Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 122846

January 20, 2009

WHITE IGHT CORPOR!TION, TIT!NIUM CORPOR!TION an" ST!. MES! TOURIST # $E%E OPMENT CORPOR!TION, Petitioners, vs. CIT& O' M!NI !, r()r(*(n+(" ,y $E C!STRO, M!&OR ! 'RE$O S. IM, Respondent.

DECISI

T-n.a, J.:

!ith another cit" ordinance of Manila also principall" involvin# the tourist district as sub$ect, the Court is confronted ane% %ith the incessant clash bet%een #overn&ent po%er and individual libert" in tande& %ith the archet"pal tension bet%een la% and &oralit".

In City of Manila v. Laguio, Jr.,' the Court affir&ed the nullification of a cit" ordinance barrin# the operation of &otels and inns, a&on# other establish&ents, %ithin the Er&ita(Malate area. )he petition at bar assails a si&ilarl"(&otivated cit" ordinance that prohibits those sa&e establish&ents fro& offerin# short(ti&e ad&ission, as %ell as pro(rated or *%ash up* rates for such abbreviated sta"s. ur earlier decision tested the cit" ordinance a#ainst our sacred constitutional ri#hts to libert", due process and e+ual protection of la%. )he sa&e para&eters appl" to the present petition.

)his Petition, under Rule -. of the Revised Rules on Civil Procedure, %hich see/s the reversal of the Decision 0 in C.A.(1.R. S.P. No. 000'2 of the Court of Appeals, challen#es the validit" of Manila Cit" rdinance No. 333- entitled, *An rdinance Prohibitin# Short()i&e Ad&ission, Short()i&e Ad&ission Rates, and !ash(4p Rate Sche&es in 5otels, Motels, Inns, 6od#in# 5ouses, Pension 5ouses, and Si&ilar Establish&ents in the Cit" of Manila* 7the rdinance8.

I.

)he facts are as follo%s9

n Dece&ber 0, '::,, Cit" Ma"or Alfredo S. 6i& 7Ma"or 6i&8 si#ned into la% the

rdinance. - )he

rdinance is reproduced in full, hereunder9

SEC)I N '. Declaration of Polic". It is hereb" the declared polic" of the Cit" 1overn&ent to protect the best interest, health and %elfare, and the &oralit" of its constituents in #eneral and the "outh in particular.

SEC. ,. )itle. )his ordinance shall be /no%n as *An

rdinance* prohibitin# short ti&e ad&ission in hotels, &otels, lod#in# houses, pension houses and si&ilar establish&ents in the Cit" of Manila.

SEC. 0. Pursuant to the above polic", short(ti&e ad&ission and rate ; sic<, %ash(up rate or other si&ilarl" concocted ter&s, are hereb" prohibited in hotels, &otels, inns, lod#in# houses, pension houses and si&ilar establish&ents in the Cit" of Manila.

SEC. -. Definition of )er&;s<. Short(ti&e ad&ission shall &ean ad&ittance and char#in# of roo& rate for less than t%elve 7',8 hours at an" #iven ti&e or the rentin# out of roo&s &ore than t%ice a da" or an" other ter& that &a" be concocted b" o%ners or &ana#ers of said establish&ents but %ould &ean the sa&e or %ould bear the sa&e &eanin#.

SEC. .. Penalt" Clause. An" person or corporation %ho shall violate an" provision of this ordinance shall upon conviction thereof be punished b" a fine of =ive )housand 7 P.,>>>.>>8 Pesos or i&prison&ent for a period of not e?ceedin# one 7'8 "ear or both such fine and i&prison&ent at the discretion of the court@ Provided, )hat in case of ;a< $uridical person, the president, the &ana#er, or the persons in char#e of the operation thereof shall be liable9 Provided, further, )hat in case of subse+uent conviction for the sa&e offense, the business license of the #uilt" part" shall auto&aticall" be cancelled.

SEC. 2. Repealin# Clause. An" or all provisions of Cit" ordinances not consistent %ith or contrar" to this &easure or an" portion hereof are hereb" dee&ed repealed.

SEC. 3. Effectivit". )his ordinance shall ta/e effect i&&ediatel" upon approval.

Enacted b" the cit" Council of Manila at its re#ular session toda", Nove&ber '>, '::,.

Approved b" 5is 5onor, the Ma"or on Dece&ber 0, '::,.

n Dece&ber '., '::,, the Malate )ourist and Develop&ent Corporation 7M)DC8 filed a co&plaint for declarator" relief %ith pra"er for a %rit of preli&inar" in$unction andAor te&porar" restrainin# order 7 )R 8. %ith the Re#ional )rial Court 7R)C8 of Manila, Branch : i&pleadin# as defendant, herein respondent Cit" of Manila 7the Cit"8 represented b" Ma"or 6i&. 2M)DC pra"ed that the rdinance, insofar as it includes &otels and inns as a&on# its prohibited establish&ents, be declared invalid and unconstitutional. M)DC clai&ed that as o%ner and operator of the Bictoria Court in Malate, Manila it %as authoriCed b" Presidential Decree 7P.D.8 No. ,.: to ad&it custo&ers on a short ti&e basis as %ell as to char#e custo&ers %ash up rates for sta"s of onl" three hours.

n Dece&ber ,', '::,, petitioners !hite 6i#ht Corporation 7!6C8, )itaniu& Corporation 7)C8 and Sta. Mesa )ourist and Develop&ent Corporation 7S)DC8 filed a &otion to intervene and to ad&it attached co&plaint(in(intervention3 on the #round that the rdinance directl" affects their business interests as operators of drive(in(hotels and &otels in Manila. D)he three co&panies are co&ponents of the Anito 1roup of Co&panies %hich o%ns and operates several hotels and &otels in Metro Manila. :

n Dece&ber ,0, '::,, the R)C #ranted the &otion to intervene. '> )he R)C also notified the Solicitor 1eneral of the proceedin#s pursuant to then Rule 2-, Section - of the Rules of Court. M)DC &oved to %ithdra% as plaintiff.''

n the sa&e date,

n Dece&ber ,D, '::,, the R)C #ranted M)DCEs &otion to %ithdra%. ', )he R)C issued a )R on Fanuar" '-, '::0, directin# the Cit" to cease and desist fro& enforcin# the Ans%er dated Fanuar" ,,, '::0 alle#in# that the rdinance is a le#iti&ate e?ercise of police po%er. '-

rdinance. '0 )he Cit" filed an

n =ebruar" D, '::0, the R)C issued a %rit of preli&inar" in$unction orderin# the cit" to desist fro& the enforce&ent of the ar#uin# that the rdinance is constitutional.

rdinance. '. A &onth later, on March D, '::0, the Solicitor 1eneral filed his Co&&ent

Durin# the pre(trial conference, the !6C, )C and S)DC a#reed to sub&it the case for decision %ithout trial as the case involved a purel" le#al +uestion. '2 declarin# the rdinance null and void. )he dispositive portion of the decision reads9

ctober ,>, '::0, the R)C rendered a decision

!5ERE= RE, in vie% of all the fore#oin#, ; <rdinance No. 333- of the Cit" of Manila is hereb" declared null and void.

