[ G.R. No. 234186, November 21, 2018 ]
UNION SCHOOL INTERNATIONAL REPRESENTED BY PASTOR ABRAHAM CHO [SCHOOL SUPERINTENDENT], JAIME NABUA [BOARD PRESIDENT], AND JENNIFER MANDAPAT [SCHOOL HEAD], PETITIONERS, V. CHARLEY JANE DAGDAG, RESPONDENT.
CONCURRING OPINION
JARDELEZA, J.:
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.
I
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
A
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)
In this jurisdiction, the constitutional right to personal privacy was first explicitly acknowledged in 19689 when the Court, in Morfe v. Mutuc,10 adopted the ruling in Griswold, declaring thus:
x x x The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy.Ꮮαwρhi৷ There is much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect. x x x
x x x x
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implications though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. x x x11 (Emphasis supplied; citations omitted.)
On the other hand, in Leus v. St. Scholastica 's College Westgrove,12 this Court has held that the fact that an unmarried female employee gives birth out of wedlock does not give cause for administrative sanction for disgraceful and immoral conduct under the 1992 Manual of Regulations for Private Schools (1992 MRPS) if the father of her child is himself unmarried.13 The Court said:
x x x It may be a not-so-ideal situation and may cause complications for both mother and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief systems irrespective of dogmatic origins.14 (Emphasis omitted.)
This ruling was subsequently affirmed in Capin-Cadiz v. Brent Hospital and Colleges, Inc.,15 which involved a suit questioning Brent Hospital's act of putting an unwed, pregnant employee on suspension until she marries her child's father in accordance with law. In ruling in favor of the female employee, the Court in Cadiz recognized a woman's inherent, intangible and inalienable right to choose her status, that is, to choose freely a spouse and to enter into marriage only with her free and full consent.16 In my Concurring Opinion in Cadiz, I first ventured that this freedom to choose also includes the freedom to decide whether she will bear and rear her child without the benefit of marriage.17
More recently, the fundamental right to marry was again recognized in Republic v. Manalo,18 where this Court upheld a liberty interest on the part of a Filipino spouse to be re-capacitated to marry, in cases where a valid foreign divorce has been obtained.
I submit that the foregoing jurisprudential holdings recognizing fundamental rights to marriage and privacy can and should extend to include a right on the part of an unmarried woman to engage in consensual sexual relations with an unmarried man and bear a child with him as a result. As I explained in my Concurring Opinion in Cadiz:
x x x [T]he rights to personal liberty and privacy are embodied in the Due Process Clause and expounded by jurisprudence. These rights pertain to the freedom to make personal choices that define a human being's life and personhood. The decision to marry and to whom are two of the most important choices that a woman can make in her life. In the words of the US Supreme Court in Obergefell "[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were." The State has no business interfering with this choice. Neither can it sanction any undue burden of the right to make these choices. Brent, in conditioning Christine Joy's reinstatement on her marriage, has effectively burdened her freedom. She was forced to choose to lose her job or marry in order to keep it. By invoking the MRPS and the Labor Code, Brent is, in effect, saying that this kind of compelled choice is sanctioned by the State. Contrary to this position, the State cannot countenance placing a woman employee in a situation where she will have to give up one right (the right to marry as a component of personal liberty and privacy) for another (the right to employment). This is not the kind of State that we are in. Nor is it the kind of values that our Constitution stands for.
x x x x
Christine Joy has the right to decide how she will rear her child. If this choice involves being a single mother for now or for good, no law or government issuance may be used to interfere with this decision. Christine Joy, and all other women similarly situated, should find refuge in the protection extended by the Constitution.
The Constitution highlights the value of the family as the foundation of the nation. Complementary to this, the Family Code of the Philippines provides that marriage is the foundation of the family. Indeed, our laws and tradition recognize that children are usually reared and families built within the confines of marriage. The Constitution and the laws, however, merely express an ideal. While marriage is the ideal starting point of a family, there is no constitutional or statutory provision limiting the definition of a family or preventing any attempt to deviate from our traditional template of what a family should be.
