REPUBLIC OF THE PTULIPPINES

SUPREME COURT
MANILA

EN BANC

JESUS NICARDO M. FALCIS III, G.R. No. 217910

Petitioner,

-versus-

CIVIL REGISTRAR-GENERAL,
Respondent.
x-----------------------------------------------------------------------------------x

COMMENT
(AD CAUTELAM)

Respondent Civil Registrar-General, through the Office of the

Solicitor General (OSG), respectfully states:

I.
STATEMENT OF THE CASE

1. The Honorable Court is being asked to decide whether the

Constitution confers petitioner a fundamental right to seek the
nullification of legislation that defines marriage as a "contract ... between a
man an d a woman .... "

2. While the Honorable Court is not constitutionally disabled

from answering grave questions of law, the principle of separation of
powers and existing jurisprudence require conditions precedent for their
proper resolution-the presence of a "case or controversy," presented by
litigants with standing, and invoking rights that are legally demandable and
enforceable against accountable parties.

3. The present petition, however, is so intrinsically flawed that it

is incumbent upon the Honorable Court to summarily dismiss the case.
Comment Ad Ca11telam 2 G.R. No. 217910

4. In light of the fundamental defects in the petition, the

Honorable Court's resolution of the merits of this case would simply be
an advisory opinion, 1 without binding effect on real parties that were not
impleaded.

5. Even as reasons for an expanded judicial review remain open

for the Court, those justifications cannot be invoked without "concrete
adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional
.
questions ... "2

6. This Co1nment is therefore being filed ad cautelam in view of

the basic errors in the petition, which fundamental jurisdictional flaws
preclude the Honorable Court from addressing the substantive matters it
purports to raise.

II.
MATERIAL DATES

7. On 18 May 2015, petitioner Jesus Nicardo M. Falcis III

directly filed before the Honorable Court a Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court.

8. The present petition seeks to:

(a) declare Articles 1, 2, 46(4), and 55(6) of the Family

Code as unconstitutional on the ground that Congress
gravely abused its discretion in "defining and limiting
n1arriagc as between man and woman;"3 and

(b) "prohibit the civil registrar-general from enforcing the

portions of Articles 1 and 2 of the Family Code in
processing applications for and in issuing marriage
licenses against homosexual couples."4 Petitioner
claims that "homosexuals are deprived of their right to
due process, equal protection, the right to decisional
and marital privacy, and the right to found a family in

1
Velanle v. Soda/ Soiiety o/Jesus, G.R. No. 159357, 28 April 2004.
2 Bakerv. Carr; 369 U.S. 186 (1962).
3 Petition, p. 13.
4 Petition, p. 2.
Comment Ad Cat1te!am 3 G.R. No. 217910

accordance with their religious or irreligious

convictions. s

9. On 22 June 2015, Fernando P. Perito filed an Answer-in-

Intervention, which the Honorable Court treated as a Motion to Intervene
with Answer-in-Intervention.6

10. On 28 July 2015, the OSG received a copy of the present

petition dated 18 May 2015. In a resolution dated 30 June 2015, the
Honorable Court, without giving due course to the petition, directed
respondent to file its Comment to the petition.

III.
ISSUE

WHETHER THE HONORABLE COURT HAS JURISDICTION

TO GIVE DUE COURSE TO THE PETITION

IV.
ARGUMENTS

A. PETITIONER LACKS LEGAL STANDING

FOR FAILURE TO SHOW HE SUFFERED
"INJURY IN FACT."

B. THE PETITION IS A REQUEST FOR AN

ADVISORY OPINION.

C. PETITIONER FAILED TO IM PLEAD

CONGRESS, AN INDISPENSABLE PARTY IN
THIS CASE.

D. PETITIONER ERRONEOUSLY IMPLEADED

THE CIVIL REGISTRAR-GENERAL.

E. PETITIONER VIOLATED THE PRINCIPLE

OF HIERARCHY OF COURTS.

s Petition, p. 8.
6 Resolution dated 28 July 2015.
Comment Ad Catttelam 4 G.R. No. 217910

F. PETITIONER'S INVOCATION OF THE

DOCTRINE OF TRANSCENDENTAL
IMPORTANCE CANNOT REMEDY THE
FUNDAMENTAL FLAWS OF THE CASE HE
PRESENTED.

v.
DISCUSSION

11. Lack of Standing. Petitioner comes before the Honorable

Court as an "open and self-identified homosexual" who is "interested in
the unconstitutionality of the provisions of the Family Code disallowing
same-sex marriage." 7 However, mere "interest," academic or otherwise, is
not enough. Law students readily recognize these allegations as
insufficient justifications for impugning the constitutionality of Articles 1,
2, 46(4), and 55(6) of the Family Code. This is an invitation to a debate or
coffee-shop conversation, not a constitutional litigation. What we have
here is a failure to distinguish between a "cause" and a "cause of action,"
or between filing a "case" and, in constitutional parlance, having a "case
or controversy."