Accordin#l", the preli&inar" in$unction heretofor issued is hereb" &ade per&anent.

RDERED.'3

)he R)C noted that the ordinance *stri/es at the personal libert" of the individual #uaranteed and $ealousl" #uarded b" the Constitution.* 'D Reference %as &ade to the provisions of the Constitution encoura#in# private enterprises and the incentive to needed invest&ent, as %ell as the ri#ht to operate econo&ic enterprises. =inall", fro& the observation that the illicit relationships the rdinance sou#ht to dissuade could nonetheless be consu&&ated b" si&pl" pa"in# for a ',(hour sta", the R)C li/ened the la% to the ordinance annulled in Ynot v. Intermediate Appellate Court, ': %here the le#iti&ate purpose of preventin# indiscri&inate slau#hter of carabaos %as sou#ht to be effected throu#h an inter(province ban on the transport of carabaos and carabeef.

)he Cit" later filed a petition for revie% on certiorari %ith the Supre&e Court.,> )he petition %as doc/eted as 1.R. No. '',-3'. 5o%ever in a resolution dated Fanuar" ,2, '::-, the Court treated the petition as a petition for certiorari and referred the petition to the Court of Appeals. ,'

Before the Court of Appeals, the Cit" asserted that the #overn&ent units, the po%er9

rdinance is a valid e?ercise of police po%er pursuant to Section -.D 7-87iv8 of the 6ocal 1overn&ent Code %hich confers on cities, a&on# other local

;)o< re#ulate the establish&ent, operation and &aintenance of cafes, restaurants, beerhouses, hotels, &otels, inns, pension houses, lod#in# houses and other si&ilar establish&ents, includin# tourist #uides and transports.,,

)he

rdinance, it is ar#ued, is also a valid e?ercise of the po%er of the Cit" under Article III, Section 'D7//8 of the Revised Manila Charter, thus9

*to enact all ordinances it &a" dee& necessar" and proper for the sanitation and safet", the furtherance of the prosperit" and the pro&otion of the &oralit", peace, #ood order, co&fort, convenience and #eneral %elfare of the cit" and its inhabitants, and such others as be necessar" to carr" into effect and dischar#e the po%ers and duties conferred b" this Chapter@ and to fi? penalties for the violation of ordinances %hich shall not e?ceed t%o hundred pesos fine or si? &onths i&prison&ent, or both such fine and i&prison&ent for a sin#le offense. ,0

Petitioners ar#ued that the rdinance is unconstitutional and void since it violates the ri#ht to privac" and the freedo& of &ove&ent@ it is an invalid e?ercise of police po%er@ and it is an unreasonable and oppressive interference in their business.

)he Court of Appeals reversed the decision of the R)C and affir&ed the constitutionalit" of the rdinance. ,- =irst, it held that the rdinance did not violate the ri#ht to privac" or the freedo& of &ove&ent, as it onl" penaliCes the o%ners or operators of establish&ents that ad&it individuals for short ti&e sta"s. Second, the virtuall" li&itless reach of police po%er is onl" constrained b" havin# a la%ful ob$ect obtained throu#h a la%ful &ethod. )he la%ful ob$ective of the rdinance is satisfied since it ai&s to curb i&&oral activities. )here is a la%ful &ethod since the establish&ents are still allo%ed to operate. )hird, the adverse effect on the establish&ents is $ustified b" the %ell(bein# of its constituents in #eneral. =inall", as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, libert" is re#ulated b" la%.

)C, !6C and S)DC co&e to this Court via petition for revie% on certiorari. ,. In their petition and Me&orandu&, petitioners in essence repeat the assertions the" &ade before the Court of Appeals. )he" contend that the assailed rdinance is an invalid e?ercise of police po%er.

II.

!e &ust address the threshold issue of petitionersG standin#. Petitioners alle#e that as o%ners of establish&ents offerin# *%ash(up* rates, their business is bein# unla%full" interfered %ith b" the rdinance. 5o%ever, petitioners also alle#e that the e+ual protection ri#hts of their clients are also bein# interfered %ith. )hus, the cru? of the &atter is %hether or not these establish&ents have the re+uisite standin# to plead for protection of their patronsE e+ual protection ri#hts.

Standin# or locus standi is the abilit" of a part" to de&onstrate to the court sufficient connection to and har& fro& the la% or action challen#ed to support that part"Es participation in the case. More i&portantl", the doctrine of standin# is built on the principle of separation of po%ers, ,2 sparin# as it does unnecessar" interference or invalidation b" the $udicial branch of the actions rendered b" its co(e+ual branches of #overn&ent.

)he re+uire&ent of standin# is a core co&ponent of the $udicial s"ste& derived directl" fro& the Constitution. ,3 )he constitutional co&ponent of standin# doctrine incorporates concepts %hich concededl" are not susceptible of precise definition.,D In this $urisdiction, the e?tanc" of *a direct and personal interest* presents the &ost obvious cause, as %ell as the standard test for a petitionerEs standin#. ,: In a si&ilar vein, the 4nited States Supre&e Court revie%ed and elaborated on the &eanin# of the three constitutional standin# re+uire&ents of in$ur", causation, and redressabilit" in Allen v. rig!t.0>

Nonetheless, the #eneral rules on standin# ad&it of several e?ceptions such as the overbreadth doctrine, ta?pa"er suits, third part" standin# and, especiall" in the Philippines, the doctrine of transcendental i&portance.0'

