Obergefell v. Hodges, the road to perdition?

The most controversial decision of the US Supreme Court after Roe v. Wade, the decision which recognizes the right of a pregnant woman to have an abortion, was laid down two weeks ago. In the case of Obergefell v. Hodges, the US Supreme Court declared that same-sex couples have a fundamental right to marry. The majority opinion held that the prohibition for same-sex marriage is a violation of the Equal Protection Clause guaranteed under Fourteenth Amendment of the US Constitution. The decision decreed that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry, according to the majority opinion penned by Justice Kennedy.

Four justices vigorously dissented to the majority opinion of their other five fellow magistrates. They are unanimous in claiming that the Supreme Court violated the Constitution when it decreed that same-sex marriage is a legal right and must be allowed all over the USA. They pointed out that the issue calls for the enactment of laws by the Legislature and not for an interpretation of the Constitution by the court. Chief Justice John Roberts chided the majority in stating: "If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it." 

Justice Antolin Scalia, who is known for his staunch Catholic positions in many cases before the US Supreme Court, considered the majority opinion as an insult to democracy. He claimed that the court’s decree implied that his Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. He said that the court had ended the public debates about same-sex marriage in an opinion lacking even a thin veneer of law. What the court did, according to him is a naked judicial claim to legislative — indeed, super-legislative — power, a claim fundamentally at odds with the American system of government. He declared: A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”  In his concluding paragraph, Justice Scalia pointed out that the court is in the road of impotence: "With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the 'reasoned judgment' of a bare majority of this Court — we move one step closer to being reminded of our impotence."

The Equal Protection Clause under Section 1, Article III of the 1987 Philippine Constitution was patterned after the Fourteenth Amendment of the US Constitution. In spite of this, the Philippine Supreme Court has relied on its earlier rulings to resolve cases brought under the said constitutional guarantee. The prevailing principle is that foreign laws and decisions can be used only if there is no local law or jurisprudence applicable to controversies pending before our courts.

Until the Philippine Supreme Court rule on the matter, there is no telling whether this controversial US decision will make any dent on its wisdom when it rule on the pending case which seeks to invalidate the provision of the Family Code which limits marriage to male and female parties. For now, we can only hope that the court will not be reckless in treading the same path that led the United States of America into the road to perdition.