12.In the language of doctrine, petitioner has not demonstrated

any "injury in fact" from the operation of the Family Code. Injury in fact
is the litigant's "personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of [the law's]
enforcement." 8 Whatever injury petitioner feels is non-particularized for
the reason that his interest is shared with the entire universe of people
who agree with his advocacy.

13. Petitioner also argues that his "ability to find and enter into
long-tenn monogamous same-sex relationships is impaired because of the
absence of a legal incentive for gay individuals to seek such relationship."
Not only is this non-sequitur, it also demeans the capacity of homosexuals
to enter into committed relationships. Even if this claim rises to the level
of an argument, no additional argu1nent is presented as to why the
creation of an across-the-board, systemic incentive through the
recognition of same-sex marriage will lead specific gay individuals to
choose petitioner over any other homosexual.

7 IJetition, p. 10.
8 ]umami! v. Cafe, G.R. No. 144570, 21 September 2005.
Comment Ad Caute!am 5 G.R. No. 217910

14. It is notable that petitioner has also failed to couch his suit in
the form of a class action. Given that petitioner does not seek to
represent the class of human beings who may have been injured by the
absence of a law recognizing same-sex marriages, the merits of his petition
must be judged on the basis of the particular details of his case which, on
its face, are devoid of allegations of injury in fact.

15. Other than a political dispute with the terms of the Family
Code, petitioner does not provide any evidence of how the law was
specifically brought to bear upon his person. For one, he does not show
how an act of his chosen respondent-the Civil Registrar-General-has
impaired any of his rights. For another, he makes no claim that any officer
supervised by the Civil Registrar-General-any local civil registrar in the
country-has been ordered in any manner to impede petitioner in the
exercise of his rights such as, for exa1nple, by way of denial of his request
for the issuance of a marriage license.

16. Thus, apart from the other fundainental defects in the

petition, this suit fails to show a nexus between the petitioner and the
respondent which is usually established by evidence of (or, at least, an
allegation of) an injury-causing act of respondent that gives petitioner a
cause of action. The ordinary sanction for defective pleadings is summary
dismissal, and petitioner has not shown any cause for special treatment.

17. Advisory Opinion. The absence of a case or controversy in this

suit is highlighted by the scant averment of "facts" in the petition. The
entirety of petitioner's "antecedent facts" is as follows-

4. On June 18, 1949, then President approved Republic Act

No. 386, otherwise known as the "Civil Code of the Philippines"
(the "Civil Code").

5. Articles 52, 53, and 54 of the Civil Code did not define
and limit marriage as between man and woman.

6. On July 6, 1987, then President Corazon C:. Aquino

issued, under her legislative powers, Executive Order No. 209,
otherwise known as the Family Code. The Family Code took effect
on August 3, 1988.

7. Articles 1 and 2 of the Family Code repealed Articles 52,

53, and 54 of the Civil Code, thus changing and limiting the
definition of marriage as between man and woman.
Comment Ad Cau!elam 6 G.R. No. 217910

18. Evidently, petitioner makes no attempt to provide any factual

anchor for triggering the exercise of the Honorable Court's jurisdiction,
"expanded" or not, "traditional" or otherwise. The allegations of fact in a
petition serve the important purpose of predicating the grounds for a
court's assmnption of jurisdiction over a case. The paucity of the
allegations here is a ground for summary dismissal because it effectively
prevents the Honorable Court from assessing the procedural and
substantive posture of the issue in this suit.

19. For the Honorable Court to indulge petitioner would be an

"attempt at abstraction [that! could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities." 9 Any
judgment in this case "amounts in fact to no more than an expression of
opinion upon the validity of the acts in question." 10 As a prudential
matter, the Honorable Court must seriously consider whether a question
of such far-reaching implications as the constitutional status of
homosexual marriage should be resolved through the lens of a petition
such as the one brought here.