=or this particular set of facts, the concept of third part" standin# as an e?ception and the overbreadth doctrine are appropriate. In "o#ers v. O!io,0, the 4nited States Supre&e Court %rote that9 *!e have reco#niCed the ri#ht of liti#ants to brin# actions on behalf of third parties, provided three i&portant criteria are satisfied9 the liti#ant &ust have suffered an Hin$ur"(in(fact,G thus #ivin# hi& or her a *sufficientl" concrete interest* in the outco&e of the issue in dispute@ the liti#ant &ust have a close relation to the third part"@ and there &ust e?ist so&e hindrance to the third part"Es abilit" to protect his or her o%n interests.*00 5erein, it is clear that the business interests of the petitioners are li/e%ise in$ured b" the rdinance. )he" rel" on the patrona#e of their custo&ers for their continued viabilit" %hich appears to be threatened b" the enforce&ent of the rdinance. )he relative silence in constitutional liti#ation of such special interest #roups in our nation such as the A&erican Civil 6iberties 4nion in the 4nited States &a" also be construed as a hindrance for custo&ers to brin# suit. 0-

A&erican $urisprudence is replete %ith e?a&ples %here parties(in(interest %ere allo%ed standin# to advocate or invo/e the funda&ental due process or e+ual protection clai&s of other persons or classes of persons in$ured b" state action. In$ris#old v. Connecticut,0. the 4nited States Supre&e Court held that ph"sicians had standin# to challen#e a reproductive health statute that %ould penaliCe the& as accessories as %ell as to plead the constitutional protections available to their patients. )he Court held that9

*)he ri#hts of husband and %ife, pressed here, are li/el" to be diluted or adversel" affected unless those ri#hts are considered in a suit involvin# those %ho have this /ind of confidential relation to the&.* 02

An even &ore analo#ous e?a&ple &a" be found in Craig v. %oren,03 %herein the 4nited States Supre&e Court held that a licensed bevera#e vendor has standin# to raise the e+ual protection clai& of a &ale custo&er challen#in# a statutor" sche&e prohibitin# the sale of beer to &ales under the a#e of ,' and to fe&ales under the a#e of 'D. )he 4nited States 5i#h Court e?plained that the vendors had standin# *b" actin# as advocates of the ri#hts of third parties %ho see/ access to their &ar/et or function.* 0D

Assu&in# arguendo that petitioners do not have a relationship %ith their patrons for the for&er to assert the ri#hts of the latter, the overbreadth doctrine co&es into pla". In overbreadth anal"sis, challen#ers to #overn&ent action are in effect per&itted to raise the ri#hts of third parties. 1enerall" applied to statutes infrin#in# on the freedo& of speech, the overbreadth doctrine applies %hen a statute needlessl" restrains even constitutionall" #uaranteed ri#hts.0: In this case, the petitioners clai& that the rdinance &a/es a s%eepin# intrusion into the ri#ht to libert" of their clients. !e can see that based on the alle#ations in the petition, the rdinance suffers fro& overbreadth.

!e thus reco#niCe that the petitioners have a ri#ht to assert the constitutional ri#hts of their clients to patroniCe their establish&ents for a *%ash(rate* ti&e fra&e.

III.

)o students of $urisprudence, the facts of this case %ill recall to &ind not onl" the recent City of Manila rulin#, but our ':23 decision in Ermita-Malate &otel and Motel Operations Association, Inc., v. &on. City Mayor of Manila.-> Ermita-Malateconcerned the Cit" ordinance re+uirin# patrons to fill up a prescribed for& statin# personal infor&ation such as na&e, #ender, nationalit", a#e, address and occupation before the" could be ad&itted to a &otel, hotel or lod#in# house. )his earlier ordinance %as precisel" enacted to &ini&iCe certain practices dee&ed har&ful to public &orals. A purpose si&ilar to the annulled ordinance in City of Manila %hich sou#ht a blan/et ban on &otels, inns and si&ilar establish&ents in the Er&ita(Malate area. 5o%ever, the constitutionalit" of the ordinance in Ermita-Malate %as sustained b" the Court.

)he co&&on thread that runs throu#h those decisions and the case at bar #oes be"ond the sin#ularit" of the localities covered under the respective ordinances. All three ordinances %ere enacted %ith a vie% of re#ulatin# public &orals includin# particular illicit activit" in transient lod#in# establish&ents. )his could be described as the &iddle case, %herein there is no %holesale ban on &otels and hotels but the services offered b" these establish&ents have been severel" restricted. At its core, this is another case about the e?tent to %hich the State can intrude into and re#ulate the lives of its citiCens.

)he test of a valid ordinance is %ell established. A lon# line of decisions includin# City of Manila has held that for an ordinance to be valid, it &ust not onl" be %ithin the corporate po%ers of the local #overn&ent unit to enact and pass accordin# to the procedure prescribed b" la%, it &ust also confor& to the follo%in# substantive re+uire&ents9 7'8 &ust not contravene the Constitution or an" statute@ 7,8 &ust not be unfair or oppressive@ 708 &ust not be partial or discri&inator"@ 7-8 &ust not prohibit but &a" re#ulate trade@ 7.8 &ust be #eneral and consistent %ith public polic"@ and 728 &ust not be unreasonable. -'

)he rdinance prohibits t%o specific and distinct business practices, na&el" %ash rate ad&issions and rentin# out a roo& &ore than t%ice a da". )he ban is evidentl" sou#ht to be rooted in the police po%er as conferred on local #overn&ent units b" the 6ocal 1overn&ent Code throu#h such i&ple&ents as the #eneral %elfare clause.

A.

Police po%er, %hile incapable of an e?act definition, has been purposel" veiled in #eneral ter&s to underscore its co&prehensiveness to &eet all e?i#encies and provide enou#h roo& for an efficient and fle?ible response as the conditions %arrant.-, Police po%er is based upon the concept of necessit" of the State and its correspondin# ri#ht to protect itself and its people. -0 Police po%er has been used as $ustification for nu&erous and varied actions b" the State. )hese ran#e fro& the re#ulation of dance halls, -- &ovie theaters,-. #as stations-2 and coc/pits.-3 )he a%eso&e scope of police po%er is best de&onstrated b" the fact that in its hundred or so "ears of presence in our nationGs le#al s"ste&, its use has rarel" been denied.

