acts against its members. I am in no position to make that claim. Nor do I claim that petitioner has no
right to speak, to assemble or to access our political departments, particularly the legislature, to promote the
interests of its constituency. Social perceptions of sexual and other moral issues may change over time, and
every group has the right to persuade its fellow citizens that its view of such matters is the best.27 But persuading
one’s fellow citizens is one thing and insisting on a right to participate in the party-list system is something else.
Considering the facts, the law and jurisprudence, petitioner cannot properly insist on its entitlement to use the
party-list system as a vehicle for advancing its social and political agenda.

While bigotry, social stereotyping and other forms of discrimination must be given no place in a truly just,
democratic and libertarian society, the party-list system has a well-defined purpose. The party-list system was
not designed as a tool to advocate tolerance and acceptance of any and all socially misunderstood sectors.
Rather, it is a platform for the realization of the aspirations of marginalized sectors whose interests are, by
nature and history, also the nation’s but which interests have not been sufficiently brought to public attention
because of these sectors’ underrepresentation.

Congress was given by the Constitution full discretion to determine what sectors may qualify as marginalized
and underrepresented. The Court’s task is to respect that legislative determination by strictly adhering to it. If we
effectively and unduly expand such congressional determination, we will be dabbling in policy-making, an act of
political will and not of judicial judgment.

Accordingly, I respectfully vote to dismiss the petition.

RENATO C. CORONA
Associate Justice

Footnotes

1 Republic Act.

2 412 Phil. 308 (2001).

3 The Chief Justice’s stance is the official stance of the Court on the matter because majority of the
members of the Court sided with him on the issue of disallowing major political parties from participating
in the party-list elections, directly or indirectly.

4 G.R. No. 179271, 21 April 2009, 586 SCRA 210, 258-259.

5 Section 18, Article II; Section 3, Article XIII.

6 Section 21, Article II; Section 4, Article XIII.

 7 Section 9, Article II; Section 10, Article XIII.

8 Section 22, Article II; Section 5, Article XII.

9 Section 14, Article II; Section 14, Article XIII.

10 Section 13, Article II; Section 3(2), Article XV.

11 Section 7, Article XVI.

12 Paragraph three of Section 2, Article XII, Section 7, Article XIII.

13 Section 11, Article XIII.

14 Sections 11 and 13 XIII.

15 Section 18, Article II; Section 3, Article XIII.

16 Section 14, Article XII.

17 Civil Liberties Union v. Executive Secretary, G.R. No.83896, 22 February 1991, 194 SCRA 317, 337.

18
See proviso of the first paragraph of Section 5, RA 7941.

19 Supra note 2 at 342.

20 Supra note 2.

21 Miranda v. Abaya, 370 Phil. 642, 658 (1999).

22The notion of family resemblances (familienähnlichkeit) was introduced by the leading analytic
philosopher, Ludwig Wittgenstein, in his book Philosophical Investigations. As used in this opinion,
however, family resemblances specifically refer to the DNA, the basic component unit, that identifies a
sector as a member of the family of marginalized and underrepresented sectors enumerated in Section
5(2), Article VI of the Constitution and Section 5 of RA 7941.

23The reason behind this exception is obvious. If all people’s organizations are automatically considered
as marginalized and underrepresented, then no sector or organization may be disqualified on the
grounds of non-marginalization and lack of underrepresentation. The Court’s guidelines in Ang Bagong
Bayani-OFW Labor Party would have been unnecessary after all and, worse, the constitutional
requirement that the sectors qualified to participate in the party-list system be determined by law would
have been merely superfluous and pointless.

24 Lawrence v. Texas, 539 U.S. 558 (2003), (Scalia, J., dissenting).

25 Decision, p. 23.

26 Id.

27 Lawrence v. Texas, supra note 29 (J. Scalia, dissenting).

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
ABAD, J.:

I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del Castillo
because I arrived at the same conclusion following a different path.

I also felt that the Court needs, in resolving the issues in this case, to say more about what the Constitution and
Republic Act (R.A.) 7941 intends in the case of the party-list system to abate the aggravations and confusion
caused by the alarming overnight proliferation of sectoral parties.

The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized and
underrepresented sectors of society an opportunity to take a direct part in enacting the laws of the land. In Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC),1 the Court laid down guidelines for
accreditation, but these seem to leave the COMELEC like everyone else even more perplexed and
dumbfounded about what organizations, clubs, or associations can pass for sectoral parties with a right to claim
a seat in the House of Representatives. The Court can, in adjudicating this case, unravel some of the difficulties.

Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral party accreditation
on religious and moral grounds. The COMELEC has never applied these tests on regular candidates for
Congress. There is no reason for it to apply them on Ang Ladlad. But the ponencia already amply and lucidly
discussed this point.