20. Failure to Implead Congress. In essence, this suit is fashioned as a

legal challenge to the current legislative policy on same-sex marriage. The
relief it seeks is the nullification of certain provisions of law on the ground
that there exists an incompatibility between Congress' obligation to a class
of citizens and its current code of family relations. And yet, petitioner has
not impleaded Congress. This blatant omission is additional cause for an
outright dismissal.

21. The Congress is an indispensable party in this case because

the petition's cause of action is directed against a legislative policy, not an
administrative concern that the respondent Civil Registrar-General can act
upon. In Pepsico, Inc. v. Emerald Pizza, Inc., 11 the Honorable Court ruled
that-

[a]n indispensable party is a party-in-interest without whom no final

determination can be had of an action, and who shall be joined
either as plaintiff or defendant. The joinder of indispensable parties
is mandatory .... The absence of an indispensable party renders all
subsequent actions of the court null and void for want of authority

9
Atc~atu v. Elecioml Commfrsion,
63 Phil. 139 (1936).
10 Muskmtv. Umted States, 219 U.S. 346 (1911).
11 G.R. No. 153059, 14 August 2007.
Comment Ad Caute!atn 7 G.R. No. 217910

to act, not only as to the absent parties but even as to tbose

present. 12

22. The principle of separation of powers and interdepartmental

courtesy ainong coordinate and co-equal branches of government compel
the Honorable Court to, at the very least, give Congress the opportunity
to participate in the proceedings and present its side of the controversy.

23. Policies on social organizations-their basic forms and

details, privileges and responsibilities-from families to corporations are
distinctly legislative concerns. Capacity to enter into contracts, rn
particular, has traditionally been within the legislature's sphere of
competence, within constitutional limits. Whether by negligence or
ignorance, petitioner has failed to summon Congress in this case. He
cannot be allowed to seek judicial review of a definitionally-fundamental
aspect of marriage as we know it today without impleading the institution
of government responsible for that policy.

24. Error in Impleading the Civil Registrar-General. Although the

petition is couched as one for certiorari, petitioner does not show how the
Civil Registrar-General could have acted in grave abuse of discretion in
relation to applications for a marriage license. In fact, petitioner did not
show any particular instance when the Civil Registrar-General acted in any
manner with respect to an application for a marriage license. The reality is
that petitioner and his suit have no factual connection with the Civil
Registrar-General.

25. Under Rule 65, Section 1 of the Rules of Court, a petition for
certiorari tnust allege with specificity the jurisdictional errors committed by
the respondent in the performance of its functions. The petitioner can
only avail of a writ of certiorari "[w]hen any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law."13

26. Prohibition is also not the appropriate remedy because

respondent is not exercising any ministerial function. Under Rule 65,
Section 2 of the Rules of Court, a petitioner may file a petition for
prohibition when the "tribunal, corporation, board, officer or person [is]

12 Id.
13 RUI.FS OF COU!tr, Rule 65, Sec. 1.
Comment Ad Cautelam 8 G.R. No. 217910

... exercising judicial, quasi-judicial or ministerial functions" and its acts

are "without or in excess of its or his jurisdiction, or with grave abuse of
discretion ainounting to lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law". The Civil Registrar-General is neither exercising a judicial
or quasi-judicial function nor a ministerial function in relation to
petitioner's allegations.

27. To be sure, the Civil Registrar-General merely exercises

technical supervision over local civil registrars. Under Section 2 of Act
No. 3753, the Civil Registrar 1nerely "give[s] orders and instructions to the
local civil registrars with reference to the performance of their duties as
such." This is an executive function-administrative, and not quasi-
judicial-which is beyond the ambit of review under Rule 65.

28. The Honorable Court, in numerous instances, has

pronounced that Section 1, Rule 65 of the Rules of Court confines the
remedy of certiorari to the tribunal, board or officer's grave abuse of
discretion in exercising judicial and quasi-judicial functions.

29. In Chamber of Real Estate and Builders Associations, Inc. v. The

Seiretaiy of Agrarian Refi!!m, 14 petitioner filed a Petition for Certiorari and
Prohibition, which assailed the constitutionality of Department of
Agrarian Reform (DAR) Administrative Order (AO) No. 01-02, as
amended. In dismissing the petition, the Honorable Court explained-

The Secretary of Agra1ian Reform does not fall 'W'ithin the ambit of a
tribunal, board, or officer exercising judicial or quasi-judicial
functions. The issuance and enforcement by the Secretary of
Agrarian Reform of the questioned DAR AO No. 01-02, as
amended, and J\femorandum No. 88 were done in the exercise of his
quasi-legislative and administrative functions and not of judicial or
quasi-judicial functions ...