)he apparent #oal of the rdinance is to &ini&iCe if not eli&inate the use of the covered establish&ents for illicit se?, prostitution, dru# use and ali/e. )hese #oals, b" the&selves, are uni&peachable and certainl" fall %ithin the a&bit of the police po%er of the State. Iet the desirabilit" of these ends do not sanctif" an" and all &eans for their achieve&ent. )hose &eans &ust ali#n %ith the Constitution, and our e&er#in# sophisticated anal"sis of its #uarantees to the people. )he Bill of Ri#hts stands as a rebu/e to the seductive theor" of Macchiavelli, and, so&eti&es even, the political &a$orities ani&ated b" his c"nicis&.

Even as %e desi#n the precedents that establish the fra&e%or/ for anal"sis of due process or e+ual protection +uestions, the courts are naturall" inhibited b" a due deference to the co(e+ual branches of #overn&ent as the" e?ercise their political functions. But %hen %e are co&pelled to nullif" e?ecutive or le#islative actions, "et another for& of caution e&er#es. If the Court %ere ani&ated b" the sa&e passin# fancies or turbulent e&otions that &otivate &an" political decisions, $udicial inte#rit" is co&pro&ised b" an" perception that the $udiciar" is &erel" the third political branch of #overn&ent. !e derive our respect and #ood standin# in the annals of histor" b" actin# as $udicious and neutral arbiters of the rule of la%, and there is no surer %a" to that end than throu#h the develop&ent of ri#orous and sophisticated le#al standards throu#h %hich the courts anal"Ce the &ost funda&ental and far(reachin# constitutional +uestions of the da".

B.

)he pri&ar" constitutional +uestion that confronts us is one of due process, as #uaranteed under Section ', Article III of the Constitution. Due process evades a precise definition. -D )he purpose of the #uarant" is to prevent arbitrar" #overn&ental encroach&ent a#ainst the life, libert" and propert" of individuals. )he due process #uarant" serves as a protection a#ainst arbitrar" re#ulation or seiCure. Even corporations and partnerships are protected b" the #uarant" insofar as their propert" is concerned.

)he due process #uarant" has traditionall" been interpreted as i&posin# t%o related but distinct restrictions on #overn&ent, *procedural due process* and *substantive due process.* Procedural due process refers to the procedures that the #overn&ent &ust follo% before it deprives a person of life, libert", or propert". -: Procedural due process concerns itself %ith #overn&ent action adherin# to the established process %hen it &a/es an intrusion into the private sphere. E?a&ples ran#e fro& the for& of notice #iven to the level of for&alit" of a hearin#.

If due process %ere confined solel" to its procedural aspects, there %ould arise absurd situation of arbitrar" #overn&ent action, provided the proper for&alities are follo%ed. Substantive due process co&pletes the protection envisioned b" the due process clause. It in+uires %hether the #overn&ent has sufficient $ustification for deprivin# a person of life, libert", or propert". .>

)he +uestion of substantive due process, &oreso than &ost other fields of la%, has reflected d"na&is& in pro#ressive le#al thou#ht tied %ith the e?panded acceptance of funda&ental freedo&s. Police po%er, traditionall" a%eso&e as it &a" be, is no% confronted %ith a &ore ri#orous level of anal"sis before it can be upheld. )he vitalit" thou#h of constitutional due process has not been predicated on the fre+uenc" %ith %hich it has been utiliCed to achieve a liberal result for, after all, the libertarian ends should so&eti&es "ield to the prero#atives of the State. Instead, the due process clause has ac+uired potenc" because of the sophisticated &ethodolo#" that has e&er#ed to deter&ine the proper &etes and bounds for its application.

C.

)he #eneral test of the validit" of an ordinance on substantive due process #rounds is best tested %hen assessed %ith the evolved footnote - test laid do%n b" the 4.S. Supre&e Court in 4.S. v. Carolene Products..' =ootnote - of the Carolene Products case ac/no%led#ed that the $udiciar" %ould defer to the le#islature unless there is a discri&ination a#ainst a *discrete and insular* &inorit" or infrin#e&ent of a *funda&ental ri#ht.*., Conse+uentl", t%o standards of $udicial revie% %ere established9 strict scrutin" for la%s dealin# %ith freedo& of the &ind or restrictin# the political process, and the rational basis standard of revie% for econo&ic le#islation.

A third standard, deno&inated as hei#htened or i&&ediate scrutin", %as later adopted b" the 4.S. Supre&e Court for evaluatin# classifications based on #ender .0 and le#iti&ac"..- I&&ediate scrutin" %as adopted b" the 4.S. Supre&e Court in Crai#, .. after the Court declined to do so in Reed v. Reed. .2 !hile the test &a" have first been articulated in e+ual protection anal"sis, it has in the 4nited States since been applied in all substantive due process cases as %ell.

!e ourselves have often applied the rational basis test &ainl" in anal"sis of e+ual protection challen#es. .3 4sin# the rational basis e?a&ination, la%s or ordinances are upheld if the" rationall" further a le#iti&ate #overn&ental interest..D4nder inter&ediate revie%, #overn&ental interest is e?tensivel" e?a&ined and the availabilit" of less restrictive &easures is considered. .: Appl"in# strict scrutin", the focus is on the presence of co&pellin#, rather than substantial, #overn&ental interest and on the absence of less restrictive &eans for achievin# that interest.

In ter&s of $udicial revie% of statutes or ordinances, strict scrutin" refers to the standard for deter&inin# the +ualit" and the a&ount of #overn&ental interest brou#ht to $ustif" the re#ulation of funda&ental freedo&s.2> Strict scrutin" is used toda" to test the validit" of la%s dealin# %ith the re#ulation of speech, #ender, or race as %ell as other funda&ental ri#hts as e?pansion fro& its earlier applications to e+ual protection.2' )he 4nited States Supre&e Court has e?panded the scope of strict scrutin" to protect funda&ental ri#hts such as suffra#e, 2, $udicial access20 and interstate travel.2-

If %e %ere to ta/e the &"opic vie% that an rdinance should be anal"Ced strictl" as to its effect onl" on the petitioners at bar, then it %ould see& that the onl" restraint i&posed b" the la% %hich %e are capacitated to act upon is the in$ur" to propert" sustained b" the petitioners, an in$ur" that %ould %arrant the application of the &ost deferential standard J the rational basis test. Iet as earlier stated, %e reco#niCe the capacit" of the petitioners to invo/e as %ell the constitutional ri#hts of their patrons J those persons %ho %ould be deprived of availin# short ti&e access or %ash(up rates to the lod#in# establish&ents in +uestion.

