Dark Warden

Mercado v Tan

2009-12-05T16:38:00.003-08:00

THIRD DIVISION

[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO TAN, respondent.

D E C I S I O N

PANGANIBAN, J.:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void.”

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA)[1] in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows:

“WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.

Costs against accused.”[2]

The Facts

The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows: “From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a Marriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused was ‘single’. There is no dispute either that at the time of the celebration of the wedding with complainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.

“On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993.

“On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutor’s Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.

“Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime are present, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not been legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the essential requisites for validity. x x x

“While acknowledging the existence of the two marriage[s], accused posited the defense that his previous marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the first marriage of accused.

“It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991, accused’s prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear that accused was a married man when he contracted such second marriage with complainant on June 27, 1991. He was still at the time validly married to his first wife.”[3]

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

“Under Article 40 of the Family Code, ‘the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.’ But here, the final judgment declaring null and void accused’s previous marriage came not before the celebration of the second marriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes the crime of bigamy is the act of any person who shall contract a second subsequent marriage ‘before’ the former marriage has been legally dissolved.”[4]

Hence, this Petition.[5]

The Issues

In his Memorandum, petitioner raises the following issues:

“A

Whether or not the element of previous legal marriage is present in order to convict petitioner.

“B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.

“C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt.”[6]

The Court’s Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

“The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”

The elements of this crime are as follows:

“1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity.”[7]

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.

Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until set aside by a competent court, he argues that a void marriage is deemed never to have taken place at all.[8] Thus, he concludes that there is no first marriage to speak of. Petitioner also quotes the commentaries[9]of former Justice Luis Reyes that “it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.”

Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the Family Code, but she points out that that declaration came only after the Information had been filed. Hence, by then, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previous marriage must be obtained before a person can marry for a subsequent time.

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as “conflicting.”[10] In People v. Mendoza,[11] a bigamy case involving an accused who married three times, the Court ruled that there was no need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second marriage was obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v. Aragon,[12] which involved substantially the same facts.

But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest nullity of the second marriage. It held: “And with respect to the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity.”

In Tolentino v. Paras,[14] however, the Court again held that judicial declaration of nullity of a void marriage was not necessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding that “the second marriage that he contracted with private respondent during the lifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage.”

In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another woman. In holding that there was no need for such evidence, the Court ruled: “x x x There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x.”

Subsequently, in Yap v. CA,[16] the Court reverted to the ruling in People v. Mendoza, holding that there was no need for such declaration of nullity.

In Domingo v. CA,[17] the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: “The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy.”[18]

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon.

In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:

“Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court."

The Court held in those two cases that the said provision “plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annulable marriages.”[19]

The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows:

“ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.”

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has observed:

“[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).”[20]

In this light, the statutory mooring of the ruling in Mendoza and Aragon – that there is no need for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy.

The present ruling is consistent with our pronouncement in Terre v. Terre,[21] which involved an administrative Complaint against a lawyer for marrying twice. In rejecting the lawyer’s argument that he was free to enter into a second marriage because the first one was void ab initio, the Court ruled: “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.” The Court further noted that the said rule was “cast into statutory form by Article 40 of the Family Code.” Significantly, it observed that the second marriage, contracted without a judicial declaration that the first marriage was void, was “bigamous and criminal in character.”

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent marriage:[22]

“It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry again. x x x.”

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it denied her claim of damages and attorney’s fees.[23]

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this Court.[24] In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:

“We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent victim that she claims to be; she was well aware of the existence of the previous marriage when she contracted matrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason to doubt said testimonies.

x x x x x x x x x

“Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by then already living with another man.

“Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as it did in this case, ironically because of her personal instigation. If there are indeed damages caused to her reputation, they are of her own willful making.”[25]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.

Vitug, J., see concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

VITUG, J.:

At the pith of the controversy is the defense of the absolute nullity of a previous marriage in an indictment for bigamy. The majority opinion, penned by my esteemed brother, Mr. Justice Artemio V. Panganiban, enunciates that it is only a judicially decreed prior void marriage which can constitute a defense against the criminal charge.

The civil law rule stated in Article 40 of the Family Code is a given but I have strong reservations on its application beyond what appears to be its expressed context. The subject of the instant petition is a criminal prosecution, not a civil case, and the ponencia affirms the conviction of petitioner Vincent Paul G. Mercado for bigamy.

Article 40 of the Family code reads:

“ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

The phrase “for purposes of remarriage” is not at all insignificant. Void marriages, like void contracts, are inexistent from the very beginning. It is only by way of exception that the Family code requires a judicial declaration of nullity of the previous marriage before a subsequent marriage is contracted; without such declaration, the validity and the full legal consequence of the subsequent marriage would itself be in similar jeopardy under Article 53, in relation to Article 52, of the Family Code. Parenthetically, I would daresay that the necessity of a judicial declaration of nullity of a void marriage for the purpose of remarriage should be held to refer merely to cases where it can be said that a marriage, at least ostensibly, had taken place. No such judicial declaration of nullity, in my view, should still be deemed essential when the “marriage,” for instance, is between persons of the same sex or when either or both parties had not at all given consent to the “marriage.” Indeed, it is likely that Article 40 of the Family Code has been meant and intended to refer only to marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof.

In fine, the Family Code, I respectfully submit, did not have the effect of overturning the rule in criminal law and related jurisprudence. The Revised Penal Code expresses:

“Art. 349. Bigamy.---The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

Surely, the foregoing provision contemplated an existing, not void, prior marriage. Covered by article 349 would thus be, for instance, a voidable marriage, it obviously being valid and subsisting until set aside by a competent court. As early as People vs. Aragon,1 this Court has underscored:

“xxx Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation.”

Unlike a voidable marriage which legally exists until judicially annulled (and therefore not a defense in bigamy if the second marriage were contracted prior to the decree of annulment), the complete nullity, however, of a previously contracted marriage, being a total nullity and inexistent, should be capable of being independently raised by way of a defense in a criminal case for bigamy. I see no incongruence between this rule in criminal law and that of the Family Code, and each may be applied within the respective spheres of governance.

Accordingly, I vote to grant the petition.

1 100 Phil. 1033.

[1]Penned by J. Salome A. Montoya, Division chairman; with the concurrence of JJ Conchita Carpio Morales and Bernardo P. Abesamis, members.

[2]RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge Edgar G. Garvilles.

[3]CA Decision, pp. 2-4; rollo, pp. 45-47.

[4]Ibid., p. 6; rollo, p. 13.

[5]The case was deemed submitted for resolution on May 26, 2000, upon receipt by this Court of the OSG Memorandum signed by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Mariano M Martinez and Sol. Jesus P. Castelo. Respondent’s Memorandum, which was signed by Atty. Julius C. Baldado, was received on November 11, 1999; while petitioner’s Memorandum, signed by Attys. Bernard B. Lopez and Maritoni Z. Liwanag, had been filed earlier on September 30, 1999.

[6]Petitioner’s Memorandum, p. 5; rollo, p. 215.

[7]Reyes, The Revised Penal Code, Book Two, 13th ed. (1993), p. 828.

[8]Citing Tolentino, Civil Code of the Philippines: Commentaries and Jurisprudence, Vol. I, p. 265.

[9]Reyes, The Revised Penal Code, Book Two, 12th ed. (1981), p. 907.9

[10]Domingo v. CA, 226 SCRA 572, September 17, 1993, per Romero, J.

[11]95 Phil. 845, September 28, 1954.

[12]100 Phil. 1033, February 28, 1957.

[13]37 SCRA 315, 326, January 30, 1971, per Zaldivar, J. Emphasis supplied. See also Gomez v. Lipana, 33 SCRA 615, June 30, 1970.

[14]122 SCRA 525,529, May 30, 1983; per Melencio-Herrera, J. Emphasis supplied.

[15]143 SCRA 499, August 19, 1986, per Paras, J. Emphasis supplied.

[16]145 SCRA 229, October 28, 1986.

[17]226 SCRA 572, September 17, 1993, per Romero, J, citing Sempio-Diy, Handbook of the Family Code of the Philippines, 1988, p. 46.

[18]Supra, p. 579.

[19]People v. Mendoza, 95 Phil. 845, 847, September 28, 1954, per Paras, CJ. See also People v. Aragon, 100 Phil. 1033, 1034-1035, February 28, 1957, per Labrador, J.

[20]Sempio-Diy, Handbook on the Family Code of the Philippines, 1995 ed., p. 56.

[21]211 SCRA 6, 11, July 3, 1992, per curiam.

[22]Reyes, Revised Penal Code, Book Two, 13th ed. (1993), p. 829. Emphasis supplied. Petitioner had cited the statement of Justice Reyes that “if the first marriage is void from the beginning, it is a defense in a bigamy charge.” This statement, however, appeared in the 1981 edition of Reyes’ book, before the enactment of the Family Code.

[23]Respondent’s Memorandum, p. 16; rollo, p. 259.

[24]Lagandaon v. Court of Appeals, 290 SCRA 330, May 21, 1998; Dio v. Concepcion, 296 SCRA 579, September 25, 1998.

[25]CA Decision, pp. 7-9; rollo, pp. 50-52.

People V Mendoza

2009-12-05T07:27:00.001-08:00

EN BANC

[G.R. No. 128890. May 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDDIE MENDOZA Y PASAG, accused-appellant.

D E C I S I O N

BELLOSILLO, J.:
EDDIE MENDOZA and JOHNNY SANCHEZ stand charged with having conspired to kill one Maximo Abellera on 16 February 1996 in Pozorrubio, Pangasinan, the killing being qualified by treachery, evident premeditation and abuse of superior strength. However, only Eddie Mendoza was arrested, tried and convicted by the trial court. Accused, Johnny Sanchez has never been arrested and remains at large.
The parties would vary the facts. According to prosecution witness Francisco Ignacio, a tricycle driver and resident of Barangay Buneg, at around three o’clock in the afternoon of 16 February 1996 he, together with Maximo Abellera, Virgilio Padilla and Junior Cortado, was playing mahjong in Purok VI, Barangay Buneg, Pozorrubio, Pangasinan. While playing, Eddie Mendoza suddenly appeared from behind and without any warning hacked Maximo Abellera several times with a one and half (1½)-foot long bolo hitting him on the left side of his head. The assailant is Ignacio's second cousin. Quite instinctively the victim stood up but collapsed soon enough. Johnny Sanchez, who had been standing behind Virgilio Padilla for almost thirty (30) minutes, followed next and stabbed the victim several times hitting him at the back with a weapon slightly longer than a fan knife.[1] Practically stunned by the startling occurrence, Ignacio ran away. Mendoza chased him but he outran his pursuer and reached the house of Maximo Abellera safely. There he informed Roger Abellera and Boy Abellera, Maximo's cousin and brother, respectively, about what happened to Maximo. While curious onlookers milled around the crime scene, according to Ignacio, he returned there upon the proddings of the police investigators. It was only then that he learned that Maximo Abellera had died.[2]
The testimony of Ignacio was corroborated by Maximo's father, Patrocinio Abellera Sr., who narrated that the accused Eddie Mendoza was a neighbor who was infamous for killing his own brothers before he murdered Maximo. Abellera, Sr. also said that he was not aware of any dispute between his son Maximo and the accused Mendoza. He also said that upon being informed by Ignacio about the fate of Maximo, he immediately went with his brother to the crime scene where he found the deceased with multiple hack and stab wounds. Shocked at the sight of his son's mutilated form, he could do nothing but cry for about ten (10) minutes. Then he left for home. The Araos Funeral Homes took care of the deceased and brought it home.[3]
Dr. Francisco L. Llamas, Chief Physician of the Pozorrubio Community Hospital, testified that the deceased sustained fourteen (14) hack wounds on his body, most of which were contributory to his death. Dr. Llamas concluded that a sharp-bladed instrument was used in the killing with the possibility that there were two (2) or more assailants. He asserted that wound No. 1, which he considered the most serious since the brain tissue was already exposed, could by itself have caused the death of Maximo Abellera.[4]
Police investigator Maximiano Balelo told the court that Eddie Mendoza and Johnny Sanchez went into hiding immediately after the murder until Eddie was arrested in his hideout about three (3) months after the killing.[5]
To debunk the evidence of the prosecution, the defense presented Antonio Farnacio, a resident of Barangay Rosario in Pozorrubio and a brother-in-law of Mendoza. Farnacio testified that on 16 February 1996 he drove a tricycle and brought home a passenger to Barangay Buneg after which he went to the house of the accused to buy ducks from him. Since Mendoza was not home, Farnacio walked back to the road where he met someone who informed him that Mendoza was in the mahjong joint. According to Farnacio, he sought Mendoza out and found him there. They walked away for some fifty (50) meters and agreed on the purchase of some ducks from Mendoza. Although Mendoza was not playing, he nonetheless urged Farnacio to allow him (Mendoza) to finish the game he was watching. Just when Farnacio and Mendoza were about to leave for the latter's house, Mendoza stumbled on a stone and tripped, hitting the mahjong table. This angered the deceased prompting him to rise and draw a knife despite the apologies of Mendoza. The other accused, Johnny Sanchez, allegedly tried to pacify the deceased but was warned not to meddle. It was at this point when Sanchez allegedly hacked the deceased on the left side of his face using a wide-bladed bolo.[6]
Farnacio further testified that during the commotion everyone scampered. Mendoza dashed to an unspecified direction while he (Farnacio) boarded his tricycle for home. Farnacio admitted however that since then he had not been called by the police nor by any person to testify or take his testimony. He claimed that he did not report the matter to the authorities because of fear aside from the fact that he did not know them as he was residing in another barangay. He further asserted that he neither saw nor intended to see Mendoza after the incident.[7]
The accused Mendoza corroborated the testimony of his witness Farnacio. Mendoza admitted personally knowing the deceased as well as his co-accused Johnny Sanchez, and averred that when he arrived at the mahjong parlor the deceased was already fighting with somebody as the former was mumbling angry words against Johnny Sanchez.[8]
Mendoza further testified that he had not been investigated although he found out later that he was being implicated in the crime. He confirmed that he did not voluntarily surrender to the authorities but was apprehended instead. He categorically denied that he hacked the deceased and that he went into hiding afterwards.[9]
The trial court found the accused Eddie Mendoza y Pasag GUILTY of MURDER defined and penalized under RA 7659 qualified by treachery and aggravated by the circumstance of abuse of superior strength. He was ordered to pay the heirs of the deceased Maximo Abellera P50,000.00 as civil indemnity, P30,000.00 as actual damages and P200,000.00 as moral damages, plus the costs.
The case against Johnny Sanchez was ordered archived until the trial court could acquire jurisdiction over his person by his arrest.[10] The trial court relied heavily on the eyewitness account of Francisco Ignacio and concluded that the witness had no improper motive to testify against accused Eddie Mendoza who is also a close relative.[11]
This case is now before us on automatic review. The accused argues in his brief that the trial court erred in not considering that there was an altercation between the deceased and accused Johnny Sanchez prior to the hacking which should effectively rebut the testimony of the lone prosecution witness that the killing was sudden and the killer came from behind. He also claims that treachery was not present as the means employed did not ensure the commission of the crime without risk to the perpetrator against any defense or retaliation from the deceased. He insists that even granting that the attack was sudden, mere suddenness does not by itself establish treachery, and without treachery he should only be convicted of homicide and not murder.[12]
We uphold the conviction of the accused since the defense failed to impugn the credibility of prosecution witness Francisco Ignacio. In the absence of proof to the contrary, Ignacio's testimony could be motivated by none other than the genuine quest for truth and justice. He is bound to the accused by blood and the intimacy that permeates the Filipino family is legendary. To hear about a crime is hair-raising enough; to witness it could do no less than jolt oneself and embolden him to reveal the perpetrator thereof. For what advantage could impel Ignacio to ignore familial ties and the threats to his life by the relatives of the accused should Ignacio testify against him? Granting arguendo that the threat is only imagined, the defense still failed to ascribe to Ignacio any evil motive sufficient to debunk his revelation as a creditable witness to the crime. Absent any reason or motive for a prosecution witness to perjure, the logical conclusion is that no such improper motive exists and his testimony is thus worthy of full faith and credit.[13]
On the other hand, the conduct of the accused after the perpetration of the crime fails to support his denial of any participation in its commission, and is too unconvincing to lend credence to his assertion that it was Johnny Sanchez who hacked the deceased. The accused admits knowing both Johnny Sanchez and Maximo Abellera personally and that the reason for the hacking was that Sanchez was told by the deceased not to meddle in the fight between him and the accused. We can only surmise then from the accused's narration that Sanchez was doing him a favor and it would have been more in keeping with human nature if he who was the proximate cause of it all exerted effort to shed light on the events leading to the commission as well as the commission itself of the crime instead of quietly disappearing in the midst of the investigation without offering any explanation therefor. Quite perplexing too is the fact that while the accused has pointed to Sanchez as the perpetrator of the crime, yet, after the killing the accused simply disappeared from his residence.[14] Flight betrays a guilty conscience;[15] it is silent yet a loud admission of guilt.
We reject the accused's contention that the fact of altercation between the deceased and Sanchez was adequately established and thus seriously taints the testimony of the lone prosecution eyewitness. The testimony of the physician jives well with that of Francisco Ignacio that the assailant came from behind the victim; that a bladed instrument was used for the killing; and, that the possibility of more than one (1) assailant cannot be discounted. In contrast, the accused in unabashed witlessness urges the Court to believe that Sanchez was trying to act as the peacemaker between him and the deceased Abellera and when the latter refused to listen, Sanchez himself turned from benignant to indignant and forthwith hacked Abellera to death.
The trial court observed the demeanor of the witnesses for the prosecution and for the defense, and believed the former whose testimonies were candid, straightforward and bore the earmarks of truth while characterizing the latter as preposterous and unbelievable.[16] In criminal jurisprudence, when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court[17] and the Court will respect these findings considering that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.[18] Of course, the rule admits of certain exceptions: (a) when patent inconsistencies in the statement of witnesses are ignored by the trial court, or (b) when the conclusions arrived at are clearly unsupported by the evidence.[19] But in this case, neither exception can be found, and the Court is not precluded from making its own assessment of the probative value of the testimony of the witnesses on the basis of the transcript of stenographic notes thereof.[20] We have carefully reviewed the records and found no reason to deviate from the conclusions drawn by the trial court; hence, they must prevail.
As to treachery, we affirm the finding of the trial court as these elements were present: (a) the employment of means, method or manner of execution to ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given the latter to defend or retaliate; and, (b) the deliberate or conscious adoption of such means, method, or manner of execution.[21]
In his brief, the accused attempts to exculpate himself by citing People v. Magsombol[22] where the Court held that no treachery attended the commission of the crime without submission of evidence that the accused consciously and deliberately adopted his mode of attack to insure execution without risk to himself. He argues that the mere suddenness of an attack would not by itself constitute treachery, hence, for failure to prove such qualifying circumstance the crime committed should only be homicide.
But reliance on People v. Magsombol is misplaced. The facts therein would show that the attack by the accused was frontal and his victim managed thereafter to run for about fifteen (15) meters, while the accused did not bother to pursue him but fled instead to the opposite direction. It befits logic to presume that accused therein, although momentarily enraged, was still uncertain whether he had already killed the victim or simply wounded him. If the accused was truly bent on killing the victim, the former would have finished him off instead of merely fleeing to the opposite direction. In contrast, the accused herein came from behind his unsuspecting victim who did not have the slightest inkling that he would be attacked that afternoon in the presence of mahjong players and spectators and their kibitzers. As the victim was totally unprepared for the unexpected attack from behind with no weapon to resist it, the stabbing could only be described as treacherous.[23] As the attack was synchronal, sudden and unexpected, treachery was evident.[24]
Moreover, even as the victim already lay helpless on the ground Mendoza's cohort, Johnny Sanchez, ruthlessly continued to stab the victim until he died. Thus, it can be gleaned from the circumstances surrounding the perpetration of the crime that the accused and Sanchez conspired to bring about the gory end of their victim. Conspiracy may be inferred from the acts of the accused before, during, and after the crime, which are indicative of a common design, concerted action and concurrence of sentiments.[25] And once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary.[26] The act of Sanchez in stabbing the victim while the latter was already prostrate on the ground was by itself treacherous since the victim could no longer put up any defense against the attack. As a conspirator Mendoza should also be responsible for the treacherous act.
Although evident premeditation is alleged in the Information as an aggravating circumstance, the trial court correctly disregarded it considering that the prosecution did not prove the concurrence of these elements: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused clung to his determination to commit the crime; and, (c) a sufficient lapse of time between such determination and its execution to allow him to reflect upon the consequences of his act.[27] Evident premeditation must be proved as clearly as the crime itself and may not be deduced merely from conclusions and inferences.[28]
But the trial court erred in appreciating the aggravating circumstance of abuse of superior strength since this is deemed absorbed in treachery.[29]
The penalty for murder under Art. 248 of the Revised Penal Code is reclusion perpetua to death. Corollarily, Art. 63, second paragraph, provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be applied x x x x 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied." Thus, the imposable penalty being composed of two (2) indivisible penalties, in the absence of any modifying circumstance, the lesser penalty of reclusion perpetua shall be imposed on the accused for the killing of Maximo Abellera.
WHEREFORE, the judgment of the trial court convicting the accused EDDIE MENDOZA Y PASAG of MURDER qualified by treachery is AFFIRMED. However, the penalty of death is REDUCED to reclusion perpetua in the absence of any established modifying circumstance. The accused is ORDERED to pay the heirs of the victim Maximo Abellera the amount of P50,000.00 as civil indemnity, P30,000.00 as actual damages and P200,000.00 as moral damages, and to pay the costs.
SO ORDERED.
Melo, Puno, Vitug, Kapunan, Mendoza, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., on official leave.
Panganiban, Quisumbing, Ynares-Santiago, and De Leon, Jr., JJ., on leave.