In other jurisdictions, there is a growing clamor for laws to be readjusted to suit the needs of a rising class of women—single mothers by choice. These countries are faced with the same predicament that Brent confronted in this case — their rules have lagged behind the demands of the times. Nevertheless, in our jurisdiction, the Constitution remains as the guide to ascertain how new situations are to be dealt with. In Christine Joy's case, the Constitution tells us that her right to personal liberty and privacy protects her choice as to whether she will raise her child in a marriage. Brent, in dismissing Christine Joy because of her pregnancy outside of wedlock, unduly burdened her right to choose. Again, the MRPS and the Labor Code cannot be used to justify Brent's acts. These government issuances respect the Constitution and abide by it. Any contrary interpretation cannot be countenanced.
In my proposed reading of the constitutional right to personal liberty and privacy, Christine Joy and other women similarly situated are free to be single mothers by choice. This cannot be curtailed in the workplace through discriminatory policies against pregnancy out of wedlock. The Constitution allows women in this country to design the course of their own lives. They are free to chart their own destinies.19 (Emphasis supplied; citations omitted.)
B
Existing facts and contemporary Filipino traditions also support the recognition of such a fundamental right in favor of an unmarried woman to bear and carry her child to term.
Premarital sexual relations, and pregnancies resulting from such relations, while not trumpeted, are increasingly tolerated, if not commonplace, in Philippine society. Data from the Philippine Statistics Authority (PSA), for example, would show that almost half (851,088 or 49.2%) of the total registered live births in 201620 and more than half (907,061 or 53.3%) in 201721 were born out of wedlock. Scholarly literature appears to affirm a higher incidence of unconventional family structures, including those headed by unmarried mothers.22 Thus, and unlike before, where unwed, pregnant women were shunned by society, more recent experience seem to show a growing acceptance of women in such situations, with friends and families banding together to support them.23
Congress has also enacted legislation in support of this tradition. The Labor Code, for example, does not distinguish between married and unmarried female employees for purposes of availing of maternity leave privileges. Maternity leave benefits are extended to a pregnant female employee, irrespective of marital status.24 Under Republic Act (R. A.) No. 8972,25 solo parents entitled to government support include women who give birth to (and rear) a child as a result of rape and other crimes of chastity26 and unmarried women who preferred to keep and rear their child/children instead of having others care for them or giving them up to a welfare institution.27 Under Section 13 of R. A. No. 9710,28 women faculty and students cannot be expelled or refused re-admission solely on account of having contracted pregnancy outside of marriage during their term in school.
Admittedly, there is still some stigma attached to being an unwed mother in the Philippines.29 Despite this, however, abortion is not encouraged and is illegal under any circumstance.30 The Constitution, for one, declares it a state policy to equally protect the life of the mother and the life of the unborn from conception.31 Abortion is criminalized under the Revised Penal Code; only safe, legal and non-abortifacient family planning products and services are allowed to be legally sold and used.32 Relatedly, heavy penalties are imposed by the law on any person who commits or participates in acts of abortion.33
Thus, while the "conventional" view may still be that sex and pregnancy should be kept within the confines of marriage, this should not restrict an unmarried woman's exercise of her liberty to decide whether to adhere to this "convention" or not. I submit that this freedom to so decide, one so integral to, and determinative of, a person's life course, is fundamental in nature; any act which purports to restrict its exercise should be subject to the strictest of scrutiny.
II
This Court, in a number of cases, has deemed the acts of unmarried male respondents engaging in pre-marital sexual relations (and even siring children) with an unmarried woman insufficient to warrant removing from the male respondent his means to earn a living. I submit that the guarantee of equal protection of the law compels us to apply the same treatment to unmarried female employees who decide to enter into pre-marital, consensual sexual relations with a man, likewise unmarried, and bear a child as a result of these relations.