Bie%ed c"nicall", one &i#ht sa" that the infrin#ed ri#hts of these custo&ers %ere are trivial since the" see& shorn of political conse+uence. Concededl", these are not the sort of cherished ri#hts that, %hen proscribed, %ould i&pel the people to tear up their cedulas. Still, the Bill of Ri#hts does not shelter #ravitas alone. Indeed, it is those *trivial* "et funda&ental freedo&s J %hich the people refle?ivel" e?ercise an" da" %ithout the i&pairin# a%areness of their constitutional conse+uence J that accuratel" reflect the de#ree of libert" en$o"ed b" the people. 6ibert", as inte#rall" incorporated as a funda&ental ri#ht in the Constitution, is not a )en Co&&and&ents(st"le enu&eration of %hat &a" or %hat &a" not be done@ but rather an at&osphere of freedo& %here the people do not feel labored under a Bi# Brother presence as the" interact %ith each other, their societ" and nature, in a &anner innatel" understood b" the& as inherent, %ithout doin# har& or in$ur" to others.

D.

)he ri#hts at sta/e herein fall %ithin the sa&e funda&ental ri#hts to libert" %hich %e upheld in Cit" of Manila v. 5on. 6a#uio, Jr. !e e?pounded on that &ost pri&ordial of ri#hts, thus9

6ibert" as #uaranteed b" the Constitution %as defined b" Fustice Malcol& to include *the ri#ht to e?ist and the ri#ht to be free fro& arbitrar" restraint or servitude. )he ter& cannot be d%arfed into &ere freedo& fro& ph"sical restraint of the person of the citiCen, but is dee&ed to e&brace the ri#ht of &an to en$o" the facilities %ith %hich he has been endo%ed b" his Creator, sub$ect onl" to such restraint as are necessar" for the co&&on %elfare.*;2.< In accordance %ith this case, the ri#hts of the citiCen to be free to use his faculties in all la%ful %a"s@ to live and %or/ %here he %ill@ to earn his livelihood b" an" la%ful callin#@ and to pursue an" avocation are all dee&ed e&braced in the concept of libert".; 22<

)he 4.S. Supre&e Court in the case of 'ot! v. %oard of 'egents, sou#ht to clarif" the &eanin# of *libert".* It said9

!hile the Court has not atte&pted to define %ith e?actness the libert" . . . #uaranteed ;b" the =ifth and =ourteenth A&end&ents<, the ter& denotes not &erel" freedo& fro& bodil" restraint but also the ri#ht of the individual to contract, to en#a#e in an" of the co&&on occupations of life, to ac+uire useful /no%led#e, to &arr", establish a ho&e and brin# up children, to %orship 1od accordin# to the dictates of his o%n conscience, and #enerall" to en$o" those privile#es lon# reco#niCed . . . as essential to the orderl" pursuit of happiness b" free &en. In a Constitution for a free people, there can be no doubt that the &eanin# of *libert"* &ust be broad indeed.23 ;Citations o&itted<

It cannot be denied that the pri&ar" ani&us behind the ordinance is the curtail&ent of se?ual behavior. )he Cit" asserts before this Court that the sub$ect establish&ents *have #ained notoriet" as venue of Hprostitution, adulter" and fornicationsG in Manila since the" Hprovide the necessar" at&osphere for clandestine entr", presence and e?it and thus beca&e the Hideal haven for prostitutes and thrill( see/ers.G*2D !hether or not this depiction of a &ise(en(scene of vice is accurate, it cannot be denied that le#iti&ate se?ual behavior a&on# %illin# &arried or consentin# sin#le adults %hich is constitutionall" protected2: %ill be curtailed as %ell, as it %as in the Cit" of Manila case. ur holdin# therein retains si#nificance for our purposes9

)he concept of libert" co&pels respect for the individual %hose clai& to privac" and interference de&ands respect. As the case of Morfe v. Mutuc, borro%in# the %ords of 6as/i, so ver" aptl" stated9

Man is one a&on# &an", obstinatel" refusin# reduction to unit". 5is separateness, his isolation, are indefeasible@ indeed, the" are so funda&ental that the" are the basis on %hich his civic obli#ations are built. 5e cannot abandon the conse+uences of his isolation, %hich are, broadl" spea/in#, that his e?perience is private, and the %ill built out of that e?perience personal to hi&self. If he surrenders his %ill to others, he surrenders hi&self. If his %ill is set b" the %ill of others, he ceases to be a &aster of hi&self. I cannot believe that a &an no lon#er a &aster of hi&self is in an" real sense free.

Indeed, the ri#ht to privac" as a constitutional ri#ht %as reco#niCed in Morfe, the invasion of %hich should be $ustified b" a co&pellin# state interest. Morfe accorded reco#nition to the ri#ht to privac" independentl" of its identification %ith libert"@ in itself it is full" deservin# of constitutional protection. 1overn&ental po%ers should stop short of certain intrusions into the personal life of the citiCen. 3>

!e cannot discount other le#iti&ate activities %hich the rdinance %ould proscribe or i&pair. )here are ver" le#iti&ate uses for a %ash rate or rentin# the roo& out for &ore than t%ice a da". Entire fa&ilies are /no%n to choose pass the ti&e in a &otel or hotel %hilst the po%er is &o&entaril" out in their ho&es. In transit passen#ers %ho %ish to %ash up and rest bet%een trips have a le#iti&ate purpose for abbreviated sta"s in &otels or hotels. Indeed an" person or #roups of persons in need of co&fortable private spaces for a span of a fe% hours %ith purposes other than havin# se? or usin# ille#al dru#s can le#iti&atel" loo/ to sta"in# in a &otel or hotel as a convenient alternative.

E.