[1] TSN, 9 October 1996, pp. 2-20

[2] Ibid.

[3] TSN, 17 September 1996, pp. 3-11.

[4] TSN, 25 September 1996, pp. 2-10.

Figueroa v barranco. sobrang kawawa lawyer dito. :(

2009-12-03T20:24:00.001-08:00

EN BANC

[SBC Case No. 519. July 31, 1997]

PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO, JR., respondent.

R E S O L U T I O N

ROMERO, J.:

In a complaint made way back in 1971, Patricia Figueroa petitioned that respondent Simeon Barranco, Jr. be denied admission to the legal profession. Respondent had passed the 1970 bar examinations on the fourth attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before he could take his oath, however, complainant filed the instant petition averring that respondent and she had been sweethearts, that a child out of wedlock was born to them and that respondent did not fulfill his repeated promises to marry her.

The facts were manifested in hearings held before Investigator Victor F. Sevilla in June and July 1971. Respondent and complainant were townmates in Janiuay, Iloilo. Since 1953, when they were both in their teens, they were steadies. Respondent even acted as escort to complainant when she reigned as Queen at the 1953 town fiesta. Complainant first acceded to sexual congress with respondent sometime in 1960. Their intimacy yielded a son, Rafael Barranco, born on December 11, 1964.[1] It was after the child was born, complainant alleged, that respondent first promised he would marry her after he passes the bar examinations. Their relationship continued and respondent allegedly made more than twenty or thirty promises of marriage. He gave only P10.00 for the child on the latter’s birthdays. Her trust in him and their relationship ended in 1971, when she learned that respondent married another woman. Hence, this petition.

Upon complainant’s motion, the Court authorized the taking of testimonies of witnesses by deposition in 1972. On February 18, 1974, respondent filed a Manifestation and Motion to Dismiss the case citing complainant’s failure to comment on the motion of Judge Cuello seeking to be relieved from the duty to take aforesaid testimonies by deposition. Complainant filed her comment stating that she had justifiable reasons in failing to file the earlier comment required and that she remains interested in the resolution of the present case. On June 18, 1974, the Court denied respondent’s motion to dismiss.

On October 2, 1980, the Court once again denied a motion to dismiss on the ground of abandonment filed by respondent on September 17, 1979.[2] Respondent’s third motion to dismiss was noted in the Court’s Resolution dated September 15, 1982.[3] In 1988, respondent repeated his request, citing his election as a member of the Sangguniang Bayan of Janiuay, Iloilo from 1980-1986, his active participation in civic organizations and good standing in the community as well as the length of time this case has been pending as reasons to allow him to take his oath as a lawyer.[4]

On September 29, 1988, the Court resolved to dismiss the complaint for failure of complainant to prosecute the case for an unreasonable period of time and to allow Simeon Barranco, Jr. to take the lawyer’s oath upon payment of the required fees.[5]

Respondent’s hopes were again dashed on November 17, 1988 when the Court, in response to complainant’s opposition, resolved to cancel his scheduled oath-taking. On June 1, 1993, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The IBP’s report dated May 17, 1997 recommended the dismissal of the case and that respondent be allowed to take the lawyer’s oath.

We agree.

Respondent was prevented from taking the lawyer’s oath in 1971 because of the charges of gross immorality made by complainant. To recapitulate, respondent bore an illegitimate child with his sweetheart, Patricia Figueroa, who also claims that he did not fulfill his promise to marry her after he passes the bar examinations.

We find that these facts do not constitute gross immorality warranting the permanent exclusion of respondent from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. “A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.”[6] It is a willful, flagrant, or shameless act which shows a moral indifference to the opinion of respectable members of the community.[7]

We find the ruling in Arciga v. Maniwang[8] quite relevant because mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of respondent, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock.[9]

Respondent and complainant were sweethearts whose sexual relations were evidently consensual. We do not find complainant’s assertions that she had been forced into sexual intercourse, credible. She continued to see and be respondent’s girlfriend even after she had given birth to a son in 1964 and until 1971. All those years of amicable and intimate relations refute her allegations that she was forced to have sexual congress with him. Complainant was then an adult who voluntarily and actively pursued their relationship and was not an innocent young girl who could be easily led astray. Unfortunately, respondent chose to marry and settle permanently with another woman. We cannot castigate a man for seeking out the partner of his dreams, for marriage is a sacred and perpetual bond which should be entered into because of love, not for any other reason.

We cannot help viewing the instant complaint as an act of revenge of a woman scorned, bitter and unforgiving to the end. It is also intended to make respondent suffer severely and it seems, perpetually, sacrificing the profession he worked very hard to be admitted into. Even assuming that his past indiscretions are ignoble, the twenty-six years that respondent has been prevented from being a lawyer constitute sufficient punishment therefor. During this time there appears to be no other indiscretion attributed to him.[10] Respondent, who is now sixty-two years of age, should thus be allowed, albeit belatedly, to take the lawyer’s oath.

WHEREFORE, the instant petition is hereby DISMISSED. Respondent Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon payment of the proper fees.

SO ORDERED.

Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur.

Narvasa, C.J., Hermosisima, Jr., and Torres, Jr., JJ., on leave

Piatt v Abordo

2009-12-02T19:57:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

Piatt September 1, 1933

C.E. PIATT, Chief of Police of Manila, complainant,
vs.
PERFECTO ABORDO, respondent.

The Respondent in his own behalf.
Office of the Solicitor-General Hilado for the Government.

MALCOLM, J.:

On February 19, 1932, Perfecto Abordo, a member of the Philippine Bar, accepted the offer of two individuals to sell him a quantity of opium, a prohibited drug, and agreed to pay P1.50 per tin for the opium. On the afternoon of the same day, Abordo was picked up at the corner of Taft Avenue extension and Vito Cruz in the City of Manila, by one of the individuals who had made him the opium proposition, and was taken to Rizal Avenue Extension outside of the city limits where they found a number of persons awaiting them in an automobile. A can was disclosed to Abordo as containing opium, and believing that it was opium, he delivered to one Cabrales the amount of P600 in payment of the stuff. The can was loaded in the automobile which brought Abordo to the scene of the delivery, but in returning to Manila another automobile overtook them and the parties riding therein, pretending to be constabulary soldiers, told Abordo to stop. Instead Abordo drew his revolver and commanding the driver of the car to turn into Calle Vito Cruz was able to evade his pursuers and to arrive safely at his home in Pasay. Once in his home Abordo examined the contents of the can and found it to contain fake opium and sand. Thereupon Abordo reported to the Luneta Police Station of Manila that he had been robbed of P600. Two individuals were later arrested, charged with the crime of estafa, and convicted.

Abordo admits that he entered into the transaction detailed above, adding that "he is sincerely sorry for it and vows not to repeat". His defense is that "there being no evidence in the record establishing the relationship of attorney and client between the respondent and the malefactors", and "the act complained of not having been committed in the exercise of his profession of attorney-at-law", the acts he committed could not affect his status as attorney-at-law and could not, therefore, constitute a ground for disciplinary action.

Section 21 of the Code of Civil Procedure enumerates the grounds for the suspension or disbarment of a lawyer. Nevertheless, it is well settled that a member of the bar may be suspended or removed from his office as lawyer for other than statutory grounds. However, as a general rule, a court will not assume jurisdiction to discipline one of its officers for misconduct alleged to be committed in his private capacity. The exception to the rule is that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (In re Pelaez [1923], 44 Phil., 567.)

The courts are not curators of the morals of the bar. At the same time the profession is not compelled to harbor all persons whatever their character, who are fortunate enough to keep out of prison. As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respect as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the courts retain the power to discipline him.

It will be recalled that Perfecto Abordo, a member of the Philippine Bar, attempted to engage in an opium deal in direct contravention of the criminal law of the Philippine Islands. All that kept the nefarious plan from succeeding was the treacherous conduct of his co-conspirators. The intention to flaunt the law was present even if consummation of the overt act was not accomplished. In the eyes of the canons of professional ethics which govern the conduct of attorneys, the act was as reprehensible as if it had been brought to a successful culmination. "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws" said the United States Supreme Court in the well known case of Ex Parte Wall ( [1882], 107 U.S., 265), and to that doctrine we give our unqualified support.

The Solicitor-General submits that the respondent should be reprimanded and warned that a repetition of similar conduct in the future will be dealt with more severely. To our minds such leniency on the part of the Supreme Court would serve merely to condone a pernicious example set by a member of the bar, and would result in action entirely inadequate considering the aggravated nature of the case. In this respect we are not without judicial precedents to guide us. Thus, in the case of In re Terrel ( [1903], 2 Phil., 266), although the respondent had been acquitted on the charge of estafa, yet it was held that, since the promotion of an organization for the purpose of violating or evading the penal laws amounted to such malpractice on the part of an attorney as will justify removal or suspension, the respondent be suspended from the practice of law for a term of one year. Again, In re Pelaez, supra, where an attorney-at-law who, as a guardian, pledged the shares of stock belonging to his ward to guarantee the payment of his personal debt, although this was misconduct committed in his private capacity, the court nevertheless suspended the respondent from the legal profession for one year. We think the instant case grave, and meriting as severe a sentence.

It is the order of the court that the respondent Perfecto Abordo be suspended from the practice of law for a period of one year to begin on September 1, 1933.

Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

Connel Bros v Aduna

2009-12-02T01:01:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4057 March 31, 1952

CONNEL BROS. COMPANY (PHIL.), ESTHER P. BOOMER and MYRNA NICHOL, plaintiffs-appellees,
vs.
FRANCISCO ADUNA and EX-MERALCO EMPLOYEES TRANSPORTATION COMPANY, defendants;
EX-MERALCO EMPLOYEES TRANSPORTATION COMPANY, defendant-appellant.

Angel S. Gamboa for appellees.
Jose P. de la Cruz and Pio L. Pestano for appellant.

MONTEMAYOR, J.:

This is an appeal by defendant Ex-Meralco Employees Transportation Company from a decision of the Court of First Instance of Rizal, holding the appellant company and its co-defendant Aduna liable for the damages sustained by plaintiffs as a result of the collision between the automobile of one of the plaintiffs and the bus driven by defendant Aduna, condemning said defendants to pay to plaintiff Connel Bros. Company (Phil.), P1,100; plaintiff Esther P. Boomer, P1,681.80; plaintiff Myrna Nichol, P648.46; as fees of plaintiffs' attorney, P500; and to pay costs. the facts are not disputed, the defendant-appellant raising only questions of law, for which reason the appeal has come direct from the lower court.

On September 10, 1949, defendant Francisco Aduna, employed as chauffeur by his co-defendant, Ex-Meralco Employees Transportation Company, while driving his co-defendant's passenger buss on F.B. Harrison Street, Rizal City, in a careless and negligent manner without taking the necessary precautions to avoid accident to persons and damage to property, bumped and hit an oldsmobile car owned by plaintiff Connel Bros. Company (Phil.). As a result of the collision the automobile fell into a canal and was damaged in the sum of P1,000; Esther P. Boomer and Myrna Nichol who were then passengers in the said car sustained physical injuries which necessitated hospitalization and medical care, and they suffered damages in the amounts of P1,681.80 and P648.46, respectively, for hospital and medical expenses and for loss of earning during the period of incapacity to work.

Francisco Aduna was prosecuted and convicted of damage to property and serious physical injuries thru reckless imprudence and had served his prison sentence. At the trial of said criminal case the plaintiffs herein reserved their right to file the corresponding civil suit for damages, and in pursuance of said reservation the present civil action was filed in the lower court to recover damages caused by the criminal negligence committed by defendant Aduna.

The parties herein submitted the case for decision to the lower court upon a stipulation of facts, among which are the conviction of Aduna for damage to property and physical injuries thru reckless imprudence, his being an employee of his co defendant Ex-meralco Employees Transportation Company, and that the latter in carrying out its business had been following the same practices and procedure employed by the Manila Electric Company (MERALCO) in exercising due diligence in hiring and supervising its employees, especially the drivers and conductors in the transportation buses; that furthermore, in the particular case of Francisco Aduna, the defendant company had also scrutinized his previous records as a driver, especially during his employment in the Manila Electric Company for about five (5) years, which was made a prerequisite condition to his employment by his co-defendant; that in addition to the precautionary measures taken for employment of its employees, defendant company has been carefully supervising the work of its employees in the field particularly its drivers and conductors, and that the accident or collision subject-matter of this case is the first collision in which a bus or an employee of the defendant company has been involved. It is also a fact relied upon by the plaintiffs that at the time of the collision, on the back of Francisco Aduna's driver's license marked Exh. C in the criminal case, appear three entries of penalties and warnings.