Furthermore, as this Court has previously discussed, the instant

petition in essence seeks the declaration by this Court of the
unconstitutionality or illegality of the questioned DAR AO No. 01-
02, as amended, and l'vfemorandum No. 88. Thus, the adequate and
proper remedy for the petitioner therefor is to file a Petition for
Declaratory Relief, which this Court has only appellate and not
original jurisdiction. It is beyond the province of certiorari to
declare the aforesaid administrative issuances unconstitutional

14 G.R. No. 183409, 18 June 2010.

Comment Ad Ca11telmn 9 G.R. No. 217910

and illegal because certiorari is confined only to the

determination of the existence of grave abuse of discretion
amounting to lack or excess of jurisdiction. Petitioner cannot
simply allege grave abuse of discretion amounting to lack or
excess of jurisdiction and then invoke certiorari to declare the
aforesaid administrative issuances unconstitutional and illegal.
Emphasis must be given to the fact that the writ of certiorari dealt
with in Rule 65 of the 1997 Revised Rules of Civil Procedure is a
prerogative writ, never dcmandablc as a matter of right, "never
issued except in the exercise of judicial discretion."15

30. In Advocates for Truth in Lending, Inc. v. Bangko Sentral A1onetary

Boan:l, 16 the Honorable Court dismissed the Petition for Certiorari filed by
petitioner, which sought to declare the illegality of Central Bank (CB)
Circular No. 905 for procedural infirmities. The Honorable Court ruled
that certiorari will not lie to assail CB Circular No. 905 since it was issued in
the exercise of an executive function. According to the Honorable Court,
"[t]he [Central Bank-Monetary Board] was created to perform executive
functions with respect to the establishment, operation or liquidation of
banking and credit institutions, and branches and agencies thereof."

31. In Damdao v. Secretary of Justice,1 7 the Honorable Court held

that the Petition for Certiorari, Prohibition and Mandamus should be
dismissed since the "petition did not show that the Secretary of Justice
was an officer exercising judicial or quasi-judicial functions [in issuing
Department of Justice Order No. 182) ... The function involved was
purely executive or administrative."

32. The Honorable Court further stated: "[t]he burden of proof

lies on petitioners to demonstrate that the assailed order was issued
without or in excess of jurisdiction or ·with grave abuse of discretion
amounting to lack or excess of jurisdiction."

33. It also bears emphasis that it is the local civil registrar, not the
Civil Registrar-General, who issues a marriage license to couples who
intend to marry in the Philippines. Article 9 of the Family Code provides
that "[a] marriage license shall be issued by the local civil registrar of the
city or municipality where either contracting party habitually resides ... " In
any case, the ministerial duty of local civil registrars is to issue marriage
licenses to heterosexual couples, and not to couples of the same sex.

15 E111phasis supplied.

16G.R. No. 192986, 15 January 2013.

17 C.R. No. 188056, 08 January 2013.
Comment Ad Cautelam 10 G.R. No. 217910

34. In any event, petitioner's case challenges the Family Code,

not an act of the Civil Registrar-General or of the local civil registrar. No
jurisdictional errors can be imputed against the respondent given the
character of her relationship with local civil registrars and since even the
local civil registrar exercises only a ministerial duty in issuing 1narriage
licenses. Articles 11 to 19 of the Family Code 18 prescribe the actions that

18 F.\Wl.Y CODE. Art. 11. \\11ere a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar which shall
specify the follo\.ving:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
(6) Present residence and citizenship;
(TJ Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) l.:.'ull na1ne, residence and citizenship of the mother; and
(10) Full na1nc, residence and citizenship of the guardian or petson having charge, in case
the contracting party has neither father nor mother and is under the age of t\venty-one years.

'l 'he applicants, their parents or guardians shall not be required to exhibit their residence
certificates in any formality in connection with the securing of the rnarriage license.

Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the
original birth certificates or, in default thereof, the baptisn1al certificates of the contracting parties or
copies of such documents duly attested hy the persons having custody of the originals. These
certificates or certified copies of the documents by this 1\rticle need not be sworn to and shall be
cxctnpt frotn the docutnentary statnp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptistnal certificate or a
certified copy of either because of the destruction or loss of the original or if it is shown by an
affi<laYit of such party or of any other person that such birth or baptistnal certificate has not yet been
received tl1ough the san1e has been required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu thereof his current residence
certificate or an instrurr1ent drawn up and S'\vorn to before the local civil registrar concerned or any
public official authorized to administer oaths. Such instnunent shall contain the S\vom declaration of
two \Vitnesses of la\vful age, setting forth tl1e full 11an1e, residence and citizenship of such contracting
party and of his or her parents, if known, and the place and date of hirth of such party. The nearest
of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.