)hat the rdinance prevents the la%ful uses of a %ash rate deprivin# patrons of a product and the petitioners of lucrative business ties in %ith another constitutional re+uisite for the le#iti&ac" of the rdinance as a police po%er &easure. It &ust appear that the interests of the public #enerall", as distin#uished fro& those of a particular class, re+uire an interference %ith private ri#hts and the &eans &ust be reasonabl" necessar" for the acco&plish&ent of the purpose and not undul" oppressive of private ri#hts. 3' It &ust also be evident that no other alternative for the acco&plish&ent of the purpose less intrusive of private ri#hts can %or/. More i&portantl", a reasonable relation &ust e?ist bet%een the purposes of the &easure and the &eans e&plo"ed for its acco&plish&ent, for even under the #uise of protectin# the public interest, personal ri#hts and those pertainin# to private propert" %ill not be per&itted to be arbitraril" invaded. 3,

6ac/in# a concurrence of these re+uisites, the police &easure shall be struc/ do%n as an arbitrar" intrusion into private ri#hts. As held in Morfe v. Mutuc, the e?ercise of police po%er is sub$ect to $udicial revie% %hen life, libert" or propert" is affected. 30 5o%ever, this is not in an" %a" &eant to ta/e it a%a" fro& the vastness of State police po%er %hose e?ercise en$o"s the presu&ption of validit". 3-

Si&ilar to the Co&elec resolution re+uirin# ne%spapers to donate advertisin# space to candidates, this rdinance is a blunt and heav" instru&ent. 3. )he rdinance &a/es no distinction bet%een places fre+uented b" patrons en#a#ed in illicit activities and patrons en#a#ed in le#iti&ate actions. )hus it prevents le#iti&ate use of places %here illicit activities are rare or even unheard of. A plain readin# of section 0 of the rdinance sho%s it &a/es no classification of places of lod#in#, thus dee&s the& all susceptible to illicit patrona#e and sub$ect the& %ithout e?ception to the un$ustified prohibition.

)he Court has professed its deep senti&ent and tenderness of the Er&ita(Malate area, its lon#ti&e ho&e, 32 and it is s/eptical of those %ho %ish to depict our capital cit" J the Pearl of the rient J as a &odern( da" Sodo& or 1o&orrah for the )hird !orld set. )hose still steeped in Nic/ Foa+uin(drea&s of the #randeur of ld Manila %ill have to accept that Manila li/e all evolvin# bi# cities, %ill have its proble&s. 4rban deca" is a fact of &e#a cities such as Manila, and vice is a co&&on proble& confronted b" the &odern &etropolis %herever in the %orld. )he solution to such perceived deca" is not to prevent le#iti&ate businesses fro& offerin# a le#iti&ate product. Rather, cities revive the&selves b" offerin# incentives for ne% businesses to sprout up thus attractin# the d"na&is& of individuals that %ould brin# a ne% #randeur to Manila.

)he behavior %hich the rdinance see/s to curtail is in fact alread" prohibited and could in fact be di&inished si&pl" b" appl"in# e?istin# la%s. 6ess intrusive &easures such as curbin# the proliferation of prostitutes and dru# dealers throu#h active police %or/ %ould be &ore effective in easin# the situation. So %ould the strict enforce&ent of e?istin# la%s and re#ulations penaliCin# prostitution and dru# use. )hese &easures %ould have &ini&al intrusion on the businesses of the petitioners and other le#iti&ate &erchants. =urther, it is apparent that the rdinance can easil" be circu&vented b" &erel" pa"in# the %hole da" rate %ithout an" hindrance to those en#a#ed in illicit activities. Moreover, dru# dealers and prostitutes can in fact collect *%ash rates* fro& their clientele b" char#in# their custo&ers a portion of the rent for &otel roo&s and even apart&ents.

IB.

!e reiterate that individual ri#hts &a" be adversel" affected onl" to the e?tent that &a" fairl" be re+uired b" the le#iti&ate de&ands of public interest or public %elfare. )he State is a leviathan that &ust be restrained fro& needlessl" intrudin# into the lives of its citiCens. 5o%ever %ell(intentioned the rdinance &a" be, it is in effect an arbitrar" and %hi&sical intrusion into the ri#hts of the establish&ents as %ell as their patrons. )he rdinance needlessl" restrains the operation of the businesses of the petitioners as %ell as restrictin# the ri#hts of their patrons %ithout sufficient $ustification. )he rdinance rashl" e+uates %ash rates and rentin# out a roo& &ore than t%ice a da" %ith i&&oralit" %ithout acco&&odatin# innocuous intentions.

)he pro&otion of public %elfare and a sense of &oralit" a&on# citiCens deserves the full endorse&ent of the $udiciar" provided that such &easures do not tra&ple ri#hts this Court is s%orn to protect. 33 )he notion that the pro&otion of public &oralit" is a function of the State is as old as Aristotle. 3D )he advance&ent of &oral relativis& as a school of philosoph" does not de(le#iti&iCe the role of &oralit" in la%, even if it &a" foster %ider debate on %hich particular behavior to penaliCe. It is conceivable that a societ" %ith relativel" little shared &oralit" a&on# its citiCens could be functional so lon# as the pursuit of sharpl" variant &oral perspectives "ields an ade+uate acco&&odation of different interests. 3:

)o be candid about it, the oft(+uoted A&erican &a?i& that *"ou cannot le#islate &oralit"* is ulti&atel" ille#iti&ate as a &atter of la%, since as e?plained b" Calabresi, that phrase is &ore accuratel" interpreted as &eanin# that efforts to le#islate &oralit" %ill fail if the" are %idel" at variance %ith public attitudes about ri#ht and %ron#. D> ur penal la%s, for one, are founded on a#e(old &oral traditions, and as lon# as there are %idel" accepted distinctions bet%een ri#ht and %ron#, the" %ill re&ain so oriented.

Iet the continuin# pro#ression of the hu&an stor" has seen not onl" the acceptance of the ri#ht(%ron# distinction, but also the advent of funda&ental liberties as the /e" to the en$o"&ent of life to the fullest. ur de&ocrac" is distin#uished fro& non(free societies not %ith an" &ore e?tensive elaboration on our part of %hat is &oral and i&&oral, but fro& our reco#nition that the individual libert" to &a/e the choices in our lives is innate, and protected b" the State. Independent and fair(&inded $ud#es the&selves are under a &oral dut" to uphold the Constitution as the e&bodi&ent of the rule of la%, b" reason of their e?pression of consent to do so %hen the" ta/e the oath of office, and because the" are entrusted b" the people to uphold the la%. D'

Even as the i&ple&entation of &oral nor&s re&ains an indispensable co&ple&ent to #overnance, that prero#ative is hardl" absolute, especiall" in the face of the nor&s of due process of libert". And %hile the tension &a" often be left to the courts to relieve, it is possible for the #overn&ent to avoid the constitutional conflict b" e&plo"in# &ore $udicious, less drastic &eans to pro&ote &oralit".

