Public Morality and Morality

My attention was recently caught by a Supreme Court (SC) decision penned by Justice Bienvenido L. Reyes in January 2015. It seemed to me that it was based on flawed reasoning or that it even lacked any basis or reason.

The case is about Cheryll Santos Leus who was “hired by St. Scholastica’s College Westgrove (SSCW), a Catholic educational institution, as a non-teaching personnel, engaged in pre-marital sexual relations, got pregnant out of wedlock, married the father of her child and was dismissed by SSCW, in that order” (this and succeeding quotes are from the Leus decision).

The grounds for Leus’ dismissal was that her behavior constituted “disgraceful or immoral conduct” and that according to the 1992 Manual of Regulations for Private Schools, Section 94c, such conduct is a ground for dismissal.

Leus did not agree with her dismissal and she raised the case to the Labor Arbiter (LA), the National Labor Relations Commission (NLRC), and the Court of Appeals (CA). At each instance the action of SSCW in dismissing Leus was upheld. Until it reached the Supreme Court.

The decision penned by Justice Reyes was concurred by Justices Presbitero J. Velasco, Jr., Diosdado M. Peralta, Martin S. Villarama and Francis H. Jardeleza.

The SC struck down all the previous decisions on the case. The essence of their reason: pre-marital sex is not disgraceful and immoral. And so there is no ground for the dismissal.

Why is pre-marital sex not immoral? This is the gist of their reason: it is religious morality that claims such behavior is immoral. But the court cannot base its decision on religious morality because that will prejudice non-believers, so they must base their decision on “public or secular morality”. The court’s jurisdiction extends only to public and secular morality. The court cannot use religious arguments because it cannot impose religious beliefs on all citizens and it has to respect religious freedom.

The SC does think that pregnancy out of wedlock “will be considered disgraceful or immoral in accordance with the prevailing norms of conduct”. The court thinks it is not easy to determine these norms. Their solution is to invent a fictitious category of morality and draw the norms of conduct from it, instead of consulting what prudent and reasonable men think. The category as you already know is public and secular morality.

Another reason the Leus decision gives to support the claim that pre-marital sex is not immoral is that there is no law that “proscribes the consensual sexual activity between two unmarried persons”. Even if it were true that the law does not proscribe such acts it does not  follow that such acts are not immoral. The law does not proscribe anyone from drinking poison or giving oneself a lethal injection.  But   common sense tells us they are not good acts to do.

Let us follow the line of reasoning the the Leus decision. The SC claims that to proscribe immorality like concubinage, there must be a “secular purpose”. The government will sanction such conduct because it is “detrimental to those conditions upon which depend the existence and progress of human society and not because the conduct is proscribed by one religion or the other”. After giving this criteria, the SC now examines “the fact that an unmarried woman gives birth out of wedlock”.

What we are presented here is a sleight of hand: this is not the issue or point of contention. Our attention has now been shifted to a fact that is not immoral at all by any standard: giving birth to a child. The issue we are arguing about is the pre-marital sexual act. As the Leus decision correctly notes there is no law that punishes a mother in these circumstances and “neither does the situation contravene any fundamental state policy as expressed in the Constitution”. Of course giving birth to a child does not violate the Constitution. But I will argue that pre-marital sex does.

The sexual act is a most unique human act because it alone can produce another human being. It is in the interest of the state to protect new human beings because by nature a new born baby is helpless and needs the care and support of father and mother. And so it is in the interest of the state to protect marriage, the natural institution that assures we produce worthy and responsible citizens to build and develop our nation. Our Constitution mandates the State to defend marriage and the family for the said reason.

There are numerous studies and statistics that have shown that pre-marital sex is the cause of teenage pregnancies, children born out of wedlock, single mothers, poverty of single mothers, abandoned children, children growing up without fathers (even Obama acknowledged the connection of children growing up without fathers and juvenile delinquency), children resorting to drugs, crimes, etc. In not a few cases is pre-marital sex connected to unprepared and hasty marriages with consequent separations and broken families. With these facts any prudent man will not conclude that pre-marital sex is not immoral and much less that it is morally good and upright. So we can conclude that based on natural reasons and not religious reasons, pre-marital sex is detrimental to the existence and progress of society.

The argument of public and secular morality as an alternative to religious morality masks a false reasoning. Morality does not have a qualifier. When we say good or evil for man (that is what morality is all about) we are talking of what is good and evil for all. An immoral act is bad for all. It so happens that Judaeo-Christianity teaches that to kill is immoral: it’s the fifth commandment of the decalogue. But this does not mean that it is immoral just for the Jews and Christians. It is bad for all and that includes Muslims, Hindus, Buddhists and even atheists.

And so the category of “public and secular morality” does not exist. It’s a figment of the imagination of the SC justices. It was invented to justify an immoral act. We can ask: what are the sources of public and secular morality? Where can you find it written? What is its basis? Where is its code? If we cannot provide the answers to these questions we can suspect that public and secular morality is a fraud. On the other hand, the reasoning that I am using, natural law reasoning, has a bi-millennial tradition which goes all the way back to Aristotle, two thousand and three hundred years ago. Needless to say he was not a Christian.

Besides it is odd that a few justices of the SC set themselves up as prophets of this public and secular morality who have the authority to declare that according to their morality pre-marital sex is not immoral. And then using their position in government they impose their view on the whole of society.

These justices should have been more sensitive to the public pulse regarding this issue. If the people who made decisions at the levels of the LA, NLRC and CA (all of which are public and secular entities and not church entitites) sensed that pre-marital sex was a disgrace and immoral, then according to their own criteria, that of regarding what the public thinks or public morality, they should have concluded it to be so.

A different issue altogether is the question of whether or not immoral behavior should be punished. This is the question of tolerance. St. Augustine and St. Thomas Aquinas were of the opinion that civil authorities should not punish all wrongdoings because it would make life too burdensome for the citizens. Not all the citizens can attain high levels of virtue. St. Augustine even contemplated the possibility of not punishing prostitution: he thought that doing so would provoke greater evils. But he did not say prostitution was not immoral. In the case at hand, the SSCW could have chosen not to punish Leus. But they did for reasons that are defensible.

The SC decision on the Leus case is a very bad precedent. Based on it, what is now preventing the SC to claim other immoral behavior as not immoral? What about sex between two men? What about abortion? What about the oldest profession? What about bigamy? Polygamy? Euthanasia? Assisted suicide? SC can always say that these behaviors are deemed immoral because of religious morality, but public and secular morality does not consider them immoral.

I object to the false reasoning of the SC on the Leus case. I speak not as a representative of the Catholic Church. I base my reasons not on religious morality (I did not quote any passage of the Bible or any Pope). I speak as a concerned Filipino citizen, on behalf of natural reasoning and the mandate of the Constitution of the Republic of the Philippines for the State to defend marriage and the family.

Based on the arguments I have presented I hold that the Supreme Court, in declaring pre-marital sex not to be immoral, committed grave abuse of discretion because it made a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction.

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