The theory of the appellant in the lower court was that the present case was brought under the provisions of Arts. 1902 and 1903, of the Civil Code which reads as follows:

Art. 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage so done.

x x x x x x x x x

Art. 1903. The obligation imposed by the next proceeding article is inforcible, not only for personal acts and omissions, but also for those of persons for whom another is responsible.

x x x x x x x x x

Owners or directors of an establishment or business are equally liable for any damages caused by their employees while engaged in the branch of the service in which employed, or on occasion of the performance of their duties.

x x x x x x x x x

The liability imposed by this article shall cease in case the persons mentioned therein prove that they exercised all the diligence of a good father of a family to prevent the damage.

That is the reason why defendant Company was careful in inserting in the stipulation of facts the precautionary measures it claims to have taken in selecting its drivers, particularly defendant Francisco Aduna, in order to relieve itself from civil liability. The trial court, however, thought otherwise and ruled that inasmuch as the act of reckless negligence of Aduna causing the damage, was governed by Art. 1092 of the Civil Code, which provides that "civil obligations arising from the crimes or misdemeanors shall be governed by the provisions of the Penal Code," then Arts. 102 and 103 of the Revised Penal Code which provides for the subsidiary liability of the employer for felonies committed by his servants or employees in the discharge of their duties, should be applied. In support of its ruling the trial court citedArambulo vs. Manila Electric Co., 55 Phil. 75. That was a case where as a result of the negligence and imprudence of a motorman employed by the Manila Electric Co., damage to property and physical injuries were caused for which he was prosecuted, convicted and sentenced, and where on the basis of said conviction and inability of the motor man to pay the civil indemnity, the Electric Company was sued on the basis of its subsidiary liability, and said Electric Company was not allowed to prove and invoke the employment of the diligence of a good father of a family to prevent the accident by carefully selecting its employees, on the ground that said defense is available not in cases covered by the penal code but only in those covered by the articles of the Civil Code such as Arts. 1903, 1902 and 1093 thereof. In the present appeal, counsel for the appellant, Ex-Meralco Employees Transportation Company, reiterates its theory and defense under said Arts. 1902 and 1903, and cites the case of Barredo vs. Garcia and Almario, 73 Phil., 607. We believe however that the citation does not support appellant's theory. In that Barredo case this Court opined that if the provisions of Art. 1092 of the Civil Code are to be strictly construed in the sense that every civil obligation arising from a crime or misdemeanor is to be governed by the provisions of the penal code, then, inasmuch as all acts or omissions causing damage to another as a result of one's fault or negligence are punishable by law, there would be very little left for the application of article 1902 of the Civil Code governing acts of negligence of purely civil nature (culpa aquiliana) under the civil law or tort under the common law. For that reason, this Court in that case tried or sought to enlarge the field of tort or culpa aquiliana, believing that the remedy provided by the penal code for the recovery of damages by the party damaged is more burdensome and difficult, particularly in the amount or extent of proof to establish his rights to damages, because to establish the guilt of the offender guilty of negligence, proof beyond reasonable doubt is required, whereas in a purely civil action to recover the same damages under Arts. 1902 and 1903 of the Civil Code, only preponderance of the evidence is required. So, the court in that case held that the offended party seeking damages has the right to choose between a criminal action and a civil suit. In that case of Barredo vs. Garcia, the suit was clearly brought under the provisions of the Civil Code. In the decision of the Court of the Appeals which was affirmed by this Court it was stated that the liability sought to be imposed upon the employer in that case was not a civil obligation arising from a felony or misdemeanor (crime committed by Pedro Fontanilla) but an obligation imposed by art. 1903 of the Civil Code because of his negligence in the selection and supervision of his servants or employees. In the present case, however, the plaintiffs have chosen to rely upon the provisions of the Penal Code and have based their action on the result of the criminal case against Francisco Aduna. In fact, no evidence to show the negligence of Aduna was submitted except his conviction in the criminal case. Furthermore, both Aduna and his employer, the Ex-Meralco Employees Transportation Company, were sued, whereas in the case of Barredo vs. Garcia, only Barredo was sued. Of course, the present plaintiffs, perhaps through oversight in the prayer of their complaint, asked that both defendants be made to pay the damages sought; and the trial court, also perhaps through inadvertance, condemned both defendants to pay the damages, instead of declaring that defendant Ex-Meralco Employees Transportation Company should be held merely subsidiary liable.

In view of the foregoing, and with the modification that the liability of appellant Ex-Meralco Employees Transportation Company is only subsidiary, the decision appealed from is hereby affirmed, with cost against appellant. So ordered.

Paras, C.J., Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.

feeling so lonely....

2009-11-30T20:14:00.000-08:00

Sigh...up to now, I can't help but have thoughts of her, the only person I truly love. Breaking up really is very painful. the more you want to forget, the mor eyou remember, the more your remember, the more it hurts, the more you try to hide the pain, the more that it shows,... sigh. :(

Goodridge v Department of Public Health

2009-11-30T19:14:00.001-08:00

Goodridge v. Department of Public Health

Massachusetts Supreme Judicial Court

440 Mass. 309, 798 N.E.2d 941

November 18, 2003

MARSHALL, C.J.

[¶ 1] Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

[¶ 2] We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. "Our obligation is to define the liberty of all, not to mandate our own moral code." Lawrence v. Texas, 539 U.S. 558 (2003), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

[¶ 3] Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra, where it was not an issue. There, the Court affirmed that the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one's choice of an intimate partner. The Court also reaffirmed the central role that decisions whether to marry or have children bear in shaping one's identity. The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.

[¶ 4] Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.

[¶ 5] The plaintiffs are fourteen individuals from five Massachusetts counties. As of April 11, 2001, the date they filed their complaint, the plaintiffs Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard's mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and David Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David's mother in their home after a serious illness until she died.

[¶ 6] The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups. They have employed such legal means as are available to them--for example, joint adoption, powers of attorney, and joint ownership of real property--to secure aspects of their relationships. Each plaintiff attests a desire to marry his or her partner in order to affirm publicly their commitment to each other and to secure the legal protections and benefits afforded to married couples and their children.

[¶ 7] The Department of Public Health (department) is charged by statute with safeguarding public health. Among its responsibilities, the department oversees the registry of vital records and statistics (registry), which "enforce[s] all laws" relative to the issuance of marriage licenses and the keeping of marriage records and which promulgates policies and procedures for the issuance of marriage licenses by city and town clerks and registers. The registry is headed by a registrar of vital records and statistics (registrar), appointed by the Commissioner of Public Health (commissioner) with the approval of the public health council and supervised by the commissioner.

[¶ 8] In March and April, 2001, each of the plaintiff couples attempted to obtain a marriage license from a city or town clerk's office. As required under G.L. c. 207, they completed notices of intention to marry on forms provided by the registry and presented these forms to a Massachusetts town or city clerk, together with the required health forms and marriage license fees. In each case, the clerk either refused to accept the notice of intention to marry or denied a marriage license to the couple on the ground that Massachusetts does not recognize same-sex marriage. Because obtaining a marriage license is a necessary prerequisite to civil marriage in Massachusetts, denying marriage licenses to the plaintiffs was tantamount to denying them access to civil marriage itself, with its appurtenant social and legal protections, benefits, and obligations.

[¶ 9] On April 11, 2001, the plaintiffs filed suit in the Superior Court against the department and the commissioner seeking a judgment that "the exclusion of the [p]laintiff couples and other qualified same-sex couples from access to marriage licenses, and the legal and social status of civil marriage, as well as the protections, benefits and obligations of marriage, violates Massachusetts law." The plaintiffs alleged violation of the laws of the Commonwealth, including but not limited to their rights under arts. 1, 6, 7, 10, 12, and 16, and Part II, c. 1, Section 1, art. 4, of the Massachusetts Constitution.

[¶ 10] [Footnote: Article 1, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides: "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."

[¶ 11] Article 6 provides: "No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public...."

[¶ 12] Article 7 provides: "Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."

[¶ 13] Article 10 provides, in relevant part: "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws...."

[¶ 14] Article 12 provides, in relevant part: "[N]o subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law ... or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."

[¶ 15] Article 16, as amended by art. 77 of the Amendments, provides, in relevant part: "The right of free speech shall not be abridged."

[¶ 16] Part II, c. 1, Section 1, art. 4, as amended by art. 112, provides, in pertinent part, that "full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth."]

[¶ 17] The department, represented by the Attorney General, admitted to a policy and practice of denying marriage licenses to same-sex couples. It denied that its actions violated any law or that the plaintiffs were entitled to relief. The parties filed cross motions for summary judgment.

[¶ 18] A Superior Court judge ruled for the department. In a memorandum of decision and order dated May 7, 2002, he dismissed the plaintiffs' claim that the marriage statutes should be construed to permit marriage between persons of the same sex, holding that the plain wording of G.L. c. 207, as well as the wording of other marriage statutes, precluded that interpretation. Turning to the constitutional claims, he held that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution, and that the Massachusetts Declaration of Rights does not guarantee "the fundamental right to marry a person of the same sex." He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the "primary purpose" of marriage, "procreation." The Legislature may rationally limit marriage to opposite-sex couples, he concluded, because those couples are "theoretically ... capable of procreation," they do not rely on "inherently more cumbersome" noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.

[¶ 19] After the complaint was dismissed and summary judgment entered for the defendants, the plaintiffs appealed. Both parties requested direct appellate review, which we granted.

[¶ 20] Although the plaintiffs refer in passing to "the marriage statutes," they focus, quite properly, on G.L. c. 207, the marriage licensing statute, which controls entry into civil marriage. As a preliminary matter, we summarize the provisions of that law.

[¶ 21] General Laws c. 207 is both a gatekeeping and a public records statute. It sets minimum qualifications for obtaining a marriage license and directs city and town clerks, the registrar, and the department to keep and maintain certain "vital records" of civil marriages. The gatekeeping provisions of G.L. c. 207 are minimal. They forbid marriage of individuals within certain degrees of consanguinity, Sections 1 and 2, and polygamous marriages. They prohibit marriage if one of the parties has communicable syphilis and restrict the circumstances in which a person under eighteen years of age may marry. The statute requires that civil marriage be solemnized only by those so authorized.

[¶ 22] The record-keeping provisions of G.L. c. 207 are more extensive. Marriage applicants file standard information forms and a medical certificate in any Massachusetts city or town clerk's office and tender a filing fee. The clerk issues the marriage license, and when the marriage is solemnized, the individual authorized to solemnize the marriage adds additional information to the form and returns it (or a copy) to the clerk's office (this completed form is commonly known as the "marriage certificate"). The clerk sends a copy of the information to the registrar, and that information becomes a public record.

[¶ 23] In short, for all the joy and solemnity that normally attend a marriage, G.L. c. 207, governing entrance to marriage, is a licensing law. The plaintiffs argue that because nothing in that licensing law specifically prohibits marriages between persons of the same sex, we may interpret the statute to permit "qualified same sex couples" to obtain marriage licenses, thereby avoiding the question whether the law is constitutional. See School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 79 (1982), and cases cited. This claim lacks merit.

[¶ 24] We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage "is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife"). This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807) (Massachusetts common law derives from English common law except as otherwise altered by Massachusetts statutes and Constitution). See also Commonwealth v. Lane, 113 Mass. 458, 462-463 (1873) ("when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations"). Far from being ambiguous, the undefined word "marriage," as used in G.L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners.

[¶ 25] The intended scope of G.L. c. 207 is also evident in its consanguinity provisions. See Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430, 435 (2002) (statute's various provisions may offer insight into legislative intent). Sections 1 and 2 of G.L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female-female marriage applicants. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry.

III

[¶ 26] The larger question is whether, as the department claims, government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.

[¶ 27] The plaintiffs' claim that the marriage restriction violates the Massachusetts Constitution can be analyzed in two ways. Does it offend the Constitution's guarantees of equality before the law? Or do the liberty and due process provisions of the Massachusetts Constitution secure the plaintiffs' right to marry their chosen partner? In matters implicating marriage, family life, and the upbringing of children, the two constitutional concepts frequently overlap, as they do here. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (noting convergence of due process and equal protection principles in cases concerning parent-child relationships); Perez v. Sharp, 32 Cal.2d 711, 728 (1948) (analyzing statutory ban on interracial marriage as equal protection violation concerning regulation of fundamental right). See also Lawrence, supra ("Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests"); Bolling v. Sharpe, 347 U.S. 497 (1954) (racial segregation in District of Columbia public schools violates the due process clause of the Fifth Amendment to the United States Constitution), decided the same day as Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954) (holding that segregation of public schools in the States violates the equal protection clause of the Fourteenth Amendment). Much of what we say concerning one standard applies to the other.

[¶ 28] We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460-466 (1879) (noting that "[i]n Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth," and surveying marriage statutes from 1639 through 1834). No religious ceremony has ever been required to validate a Massachusetts marriage.

[¶ 29] In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404, 409 (1898) (on marriage, the parties "assume[ ] new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546 (1935). While only the parties can mutually assent to marriage, the terms of the marriage--who may marry and what obligations, benefits, and liabilities attach to civil marriage--are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms.

[¶ 30] Civil marriage is created and regulated through exercise of the police power. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (regulation of marriage is properly within the scope of the police power). "Police power" (now more commonly termed the State's regulatory authority) is an old-fashioned term for the Commonwealth's lawmaking authority, as bounded by the liberty and equality guarantees of the Massachusetts Constitution and its express delegation of power from the people to their government. In broad terms, it is the Legislature's power to enact rules to regulate conduct, to the extent that such laws are "necessary to secure the health, safety, good order, comfort, or general welfare of the community." Opinion of the Justices, 341 Mass. 760, 785 (1960). See Commonwealth v. Alger, 7 Cush. 53, 85 (1851).

[¶ 31] Without question, civil marriage enhances the "welfare of the community." It is a "social institution of the highest importance." French v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.

[¶ 32] Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.

[¶ 33] Tangible as well as intangible benefits flow from marriage. The marriage license grants valuable property rights to those who meet the entry requirements, and who agree to what might otherwise be a burdensome degree of government regulation of their activities. See Leduc v. Commonwealth, 421 Mass. 433, 435 (1995) ("The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications"). The Legislature has conferred on "each party [in a civil marriage] substantial rights concerning the assets of the other which unmarried cohabitants do not have." Wilcox v. Trautz, 427 Mass. 326, 334 (1998). See Collins v. Guggenheim, 417 Mass. 615, 618 (1994) (rejecting claim for equitable distribution of property where plaintiff cohabited with but did not marry defendant); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987) (government interest in promoting marriage would be "subverted" by recognition of "a right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage"); Davis v. Misiano, 373 Mass. 261, 263 (1977) (unmarried partners not entitled to rights of separate support or alimony). See generally Attorney Gen. v. Desilets, 418 Mass. 316, 327-328 & nn. 10, 11 (1994).

[¶ 34] The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that "hundreds of statutes" are related to marriage and to marital benefits. With no attempt to be comprehensive, we note that some of the statutory benefits conferred by the Legislature on those who enter into civil marriage include, as to property: joint Massachusetts income tax filing; tenancy by the entirety (a form of ownership that provides certain protections against creditors and allows for the automatic descent of property to the surviving spouse without probate); extension of the benefit of the homestead protection (securing up to $300,000 in equity from creditors) to one's spouse and children; automatic rights to inherit the property of a deceased spouse who does not leave a will; the rights of elective share and of dower (which allow surviving spouses certain property rights where the decedent spouse has not made adequate provision for the survivor in a will); entitlement to wages owed to a deceased employee; eligibility to continue certain businesses of a deceased spouse; the right to share the medical policy of one's spouse; thirty-nine week continuation of health coverage for the spouse of a person who is laid off or dies; preferential options under the Commonwealth's pension system; preferential benefits in the Commonwealth's medical program, MassHealth; access to veterans' spousal benefits and preferences; financial protections for spouses of certain Commonwealth employees (fire fighters, police officers, prosecutors, among others) killed in the performance of duty; the equitable division of marital property on divorce; temporary and permanent alimony rights; the right to separate support on separation of the parties that does not result in divorce; and the right to bring claims for wrongful death and loss of consortium, and for funeral and burial expenses and punitive damages resulting from tort actions.

[¶ 35] Exclusive marital benefits that are not directly tied to property rights include the presumptions of legitimacy and parentage of children born to a married couple; and evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations, applicable in both civil and criminal cases. Other statutory benefits of a personal nature available only to married individuals include qualification for bereavement or medical leave to care for individuals related by blood or marriage; an automatic "family member" preference to make medical decisions for an incompetent or disabled spouse who does not have a contrary health care proxy; the application of predictable rules of child custody, visitation, support, and removal out-of-State when married parents divorce; priority rights to administer the estate of a deceased spouse who dies without a will, and requirement that surviving spouse must consent to the appointment of any other person as administrator; and the right to interment in the lot or tomb owned by one's deceased spouse.