Section 1, Article III of the Constitution provides:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (Emphasis supplied.)
The guarantee of equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.34 Its purpose is to secure every person against intentional and arbitrary discrimination, and forbids the drawing of distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.35 In other words, similar subjects should not be treated differently as to give undue favor to some and unjustly discriminate against others.36
Our jurisprudence is replete with cases dismissing disbarment cases filed against unmarried male lawyers for commission of allegedly immoral conduct with unmarried female partners:
In Soberano v. Villanueva,37 this Court held that "[i]ntimacy between a man and a woman who are not married x x x is neither so corrupt as to constitute a criminal act [nor] so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the Bar."38
In Reyes v. Wong,39 we held that while "[undoubtedly, the cohabitation of respondent with petitioner is immoral for lack of a valid marriage. But to be the basis of a disciplinary action, the act must not merely be immoral; it must be 'grossly immoral' — 'it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree."40
In Radaza v. Tejano,41 while the Court found that respondent's conduct does not "[conform] with the highest standard of morality and propriety or decorum that every lawyer is expected to maintain," it nevertheless held that the same "does not warrant drastic disciplinary action."42
In Figueroa v. Barranco, Jr.,43 the Court found that respondent's acts of bearing an illegitimate child and reneging on his promise to marry petitioner did not "constitute gross immorality warranting [his] permanent exclusion x x x from the legal profession."44
In all the foregoing cases, the Court refused to disbar the unmarried male respondent for engaging in pre-marital sexual relations with an unmarried woman, "even if as a result of such relationship, a child was born out of wedlock."45 Indeed, while the equal protection clause does not require the universal application of the laws without distinction,46 classification can only be permitted when the same is "based on a reasonable foundation or rational basis and is not palpably arbitrary."47 Here, I find no reasonable foundation or rational basis (and none appears to have been shown on the record) for a distinction between unmarried male and female workers as to warrant differential treatment for their commission of what are essentially the same act/s.
Thus, upholding respondent's termination from employment on account of her engaging in premarital sexual relations with her unmarried partner, and having a baby as a consequence, constitutes discrimination insofar as the same grounds have been held insufficient to warrant removal from a male respondent (under like circumstances) of his means of livelihood.
III
In sum, I submit that the rights to personal liberty and privacy encompass an unmarried woman's choice to enter into consensual intimate relations with an unmarried man and have a child with him. This right, while unenumerated, is fundamental; any act which operates to deprive a woman of this right should thus be subject to strict scrutiny. Petitioner has failed to hurdle this test. In dismissing respondent solely because of her pregnancy outside of wedlock, petitioner burdened a fundamental right without proffering any sufficient justification. Furthermore, since male employees under like circumstances are not held to the same standards, this Court cannot uphold respondent's termination from employment without violating the constitutional guarantee to equal protection of laws.
Accordingly, I vote to DISMISS the petition.
Footnotes
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.
9 See generally Tan, "The Complete Philippine Right to Privacy," Philippine Law Journal, Vol. 82, 2008, pp. 79-90.
10 G.R. No. L-20387, January 31, 1968, 22 SCRA 424.
11 Id. at 442-444. The Court nevertheless upheld the validity of the challenged law requiring the periodic submission of sworn statements of financial conditions, assets and liabilities of an official or employee of the government, thus:
x x x [I]t cannot be said that the challenged statutory provision calls for disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including the statement of the amounts and sources of income, the amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere. (Emphasis supplied.) (Id. at 445-446.)
12 G.R. 187226, January 28, 2015, 748 SCRA 378.
13 Memorandum Circular No. 15, Series of 2010, issued by the Civil Service Commission, has a similar provision to cover government employees. The relevant portion of the Circular provides that "[U]nmarried government employees who do not have existing legal impediments to contract marriage may not be liable for the administrative offense of Disgraceful and Immoral Conduct unless the conduct consists of immoral and deviant acts of which are inherently forbidden by the basic norms of decency, morality and decorum such as, but not limited to incest, pedophilia, exhibitionism and the like."