'Ihe presentation of birth or baptismal certificate shall not be required if the parents of the
contracting parties appear personally before the local civil registrar concerned and s\vear to the
correctness of the la\.vful age of said parties, as stated in the application, or when the local civil
registrar shall, hy merely looking at the applicants upon their personally appearing before him, be
convinced that either or both of then1 have the required age.

i\rt. 13. In case either of the contracting parties has been previously n1arried, the applicant shall be
required to flirnish, instead of the birth or baptistnal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the
judicial decree of annuh11e11t or declaration of nullity of his or her previous marriage.

In case the death certificate cannot be secured, the party shall 111ake an affidavit setting forth
this circumstance and his or her actual civil status and the name and date of death of the deceased
spouse.
Comment Ad Cautelam 11 G.R. No. 217910

the local civil re1:,risttar shall take in processing applications for a marriage
license. These are bureaucratic procedures, not quasi-judicial actions.
There can be no grave abuse of discretion when a government office
perfonns its ministerial duty under the law.

Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous
n1arriage, are behveen the ages of eighteen and hventy~one, they shall, in addition to the requiren1cnts
of the preceding articles, exhibit to the local civil registrar, the consent to their n1arriage of their
father, mother, surviving pa.tent or guardian, or persons having legal charge of them, in the order
111entioned. Such consent shall be manifested in "\Vt.icing by the interested party, who personally
appears before the proper local civil registrar, or in the forrn of an affidavit 1nade in the presence of
t\vo "\v-1tnesscs and attested before any official authorized by law to administer oaths. The personal
n1anifestation shall be recorded in both applications for tnarriage license, and the affidavit, if one is
executed instead, shall be attached to said applications.

Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask
their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or
if it be unfa\'orable, the marriage license shall tiot be issued till after three n1onths follo"\ving the
cornpletion of the publication of the application therefor. A S\Votn staten1ent by the contracting
parties to the effect tl1at such advice has been sought, together with the "\Vritten adv"ice given, if any,
shall be attached to the application for marriage license. Should the parents or guardian refuse to give
any advice, this fact shall be stated in the s\vorn statetnent.

.L\rt. 16. In the cases where parental consent or parental advice is needed, the party or parties
concerned shall, in addition to the requiren1ents of the preceding articles, attach a certificate issued by
a priest, llnatn or n1inister authorized to soletnnize n1arriage under Article 7 of this (~ode or a
marriage counselor duly accredited by tl1e proper governn1ent agency to the effect that the
contracting parties have undergone marriage counseling. Failure to attach said certificates of martiage
counseling shall suspend the issuance of the n1arriage license for a period of three months fron1 the
con1pletion of the publication of the application. Issuance of the n1arriage license within the
prohibited period shall subject the issuing officer to adtninistrative sanctions but shall not affect the
valic-lity of the 111arriage.

Should only one of the contracting parties need parental consent or parental advice, the
other party tnust be present at the counseling refetred to in the preceding paragraph.

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a n1arriage license and other data given in the applications. The notice
shall be posted for ten consecutive days on a bu1lctin boatd outside the office of the local civil
registrar located in a conspicuous place within the building and accessible to the general public. This
notice shall request all persons having kno\"\dedge of any itnpeditnent to the marriage to advise the
local civil registtar thereof. 'I'he marriage license shall be issued after the completion of the period of
publication.

Art. 18. In case of any impecl1111ent known to the local civil rcgistrat or brought to his attention, he
shall note dov.'n the particulars thereof and his findings thereon in t11e application for n1arriage
license, but shall nonetheless issue said license after the con1pletion of the period of publication,
unless ordered othet\vise by a co111petent court at his O\.VU instance or that of any interest party. No
filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the
order.

Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations
before the issuance of the marriage license. No other sun1 sha11 be collected in the nature of a fee or
tax of any kind for tl1e issuance of said license. It shall, ho\vever, be issued free of charge to it1digent
parties, that is those "\vho have no visible means of incotne or "\vhose income is insufficient for their
subsistence a fact established by their affidavit, or by their oath before the local civil registrar.
Comment Ad Cautelam 12 G.R. No. 217910

35. Error in Relief Sought. Indeed, the grant of the reliefs sought in
the petition will not lead to the establishment "of a legal incentive for gay
individuals to seek [same-sex] rclationship[s]." This is because petitioner
has not sought a writ of manda1nus as part of his requested set of relief.