[¶ 36] Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546 (2002), the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.

[¶ 37] It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a "civil right." See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival"), quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Milford v. Worcester, 7 Mass. 48, 56 (1810) (referring to "civil rights incident to marriages"). See also Baehr v. Lewin, 74 Haw. 530, 561 (1993) (identifying marriage as a "civil right[ ]"); Baker v. State, 170 Vt. 194, 242 (1999) (Johnson, J., concurring in part and dissenting in part) (same). The United States Supreme Court has described the right to marry as "of fundamental importance for all individuals" and as "part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978). See Loving v. Virginia, supra ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men").

[¶ 38] Without the right to marry--or more properly, the right to choose to marry-- one is excluded from the full range of human experience and denied full protection of the laws for one's "avowed commitment to an intimate and lasting human relationship." Baker v. State, supra. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not "interfere directly and substantially with the right to marry." Zablocki v. Redhail, supra. See Perez v. Sharp, supra ("There can be no prohibition of marriage except for an important social objective and reasonable means").

[¶ 39] Unquestionably, the regulatory power of the Commonwealth over civil marriage is broad, as is the Commonwealth's discretion to award public benefits. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (marriage); Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981) (Medicaid benefits). Individuals who have the choice to marry each other and nevertheless choose not to may properly be denied the legal benefits of marriage. See Wilcox v. Trautz, 427 Mass. 326, 334 (1998); Collins v. Guggenheim, 417 Mass. 615, 618 (1994); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987). But that same logic cannot hold for a qualified individual who would marry if she or he only could.

[¶ 40] For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, supra, or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, supra. As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance--the institution of marriage--because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.

[¶ 41] The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997); Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution." Arizona v. Evans, 514 U.S. 1, 8 (1995).

[¶ 42] The individual liberty and equality safeguards of the Massachusetts Constitution protect both "freedom from" unwarranted government intrusion into protected spheres of life and "freedom to" partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights. See, e.g., Lawrence, supra; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, supra; Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, supra. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. "Absolute equality before the law is a fundamental principle of our own Constitution." Opinion of the Justices, 211 Mass. 618, 619 (1912). The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.

[¶ 43] The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974). Under both the equality and liberty guarantees, regulatory authority must, at very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective." Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 270 (1992). See, e.g., Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002) (equal protection); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422 (1965) (due process). Any law failing to satisfy the basic standards of rationality is void.

[¶ 44] The plaintiffs challenge the marriage statute on both equal protection and due process grounds. With respect to each such claim, we must first determine the appropriate standard of review. Where a statute implicates a fundamental right or uses a suspect classification, we employ "strict judicial scrutiny." Lowell v. Kowalski, 380 Mass. 663, 666 (1980). For all other statutes, we employ the "'rational basis' test." English v. New England Med. Ctr., 405 Mass. 423, 428 (1989). For due process claims, rational basis analysis requires that statutes "bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Coffee-Rich, Inc. v. Commissioner of Pub. Health, supra, quoting Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). For equal protection challenges, the rational basis test requires that "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." English v. New England Med. Ctr., supra, quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring).

[¶ 45] The department argues that no fundamental right or "suspect" class is at issue here, and rational basis is the appropriate standard of review. For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny.

[¶ 46] The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources. We consider each in turn.

[¶ 47] The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). People who cannot stir from their deathbed may marry. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.

[¶ 48] Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry" (Cordy, J., dissenting herein) overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

[¶ 49] The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.

[¶ 50] The department's first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. "The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household." Troxel v. Granville, 530 U.S. 57, 63 (2000). Massachusetts has responded supportively to "the changing realities of the American family," and has moved vigorously to strengthen the modern family in its many variations. See, e.g., G.L. c. 209C (paternity statute); G.L. c. 119, Section 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002) (same); E.N.O. v. L.M.M., 429 Mass. 824 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See G.L. c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) ("Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy"). The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (parent's sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra (best interests of child determined by considering child's relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass.App.Ct. 339, 341 & n. 3 (1980) (collecting support and custody statutes containing no gender distinction).

[¶ 51] The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be "excellent" parents. These couples (including four of the plaintiff couples) have children for the reasons others do--to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see Culliton v. Beth Israel Deaconness Med. Ctr., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., supra. Given the wide range of public benefits reserved only for married couples, we do not credit the department's contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized" (Cordy, J., dissenting herein).

[¶ 52] No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow" (Cordy, J., dissenting herein).

[¶ 53] In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.

[¶ 54] The third rationale advanced by the department is that limiting marriage to opposite-sex couples furthers the Legislature's interest in conserving scarce State and private financial resources. The marriage restriction is rational, it argues, because the General Court logically could assume that same-sex couples are more financially independent than married couples and thus less needy of public marital benefits, such as tax advantages, or private marital benefits, such as employer-financed health plans that include spouses in their coverage.

[¶ 55] An absolute statutory ban on same-sex marriage bears no rational relationship to the goal of economy. First, the department's conclusory generalization-- that same-sex couples are less financially dependent on each other than opposite-sex couples--ignores that many same-sex couples, such as many of the plaintiffs in this case, have children and other dependents (here, aged parents) in their care. The department does not contend, nor could it, that these dependents are less needy or deserving than the dependents of married couples. Second, Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other; the benefits are available to married couples regardless of whether they mingle their finances or actually depend on each other for support.

[¶ 56] The department suggests additional rationales for prohibiting same-sex couples from marrying, which are developed by some amici. It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.

[¶ 57] Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

[¶ 58] It has been argued that, due to the State's strong interest in the institution of marriage as a stabilizing social structure, only the Legislature can control and define its boundaries. Accordingly, our elected representatives legitimately may choose to exclude same-sex couples from civil marriage in order to assure all citizens of the Commonwealth that (1) the benefits of our marriage laws are available explicitly to create and support a family setting that is, in the Legislature's view, optimal for child rearing, and (2) the State does not endorse gay and lesbian parenthood as the equivalent of being raised by one's married biological parents. These arguments miss the point. The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature (see, e.g., Cordy, J., dissenting herein) is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues.

[¶ 59] The history of constitutional law "is the story of the extension of constitutional rights and protections to people once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996) (construing equal protection clause of the Fourteenth Amendment to prohibit categorical exclusion of women from public military institute). This statement is as true in the area of civil marriage as in any other area of civil rights. See, e.g., Turner v. Safley, 482 U.S. 78 (1987); Loving v. Virginia, supra; Perez v. Sharp, supra. As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm. The common law was exceptionally harsh toward women who became wives: a woman's legal identity all but evaporated into that of her husband. Thus, one early Nineteenth Century jurist could observe matter of factly that, prior to the abolition of slavery in Massachusetts, "the condition of a slave resembled the connection of a wife with her husband, and of infant children with their father. He is obliged to maintain them, and they cannot be separated from him." Winchendon v. Hatfield, 4 Mass. 123, 129 (1808). But since at least the middle of the Nineteenth Century, both the courts and the Legislature have acted to ameliorate the harshness of the common-law regime. In Bradford v. Worcester, 184 Mass. 557, 562 (1904), we refused to apply the common-law rule that the wife's legal residence was that of her husband to defeat her claim to a municipal "settlement of paupers." In Lewis v. Lewis, 370 Mass. 619, 629 (1976), we abrogated the common-law doctrine immunizing a husband against certain suits because the common-law rule was predicated on "antediluvian assumptions concerning the role and status of women in marriage and in society." Alarms about the imminent erosion of the "natural" order of marriage were sounded over the demise of antimiscegenation laws, the expansion of the rights of married women, and the introduction of "no-fault" divorce. Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.

[¶ 60] We also reject the argument suggested by the department, and elaborated by some amici, that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict. We would not presume to dictate how another State should respond to today's decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution. The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the Fourteenth Amendment, each State is free to address difficult issues of individual liberty in the manner its own Constitution demands.

[¶ 61] Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, Section 39 (hate crimes); G.L. c. 272, Section 98 (public accommodation); G.L. c. 76, Section 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited).

[¶ 62] The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

[¶ 63] The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (construing Fourteenth Amendment). Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

[¶ 64] We consider next the plaintiffs' request for relief. We preserve as much of the statute as may be preserved in the face of the successful constitutional challenge. See Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 725 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971).

[¶ 65] Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society. We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others" (quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).

[¶ 66] We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983).

[¶ 67] In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).

So ordered.

GREANEY, J. (concurring).

[¶ 68] I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court's opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis.

[¶ 69] Article 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides:

"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."

[¶ 70] This provision, even prior to its amendment, guaranteed to all people in the Commonwealth--equally--the enjoyment of rights that are deemed important or fundamental. The withholding of relief from the plaintiffs, who wish to marry, and are otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right. The restriction creates a straightforward case of discrimination that disqualifies an entire group of our citizens and their families from participation in an institution of paramount legal and social importance. This is impermissible under art. 1.

[¶ 71] Analysis begins with the indisputable premise that the deprivation suffered by the plaintiffs is no mere legal inconvenience. The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("the right to marry is of fundamental importance for all individuals"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (freedom to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men" under due process clause of Fourteenth Amendment); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is one of "basic civil rights of man"). See also Turner v. Safley, 482 U.S. 78, 95-96 (1987) (prisoners' right to marry is constitutionally protected). This right is essentially vitiated if one is denied the right to marry a person of one's choice. See Zablocki v. Redhail, supra (all recent decisions of United States Supreme Court place "the decision to marry as among the personal decisions protected by the right of privacy").

[¶ 72] Because our marriage statutes intend, and state, the ordinary understanding that marriage under our law consists only of a union between a man and a woman, they create a statutory classification based on the sex of the two people who wish to marry. See Baehr v. Lewin, 74 Haw. 530, 564 (1993) (plurality opinion) (Hawaii marriage statutes created sex-based classification); Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part) (same). That the classification is sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants' gender. As a factual matter, an individual's choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.

[¶ 73] A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred. See Commonwealth v. Chou, 433 Mass. 229, 237-238 (2001) (assuming statute enforceable only across gender lines may offend Massachusetts equal rights amendment). I find it disingenuous, at best, to suggest that such an individual's right to marry has not been burdened at all, because he or she remains free to chose another partner, who is of the opposite sex.

[¶ 74] The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia's antimiscegenation laws and unveiled in the decision of Loving v. Virginia, supra. In its landmark decision striking down Virginia's ban on marriages between Caucasians and members of any other race on both equal protection and substantive due process grounds, the United States Supreme Court soundly rejected the proposition that the equal application of the ban (i.e., that it applied equally to whites and blacks) made unnecessary the strict scrutiny analysis traditionally required of statutes drawing classifications according to race and concluded that "restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." That our marriage laws, unlike antimiscegenation laws, were not enacted purposely to discriminate in no way neutralizes their present discriminatory character.

[¶ 75] With these two propositions established (the infringement on a fundamental right and a sex-based classification), the enforcement of the marriage statutes as they are currently understood is forbidden by our Constitution unless the State can present a compelling purpose further by the statutes that can be accomplished in no other reasonable manner. See Blixt v. Blixt, 437 Mass. 649, 655-656 (2002); Lowell v. Kowalski, 380 Mass. 663, 667-669 (1980). This the State has not done. The justifications put forth by the State to sustain the statute's exclusion of the plaintiffs are insufficient for the reasons explained by the court to which I add the following observations.

[¶ 76] The rights of couples to have children, to adopt, and to be foster parents, regardless of sexual orientation and marital status, are firmly established. See E.N.O. v. L.M.M., 429 Mass. 824, 829 (1999); Adoption of Tammy, 416 Mass. 205, 210-211 (1993). As recognized in the court's opinion, and demonstrated by the record in this case, however, the State's refusal to accord legal recognition to unions of same-sex couples has had the effect of creating a system in which children of same-sex couples are unable to partake of legal protections and social benefits taken for granted by children in families whose parents are of the opposite sex. The continued maintenance of this caste-like system is irreconcilable with, indeed, totally repugnant to, the State's strong interest in the welfare of all children and its primary focus, in the context of family law where children are concerned, on "the best interests of the child." The issue at stake is not one, as might ordinarily be the case, that can be unilaterally and totally deferred to the wisdom of the Legislature. "While the State retains wide latitude to decide the manner in which it will allocate benefits, it may not use criteria which discriminatorily burden the exercise of a fundamental right." Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981). Nor can the State's wish to conserve resources be accomplished by invidious distinctions between classes of citizens. See Plyler v. Doe, 457 U.S. 202, 216-217, 227 (1982).

[¶ 77] A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide. This case calls for a higher level of legal analysis. Precisely, the case requires that we confront ingrained assumptions with respect to historically accepted roles of men and women within the institution of marriage and requires that we reexamine these assumptions in light of the unequivocal language of art. 1, in order to ensure that the governmental conduct challenged here conforms to the supreme charter of our Commonwealth. "A written constitution is the fundamental law for the government of a sovereign State. It is the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of State and of public officers.... To its provisions the conduct of all governmental affairs must conform. From its terms there is no appeal." Loring v. Young, 239 Mass. 349, 376-377 (1921). I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage is now, or ever would be, warranted. But, as matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families. See Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor, J., concurring) (moral disapproval, with no other valid State interest, cannot justify law that discriminates against groups of persons); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) ("Our obligation is to define the liberty of all, not to mandate our own moral code").

[¶ 78] I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court's authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do. The union of two people contemplated by G.L. c. 207 "is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because of the terms of art. 1, the plaintiffs will no longer be excluded from that association.

SPINA, J. (dissenting, with whom Sosman and Cordy, JJ., join).

[¶ 79] What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights. The power to regulate marriage lies with the Legislature, not with the judiciary. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent.

1. Equal protection.

[¶ 80] Although the court did not address the plaintiffs' gender discrimination claim, G.L. c. 207 does not unconstitutionally discriminate on the basis of gender. A claim of gender discrimination will lie where it is shown that differential treatment disadvantages one sex over the other. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378 Mass. 342, 349-352 (1979). See also United States v. Virginia, 518 U.S. 515 (1996). General Laws c. 207 enumerates certain qualifications for obtaining a marriage license. It creates no distinction between the sexes, but applies to men and women in precisely the same way. It does not create any disadvantage identified with gender as both men and women are similarly limited to marrying a person of the opposite sex. See Commonwealth v. King, 374 Mass. 5, 15-22 (1977) (law prohibiting prostitution not discriminatory based on gender because of equal application to men and women).

[¶ 81] Similarly, the marriage statutes do not discriminate on the basis of sexual orientation. As the court correctly recognizes, constitutional protections are extended to individuals, not couples. The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.

[¶ 82] The court concludes, however, that G.L. c. 207 unconstitutionally discriminates against the individual plaintiffs because it denies them the "right to marry the person of one's choice" where that person is of the same sex. To reach this result the court relies on Loving v. Virginia, 388 U.S. 1, 12 (1967), and transforms "choice" into the essential element of the institution of marriage. The Loving case did not use the word "choice" in this manner, and it did not point to the result that the court reaches today. In Loving, the Supreme Court struck down as unconstitutional a statute that prohibited Caucasians from marrying non-Caucasians. It concluded that the statute was intended to preserve white supremacy and invidiously discriminated against non-Caucasians because of their race. The "choice" to which the Supreme Court referred was the "choice to marry," and it concluded that with respect to the institution of marriage, the State had no compelling interest in limiting the choice to marry along racial lines. The Supreme Court did not imply the existence of a right to marry a person of the same sex. To the same effect is Perez v. Sharp, 32 Cal.2d 711 (1948), on which the court also relies.

[¶ 83] Unlike the Loving and Sharp cases, the Massachusetts Legislature has erected no barrier to marriage that intentionally discriminates against anyone. Within the institution of marriage, anyone is free to marry, with certain exceptions that are not challenged. In the absence of any discriminatory purpose, the State's marriage statutes do not violate principles of equal protection. See Washington v. Davis, 426 U.S. 229, 240 (1976) ( "invidious quality of a law claimed to be ... discriminatory must ultimately be traced to a ... discriminatory purpose"); Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986) (for purpose of equal protection analysis, standard of review under State and Federal Constitutions is identical). See also Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, supra. This court should not have invoked even the most deferential standard of review within equal protection analysis because no individual was denied access to the institution of marriage.

2. Due process.

[¶ 84] The marriage statutes do not impermissibly burden a right protected by our constitutional guarantee of due process implicit in art. 10 of our Declaration of Rights. There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing person of the opposite sex. Cf. Zablocki v. Redhail, 434 U.S. 374 (1978) (fundamental right to marry impermissibly burdened by statute requiring court approval when subject to child support order).

