A call for judicial restraint

As always, we start with the Constitution and its principles: explicit in Article XV.1 and .2 is that the Filipino family is the foundation of the nation and that marriage is an inviolable social institution, the foundation of the family, and is to be protected by the State.

The Supreme Court has always recognized this. In Republic v. Molina (G.R. No. 108763, 1997), it emphasized the State’s strong interest in protecting marriage and warned against interpretations that dilute the latter’s institutional stability. In Santos v. Court of Appeals (G.R. No. 112019, 1995), the Court underscored that the Family Code must be construed in a manner preserving the integrity of marriage as envisioned by the Constitution.

The Family Code, of course, is clear in reflecting the Constitution’s intent, defining marriage as a special contract of permanent union between a man and a woman. Accordingly, Articles 147 and 148 thereof, which govern property relations in non-marital cohabitation, clearly exist within that heterosexual constitutional architecture. Article 147 applies to a man and a woman capacitated to marry each other, while Article 148 addresses unions where a legal impediment exists. Both provisions presuppose relationships that structurally mirror heterosexual marriage.

Unfortunately, the Supreme Court in Josef v. Ursua (G.R. No. 267469, 2026), apparently extends said Articles 147 and 148 to same-sex couples, thus detaching these provisions from the constitutional and statutory framework that gives them any sense. This goes against not only constitutional principles but principles the Supreme Court itself declared.

In Ang Ladlad LGBT Party v. COMELEC (G.R. No. 190582, 2010), while the Court rejected discrimination against an LGBT political party, it was careful to note that recognition of specific rights and institutional arrangements remains primarily a legislative function. In Francisco v. House of Representatives (G.R. No. 160261, 2003), the Court emphasized the importance of respecting constitutional boundaries to preserve institutional legitimacy, recognizing that when courts venture beyond mere legal questions they risk politicizing the judiciary, burdening it with policy controversies better suited to democratic deliberation.

Those rulings (and many others) see a Supreme Court acknowledging the limits of judicial power, including cases touching on sexual orientation and family structure. Such also implicitly declared adherence to “judicial economy,” the principle whereby courts decide cases on limited or as narrow a ground as possible, avoiding expansive rulings that unnecessarily involve constitutional controversies.

With all respect, Josef risks unsettling that careful balance. It signals a willingness to use a rather liberal interpretation of law to achieve outcomes that simulate or approach legislative recognition of same-sex unions. From a constitutional standpoint, this raises separation-of-powers concerns. After all, legislative power is vested in Congress, while courts decide cases according to law and not make or revise it.

An opinion was made that same sex relationships are not “abnormal.” Whether such is true or not is beside the point. Public policy as embodied in the Constitution and legislation clearly does not encourage it and certainly discourages its official recognition.

In any event, the Court did find that Jennifer C. Josef and Evalyn G. Ursua, while “living as a couple,” purchased a house and lot located at 183 Don Damaso St., Don Antonio Heights, Barangay Holy Spirit, Quezon City, covered by Transfer Certificate of Title No. N-289262. They both agreed to register the said property solely in the name of Ursua to easily facilitate bank transactions. When they separated, they agreed to sell the house and lot, and to divide the proceeds equally. On June 18, 2007, Ursua executed an acknowledgment of Third-Party Interest in Real Property (Acknowledgment) allegedly acknowledging Josef’s co-ownership over the subject property. It expressly recognized that Josef financed and paid 50% of the expense in the acquisition and renovation of the subject property. In her Judicial Affidavit, Ursua admitted that she signed the said document.

And thus, the Court correctly concluded, “petitioner is a co-owner of the subject property and is entitled to 50% share of the said property.”

The Court could have stopped there and the ruling in Josef would have been completely just and constitutionally impeccable: the case was simply a property dispute resolvable through ordinary civil law doctrines — partnership, co-ownership under the Civil Code, or unjust enrichment — without the need to reinterpret Family Code provisions embedding a constitutionally protected conception of marriage.

By choosing a different path, the Court opened the door to incremental “legislation,” opening the possibility of further (and inappropriate) judicial recognition of same-sex relationships. This is unfortunate, considering Josef closely followed the Court’s much criticized ruling in Duterte vs. HOR (G.R. No. 278353/278359, 2026).

But constitutional democracy depends on institutional humility. In Estrada v. Escritor (A.M. No. P-02-1651, 2006), the Court recognized that deeply contested moral and social questions require sensitivity to constitutional structure, restraint, not experimentation, specially in areas where the Constitution and statutes speak with clarity.

This is a position not rooted in animus but in constitutional principle. Compassion for individuals should not be incompatible with constitutional fidelity.

Jemy Gatdula is the dean of the UA&P Law School and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence. The views expressed here are his own and not necessarily of the institutions to which he belongs.

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