36. Even if the Honorable Court were to issue the writs of

certiorari and prohibition, such relief would not lead to the recognition of
same-sex marriages, which requires a positive act from Congress.

37. Petitioner disingenuously refers to Articles 52, 53, and 54 of

the Civil Code to make it appear as if, prior to the passage of the Family
Code, the state policy was same-sex marriage-friendly. This is simply not
true.

38. The Civil Code only allows heterosexual marriage. Parties

who are legally capacitated to contract marriage under Article 54, in
relation to Article 53, 19 of the Civil Code arc "male ... and... female," not
"males or females"-

Any male of the age of sixteen years or upwards, and any female of
the age of fourteen years or upwards, not under any of the
impediments mentioned in articles 80 to 84, may contract marriage.

39. A marriage certificate is only issued to contracting parties

who "shall state that they take each other as husband and wife." 20 Title V
and Title VI of the Civil Code, in fact, only governs the "rights and obligations
between husband and wife," and the "property relations between husband
and wife," respectively.

40. That the Civil Code only sanctions heterosexual marriage is

further bolstered by petitioner's failure to cite a particular instance when
parties of the same sex were issued a marriage certificate and got married
under the Philippine law.

41. Hierardy of courts. Petitioner disregarded the hierarchy of

courts by directly filing this case before the Honorable Court. The

19 J\rt. 53. No n1arriage shall be solen1nized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) 1\uthority of the person perforn1ing the marriage; and
(4) A n1arriage license, except in a marriage of exceptional character (Sec. la, art.
3613). (Emphasis supplied).
20 C!Vll. CODE, Art. 67.
Conunent Ad Cautelam 13 G.R. No. 217910

concurrent jurisdiction of the Honorable Court and the lower courts to

issue writs of ce1tiora1i and prohibition do not give petitioner unrestricted
choice of forum. 21 Even in cases where the Honorable Court is vested
with original concurrent jurisdiction, it remains a court of last resort, not a
court of first instance.

42. Lack of transcendental importance. While the question raised in

the petition may be consequential, petitioner's invocation of the doctrine
of transcendental importance cannot remedy the fundamental flaws in his
petition. The lack of a concrete basis for triggering the Honorable Court's
exercise of its jurisdiction militates against the claim that the resolution of
petitioner's questions is a matter of transcendental importance. "Courts
do not sit to adjudicate mere academic questions to satisfy scholarly
interest therein, however intellectually solid the problem may be." 22

43. In Chamber of Real Estate and Builders' Associations, Inc. v. Ene1:gy

Regulatory Commission, 23 the Honorable Court adopted the standards
suggested by Justice Florentino Feliciano 24 in determining whether a case
is a matter of transcendental importance:

(1) the character of the funds or other assets involved in the case; (2)
the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in the questions being
raised. 25

The petition does not fall under any of these standards.

44. In Obergefell v. Hodges, 26 the United States Supre1ne Court held

that "same sex couples may exercise the funda111ental right to marry in all
States" 27 in the context of "States [that are] divided on the issue of same-
sex marriage." 28 The Obergefell decision was rendered in view of
"[n]umerous cases about same-sex marriage [that] have reached the

21 Banez. v. C011eepdo11, G.R. Nos. 99289-90, 27 January 1993; Daa1dao v. Semtary Raul Gonzales, G.R.
No. 188056, 8 January 2013.
22 Philippine Anodation of Co/legeJ mzd Unfrmities v. Semla1y of Education, G.R. No. L-5279, 31 October

1955.
23 G.R. No. 174697, 8July 2010.
24 Concurring Opinion in Kzlsobayan v. Guingona, G.R. No. 113375, 5 May 1994.

''Id
26 576 U.S._ (2015).

27 Id. at 28 (Slip Opinion).

28 Id. at 10.
Comment Ad Cautelam 14 G.R. No. 217910

United States Court of Appeals in recent years."29 Thus, the U.S. Supreme
Court stated that-

In accordance with the judicial duty to base their decisions on

principled reasons and neutral discussions, without scornful or
disparaging commentary, courts have written a substantial body of
law considering all sides of these issues. That case law helps to
explain and formulate the underlying principles this Court now must
consider. 30

45. In the present case, the Honorable Court would have no case
law, much less any factual elements mixed in the judicial cauldron, that
would help it "explain and formulate the underlying principles" about the
constitutional status of same-sex marriage in the Philippines. To decide
here would be to brew with missing ingredients.