[¶ 85] Substantive due process protects individual rights against unwarranted government intrusion. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993). The court states, as we have said on many occasions, that the Massachusetts Declaration of Rights may protect a right in ways that exceed the protection afforded by the Federal Constitution. See Arizona v. Evans, 514 U.S. 1, 8 (1995) (State courts afforded broader protection of rights than granted by United States Constitution). However, today the court does not fashion a remedy that affords greater protection of a right. Instead, using the rubric of due process it has redefined marriage.

[¶ 86] Although art. 10 may afford greater protection of rights than the due process clause of the Fourteenth Amendment, our treatment of due process challenges adheres to the same standards followed in Federal due process analysis. See Commonwealth v. Ellis, 429 Mass. 362, 371 (1999). When analyzing a claim that the State has impermissibly burdened an individual's fundamental or other right or liberty interest, "[w]e begin by sketching the contours of the right asserted. We then inquire whether the challenged restriction burdens that right." Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 646 (1981). Where a right deemed "fundamental" is implicated, the challenged restriction will be upheld only if it is "narrowly tailored to further a legitimate and compelling governmental interest." Aime v. Commonwealth, supra. To qualify as "fundamental" the asserted right must be "objectively, 'deeply rooted in this Nation's history and tradition,' [Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)] ... and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997), quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937) (right to assisted suicide does not fall within fundamental right to refuse medical treatment because novel and unsupported by tradition). See Three Juveniles v. Commonwealth, 390 Mass. 357, 367 (1983) (O'Connor, J., dissenting). Rights that are not considered fundamental merit due process protection if they have been irrationally burdened. See Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 777-779 & n. 14 (2002).

[¶ 87] Although this court did not state that same-sex marriage is a fundamental right worthy of strict scrutiny protection, it nonetheless deemed it a constitutionally protected right by applying rational basis review. Before applying any level of constitutional analysis there must be a recognized right at stake. Same-sex marriage, or the "right to marry the person of one's choice" as the court today defines that right, does not fall within the fundamental right to marry. Same-sex marriage is not "deeply rooted in this Nation's history," and the court does not suggest that it is. Except for the occasional isolated decision in recent years, see, e.g., Baker v. State, 170 Vt. 194 (1999), same-sex marriage is not a right, fundamental or otherwise, recognized in this country. Just one example of the Legislature's refusal to recognize same-sex marriage can be found in a section of the legislation amending G.L. c. 151B to prohibit discrimination in the workplace on the basis of sexual orientation, which states: "Nothing in this act shall be construed so as to legitimize or validate a 'homosexual marriage'...." In this Commonwealth and in this country, the roots of the institution of marriage are deeply set in history as a civil union between a single man and a single woman. There is no basis for the court to recognize same-sex marriage as a constitutionally protected right.

3. Remedy.

[¶ 88] The remedy that the court has fashioned both in the name of equal protection and due process exceeds the bounds of judicial restraint mandated by art. 30. The remedy that construes gender specific language as gender neutral amounts to a statutory revision that replaces the intent of the Legislature with that of the court. Article 30 permits the court to apply principles of equal protection and to modify statutory language only if legislative intent is preserved. See, e.g., Commonwealth v. Chou, 433 Mass. 229, 238-239 (2001) (judicial rewriting of gender language permissible only when Legislature intended to include both men and women). See also Lowell v. Kowalski, 380 Mass. 663, 670 (1980). Here, the alteration of the gender-specific language alters precisely what the Legislature unambiguously intended to preserve, the marital rights of single men and women. Such a dramatic change in social institutions must remain at the behest of the people through the democratic process.

[¶ 89] Where the application of equal protection principles does not permit rewriting a statute in a manner that preserves the intent of the Legislature, we do not rewrite the statute. In Dalli v. Board of Educ., 358 Mass. 753 (1971), the court refused to rewrite a statute in a manner that would include unintended individuals. "To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Recently, in Connors v. Boston, 430 Mass. 31 (1999), we refused to expand health insurance coverage to include domestic partners because such an expansion was within the province of the Legislature, where policy affecting family relationships is most appropriate and frequently considered. Principles of equal protection do not permit the marriage statutes to be changed in the manner that we have seen today.

[¶ 90] This court has previously exercised the judicial restraint mandated by art. 30 and declined to extend due process protection to rights not traditionally coveted, despite recognition of their social importance. See Tobin's Case, 424 Mass. 250, 252-253 (1997) (receiving workers' compensation benefits not fundamental right); Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129 (1995) (declaring education not fundamental right); Williams v. Secretary of the Executive Office of Human Servs., 414 Mass. 551, 565 (1993) (no fundamental right to receive mental health services); Matter of Tocci, 413 Mass. 542, 548 n. 4 (1992) (no fundamental right to practice law); Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974) (no fundamental right to pursue one's business). Courts have authority to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes.

[¶ 91] Likewise, the Supreme Court exercises restraint in the application of substantive due process "'because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.' [Collins v. Harker Heights, 503 U.S. 115, 125 (1992).] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 'exercise the utmost care whenever we are asked to break new ground in this field' lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore [v. East Cleveland, 431 U.S. 494, 502 (1977)] (plurality opinion)." Washington v. Glucksberg, supra.

[¶ 92] The court has extruded a new right from principles of substantive due process, and in doing so it has distorted the meaning and purpose of due process. The purpose of substantive due process is to protect existing rights, not to create new rights. Its aim is to thwart government intrusion, not invite it. The court asserts that the Massachusetts Declaration of Rights serves to guard against government intrusion into each individual's sphere of privacy. Similarly, the Supreme Court has called for increased due process protection when individual privacy and intimacy are threatened by unnecessary government imposition. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (private nature of sexual behavior implicates increased due process protection); Eisenstadt v. Baird, 405 U.S. 438 (1972) (privacy protection extended to procreation decisions within nonmarital context); Griswold v. Connecticut, 381 U.S. 479 (1965) (due process invoked because of intimate nature of procreation decisions). These cases, along with the Moe case, focus on the threat to privacy when government seeks to regulate the most intimate activity behind bedroom doors. The statute in question does not seek to regulate intimate activity within an intimate relationship, but merely gives formal recognition to a particular marriage. The State has respected the private lives of the plaintiffs, and has done nothing to intrude in the relationships that each of the plaintiff couples enjoy. Cf. Lawrence v. Texas, supra (case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"). Ironically, by extending the marriage laws to same-sex couples the court has turned substantive due process on its head and used it to interject government into the plaintiffs' lives.

SOSMAN, J. (dissenting, with whom Spina and Cordy, JJ., join).

[¶ 93] In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality. Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses. Reduced to its essence, the court's opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples. Of course, many people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents. That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries. People are of course at liberty to raise their children in various family structures, as long as they are not literally harming their children by doing so. See Blixt v. Blixt, 437 Mass. 649, 668-670 (2002) (Sosman, J., dissenting). That does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits.

[¶ 94] Based on our own philosophy of child rearing, and on our observations of the children being raised by same-sex couples to whom we are personally close, we may be of the view that what matters to children is not the gender, or sexual orientation, or even the number of the adults who raise them, but rather whether those adults provide the children with a nurturing, stable, safe, consistent, and supportive environment in which to mature. Same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent, and supportive environment in which to mature, just as opposite-sex couples do. It is therefore understandable that the court might view the traditional definition of marriage as an unnecessary anachronism, rooted in historical prejudices that modern society has in large measure rejected and biological limitations that modern science has overcome.

[¶ 95] It is not, however, our assessment that matters. Conspicuously absent from the court's opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the child rearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples (see Cordy, J., dissenting herein). Interpretation of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators, both as to whether the differences identified are positive or negative, and as to the untested explanations of what might account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method has melted and buckled under the intense heat of political and religious passions.) Even in the absence of bias or political agenda behind the various studies of children raised by same-sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children's sole parents, comprise a very recent phenomenon, and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: Are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.

[¶ 96] Although ostensibly applying the rational basis test to the civil marriage statutes, it is abundantly apparent that the court is in fact applying some undefined stricter standard to assess the constitutionality of the marriage statutes' exclusion of same-sex couples. While avoiding any express conclusion as to any of the proffered routes by which that exclusion would be subjected to a test of strict scrutiny--infringement of a fundamental right, discrimination based on gender, or discrimination against gays and lesbians as a suspect classification--the opinion repeatedly alludes to those concepts in a prolonged and eloquent prelude before articulating its view that the exclusion lacks even a rational basis (noting that State Constitution is "more protective of individual liberty and equality," demands "broader protection for fundamental rights," and is "less tolerant of government intrusion into the protected spheres of private life" than Federal Constitution; describing decision to marry and choice of marital partner as "among life's momentous acts of self-definition"; repeated references to "right to marry" as "fundamental"; repeated comparisons to statutes prohibiting interracial marriage, which were predicated on suspect classification of race; characterizing ban on same-sex marriage as "invidious" discrimination that "deprives individuals of access to an institution of fundamental legal, personal, and social significance" and again noting that Massachusetts Constitution "protects matters of personal liberty against government incursion" more zealously than Federal Constitution; characterizing "whom to marry, how to express sexual intimacy, and whether and how to establish a family" as "among the most basic of every individual's liberty and due process rights"; "liberty interest in choosing whether and whom to marry would be hollow" if Commonwealth could "foreclose an individual from freely choosing the person" to marry; opining that in "overlapping realms of personal autonomy, marriage, family life and child-rearing," characterized as "fundamentally private areas of life," court uses "integrated" analysis instead of "narrow focus"; suggesting that prohibition on same-sex marriage "impose[s] limits on personal beliefs"; suggesting that "total deference" to Legislature in this case would be equivalent to "strip[ping]" judiciary "of its constitutional authority to decide challenges" in such areas as forced sterilization, antimiscegenation statutes, and abortion, even though all cited examples pertain to fundamental rights analyzed under strict scrutiny, not under rational basis test; civil marriage as "a right of fundamental importance"; noting State policy of "preventing discrimination on the basis of sexual orientation"; prohibition against same-sex marriage inconsistent with "gender neutral laws promoting stable families," and "rooted in persistent prejudices against" homosexuals; prohibition against same-sex marriage "violated the basic premises of individual liberty"). In short, while claiming to apply a mere rational basis test, the court's opinion works up an enormous head of steam by repeated invocations of avenues by which to subject the statute to strict scrutiny, apparently hoping that that head of steam will generate momentum sufficient to propel the opinion across the yawning chasm of the very deferential rational basis test.

[¶ 97] Shorn of these emotion-laden invocations, the opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach. For example, if the issue were government subsidies and tax benefits promoting use of an established technology for energy efficient heating, the court would find no equal protection or due process violation in the Legislature's decision not to grant the same benefits to an inventor or manufacturer of some new, alternative technology who did not yet have sufficient data to prove that that new technology was just as good as the established technology. That the early results from preliminary testing of the new technology might look very promising, or that the theoretical underpinnings of the new technology might appear flawless, would not make it irrational for the Legislature to grant subsidies and tax breaks to the established technology and deny them to the still unproved newcomer in the field. While programs that affect families and children register higher on our emotional scale than programs affecting energy efficiency, our standards for what is or is not "rational" should not be bent by those emotional tugs. Where, as here, there is no ground for applying strict scrutiny, the emotionally compelling nature of the subject matter should not affect the manner in which we apply the rational basis test.

[¶ 98] Or, to the extent that the court is going to invoke such emotion-laden and value-laden rhetoric as a means of heightening the degree of scrutiny to be applied, the same form of rhetoric can be employed to justify the Legislature's proceeding with extreme caution in this area. In considering whether the Legislature has a rational reason for postponing a dramatic change to the definition of marriage, it is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure (see Cordy, J., dissenting herein). Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (an assumption that is not supported by anything more than the court's blind faith that it is so).

[¶ 99] More importantly, it is not our confidence in the lack of adverse consequences that is at issue, or even whether that confidence is justifiable. The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society. Absent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences. Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks--be they palpable or ephemeral--are involved. However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to abrogate that power to ourselves merely because we are confident that "it is the right thing to do" (Greaney, J., concurring).

[¶ 100] As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition. I fully appreciate the strength of the temptation to find this particular law unconstitutional--there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity. Speaking metaphorically, these factors have combined to turn the case before us into a "perfect storm" of a constitutional question. In my view, however, such factors make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence, a jurisprudence that makes the rational basis test an extremely deferential one that focuses on the rationality, not the persuasiveness, of the potential justifications for the classifications in the legislative scheme. I trust that, once this particular "storm" clears, we will return to the rational basis test as it has always been understood and applied. Applying that deferential test in the manner it is customarily applied, the exclusion of gay and lesbian couples from the institution of civil marriage passes constitutional muster. I respectfully dissent.

CORDY, J. (dissenting, with whom Spina and Sosman, JJ., join).

[¶ 101] The court's opinion concludes that the Department of Public Health has failed to identify any "constitutionally adequate reason" for limiting civil marriage to opposite-sex unions, and that there is no "reasonable relationship" between a disqualification of same-sex couples who wish to enter into a civil marriage and the protection of public health, safety, or general welfare. Consequently, it holds that the marriage statute cannot withstand scrutiny under the Massachusetts Constitution. Because I find these conclusions to be unsupportable in light of the nature of the rights and regulations at issue, the presumption of constitutional validity and significant deference afforded to legislative enactments, and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature" responsible for making such policy, Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977), I respectfully dissent. Although it may be desirable for many reasons to extend to same-sex couples the benefits and burdens of civil marriage (and the plaintiffs have made a powerfully reasoned case for that extension), that decision must be made by the Legislature, not the court.

[¶ 102] If a statute either impairs the exercise of a fundamental right protected by the due process or liberty provisions of our State Constitution, or discriminates based on a constitutionally suspect classification such as sex, it will be subject to strict scrutiny when its validity is challenged. See Blixt v. Blixt, 437 Mass. 649, 655-656, 660-661 (2002) (fundamental right); Lowell v. Kowalski, 380 Mass. 663, 666 (1980) (sex-based classification). If it does neither, a statute "will be upheld if it is 'rationally related to a legitimate State purpose.'" Hallett v. Wrentham, 398 Mass. 550, 557 (1986), quoting Paro v. Longwood Hosp., 373 Mass. 645, 649 (1977). This test, referred to in State and Federal constitutional jurisprudence as the "rational basis test," is virtually identical in substance and effect to the test applied to a law promulgated under the State's broad police powers (pursuant to which the marriage statutes and most other licensing and regulatory laws are enacted): that is, the law is valid if it is reasonably related to the protection of public health, safety, or general welfare. See, e.g., Leigh v. Board of Registration in Nursing, 395 Mass. 670, 682-683 (1985) (applying rational basis review to question of State exercise of police power).

[¶ 103] The Massachusetts marriage statute does not impair the exercise of a recognized fundamental right, or discriminate on the basis of sex in violation of the equal rights amendment to the Massachusetts Constitution. Consequently, it is subject to review only to determine whether it satisfies the rational basis test. Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State's police power.

Limiting marriage to the union of one man and one

woman does not impair the exercise of a fundamental right.

[¶ 104] Civil marriage is an institution created by the State. In Massachusetts, the marriage statutes are derived from English common law, see Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807), and were first enacted in colonial times. Commonwealth v. Munson, 127 Mass. 459, 460 (1879). They were enacted to secure public interests and not for religious purposes or to promote personal interests or aspirations. As the court notes in its opinion, the institution of marriage is "the legal union of a man and woman as husband and wife," and it has always been so under Massachusetts law, colonial or otherwise.

[¶ 105] The plaintiffs contend that because the right to choose to marry is a "fundamental" right, the right to marry the person of one's choice, including a member of the same sex, must also be a "fundamental" right. While the court stops short of deciding that the right to marry someone of the same sex is "fundamental" such that strict scrutiny must be applied to any statute that impairs it, it nevertheless agrees with the plaintiffs that the right to choose to marry is of fundamental importance ("among the most basic" of every person's "liberty and due process rights") and would be "hollow" if an individual was foreclosed from "freely choosing the person with whom to share ... the ... institution of civil marriage." Hence, it concludes that a marriage license cannot be denied to an individual who wishes to marry someone of the same sex. In reaching this result the court has transmuted the "right" to marry into a right to change the institution of marriage itself. This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man and a woman is merely "conclusory" (as suggested by Greaney, J., concurring), rather than the basis on which the "right" to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that "marriage" includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the "right" of same-sex couples of "marry."

[¶ 106] The plaintiffs ground their contention that they have a fundamental right to marry a person of the same sex in a long line of Supreme Court decisions, e.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942), that discuss the importance of marriage. In context, all of these decisions and their discussions are about the "fundamental" nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today. Even in that context, its "fundamental" nature is derivative of the nature of the interests that underlie or are associated with it. An examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.