What I am more concerned about is COMELEC’s claim in its comment on the petition that the Ang Ladlad
sectoral party was not marginalized and underrepresented since it is not among, or even associated with, the
sectors specified in the Constitution and in R.A. 7941.2 Ang Ladlad, it claims, did not qualify as a marginalized
and underrepresented group of people like those representing labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. This
is effectively the COMELEC’s frame of mind in adjudicating applications for accreditation.

But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent with the purpose and
spirit of the Constitution and the law. A reading of Ang Bagong Bayani will show that, based on the Court’s
reading, neither the Constitution nor R.A. 7941 intends the excessively limited coverage that the COMELEC now
suggests. In fact, the Court said in that case that the list in R.A. 7941 is not exclusive. Thus, while the party-list
system is not meant for all sectors of society, it was envisioned as a social justice tool for the marginalized and
underrepresented in general.

As it happened, the only clue that the Constitution provides respecting the identity of the sectors that will make
up the party-list system is found in the examples it gives, namely, the labor, the peasant, the urban poor, the
indigenous cultural minorities, the women, and the youth segments of society. Section 5(2), Article VI of the
1987 Constitution provides:

(2) The party-list representative shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except the religious
sector." (Underscoring supplied.)

Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A. 7941 a broad
standard for screening and identifying those who may qualify for the party-list system. Thus:

Sec. 2. Declaration of policy. The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered regional and
sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, and who lack well defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of Representatives.
Towards this end, the State shall develop and guarantee a full, free and open party system or group
interests in the House of Representatives by enhancing their chances to compete for and win seats in
the legislature, and shall provide the simplest scheme possible. (Underscoring supplied.)

The above speaks of "marginalized and underrepresented sectoral parties or organizations x x x lack well
defined political constituencies x x x who could contribute to the formulation and enactment of appropriate
legislation." But, as the Court said in Ang Bagong Bayani, the whole thing boils down to ascertaining whether the
party seeking accreditation belongs to the "marginalized and underrepresented."3

Unfortunately, Congress did not provide a definition of the term "marginalized and underrepresented." Nor did
the Court dare provide one in its decision in Ang Bagong Bayani. It is possible, however, to get a sense of what
Congress intended in adopting such term. No doubt, Congress crafted that term—marginalized and
underrepresented—from its reading of the concrete examples that the Constitution itself gives of groupings that
are entitled to accreditation. These examples are the labor, the peasant, the urban poor, the indigenous cultural
minorities, the women, and the youth sectors. Fortunately, quite often ideas are best described by examples of
what they are, which was what those who drafted the 1987 Constitution did, rather than by an abstract
description of them.

For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant, and a tiger" and
concluding that it is a gathering of "animals." Here, it looked at the samples of qualified groups (labor, peasant,
urban poor, indigenous cultural minorities, women, and youth) and found a common thread that passes through
them all. Congress concluded that these groups belonged to the "marginalized and underrepresented."

So what is the meaning of the term "marginalized and underrepresented?" The examples given (labor, peasant,
urban poor, indigenous cultural minorities, women, and youth) should be the starting point in any search for
definition. Congress has added six others to this list: the fisherfolk, the elderly, the handicapped, the veterans,
the overseas workers, and the professionals.4 Thus, the pertinent portion of Section 5 of R.A. 7941 provides:

Sec. 5. Registration. – x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals.

If one were to analyze these Constitutional and statutory examples of qualified parties, it should be evident that
they represent the working class (labor, peasant, fisherfolk, overseas workers), the service
class (professionals), the economically deprived (urban poor), the social outcasts (indigenous cultural
minorities), the vulnerable (women, youth) and the work impaired (elderly, handicapped, veterans). This
analysis provides some understanding of who, in the eyes of Congress, are marginalized and underrepresented.

The parties of the marginalized and underrepresented should be more than just lobby or interest groups. They
must have an authentic identity that goes beyond mere similarities in background or circumstances. It is not
enough that their members belong to the same industry, speak the same dialect, have a common hobby or
sport, or wish to promote public support for their mutual interests. The group should be characterized by a
shared advocacy for genuine issues affecting basic human rights as these apply to their groups. This is in
keeping with the statutory objective of sharing with them seats in the House of Representatives so they can take
part in enacting beneficial legislation.

It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by examples a
sense of what the qualified organizations should look like. As the Court acknowledged in Ang Bagong Bayani,
these examples are not exclusive. For instance, there are groups which are pushed to the margin because they
advocate an extremist political ideology, such as the extreme right and the extreme left of the political divide.
They may be regarded, if the evidence warrants, as qualified sectors.

Further, to qualify, a party applying for accreditation must represent a narrow rather than a specific definition of
the class of people they seek to represent. For example, the Constitution uses the term "labor," a narrower
definition than the broad and more abstract term, "working class," without slipping down to the more specific and
concrete definition like "carpenters," "security guards," "microchips factory workers," "barbers," "tricycle drivers,"
and similar sub-groupings in the "labor" group. See the other illustrations below.

