You have the right to have sex, have kids outside marriage

An unmarried woman has a liberty interest under the due process clause to engage in consensual sexual relations with an unmarried man and bear a child with him as a result of said relations. I submit this Opinion to show that (I) considering jurisprudential precedents and Filipino tradition, it is high time this Court recognize this liberty interest as a fundamental right entitled to State protection. Thus, pregnancy of an employee out of wedlock cannot constitute just cause for termination from employment absent any showing that the pregnancy was contracted under grossly immoral circumstances; and (II) a contrary ruling would violate the constitutional guarantee of equal protection of the law and result in an unwarranted difference in treatment of men and women under like circumstances. (Written by Justice Jardeleza in his separate concurring opinion in the case of Union School International v. Dagdag, G.R. No. 234186, November 21, 2018).

Our Constitution guarantees that no person shall be deprived of liberty without due process of law. Liberty, in turn, has been generally defined by this Court as the freedom to do those things which are ordinarily done by free men.[1] Traditionally, the exercise of liberty interests is protected from arbitrary government interference. Where the government is able to show a rational relation between its action and a legitimate governmental interest, judicial attitude toward the challenged state action is deferential and government intrusions into liberty interests are generally upheld.[2] This deference, however, stops when the governmental act infringes on a fundamental right. In such cases, the Court requires "a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice."[3]

An unmarried woman has a liberty interest to engage in consensual sexual relations with an unmarried man and bear a child with him as a result of said relations. I submit that it is high time that the Court recognize this liberty interest as "fundamental," as to require a higher burden of proof to justify its intrusion.[4]

In this jurisdiction, fundamental rights have been deemed to include only those basic liberties explicitly or implicitly guaranteed by the Bill of Rights of the Constitution.[5] Admittedly, there is nothing in our Bill of Rights which explicitly guarantees a right in favor of an unmarried woman to engage in consensual sexual relations with an unmarried man, and thereafter bear a child with him. Precedential decisions of this Court, however, support the recognition of the fundamental nature of this liberty interest.

A general right to personal privacy is recognized in the United States, with its Supreme Court declaring that liberties extend to "certain personal choices central to individual dignity and autonomy x x x"[6] The right to privacy was first expressly recognized in the 1965 case of Griswold v. Connecticut,[7] where the US Supreme Court upheld a privacy right to use contraceptives in favor of married couples. (Later on, a similar right in favor of unmarried individuals would be recognized in the case of Eisenstadt v. Baird.[8])

The above opinion was written by Justice Jardeleza in his separate concurring opinion in the case of Union School International v. Dagdag, G.R. No. 234186, November 21, 2018.


CITATIONS:

[1] Rubi v. The Provincial Board of Mindoro, 39 Phil. 660, 705 (1919).

[2] British American Tobacco v. Camacho, G.R. No. 163583, April 15, 2009, 585 SCRA 36, 40-44.

[3] Central Bank Employees Association v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004, 446 SCRA 299, 387. Italics omitted.

[4] Id.

[5] Republic v. Manalo, G.R No. 221029, April 24, 2018, citing J. Carpio-Morales, Dissenting Opinion in Central Bank Employees Association v. Bangko Sentral ng Pilipinas, supra note 3, also as cited by J. Brion, Separate Opinion in Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78.

[6] Obergefell v. Hodges, 576 U.S. ____ (2015), citing Griswold v. Connecticut, 381 U.S. 479 (1965); and Eisenstadt v. Baird, 405 U.S. 438 (1972). See discussion in Roe v. Wade, 410 U.S. 113 (1973). See also liberty and privacy discussion in J. Jardeleza, Concurring Opinion in Capin-Cadiz v. Brent Hospital, G.R. No. 187417, February 24, 2016, 785 SCRA 18, 45-50.

[7] 381 U.S. 479, 485-486 (1965) In striking down a Connecticut statute forbidding the use of contraceptives, the Griswold Court held:

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." x x x Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. (Citation omitted.)

[8] 405 U.S. 438, 453-454 (1972). The Court, applying equal protection, held:

x x x [W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.

If, under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. x x x

On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried, but not to married, persons. In each case, the evil, as perceived by the State, would be identical, and the under inclusion would be invidious. xxx (Citations omitted.)

See also Roe v. Wade, 410 U.S. 113 (1973), where the Court held that the constitutional right to privacy also encompasses a woman's choice whether to terminate her pregnancy within the first trimester and Planned Parenthood of Southern Pa. v. Casey, 505 U.S. 833 (1992), which affirmed the essential ruling in Roe. (Written by Justice Jardeleza in his separate concurring opinion in the case of Union School International v. Dagdag, G.R. No. 234186, November 21, 2018)

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