[¶ 107] Supreme Court cases that have described marriage or the right to marry as "fundamental" have focused primarily on the underlying interest of every individual in procreation, which, historically, could only legally occur within the construct of marriage because sexual intercourse outside of marriage was a criminal act. In Skinner v. Oklahoma, supra, the first case to characterize marriage as a "fundamental" right, the Supreme Court stated, as its rationale for striking down a sterilization statute, that "[m]arriage and procreation are fundamental to the very existence of the race." In concluding that a sterilized individual "is forever deprived of a basic liberty," the Court was obviously referring to procreation rather than marriage, as this court recognized in Matter of Moe, 385 Mass. 555, 560 (1982). Similarly, in Loving v. Virginia, supra, in which the United States Supreme Court struck down Virginia's antimiscegenation statute, the Court implicitly linked marriage with procreation in describing marriage as "fundamental to our very existence." In Zablocki v. Redhail, supra, the Court expressly linked the right to marry with the right to procreate, concluding that "if [the plaintiff's] right to procreate means anything at all, it must imply some right to enter the only relationship in which the State ... allows sexual relations legally to take place." Once again, in Turner v. Safley, supra, striking a State regulation that curtailed the right of an inmate to marry, the Court included among the important attributes of such marriages the "expectation that [the marriage] ultimately will be fully consummated." See Milford v. Worcester, 7 Mass. 48, 52 (1810) (purpose of marriage is "to regulate, chasten, and refine, the intercourse between the sexes; and to multiply [and] preserve ... the species"). Because same-sex couples are unable to procreate on their own, any right to marriage they may possess cannot be based on their interest in procreation, which has been essential to the Supreme Court's denomination of the right to marry as fundamental.

[¶ 108] Supreme Court cases recognizing a right to privacy in intimate decision-making, e.g., Griswold v. Connecticut, supra (striking down statute prohibiting use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (striking down statute criminalizing abortion), have also focused primarily on sexual relations and the decision whether or not to procreate, and have refused to recognize an "unlimited right" to privacy. Massachusetts courts have been no more willing than the Federal courts to adopt a "universal[ ]" "privacy doctrine," Marcoux v. Attorney Gen., 375 Mass. 63, 67 (1978), or to derive "controversial 'new' rights from the Constitution." Aime v. Commonwealth, 414 Mass. 667, 674 n. 10 (1993).

[¶ 109] What the Griswold Court found "repulsive to the notions of privacy surrounding the marriage relationship" was the prospect of "allow[ing] the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." Griswold v. Connecticut, supra. See Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 658 (1981), quoting L. Tribe, American Constitutional Law 924 (1978) (finding it "difficult to imagine a clearer case of bodily intrusion" than being forced to bear a child). When Justice Goldberg spoke of "marital relations" in the context of finding it "difficult to imagine what is more private or more intimate than a husband and wife's marital relations[hip]," Griswold v. Connecticut, supra (Goldberg, J., concurring), he was obviously referring to sexual relations. Similarly, in Lawrence v. Texas, 539 U.S. 558 (2003), it was the criminalization of private sexual behavior that the Court found violative of the petitioners' liberty interest.

[¶ 110] In Massachusetts jurisprudence, protected decisions generally have been limited to those concerning "whether or not to beget or bear a child," Matter of Moe, 385 Mass. 555, 564 (1982) (see Opinion of the Justices, 423 Mass. 1201, 1234-1235 [1996] ["focus of (the Griswold and Roe cases) and the cases following them has been the intrusion ... into the especially intimate aspects of a person's life implicated in procreation and childbearing"]); how to raise a child, see Care & Protection of Robert, 408 Mass. 52, 58, 60 (1990); or whether or not to accept medical treatment, see Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 430 (1986); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 742 (1977), none of which is at issue here. See also Commonwealth v. Balthazar, 366 Mass. 298, 301 (1974) (statute punishing unnatural and lascivious acts does not apply to sexual conduct engaged in by adults in private, in light of "articulation of the constitutional right of an individual to be free from government regulation of certain sex related activities").

[¶ 111] The marriage statute, which regulates only the act of obtaining a marriage license, does not implicate privacy in the sense that it has found constitutional protection under Massachusetts and Federal law. Cf. Commonwealth v. King, 374 Mass. 5, 14 (1977) (solicitation of prostitution "while in a place to which the public had access" implicated no "constitutionally protected rights of privacy"); Marcoux v. Attorney Gen., supra (right to privacy, at most, protects conduct "limited more or less to the hearth"). It does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. The plaintiffs' right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.

[¶ 112] Although some of the privacy cases also speak in terms of personal autonomy, no court has ever recognized such an open-ended right. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected...." Washington v. Glucksberg, 521 U.S. 702, 727 (1997). Such decisions are protected not because they are important, intimate, and personal, but because the right or liberty at stake is "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty" that it is protected by due process. Accordingly, the Supreme Court has concluded that while the decision to refuse unwanted medical treatment is fundamental, Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278 (1990), because it is deeply rooted in our nation's history and tradition, the equally personal and profound decision to commit suicide is not because of the absence of such roots. Washington v. Glucksberg, supra.

[¶ 113] While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not. No matter how personal or intimate a decision to marry someone of the same sex might be, the right to make it is not guaranteed by the right of personal autonomy.

[¶ 114] The protected right to freedom of association, in the sense of freedom of choice "to enter into and maintain certain intimate human relationships," Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984) (as an element of liberty or due process rather than free speech), is similarly limited and unimpaired by the marriage statute. As recognized by the Supreme Court, that right affords protection only to "certain kinds of highly personal relationships," such as those between husband and wife, parent and child, and among close relatives that "have played a critical role in the culture and traditions of the Nation" and are "deeply rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494, 498-499, 503 (1977) (distinguishing on this basis between family and nonfamily relationships). Unlike opposite-sex marriages, which have deep historic roots, or the parent-child relationship, which reflects a "strong tradition" founded on "the history and culture of Western civilization" and "is now established beyond debate as an enduring American tradition," Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); or extended family relationships, which have been "honored throughout our history," Moore v. East Cleveland, supra, same-sex relationships, although becoming more accepted, are certainly not so "deeply rooted in this Nation's history and tradition" as to warrant such enhanced constitutional protection.

[¶ 115] Although "expressions of emotional support and public commitment" have been recognized as among the attributes of marriage, which, "[t]aken together ... form a constitutionally protected marital relationship" (emphasis added), Turner v. Safley, supra, those interests, standing alone, are not the source of a fundamental right to marry. While damage to one's "status in the community" may be sufficient harm to confer standing to sue, Lowell v. Kowalski, 380 Mass. 663, 667 (1980), such status has never been recognized as a fundamental right. See Paul v. Davis, 424 U.S. 693, 701 (1976) (mere damage to reputation does not constitute deprivation of "liberty").

[¶ 116] Finally, the constitutionally protected interest in child rearing, recognized in Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); and Care & Protection of Robert, supra, is not implicated or infringed by the marriage statute here. The fact that the plaintiffs cannot marry has no bearing on their independently protected constitutional rights as parents which, as with opposite-sex parents, are limited only by their continued fitness and the best interests of their children. Bezio v. Patenaude, 381 Mass. 563, 579 (1980) (courts may not use parent's sexual orientation as reason to deny child custody).

[¶ 117] Because the rights and interests discussed above do not afford the plaintiffs any fundamental right that would be impaired by a statute limiting marriage to members of the opposite sex, they have no fundamental right to be declared "married" by the State.

[¶ 118] Insofar as the right to marry someone of the same sex is neither found in the unique historical context of our Constitution nor compelled by the meaning ascribed by this court to the liberty and due process protections contained within it, should the court nevertheless recognize it as a fundamental right? The consequences of deeming a right to be "fundamental" are profound, and this court, as well as the Supreme Court, has been very cautious in recognizing them. Such caution is required by separation of powers principles. If a right is found to be "fundamental," it is, to a great extent, removed from "the arena of public debate and legislative action"; utmost care must be taken when breaking new ground in this field "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [judges]." Washington v. Glucksberg, supra.

[¶ 119] "[T]o rein in" the otherwise potentially unlimited scope of substantive due process rights, both Federal and Massachusetts courts have recognized as "fundamental" only those "rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' [Moore v. East Cleveland, supra] ... and 'implicit in the concept of ordered liberty'" (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). See Dutil, petitioner, 437 Mass. 9, 13 (2002) (same). In the area of family-related rights in particular, the Supreme Court has emphasized that the "Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted." Moore v. East Cleveland, supra.

[¶ 120] Applying this limiting principle, the Supreme Court, as noted above, declined to recognize a fundamental right to physician-assisted suicide, which would have required "revers[ing] centuries of legal doctrine and practice, and strik[ing] down the considered policy choice of almost every State." Washington v. Glucksberg, supra. While recognizing that public attitudes toward assisted suicide are currently the subject of "earnest and profound debate," the Court nevertheless left the continuation and resolution of that debate to the political arena, "as it should be in a democratic society."

[¶ 121] Similarly, Massachusetts courts have declined to recognize rights that are not so deeply rooted. As this court noted in considering whether to recognize a right of terminally ill patients to refuse life-prolonging treatment, "the law always lags behind the most advanced thinking in every area," and must await "some common ground, some consensus." Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 737 (1977), quoting Burger, The Law and Medical Advances, 67 Annals Internal Med. Supp. 7, 15, 17 (1967). See Blixt v. Blixt, 437 Mass. 649, 662-663 n. 22 (2002) ("social consensus about family relationships is relevant to the constitutional limits on State intervention").

[¶ 122] This is not to say that a statute that has no rational basis must nevertheless be upheld as long as it is of ancient origin. However, "[t]he long history of a certain practice ... and its acceptance as an uncontroversial part of our national and State tradition do suggest that [the court] should reflect carefully before striking it down." Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 557 (1979). As this court has recognized, the "fact that a challenged practice 'is followed by a large number of states ... is plainly worth considering in determining whether the practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."'" Commonwealth v. Kostka, 370 Mass. 516, 533 (1976), quoting Leland v. Oregon, 343 U.S. 790, 798 (1952).

[¶ 123] Although public attitudes toward marriage in general and same-sex marriage in particular have changed and are still evolving, "the asserted contemporary concept of marriage and societal interests for which [plaintiffs] contend" are "manifestly [less] deeply founded" than the "historic institution" of marriage. Matter of the Estate of Cooper, 187 A.D.2d 128, 133-134 (N.Y.1993). Indeed, it is not readily apparent to what extent contemporary values have embraced the concept of same-sex marriage. Perhaps the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures," Atkins v. Virginia, 536 U.S. 304, 312 (2002), quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989). No State Legislature has enacted laws permitting same-sex marriages; and a large majority of States, as well as the United States Congress, have affirmatively prohibited the recognition of such marriages for any purpose.

[¶ 124] Given this history and the current state of public opinion, as reflected in the actions of the people's elected representatives, it cannot be said that "a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither ... [is] a right to same-sex marriage ... implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed." Baehr v. Lewin, 74 Haw. 530, 556-557 (1993). See Dean v. District of Columbia, 653 A.2d 307, 333 (D.C.1995) (per curiam) (Ferren, J., concurring in part and dissenting in part); Baker v. Nelson, 291 Minn. 310, 312 (1971); Storrs v. Holcomb, 168 Misc.2d 898, 899-900 (N.Y.Sup.Ct.1996). The one exception was the Alaska Superior Court, which relied on that State's Constitution's express and broadly construed right to privacy. Brause, 1998 WL 88743. In such circumstances, the law with respect to same-sex marriages must be left to develop through legislative processes, subject to the constraints of rationality, lest the court be viewed as using the liberty and due process clauses as vehicles merely to enforce its own views regarding better social policies, a role that the strongly worded separation of powers principles in art. 30 of the Declaration of Rights of our Constitution forbids, and for which the court is particularly ill suited.

The marriage statute, in limiting marriage to heterosexual couples,

does not constitute discrimination on the basis of sex in violation of the

Equal Rights Amendment to the Massachusetts Constitution.

[¶ 125] In his concurrence, Justice Greaney contends that the marriage statute constitutes discrimination on the basis of sex in violation of art. 1 of the Declaration of Rights as amended by art. 106 of the Amendments to the Constitution of the Commonwealth, the Equal Rights Amendment (ERA). Such a conclusion is analytically unsound and inconsistent with the legislative history of the ERA.

[¶ 126] The central purpose of the ERA was to eradicate discrimination against women and in favor of men or vice versa. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378 Mass. 342, 357 (1979). Consistent with this purpose, we have construed the ERA to prohibit laws that advantage one sex at the expense of the other, but not laws that treat men and women equally (assuming that "separate but equal" treatment of males and females would be constitutionally permissible). The Massachusetts marriage statute does not subject men to different treatment from women; each is equally prohibited from precisely the same conduct. See Baker v. State, 170 Vt. 194, 215 n. 13 (1999) ("there is no discrete class subject to differential treatment solely on the basis of sex"). Compare Commonwealth v. King, 374 Mass. 5, 16 (1977) (law prohibiting prostitution applied to both male and female prostitutes and therefore did not discriminate), and Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274-275 (1979) (declining to characterize veterans' preference as sex discrimination because it applied to both male and female veterans), with Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, supra, and Lowell v. Kowalski, 380 Mass. 663 (1980) (where statutes and rules at issue advantaged one sex over another).

[¶ 127] Of course, a statute that on its face treats protected groups equally may still harm, stigmatize, or advantage one over the other. Such was the circumstance in Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court struck down a State statute that made interracial marriage a crime, as constituting invidious discrimination on the basis of race. While the statute purported to apply equally to whites and nonwhites, the Court found that it was intended and structured to favor one race (white) and disfavor all others (nonwhites). The statute's legislative history demonstrated that its purpose was not merely to punish interracial marriage, but to do so for the sole benefit of the white race. As the Supreme Court readily concluded, the Virginia law was "designed to maintain White Supremacy." Consequently, there was a fit between the class that the law was intended to discriminate against (nonwhite races) and the classification enjoying heightened protection (race).

[¶ 128] By contrast, here there is no evidence that limiting marriage to opposite-sex couples was motivated by sexism in general or a desire to disadvantage men or women in particular. Moreover, no one has identified any harm, burden, disadvantage, or advantage accruing to either gender as a consequence of the Massachusetts marriage statute. In the absence of such effect, the statute limiting marriage to couples of the opposite sex does not violate the ERA's prohibition of sex discrimination.

[¶ 129] This conclusion is buttressed by the legislative history of the ERA, which was adopted by the voters on November 2, 1976, after being approved by constitutional conventions of the Legislature on August 15, 1973, (by a vote of 261-0) and May 14, 1975 (by a vote of 217-55).

[¶ 130] In anticipation of its adoption, the Legislature enacted and, on June 21, 1975, the Governor approved a "Resolve providing for an investigation and study by a special commission relative to the effect of the ratification of the proposed amendments to the Constitution of the Commonwealth of Massachusetts and the Constitution of the United States prohibiting discrimination on account of sex upon the laws, business communities and public in the Commonwealth." One of the principal tasks of the commission was to catalog the aspects of the General Laws that would have to be amended for the statutory code to comply with the mandate of the proposed amendment that equality not be abridged on the basis of sex.

[¶ 131] On October 19, 1976, just before the general election at which the amendment was to be considered, the commission filed its Interim Report, which focused on the effect of the Massachusetts ERA on the laws of the Commonwealth. A section of the report, entitled "Areas Unaffected by the Equal Rights Amendment," addressed some of the legal regimes that would not be affected by the adoption of the ERA. One such area was "Homosexual Marriage," about which the commission stated:

"An equal rights amendment will have no effect upon the allowance or denial of homosexual marriages. The equal rights amendment is not concerned with the relationship of two persons of the same sex; it only addresses those laws or public-related actions which treat persons of opposite sexes differently. The Washington Court of Appeals has already stated that the equal rights amendment to its state constitution did not afford a basis for validating homosexual marriages. In Colorado, the attorney general has likewise issued an opinion that the state equal rights amendment did not validate homosexual marriage. There are no cases which have used a state equal rights amendment to either validate or require the allowance of homosexual marriages."

[¶ 132] The views of the commission were reflected in the public debate surrounding the passage of the ERA that focused on gender equality. Claims that the ERA might be the basis for validating marriages between same-sex couples were labelled as "exaggerated" and "unfounded." For example, before the vote, the Boston Globe published an editorial discussing and urging favorable action on the ERA. In making its case, it noted that "[t]hose urging a no vote ... argue that the amendment would ... legitimize marriage between people of the same sex [and other changes]. In reality, the proposed amendment would require none of these things.” And in the aftermath of the vote, the Boston Globe heralded the electorate's acceptance of "the arguments of proponents that the proposal would not result in many far-reaching or threatening changes."

[¶ 133] While the court, in interpreting a constitutional amendment, is not bound to accept either the views of a legislative commission studying and reporting on the amendment's likely effects, or of public commentary and debate contemporaneous with its passage, it ought to be wary of completely disregarding what appears to be the clear intent of the people recently recorded in our constitutional history. This is particularly so where the plain wording of the amendment does not require the result it would reach.

The marriage statute satisfies the rational basis standard.

[¶ 134] The burden of demonstrating that a statute does not satisfy the rational basis standard rests on the plaintiffs. It is a weighty one. "[A] reviewing court will presume a statute's validity, and make all rational inferences in favor of it.... The Legislature is not required to justify its classifications, nor provide a record or finding in support of them." Paro v. Longwood Hosp., 373 Mass. 645, 650 (1977). The statute "only need[s to] be supported by a conceivable rational basis." Fine v. Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988). See Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 771-772 (2002). As this court stated in Shell Oil Co. v. Revere, 383 Mass. 682, 687-688 (1981):

"[I]t is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. '[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning.' Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring).