46. An attempt to "formulate ... underlying principles" would be

more problematic in a proceeding without an actual case or controversy.
The U.S. Supreme Court in Ober:gefell was faced with concrete situations
where parties "sustained, or will sustain, direct injury" 31 as a result of State
laws prohibiting same-sex marriage-

... Petitioner James Obergefell, a plaintiff in the Ohio case, met John
Arthur over two decades ago. They fell in love and started a life
together, establishing a lasting, committed relation. In 2011,
however, Arthur was diagnosed with amyotrophic lateral sclerosis, or
ALS. This debilitating disease is progressive, with no known cure.
Two years ago, Obergefell and Arthur decided to commit to one
another, resolving to marry before Arthur died. To fulfill their
mutual promise, they traveled from Ohio to Maryland, where same-
sex marriage was legal. It was difficult for Arthur to move, and so
the couple were wed inside a medical transport plane as it remained
on the tarmac in Baltimore. Three months later, Arthur died. Ohio
law does not permit Obergefell to be listed as the surviving spouse
on Arthur's death certificate. By statute, they must remain strangers
even in death, a state-imposed separation Obergefell deems "hurtful
for the rest of time." ... He brought suit to be shown as the surviving
spouse on Arthur's death certificate.

April DeBoer and Jayne Rowse are co-plaintiffs in the case

from Michigan. 'Ibey celebrated a commitment ceremony to honor
their permanent relation in 2007. They both work as nurses, DeBoer

z9 Id.
30 Id
3! Peope v. Vera, G.R. No. L-45685, 16 November 1937.
Comment Ad Cattle/am 15 C.R. No. 217910

in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer

and Rowse fostered and then adopted a baby boy. Later that same
year, they welcomed another son into their family. The new baby,
born prematurely and abandoned by his biological mother, required
around-the-clock care. The next year, a baby girl with special needs
joined their family. l'vlichigan, however, permits only opposite-sex
married couples or single individuals to adopt, so each child can
have only one woman as his or her legal parent. If an emergency
were to arise, schools and hospitals may treat the three children as if
they had only one parent. And, were tragedy to befall either DeBoer
or Rowse, the other would have no legal rights over the children she
had not been pemiitted to adopt. This couple seeks relief from the
continuing uncertainty their unmarried status creates in their lives.

Army Reserve Sergeant First Class ljpe DeKoe and his

part11er Thomas Kostura, co-plaintiffs in the Tennessee case, fell in
love. In 2011, DeKoe received orders to deploy to Afghanistan.
Before leaving, he and Kostura married in New York. A week later,
DeKoe began his deployment, which lasted for almost a year. When
he returned, the two settled in Tennessee, where DeKoe works full-
time for the Army Reserve. Their lawful marriage is stripped from
them whenever they reside in Tennessee, returning and disappearing
as they travel across state lines. DeKoe, who served tliis Nation to
preserve the freedom the Constitution protects, must endure a
substantial burden.32

47. In Ober:gefell, there were actual cases where persons were being
injured by State laws which targeted the rights of a married couple. The
suits therein took decades of litigation, planning, political advocacy,
legislative debates, and coalition-building. In contrast, petitioner-all by
himself, unassisted-puts on the line the future of a social movement and
gambles the right of homosexuals in an ill-timed suit that might
underwhelm even well-meaning sympathizers.

48. At the turn of the 20<h century, James Bradley Thayer wrote
that the "[t]endency of a common and easy resort to [the] great function
[of judicial review], now lamentably too common, is to dwarf the political
capacity of the people, and deaden its sense of moral responsibility."33 We
invoke Thayer's wisdom in seeking the dis1nissal of the present suit.

2
' Supra note 26, 4-6.
33 J.B. T!LWER,JOllN lvlARSfL\LJ. 106-107 (1901).
Comment Ad Cautelam 16 G.R. No. 217910

PRAYER

It is respectfully prayed that the Honorable Court DENY DUE

COURSE TO or DISMISS the petition for its jurisdictional defects.

Other just and eguitable reliefs are likewise prayed for.

l\fakati City for Manila, 28 .March 2016.