Broad *Narrow Specifically Defined Groups

Definition Definition

Working Class Labor Carpenters, security guards, microchip

factory workers, barbers, tricycle drivers

Economically Urban Informal settlers, the jobless, persons displaced by domestic wars
Deprived Poor
 The Vulnerable Women Working women, battered women,
victims of slavery

Work Impaired Handi- Deaf and dumb, the blind, people on wheelchairs
Capped

*The definition that the Constitution and R.A. 7941 use by their examples.

Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the party-list system is
the second, the narrow definition of the sector that the law regards as "marginalized and underrepresented." The
implication of this is that, if any of the sub-groupings (the carpenters, the security guards, the microchips factory
workers, the barbers, the tricycle drivers in the example) within the sector desires to apply for accreditation as a
party-list group, it must compete with other sub-groups for the seat allotted to the "labor sector" in the House of
Representatives. This is the apparent intent of the Constitution and the law.

An interpretation that will allow concretely or specifically defined groups to seek election as a separate party-list
sector by itself will result in riot and redundancy in the mix of sectoral parties grabbing seats in the House of
Representatives. It will defeat altogether the objectives of the party-list system. If they can muster enough votes,
the country may have a party-list of pedicab drivers and another of tricycle drivers. There will be an irrational
apportionment of party-list seats in the legislature.

In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list system must
state if they are to be considered as national, regional, or sectoral parties. Thus:

Sec. 5. Registration. – Any organized group of persons may register as a party, organization or coalition
for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before
the election a petition verified by its president or secretary stating its desire to participate in the party-
list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, x x x.

This provision, taken alongside with the territorial character of the sample sectors provided by the Constitution
and R.A. 7941, indicates that every sectoral party-list applicant must have an inherently regional
presence (indigenous cultural minorities) or a national presence (all the rest).

The people they represent are not bound up by the territorial borders of provinces, cities, or municipalities. A
sectoral group representing the sugar plantation workers of Negros Occidental, for example, will not qualify
because it does not represent the inherently national character of the labor sector.

Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it represents the
marginalized and underrepresented. That is easy to do. The party must factually and truly represent the
marginalized and underrepresented. It must present to the COMELEC clear and convincing evidence of its
history, authenticity, advocacy, and magnitude of presence. The COMELEC must reject those who put up
building props overnight as in the movies to create an illusion of sectoral presence so they can get through the
door of Congress without running for a seat in a regular legislative district.

In sum, to qualify for accreditation:

One, the applying party must show that it represents the "marginalized and underrepresented,"
exemplified by the working class, the service class, the economically deprived, the social outcasts, the
vulnerable, the work impaired, or some such similar class of persons.

Two, the applying party should be characterized by a shared advocacy for genuine issues affecting basic
human rights as these apply to the sector it represents.

Three, the applying party must share the cause of their sector, narrowly defined as shown above. If such
party is a sub-group within that sector, it must compete with other sub-groups for the seat allocated to
their sector.
 Four, the members of the party seeking accreditation must have an inherent regional or national
presence.

And five, except for matters the COMELEC can take judicial notice of, the party applying for accreditation
must prove its claims by clear and convincing evidence.

In this case, Ang Ladlad represents men and women who identify themselves as lesbians, gays, bisexuals, or
trans-gendered persons (LGBTs). Applying the universally accepted estimate that one out of every 10 persons is
an LGBT of a certain kind,5 the Filipino LGBTs should now stand at about 8.7 million. Despite this, however, they
are by and large, subtly if not brutally, excluded from the mainstream, discriminated against, and persecuted.
That the COMELEC denied Ang Ladlad’s petition on religious and moral grounds is proof of this discrimination.

Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been documented. At
home, effeminate or gay youths are subjected to physical abuse by parents or guardians to make them conform
to standard gender norms of behavior, while lesbian youths are raped to cure them of their perceived affliction.
LGBTs are refused admission from certain schools, or are suspended and put on probation. Meanwhile, in the
workplace, they are denied promotions or benefits which are otherwise available to heterosexuals holding the
same positions. There is bigotry for their group.

Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their members are
in the vulnerable class like the women and the youth. Ang Ladlad represents a narrow definition of its class
(LGBTs) rather than a concrete and specific definition of a sub-group within the class (group of gay beauticians,
for example). The people that Ang Ladlad seeks to represent have a national presence.

The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, sisters, friends,
or colleagues who have suffered in silence all these years. True, the party-list system is not necessarily a tool for
advocating tolerance or acceptance of their practices or beliefs. But it does promise them, as a marginalized and
underrepresented group, the chance to have a direct involvement in crafting legislations that impact on their lives
and existence. It is an opportunity for true and effective representation which is the very essence of our party-list
system.

For the above reasons, I vote to GRANT the petition.

ROBERTO A. ABAD
Associate Justice

Footnotes

1 412 Phil. 308 (2001).

2 Comment, pp. 2-6.

3"In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and
underrepresented" become members of Congress under the party-list system, Filipino style." Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections, supra note 1, at 334.

4Section 5. Registration.—x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals.

5 http://www.aglbical.org/2STATS.htm.