“This respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment....

"Although persons challenging the constitutionality of legislation may introduce evidence in support of their claim that the legislation is irrational ... they will not prevail if 'the question is at least debatable' in view of the evidence which may have been available to the Legislature. United States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)."

[¶ 135] The "time tested wisdom of the separation of powers" requires courts to avoid "judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975).

[¶ 136] In analyzing whether a statute satisfies the rational basis standard, we look to the nature of the classification embodied in the enactment, then to whether the statute serves a legitimate State purpose, and finally to whether the classification is reasonably related to the furtherance of that purpose. With this framework, we turn to the challenged statute, G.L. c. 207, which authorizes local town officials to issue licenses to couples of the opposite sex authorizing them to enter the institution of civil marriage.

[¶ 137] 1. Classification. The nature of the classification at issue is readily apparent. Opposite-sex couples can obtain a license and same-sex couples cannot. The granting of this license, and the completion of the required solemnization of the marriage, opens the door to many statutory benefits and imposes numerous responsibilities. The fact that the statute does not permit such licenses to be issued to couples of the same sex thus bars them from civil marriage. The classification is not drawn between men and women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between same-sex couples and opposite-sex couples.

[¶ 138] 2. State purpose. The court's opinion concedes that the civil marriage statute serves legitimate State purposes, but further investigation and elaboration of those purposes is both helpful and necessary.

[¶ 139] Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. See C.N. Degler, The Emergence of the Modern American Family, in The American Family in Social-Historical Perspective 61 (3d ed.1983); A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, Social Pathologists and the Socialization of Reproduction, in The American Family in Social-Historical Perspective; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, The Individual, Marriage, and the Family 229-230, 260 (1968); M.A. Schwartz & B.M. Scott, Marriages and Families: Diversity and Change 4 (1994); Wardle, "Multiply and Replenish": Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 777-780 (2001); J.Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 28, 40, 66-67 (2002). Marriage has not been merely a contractual arrangement for legally defining the private relationship between two individuals (although that is certainly part of any marriage). Rather, on an institutional level, marriage is the "very basis of the whole fabric of civilized society," J.P. Bishop, Commentaries on the Law of Marriage and Divorce, and Evidence in Matrimonial Suits Section 32 (1852), and it serves many important political, economic, social, educational, procreational, and personal functions.

[¶ 140] Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. See Milford v. Worcester, 7 Mass. 48, 52 (1810) (civil marriage "intended to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species"). See also P. Blumstein & P. Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra; G. Douglas, Marriage, Cohabitation, and Parenthood--From Contract to Status?, in Cross Currents: Family Law and Policy in the United States and England 223 (2000); S.L. Nock, The Social Costs of De-Institutionalizing Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage, supra; L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra; J.Q. Wilson, supra. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.

[¶ 141] The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. See G.L. c. 209C, Section 6 ("a man is presumed to be the father of a child ... if he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce"). Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. See J.Q. Wilson, supra. See also P. Blumstein & P. Schwartz, supra; C.N. Degler, supra; G. Douglas, supra; S.L. Nock, supra; L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.

[¶ 142] The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. See P. Blumstein & P. Schwartz, supra; C.N. Degler, supra; S.L. Nock, supra; C. Lasch, supra; M.A. Schwartz & B.M. Scott, supra. More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. See M. Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America 10 (1985); C. Lasch, supra; L. Saxton, supra; J.Q. Wilson, supra.

[¶ 143] This court, among others, has consistently acknowledged both the institutional importance of marriage as an organizing principle of society, and the State's interest in regulating it. See French v. McAnarney, 290 Mass. 544, 546 (1935) ("Marriage is not merely a contract between the parties. It is the foundation of the family. It is a social institution of the highest importance. The Commonwealth has a deep interest that its integrity is not jeopardized"); Milford v. Worcester, 7 Mass. 48, 52 (1810) ("Marriage, being essential to the peace and harmony, and to the virtues and improvements of civil society, it has been, in all well-regulated governments, among the first attentions of the civil magistrate to regulate [it]"). See also Skinner v. Oklahoma, supra ("Marriage and procreation are fundamental to the very existence and survival of the [human] race"); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage "is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress"); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) ("no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth ... than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman ... the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement"); Reynolds v. United States, 98 U.S. 145, 165 (1878) ("Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal").

[¶ 144] It is undeniably true that dramatic historical shifts in our cultural, political, and economic landscape have altered some of our traditional notions about marriage, including the interpersonal dynamics within it, the range of responsibilities required of it as an institution, and the legal environment in which it exists. Nevertheless, the institution of marriage remains the principal weave of our social fabric. See C.N. Degler, supra; A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, supra; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra; J.Q. Wilson, supra. A family defined by heterosexual marriage continues to be the most prevalent social structure into which the vast majority of children are born, nurtured, and prepared for productive participation in civil society, see Children's Living Arrangements and Characteristics: March, 2002, United States Census Bureau Current Population Reports at 3 (June, 2003) (in 2002, 69% of children lived with two married parents, 23% lived with their mother, 5% lived with their father, and 4% lived in households with neither parent present).

[¶ 145] It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose.

[¶ 146] 3. Rational relationship. The question we must turn to next is whether the statute, construed as limiting marriage to couples of the opposite sex, remains a rational way to further that purpose. Stated differently, we ask whether a conceivable rational basis exists on which the Legislature could conclude that continuing to limit the institution of civil marriage to members of the opposite sex furthers the legitimate purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children.

[¶ 147] In considering whether such a rational basis exists, we defer to the decision-making process of the Legislature, and must make deferential assumptions about the information that it might consider and on which it may rely. See Shell Oil Co. v. Revere, 383 Mass. 682, 688 (1981) (court considers "evidence which may have been available to the Legislature" [emphasis added]); Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189 (1939) ("any rational basis of fact that can be reasonably conceived" may support legislative finding); Mutual Loan Co. v. Martell, 200 Mass. 482, 487 (1909), aff'd, 222 U.S. 225 (1911) ("Legislature may be supposed to have known" relevant facts).

[¶ 148] We must assume that the Legislature (1) might conclude that the institution of civil marriage has successfully and continually provided this structure over several centuries; (2) might consider and credit studies that document negative consequences that too often follow children either born outside of marriage or raised in households lacking either a father or a mother figure, and scholarly commentary contending that children and families develop best when mothers and fathers are partners in their parenting; and (3) would be familiar with many recent studies that variously: support the proposition that children raised in intact families headed by same-sex couples fare as well on many measures as children raised in similar families headed by opposite-sex couples; support the proposition that children of same-sex couples fare worse on some measures; or reveal notable differences between the two groups of children that warrant further study.

[¶ 149] We must also assume that the Legislature would be aware of the critiques of the methodologies used in virtually all of the comparative studies of children raised in these different environments, cautioning that the sampling populations are not representative, that the observation periods are too limited in time, that the empirical data are unreliable, and that the hypotheses are too infused with political or agenda driven bias. See, e.g., R. Lerner & A.K. Nagai, No Basis: What the Studies Don't Tell Us About Same-Sex Parenting, Marriage Law Project (Jan.2001) (criticizing forty-nine studies on same-sex parenting -- at least twenty-six of which were cited by amici in this case--as suffering from flaws in formulation of hypotheses, use of experimental controls, use of measurements, sampling and statistical testing, and finding false negatives); Stacey, (How) Does the Sexual Orientation of Parents Matter, 66 Am. Soc. Rev. 159, 159-166 (2001) (highlighting problems with sampling pools, lack of longitudinal studies, and political hypotheses).

[¶ 150] Taking all of this available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. See Baker v. State, 170 Vt. 194, 222 (1999) ("conceivable that the Legislature could conclude that opposite-sex partners offer advantages in th[e] area [of child rearing], although ... experts disagree and the answer is decidedly uncertain"). Cf. Marcoux v. Attorney Gen., 375 Mass. 63, 65 (1978). Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved.

[¶ 151] The fact that the Commonwealth currently allows same-sex couples to adopt, see Adoption of Tammy, 416 Mass. 205 (1993), does not affect the rationality of this conclusion. The eligibility of a child for adoption presupposes that at least one of the child's biological parents is unable or unwilling, for some reason, to participate in raising the child. In that sense, society has "lost" the optimal setting in which to raise that child--it is simply not available. In these circumstances, the principal and overriding consideration is the "best interests of the child," considering his or her unique circumstances and the options that are available for that child. The objective is an individualized determination of the best environment for a particular child, where the normative social structure--a home with both the child's biological father and mother--is not an option. That such a focused determination may lead to the approval of a same-sex couple's adoption of a child does not mean that it would be irrational for a legislator, in fashioning statutory laws that cannot make such individualized determinations, to conclude generally that being raised by a same-sex couple has not yet been shown to be the absolute equivalent of being raised by one's married biological parents.

[¶ 152] That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support. For example, single persons are allowed to adopt children, but the fact that the Legislature permits single-parent adoption does not mean that it has endorsed single parenthood as an optimal setting in which to raise children or views it as the equivalent of being raised by both of one's biological parents. The same holds true with respect to same-sex couples--the fact that they may adopt children means only that the Legislature has concluded that they may provide an acceptable setting in which to raise children who cannot be raised by both of their biological parents. The Legislature may rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child.

[¶ 153] In addition, the Legislature could conclude that redefining the institution of marriage to permit same-sex couples to marry would impair the State's interest in promoting and supporting heterosexual marriage as the social institution that it has determined best normalizes, stabilizes, and links the acts of procreation and child rearing. While the plaintiffs argue that they only want to take part in the same stabilizing institution, the Legislature conceivably could conclude that permitting their participation would have the unintended effect of undermining to some degree marriage's ability to serve its social purpose. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (given State's broad concern with institution of marriage, it has "legitimate interest in prohibiting conduct which may threaten that institution").

[¶ 154] As long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society's ability to steer the acts of procreation and child rearing into their most optimal setting. Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700 (1962) ("Legislative classification is valid if it is rational and bears some relationship to the object intended to be accomplished" [emphasis added]).

[¶ 155] The court recognizes this concern, but brushes it aside with the assumption that permitting same-sex couples to marry "will not diminish the validity or dignity of opposite-sex marriage" and that "we have no doubt that marriage will continue to be a vibrant and revered institution." Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage.

[¶ 156] There is no question that many same-sex couples are capable of being good parents, and should be (and are) permitted to be so. The policy question that a legislator must resolve is a different one, and turns on an assessment of whether the marriage structure proposed by the plaintiffs will, over time, if endorsed and supported by the State, prove to be as stable and successful a model as the one that has formed a cornerstone of our society since colonial times, or prove to be less than optimal, and result in consequences, perhaps now unforeseen, adverse to the State's legitimate interest in promoting and supporting the best possible social structure in which children should be born and raised. Given the critical importance of civil marriage as an organizing and stabilizing institution of society, it is eminently rational for the Legislature to postpone making fundamental changes to it until such time as there is unanimous scientific evidence, or popular consensus, or both, that such changes can safely be made.

[¶ 157] There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships. Deliberate consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process--that it may seem painfully slow to those who are already persuaded by the arguments in favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm. See, e.g., Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002); Mobil Oil v. Attorney Gen., 361 Mass. 401, 417 (1972) (Legislature may proceed piecemeal in addressing perceived injustices or problems). The advancement of the rights, privileges, and protections afforded to homosexual members of our community in the last three decades has been significant, and there is no reason to believe that that evolution will not continue. Changes of attitude in the civic, social, and professional communities have been even more profound. Thirty years ago, The Diagnostic and Statistical Manual, the seminal handbook of the American Psychiatric Association, still listed homosexuality as a mental disorder. Today, the Massachusetts Psychiatric Society, the American Psychoanalytic Association, and many other psychiatric, psychological, and social science organizations have joined in an amicus brief on behalf of the plaintiffs' cause. A body of experience and evidence has provided the basis for change, and that body continues to mount. The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to it. It is not enough that we as Justices might be personally of the view that we have learned enough to decide what is best. So long as the question is at all debatable, it must be the Legislature that decides. The marriage statute thus meets the requirements of the rational basis test. Accord Standhardt v. Superior Court, 77 P.3d 451 (Ariz.Ct.App.2003) (marriage statutes rationally related to State's legitimate interest in encouraging procreation and child rearing within marriage); Baker v. Nelson, 291 Minn. 310, 313 (1971) ( "equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry"); Singer v. Hara, 11 Wash.App. 247, 262-263 (1974) ("There can be no doubt that there exists a rational basis for the state to limit the definition of marriage to exclude same-sex relationships").

Conclusion.

[¶ 158] While "the Massachusetts Constitution protects matters of personal liberty against government intrusion at least as zealously, and often more so than does the Federal Constitution," this case is not about government intrusions into matters of personal liberty. It is not about the rights of same-sex couples to choose to live together, or to be intimate with each other, or to adopt and raise children together. It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them. While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.

a new day...

2009-11-30T11:08:00.000-08:00

its time for me to face a new day in my life. I really dont know how to put it. Maybe, I'm just blabbering non-sense right now. I really miss my girlfriend, that is If I can still call her mine,. Partially, I am at fault, I was not able to give her what she deserves.. Its not because I dont love her but because, law school really occupies a large part of my time...

I really love her so much. However, the strain and pressure of law school is just too difficult for me. Sometimes, her presence is this only thing that keeps me sane from that hellish pressure from law school.

However, I think she has reached her limit and could no longer live a life with me. She is the only person that I've poured my life into...the only person that I truly loved and cherish...the only one I will love...
I love her so much that typing right now hurts me like a thorn piercing through my heart... I want her so bad yet, I know I dont deserve her right now.. Perhaps, if I can become the better man that she wants me to be, maybe she would one day accept me once again..

Fate/Stay Night Episode 1: Advent of the Magi

2009-11-26T20:33:00.000-08:00

The episode opens with the last part of the last Holy Grail War with two servants fighting. After that, an explosion was shown and a child standing after the fire was shown. After that, it brings the story back to the present in the home of Rin Tohsaka, a magician who summons forth hero to aid her in the Holy Grail War. The defective summoning brings forth Archer, who due to the defective summoning didn't have any memories of his life. After this, the scene shifts to the backyard of Emiya Shiro. the protagonist of the anime.

Emiya Shiro is a typical student and a part time mechanic at that. However, he has a secret. He is a magician. He is the son of Kirutsugu, well actually he is the adopted child of Kirutsugu, who is a magician from the recent Holy Grail War. However, Shirou is only familiar with the spell of reinforcement.

Shirou and his friends are alarmed that a series of crimes had been happening in the city where they live, Fuyuki City. Then one night while he was in school, he chance upon a person in blue who turned out be a hero, Lancer. Lancer attacks him and he was stabbed because he could not afford to be seen. Rin Tohsaka arrives at the scene and revived him with the help of her jewels. Archer and Lancer then had a short battle. Afterwards, Lancer catches up with Shirou and tries to kill him. However, a mysterious light covers him and before him a woman in full armor stands before him calling him master

Question on God

2009-11-25T18:48:00.000-08:00

We met our Consti 2 Professor yesterday. Prior to the meeting, we were required to read several readings which he published. I was shocked and amazed at the same time of his radical ideas. Upon meeting him, it was reveeled that he was a post-theist that is he once believed in a God. His ideas are so magnificent that I can't help but feel admiration for his intellect. I believe that this class would be one of the most interesting classI will ever had and I would be able to gain novel ideas for my professor. :)

Fate/Stay Night

2009-11-25T17:53:00.000-08:00

Fate/Stay Night is an anime based from a visual novel. It is about a battle for the Holy grail which would grant the one possesses it any of their deepest desires. The Holy Grail had been happening in each century between the top magicians of the world who summon servants of heroes of past to aid them in the quest for the Holy Grail. The protagonist of the Fate/Stay Night is Shiro Emiya, a boy who was adopted by Kirustugu Emiya when fire or holocaust blazed forth in Fuyuki City. He always wanted to be a hero of justice. He knew his foster parent was a magician but he was only able to learn reinforcement or the spell to make materials stronger and more durable. That is why, he had a part time job as a mechanic. He never knew that he would get mixed up in the battle of the servants and magicians until he meets a servant who stabbed and killed him supposedly.

From this day forth, i would be making reviews and summeries of each episode Fate/Stay Night, one of the bes animes I have ever seen. I hope, these summaries would get you to have a better appreciation of the anime, Fate/Stay Night. :)

Eyeshield 21

2009-11-24T17:53:00.000-08:00

I am recently hooked to an anime entitled Eyeshield 21. It is about a boy Kobayaka Sena, who has been bullied since he was a child. Upon entering middle school, he is introduced to the game of American football. He meets a whole lot of friends and because of his speed he became the famous hero of the Devilbats, Eyeshield 21.