14 Leus v. St. Scholastica's College Westgrove, supra note 12 at 402-403.
15 G.R. No. 187417, February 24, 2016, 785 SCRA 18.
16 Id. at 37.
17 Id. at 50; J. Jardeleza Concurring Opinion.
18 G.R. No. 221029, April 24, 2018.
19 Capin-Cadiz v. Brent Hospital and Colleges, Inc., (J. Jardeleza Concurring Opinion), supra note 15 at 51-53.
20 See https://psa.gov.ph/content/births-philippines-2016.
21 See https://psa.gov.ph/content/births-philippines-2017.
22 Tarroja, "Revisiting the Definition and Concept of Filipino Family: A Psychological Perspective" Philippine Journal of Psychology, 2010, 43(2), pp. 177-193. See also Pasion, "Modern Filipino Families: How does the state protect them?" taken from https://www.rappler.com/newsbreak/in-depth/183683-modern-filipino-families-state-protection-welfare, last accessed on January 7, 2019.
23 Velete, "In Defense of Single Moms, By Single Moms,'" Philippine Daily Inquirer, May 22, 2017, taken from https://www.pressreader.com/philippines/philippine-daily-inquirer/20170512/282720521883082 last accessed January 7, 2019.
24 LABOR CODE, Art. 131. Maternity leave benefits. – (a) Every employer shall grant to any pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months, maternity leave of at least two (2) weeks prior to the expected date of delivery and another four (4) weeks after normal delivery or abortion with full pay based on her regular or average weekly wages. The employer may require from any woman employee applying for maternity leave the production of a medical certificate stating that delivery will probably take place within two weeks.
(b) The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may be charged.
(c) The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after the effectivity of this Code.
25 Otherwise known as the "Solo Parents' Welfare Act of 2000."
26 R.A. No. 8972, Sec. 3(a)(1).
27 R.A. No. 8972, Sec. 3(a)(8).
28 Otherwise known as "The Magna Carta of Women."
29 See https://philippineone.com/the-stigma-of-being-a-single-parent-in-the-philippines/ last accessed on January 7, 2019. See also http://cnnphilippines.com/life/culture/2018/03/27/single-mothers-Philippines.html (last accessed on January 7, 2019) and https://www.rappler.com/nation/169657-single- mothers-faces-struggles (last accessed on January 7, 2019).
30 Finer and Hussain, "Unintended Pregnancy and Unsafe Abortion in the Philippines: Context and Consequences" taken from https://www.guttmacher.org/report/unintended-pregnancy-and-unsafe-abortion-philippines-context-and-consequences (last accessed January 7, 2019).
31 CONSTITUTION, Art. II, Sec. 12.
32 See R.A. No. 10354, otherwise known as the "Reproductive Health and Responsible Parenthood Act."
33 See Articles 256-259 of the Revised Penal Code.
34 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 167.
35 Id.
36 Philippine Judges Association v. Prado, G.R. No. 105371, November 11, 1993, 227 SCRA 703, 712.
37 A.C. No. 215, December 29, 1962, 6 SCRA 891.
38 Id. at 895. Italics supplied.
39 A.C. No. 547, January 29, 1975, 63 SCRA 667.
40 Id. at 673. Citations omitted; italics supplied.
41 A.C. No. 1377, July 31, 1981, 106 SCRA 246.
42 Id. at 251.
43 S.B.C. Case No. 519, July 31, 1997, 276 SCRA 445.
44 Id. at 449.
45 Id. Citation omitted.
46 Philippine Judges Association v. Prado, supra note 36 at 712.
47 Biraogo v. Philippine Truth Commission of 2010, supra note 34 at 170.
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