WHERE'ORE, the Petition is GR!NTE$. )he Decision of the Court of Appeals is RE%ERSE$ , and the Decision of the Re#ional )rial Court of Manila, Branch :, is REINST!TE$. declared 4NC NS)I)4)I NA6. No pronounce&ent as to costs.

rdinance No. 333- is hereb"

RDERED.

$!NTE O. TING! Associate Fustice

!E C NC4R9

RE&N!TO S. PUNO Chief Fustice

EON!R$O !. /UISUM0ING Associate Fustice

CONSUE O &N!RES1S!NTI!GO Associate Fustice

7 n fficial 6eave8 !NTONIO T. C!RPIO Associate Fustice

M!. ! ICI! !USTRI!1M!RTINE2 Associate Fustice

REN!TO C. CORON! Associate Fustice

CONCHIT! C!RPIO MOR! ES Associate Fustice

!$O 'O S. !2CUN! Associate Fustice

PRES0ITERO J. %E !SCO, JR. Associate Fustice

MINIT! %. CHICO1N!2!RIO Associate Fustice

!NTONIO E$U!R$O 0. N!CHUR Associate Fustice

TERESIT! EON!R$O $E C!STRO Associate Fustice

7 n Sic/ 6eave8 !RTURO $. 0RION Associate Fustice

7 n fficial 6eave8 $IOS$!$O M. PER! T! Associate Fustice

CERTI'IC!TION

Pursuant to Article BIII, Section '0 of the Constitution, it is hereb" certified that the conclusions in the above Decision %ere reached in consultation before the case %as assi#ned to the %riter of the opinion of the Court.

RE&N!TO S. PUNO Chief Fustice

'oo+no+(*

'

1.R. ''D',3, ', April ,>>., -.. SCRA 0>D.

See rollo, pp. -(-'.

Id. at -,(.:. Penned b" Associate Fustice Fai&e M. 6antin, concurred in b" Associate Fustices Ricardo P. 1alveC 7later, Solicitor(1eneral8 and Antonio P. Solano.

Id. at -2.

Id. at 2,(2:.

Id. at -.(-2.

Id. at 3>(33.

Id. at -3.

Id.

'>

Id.

''

Id. at -D.

',

Id. at D'.

'0

Id. at D,(D0.

'-

Id. at D-(::.

'.

Id. at '>-('>..

'2

Id. at -:.

'3

Id. at .,.

'D

Id. at ',>.

':

No. 6(3--.3, ,> March ':D3, '-D SCRA 2.:.

,>

'ollo, pp. ',:('-..

,'

Id. at '.D.

,,

Id. at .0.

,0

Id.

,-

Id. at -0(.:.

,.

Id. at -(->.

,2

Allen v.

rig!t, -2D 4.S. 303 7':D-8.

,3

Const., Art. BIII , Sec. ., Sanla/as v. E?ecutive Secretar" 'eyes, -22 Phil. -D, 7,>>-8.

,D

1ladstone, Realtors v. Billa#e of Bell%ood, --' 4.S. :', '>>, :: S.Ct. '2>', '2>D, 2> 6.Ed.,d 22 7':3:8.

,:

See (omingo v. Carague, 1.R. No. '2'>2., '. April ,>>., -.2 SCRA -.>. See also Macasiano v. National 5ousin# Authorit", 1.R. No. '>3:,', ' Ful" '::0, ,,- SCRA ,02.

0>

-2D 4.S. 303 7':D-8.

0'

Supra note ,:.

0,

-:: 4.S. ->> 7'::'8.

00

Id. at p -'>(-''.

See Kelse" McCo%an 5eil&an, )he Ri#hts of on advocac" #roups.

0-

thers9 Protection and Advocac"

r#aniCations Associational Standin# to Sue, '.3 4. Pa. 6. Rev. ,03, for a #eneral discussion

0.

0D' 4.S. -3:7':2.8.

02

Id. at -D'.

03

-,: 4.S. ':> 7':328.

0D

Id. at ':-.

0:

ChaveC v. Co&elec, 1.R. No. '2,333, 0' Au#ust ,>>-, -03 SCRA -'.@ Adion# v. Co&elec, 1.R. No. '>0:.2, 0' March '::,, ,>3 SCRA 3',.

->

',3 Phil. 0>2 7':238.

Cit" of Manila v. 6a#uio, Jr., supra note '@ )atel v. Municipalit" of Birac, 1.R. No. ->,-0, '' March '::,, ,>3 SCRA '.3, '2'@ Solicitor 1eneral v. Metropolitan Manila Authorit", 1.R. No. '>,3D,, '' Dece&ber '::', ,>- SCRA D03, D-.@ Ma#ta$as v. Pr"ce Properties Corp., Inc., 1.R. No. '''>:3, ,> Ful" '::-, ,0- SCRA ,.., ,2D(,23.
-'

-,

Er&ita(Malate 5otel and Motel

perators Association, Inc. v. Cit" Ma"or of Manila, ',3 Phil. 0>2 7':238.

-0

JMM "romotion and Management Inc. v. Court of Appeals, 0,: Phil. D3, :- 7'::28 citin# 'u)i v. "rovincial %oard of Mindoro, 0: Phil. 22> 7':':8.

--

*.+. v. 'odrigue,, 0D Phil. 3.:.

-.

"eople v. C!an, 2. Phil. 2'' 7':0D8.

-2

Javier v. Earns!a#, 2- Phil. 2,2 7':038.

-3

"edro v. "rovincial %oard of 'i,al, .2 Phil. ',0 7':0'8.

-D

See 4.S. v. 6in# Su =an, '> Phil. '>- 7':>D8@ Insular 1overn&ent v. 6in# Su =an, '. Phil. .D 7':'>8.

-:

6opeC v. Director of 6ands, -3 Phil. ,0, 0, 7':,-8.

.>

See Cit" of Manila v. 5on. 6a#uio, Jr., supra note ' at 00> citin# C5EMERINSKI, ER!IN, C NS)I)4)I NA6 6A! PRINCIP6ES AND P 6ICIES, ,nd Ed. .,0 7,>>,8.

.'

0>- 4.S. '-- 7':0D8.

.,

Id, at '.,.

.0

Craig v. %oren, -,: 4.S. ':> 7':328.

.-

Clar- v. Jeter, -D2 4.S. -.2 7':DD8.

..

-,: 4.S. ':> 7':328.

.2

->- 4.S. 3' 7':3'8.