He is called Eyeshield 21 because of the helmet he wears and huis number 21. He is not known by his true identity as Sena. Eyeshield 21 is one of the most hilarious animes I have ever seen. Of all the anime I have seen. Eyeshield 21, tickles your funny bones until it turns your stomachs inside out. It would also introudce you to the game of American football and make you get hooked into it

I am currently watching up to the Episode 31 of Eyeshield 21

Episode 1 of Eyesheiled 21 would easily get you hooked into the anime. one of the best animes I've seen. Eyeshield 21. :)

The Missing Book From Hell!

2009-11-23T18:12:00.000-08:00

I borrowed a book from the school library to have it photocopied in Pampanga. Much to my demise, uupon arriving in Manila, I discovered the book was nbot with me. i asked my parents to look for it in the house, but it was not there. It was not in my Gf's house as well. My God. I was Panicking because I could not afford to lose it considering that it is school property.

I was not able to study properly for a whole day because of my anxiety.

Thank god that the next day, my girlfriend informed me that she found the book in the bag of her laptop. thank God. now I can focus on studying once again! :)

Legal Profession Today

2009-11-22T18:05:00.000-08:00

whoo. legal prof is the most scary subject. oh my. the problem is I played volleyball a day before and my body is aching all over. I wqas only able to read 3 of the assigned cases. It was so scary., The first one to be called in class is my seatmate,. MY God. Thank god I was not called. I endurerd two hours of praying that I wont be called and Thank God I was not. I still feel sleepy but I still have to read a lot more the subjects tomorrow., Hopefully i wont be hassled as I was today.

A case to be read for Obli Con

2009-11-21T00:24:00.001-08:00

G.R. No. L-49852 October 19, 1989
EMILIA TENGCO, petitioner, vs.COURT OF APPEALS and BENJAMIN CIFRA JR., respondents.
PADILLA, J.:
Review on certiorari of the decision* rendered by the Court of Appeals in CA-G.R. NO. SP-08182, entitled: "Emilia Tengco, petitioner, versus Court of First Instance of Rizal, etc., et al, respondents," which dismissed herein petitioner's "Appeal by Way of Certiorari" from the judgment of the Court of First Instance of Rizal in Civil Case No. C-6625 which affirmed the decision of the Municipal Court of Navotas, Metro Manila, in Civil Case No. 2092, entitled: "Benjamin Cifra, plaintiff, versus Emilia Tengco defendant," ordering the herein petitioner (as defendant) to vacate the premises at No. 164 Int Gov. Pascual St., Navotas, Metro Manila, and to pay the herein private respondent (as plaintiff) the arrears in rentals and attorney's fees; and the Resolution denying the herein petitioner's motion for reconsideration of the said Court of Appeals decision.
The record of the case shows that on 16 September 1976, the herein private respondent, Benjamin Cifra, Jr., claiming to be the owner of the premises at No. 164 Int Gov. Pascual St., Navotas, Metro Manila, which he had leased to the herein petitioner, Emilia Tengco, filed an action for unlawful detainer with the Municipal Court of Navotas, Metro Manila, docketed therein as Civil Case No. 2092, to evict the petitioner, Emilia Tengco, from the said premises for her alleged failure to comply with the terms and conditions of the lease contract by failing and refusing to pay the stipulated rentals despite repeated demands. After trial judgment was rendered against the petitioner. The decretal portion of the decision reads, as follows:
WHEREFORE, Judgment is hereby rendered in favor of the plaintiff and against the defendant, ordering the defendant and any and all persons claiming rights under her to vacate the premises occupied by her at No. 164 Int Gov. Pascual Street, this town and to surrender possession thereof to the plaintiff, condemning the defendant to pay the plaintiff the amount of THREE HUNDRED SEVENTY SIX (P376.00) PESOS, as rentals in arrears and the sum of TWELVE PESOS (P12.00), a month from October, 1976 until the premises is fully vacated. To pay the plaintiff the sum of TWO HUNDRED (P200.00) PESOS as and for attorney's fees and costs of suit.
From this judgment, the herein petitioner appealed to the Court of First Instance of Rizal where the appeal was docketed as Civil Case No. C-6625. On 18 May 1978, the Court of First Instance of Rizal rendered judgment affirming the decision of the municipal court, the dispositive part of which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered affirming in toto the judgment of the lower court dated September 20, 1 977 without pronouncement as to costs.
Not satisfied, the herein petitioner filed with the respondent Court of Appeals an "Appeal by Way of Certiorari" which was docketed as CA-G.R. NO. SP-08182. On 29 August 1978, the respondent Court of Appeals promulgated a decision, with the following disposition:
WHEREFORE, finding that the Decision of the lower Court is supported by substantial evidence and that its conclusions are not clearly against the law and jurisprudence, the instant petition is hereby denied due course and is dismissed outright.
The petitioner filed a motion for reconsideration of the decision but her motion was denied on 16 January 1979.
Hence, the present recourse.
The petitioner contends that the respondent Court of Appeals erred in sustaining the decisions of the appellate and trial courts which are allegedly contrary to the evidence and applicable jurisprudence. The petitioner more particularly claims that (1) the private respondent Benjamin Cifra, Jr. is not the owner of the leased premises; (2) the lessor was guilty of mora accipiendi; (3) the petitioner's version of the facts is more credible than private respondent's; (4) laches had deprived the lessor of the right to eject her; and (5) the private respondent failed to establish a cause of action against the petitioner.
We find no merit in the petition. The reasons advanced by the petitioner to support her petition are the same reasons given by her to the Court of Appeals in support of her "Appeal by Way of Certiorari" and we find no ground to adopt a different course from that of the respondent appellate court. In disposing of the petitioner's contentions, the Court of Appeals said:
Petitioner claims that private respondent had failed to establish his ownership of the lot in question for while the Certificate of Title presented by him refers to a parcel of land situated at Bo. Almacen, Navotas, the premises in question, on the other hand, is situated in Bo. Sipak Navotas; that it was not with private respondent that she entered into the lease agreement but with his mother; that her failure to pay the rentals on the premises was due to the refusal of the collector to accept her tender of payment; and that laches had deprived private respondent of whatever right he had against her considering that the Complaint was filed only in September, 1976 whereas his cause of action arose sometime in February, 1974 when she defaulted in the payment of rentals.
We find this appeal which We consider as a Petition for Review, to be without merit.
It should be noted that petitioner admits that she is a lessee on the premises in question and that she had been in default in the payment of the rentals thereon since February, 1974 allegedly because of the refusal of the collector to accept her tender of payment. However, she claims that the lease agreement was not with private respondent, but with his mother. The question as to who is the real lessor of the premises is one of fact and the findings of the lower court that it was private respondent is entitled to the highest respect by appellate Courts barring any material evidence to the contrary. Neither can petitioner question private respondent's claim of ownership of the leased premises. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
Petitioner's excuse for her non-payment of the rentals on the premises deserves scant consideration. If, indeed, her offer to settle her obligation was refused by private respondent, she should have resorted to the judicial deposit of the amount due in order to release her from responsibility.
Petitioner's claim that private respondent's cause of' action is barred by laches is untenable. While it is true that petitioner's arrearages date back to February, 1974, however, a tenant's mere failure to pay rent does not ipso facto make unlawful his possession of the leased premises. As held by respondent Court of First Instance, it is the failure to pay rents after a demand therefor is made that entitles the lessor to bring an action of Unlawful Detainer. Moreover, the lessor has the privilege to waive his right to bring an action against his tenant and give the latter credit for the payment of the rents and allow him to continue indefinitely in the possession of the premises. During such period, the tenant would not be in illegal possession of the premises and the landlord can not maintain an action until after he has taken steps to convert the legal possession into an illegal possession. Thus, in the case at bar, the demand on petitioner to vacate the premises for failure to pay the rentals thereon was made by private respondent only on August 23, 1976 and the Complaint against petitioner was filed on September 16,1976.
Consequently, petitioner's non-payment of the rentals on the premises, notwithstanding demand made by private respondent, and her failure to avail of the remedy provided for in Article 1256 of the Civil Code, entitles private respondent to eject her from the premises.
Indeed, the question of whether or not private respondent is the owner of the leased premises is one of fact which is within the cognizance of the trial court whose findings thereon will not be disturbed on appeal unless there is a showing that the trial court had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the result of the case. And since the petitioner has not presented sufficient proof that the leased premises is not the same lot registered in the name of the private respondent, the findings of the lower courts on the fact of ownership of the leased premises will not be disturbed.
The maps attached by the petitioner to her Reply to the Comment of the private respondent which would tend to show that Almacen and Sipac are two (2) different barangays or sitios, cannot offset the findings of the trial court for lack of proper Identifications; in fact, these maps do not even indicate where the property at No. 164 Int Gov. Pascual Street is located.
The petitioner's contention that the provisions of Section 1, Commonwealth Act No. 53, should be applied in this case in determining the credibility of witnesses, is untenable. The said law provides:
Sec. 1. Where a covenant or contract made between the owner of land and a lessee or tenant on share thereof has not been reduced to writing or has not been set forth in a document written in a language known to the lessee or tenant, the testimony of such lessee or tenant shall be accepted as prima facie evidence on the terms of a covenant or contract.
As can be seen, the cited law can be invoked only when there is a dispute between the owner of the land and the lessee or tenant on share tenancy as to the terms of an unwritten contract or where the contract is written in a language not known to the lessee or tenant. In the instant case, there is no dispute as to the terms of the contract of lease. Hence, the cited law cannot be invoked to support the petitioner's claim that the private respondent is not the owner of the leased premises or that the petitioner's version of the facts of the case is more credible than that of the private respondent.
Besides, the petitioner's contention that the private respondent is not the owner of the leased premises is inconsistent with her claim that she had tendered payment of the rentals for the month of January 1976 to the private respondent. 1
There is also no merit in the petitioner's contention that the lessor is guilty of mora accipiendi. The circumstances surrounding the alleged refusal of the lessor (private respondent) to accept the proffered rentals, according to petitioner, are as follows:
Sometime in 1942, petitioner entered into a verbal lease agreement with Lutgarda Cifra over the premises in question which belonged to the latter. Aside from the amount of rentals, no other condition or term was agreed upon. The rentals were collected from her residence by the lessor's collector who went to her house to demand and collect payment from time to time, with no fixed frequency (Cf., t.s.n. July 28, 1977, pp. 2-6).
Sometime in 1974, the lessor's collector stopped going to the petitioner's residence to collect her rentals, as she had done in the past. The defendant-appellant waited for the collector to come but the latter never showed up again in his neighborhood. Since no demand for payment was made upon her, the petitioner decided to keep the money until the collector comes again to demand and collect payment.
Sometime in May, 1976, petitioner received a letter (Exh. 1) from Aurora C. Recto, sister of private respondent, informing the former that the latter, was the owner of the property in question, was offering the same for sale.
Sometime later, or in August 1977, petitioner received another letter, this time from the private respondent, demanding the surrender of the possession of the premises in question, also claiming to be the owner of the property.
Upon receipt of this letter, petitioner forthwith went to the residence of the collector, another sister of the private respondent to whom she had been paying her rentals, and there tendered payment but this was refused without any justification (t.s.n. July 26, 1 977, p. 7). 2
Under the circumstances, the refusal to accept the proffered rentals is not without justification. The ownership of the property had been transferred to the private respondent and the person to whom payment was offered had no authority to accept payment. It should be noted that the contract of lease between the petitioner and Lutgarda Cifra, the former owner of the land, was not in writing and, hence, unrecorded. The Court has held that a contract of lease executed by the vendor, unless recorded, ceases to have effect when the property is sold, in the absence of a contrary agreement. 3 The petitioner cannot claim ignorance of the transfer of ownerhip of the property because, by her own account, Aurora Recto and the private respondent, at various times, had informed her of their respective claims to ownership of the property occupied by the petitioner. The petitioner should have tendered payment of the rentals to the private respondent and if that was not possible, she should have consigned such rentals in court.
Finally, we find no merit in the petitioner's contention that the private respondent is guilty of laches. As the Court of Appeals had stated, the demand for the petitioner to vacate the premises and to pay arrears in rentals was made on 23 August 1976 and the complaint seeking her ejectment was filed a few days thereafter, or on 16 September 1976.
For reasons aforestated, the judgment of the Court of Appeals appears to be in accord with the evidence and the law.
WHEREFORE, the petition is hereby DENIED. Without pronouncement as to costs. This decision is immediately executory.
SO ORDERED.
Paras, Sarmiento and Regalado, JJ., concur.

Better Stidy habits

2009-11-18T19:00:00.000-08:00

For the first sem, my study habits were not that good, considering that, with my lsptop, I am bale to do all sorts of things aside from studying, like watching animes, movies, playing games, etc. However, at this time, I no longer have a laptop and thus I am limited to reading, sleeping, studying, eating and watching tv.

Last sem, I dont get to finish all the cases assigned, but right now I am able to do advanced readings. and thus I dont cram and makes it easer for me. :)

whoo...rant?

2009-11-17T20:48:00.001-08:00

whoo... my class has just finished. I was not able to read that much yesterday. but neverthe;ess, Im just glad that's over it/

whoo....advanced reading

2009-11-16T20:12:00.000-08:00

As I have previously posted, we were assigned a huge pile of cases for my subjects this 2nd sem to read for today. Much to my demise, upon going to school, I realized that i was not able to read the first four cases assigned for oblicon. I was able to do advanced reading in relation to future cases but i was not able to read for the first cases assigned. thank God I was not called.

I also feel sorry for my classmate who was able to recite suyperbly but because of a mixture in names was not given any grade for today.. ohg well

Whoo. back to my old self..

2009-11-15T11:12:00.000-08:00

whoo. the semestral break had shaken a bit of my habits. I tend to be up reading digests up to 12pm and waking up at 4 but recently I sleep by 8 or 9pm and wake up by 5am. However, I could not keep this up. Law school which requires to read around cases per subject and per meeting requires a lot more hard work and a little less sleep. Thanks to the pressured digests(just kidding), that we are to make as a class, I'm finally back at my old pace. whoo. Well, back to always being sleepy, but nevertheless, I'm back. I hope this week turns out to be great for me. :)

A whole pile of cases to read

2009-11-14T14:43:00.001-08:00

Who!!!. Yup. It back to reality... the realy which is law school. Im starting off again with a uge pile of cases to read and undersand. Oh my. I hope I finish hem all. :) I hope I really have a good start wih this semester. I wouldn't want o fail anyways. :) I've read a few cases and I really hope o finish it all. :)

One of the funniest cases in Crim Law that I have ever read. :)

2009-11-13T19:27:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

Whoo! No Oblicon today

2009-11-10T18:25:00.000-08:00

Yesterday was the first day that i've studied without my laptop! Even worse is that the lights were busted in our apartment., thus after dark i had to resort to opening the lights in the bathroom to provide me with the light I needed. Moreover, the air bed's charger has just ran out of batteruies thus i SLEPT ON a flat bed, the floor in reality! hehe! :) Nevertheless, i was able to study.

I woke up very early and then I studied in the Law library. it was the first time I did so! :) Then, we discovered that there is no oblicon for today!!!!! Dam it! Oh well. :)

Problems...again.

2009-11-09T00:07:00.001-08:00

Whoo. The second semester is about to start. Well, I manage to get through the firt one( the hellish one). Now before the second semester begins, I'm facing a new set of problems. My girlfrined and I have several quarreks again. My laptops is still unrepaired which means I have to start the second semester without it. However, in my case, my laptop is my lifeline because, it is through which that I am able to read my cases. Thus without it, I would have to photocopy all of my readings which would amount to P500 in a week! This leads to the next problem. I dont have sufficient funds to buy all those readings! :( I am at a lost at what I should do. Thus, because of all the stress piling up, I slept for 4 hours and upon waking up ate a lot. Sigh... I know I can get over this as well..

1st sem grades. :)

2009-11-06T18:30:00.000-08:00

After the longes wait for the release of our first sem grades, I was finally able o get hold of my grades. The results are: I passed all my subjects. :) Well, compared to undergrad, the grades are lower...far lower. haha! My TCG is raining with 2's hehe! Nevertheless, Im just glad I passed. I know a lot of people who failed and I know how hard it was for them considering that they are only allowed o enroll 14 units and secondy if hey get two more failing grades heir ou of the college. I realize that in the COleg of Law, it truly is the survival of he fittest. Only those who could adapt or in simpler terms, those who could do things or tactics to pass would survive. By tuesday, I'm back t reality, to the reality of hell in UP COllege of Law

Nightmares that really scares me off my wits

2009-10-31T00:48:00.000-07:00

Have you ever experience a dream where in you wake up in the middle of the dream then again, maybe it is more of an awareness that you are in a dream and you start to see your bed and everything except that you could not move, you can only see everything. That is how I feel most of the time when I sleep. I find it ahrd to wake up and and there are even spooky times where I see supernatural beings roaming around my bed. The worst experience is seeing a black shadow cloising in on me and I felt the life being sucked out of me. It really is scary., And recently I had another experience where my sould seems to be separating from my body. It is really scary. have you had any such experience?