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village
1229 l\fakati City
Tel. No.: 8186301 to 09 (rrunkline)
Fax No.: 8176037
Website: www.osg.guv.ph
Email: ducket@osg.gov.ph

IBP Lifetime No. 08505

MCLE Exemption No. V-000908, 12-03-15

MAXI~b-'P:f\ULI~-:-S~­
Ojficer-in-Charge, Lorenzo Tafiada Division
Roll No. 59301
IBP Lifetime No. 012977
MCLE Compliance No. IV-0025306, 08-13-2015

GER
Associate Solicitor
Roll No. 59797
IBP No. 987719; 1-07-2015
MCLE Compliance No. V-0011787; 11-10-15
Comment Ad Caute!am 17 G.R. No. 217910

LILIBE'~12l~EREZ
Associate Solicitor
Roll No. 62428
IBP No. 1005409, 15
MCLE Exempt, Admitted 2013

Copies furnished:

Jesus Nicardo M. Falcis Ill

Co1mse!for Petitioner
47-E Scout Rallos St., Brgy. Laging Banda
Quezon City 1103

Civil Registrar-General
Public 1'espondent
3'd Floor, NSO-C:VEA Bldg.
East .Avenue, Diliman
Quezon City

Fernando P. Petito
Intervenor
Rm. 14, Bldg. 2, Plaza Pacita
Brgy. Nueva, Pacita Complex
San Pedro, Laguna

EXPLANATION
(Pursuant to Rule 13, Section 11 of the Rules of Court)

This is being served by registered mail due to lack of sufficient personnel in

the OSG to effect personal service.

;/:.- ~
LILIBETH C. PEREZ
Assoliate So!idtor
 REPUBLIC OF THE PHILIPPINES

AFFIDAVIT OF SERVICE
A. ESIGl!'ffi\i§ftdi!§Of April 1992)

I, - - - - - - - - - ' OFFICE OF THE SOLICITOR GENERAL,

with Office address at 134 Amorsolo St., Legaspi Village Makati City, after being sworn to depose and say:

That on 03/29/2016 , I caused to be served a copy of the following pleading/paper:

NATURE OF THE PLEADING

Comment

In case No. GR NO. 217910 , entitled JESUS NICARDO M. FALCIS Ill

VS. CIVIL REGISTRAR-GENERAL

pursuant to Section 3,4,5 and 10, Rule 13 of the Rules of Court, as follows:

By Personal Service To: ( ) By depositing a copy to the party or his/her attorney

on as shown on p _ __
SC
( ) By leaving a copy in his/her clerk or with a person
Manila, , Philippines having charge tl"J;j?. r.,e.pf.on as shown on p
r1/:1.ir /f.J
( ) By delivering a copy ro4fU!lliurt/Tribunal Office on
_____ as shown on p _ _ _ .

By Registered Mail To: ( ) By depositing copy on in the Post

Office at _________ as evidenced by Registry
Fernando P. Prieto
Receipt(s) No.(s) hereto attached and
Intervenor
indicated after the name (s) of the addresse(s), and
Rm. 14, Bldg. 2, Plaza Pacita
Brgyffueva, Pacita c·omplex with instruction to the postmaster to return the mail to
San Pedro, Laguna. , Philippines the sender after (10) days if undelivered.
Atty. Jesus Nicardo M. Falcis Ill
Counsel for Petitioner
47-E Scout Rallos St., Brgy. Laging Handa
OuezonClty 1103, , Philippines
Civil Registrar General
Public Respondent
3rd Floor, NSO-CVEA Bldg.
East Avenue, Diliman, Quezon Cffy, , Philippines
 ("'
Makati, Metro Manila, Phililippines

(A~
' '· ~,, c.•·.>
SUBSCRIBED AND SWORN to before me this . 0( .· . . .. . . ·,p~. at Makati
City, Philippines. Affiant exhibiting to me his _ _ _ _ _ _ _ _ _ _ _ _ __ say City.

~,,.,,,,,
............
·' .lli. /f Q:._,;,,
Illllll lllll llll llllll lllll lllll lllll lllll lllll 111111111111111111111111111111111 -~· ~.,-·---- -7~-~·-

Solicitor, Officer Administering the Oath

15-020127-0015 Office of the Solicitor General
 VERIFIED DECLARATION

I, LILIBETH C. PEREZ, hereby declare that the documents hereto

submitted electronically in accordance with the Efficient Use of Paper Rule are
complete and true copies of the documents filed with the Supreme Court.

LIL~tt. PEREZ
Associate Sofiiitor
29 lVIarch 2016

SUBSC:IUBED AND SWORN TO before me on this 29'h day of March 2016,

affiant exhibiting his OSG Employee ID No. 2015-07002.