Central %an- Employee.s Association v. %ang-o +entral ng "ilipinas, -D3 Phil. .0' 7,>>-8@ Association of +mall Lando#ners in t!e "!ilippines v. +ecretary of Agrarian 'eform , 1.R. Nos. 3D3-,, 3:0'>, 3:3--, and 3:333, Ful" '-, ':D:, '3. SCRA 0-0@ In Er&ita(Malate, supra note ' at 0,-, the Court in fact noted9 *if the libert" involved %ere freedo& of the &ind or the person, the standard for the validit" of #overn&ent acts is &uch &ore ri#orous and e?actin#, but %here the libert" curtailed affects %hat are at the &ost ri#hts of propert", the per&issible scope of re#ulator" &easures is %ider.*
.3

.D

Central %an- Employee.s Association v. %ang-o +entral ng "ilipinas , supra note .3.

.:

Id.

2>

MendoCa, J., Concurrin#

pinion in Estrada v. +andigan)ayan, 1.R. No. '-D.2>, ': Nove&ber ,>>', 02: SCRA 0:-.

2'

Id.

2,

%us! v. $ore, .0' 4.S. :D 7,>>>8.

20

%oddie v. Connecticut, ->' 4.S. 03' 7':3'8.

+!apiro v. /!ompson, 0:- 4.S. 2'D 7':2:8. It has been opined b" Che&erins/" that the use of the e+ual protection clause %as to avoid the use of substantive due process since the latter fell into disfavor in the 4nited States. See Er%in Che&erins/", Constitutional 6a%, Principles and Policies 7,nd ed. ,>>,8.
2-

2.

Morfe v. Mutuc, '0> Phil. -'. 7':2D8.

22

Id. at -->.

23

City of Manila v. Laguio, Jr., supra note ' at 002(003.

2D

'ollo, p. ,.D.

*Motel patrons %ho are sin#le and un&arried &a" invo/e this ri#ht to autono&" to consu&&ate their bonds in inti&ate se?ual conduct %ithin the &otelEs pre&ises L be it stressed that their consensual se?ual behavior does not contravene an" funda&ental state polic" as contained in the Constitution. 7See Concerned E&plo"ee v. 1lenda Espiritu Ma"or, A.M. No. P(>,('.2-, ,0 Nove&ber ,>>-8 Adults have a ri#ht to choose to for#e such relationships %ith others in the confines of their o%n private lives and still retain their di#nit" as free persons. )he libert" protected b" the Constitution allo%s persons the ri#ht to &a/e this choice. )heir ri#ht to libert" under the due process clause #ives the& the full ri#ht to en#a#e in their conduct %ithout intervention of the #overn&ent, as lon# as the" do not run afoul of the la%. 6ibert" should be the rule and restraint the e?ception.
2:

6ibert" in the constitutional sense not onl" &eans freedo& fro& unla%ful #overn&ent restraint@ it &ust include privac" as %ell, if it is to be a repositor" of freedo&. )he ri#ht to be let alone is the be#innin# of all freedo& L it is the &ost co&prehensive of ri#hts and the ri#ht &ost valued b" civiliCed &en.* Cit" of Manila v. 5on. 6a#uio, Jr. supra note ' at 003(00D.

3>

Cit" of Manila v. 6a#uio, Fr., supra note ' at 00D(00:.

3'

Metro Manila Develop&ent Authorit" v. Biron )ransportation Co., 1.R. Nos. '3>2.2 and '3>2.3, '. Au#ust ,>>3, .0> SCRA 0-'.

3,

4.S. v. )oribio, '. Phil. D. 7':'>8.

30

'0> Phil. -'. 7':2D8.

3-

Carlos Superdru# v. DS!D, 1.R. No. '22-:-, Fune ,:, ,>>3, Alala"an v. National Po%er Corporation, ,- Phil. '3, 7':2D8@ 4.S. v. Salaveria, 0: Phil. '>, 7':'D8.

3.

Philippine Press Institute v. Co&elec, 0'- Phil. '0' 7'::.8.

32

Supra note '.

Cit" of Manila v. 5on. 6a#uio, Jr., supra note '@ De 6a CruC, et al. v. 5on. Paras, et al., ,>D Phil. -:> 7':D08@ Er&ita(Malate 5otel and Motel Ma"or of Manila, supra note -,.
33

perations Association, Inc. v. Cit"

*)he end of the state is not &ere life@ it is, rather, a #ood +ualit" of life.* )herefore an" state *%hich is trul" so called, and is not &erel" one in na&e, &ust devote itself to the end of encoura#in# #oodness. ther%ise, a political association sin/s into a &ere allianceM* )he la% *should be a rule of life such as %ill &a/e the &e&bers of a ;state< #ood and $ust.* ther%ise it *beco&es a &ere covenant J or 7in the phrase of the Sophist 6"cophron8 Ha #uarantor of &enGs ri#hts a#ainst one another.G* Politics II.:.2(D.',D> 0'( ',D>bii@ cited in &am)urger, M., Morals and 6a%9 )he 1ro%th of AristotleGs 6e#al )heor" 7':.' ed.8, p. '3D.
3D

3:

$reen#alt, 0., Conflicts of 6a% and Moralit" 7':D: ed.8, at 0D.

Steven 1., Render 4nto Caesar that %hich is Caesars, and unto 1od that %hich is 1odGs, 0' 5arv. F.6. N Pub. PolE" -:.. 5e cites the e?a&ple of the failed )%entieth 7O8 A&end&ent to the 4.S. Constitution, %hich prohibited the sale and consu&ption of li+uor, %here it %as clear that the State cannot $ustl" and successfull" re#ulate consu&ption of alcohol, %hen hu#e portions of the population en#a#e in its consu&ption.
D>

See also "osner, 'ic!ard &., )he Proble&atics of Moral And 6e#al )heor", )he Bel/nap Press of 5arvard 4niversit" Press 7,>>,8. 5e %rites9

. . . 5ol&es %arned lon# a#o of the pitfalls of &isunderstandin# la% b" ta/in# its &oral vocabular" too seriousl". A bi# part of le#al education consists of sho%in# students ho% to s/irt those pitfalls. )he la% uses &oral ter&s in part because of its ori#in, in part to be i&pressive, in part to spea/ a lan#ua#e that the lait", to %ho& the co&&ands of the la% are addressed, is &ore li/el" to understand J and in part, because there is a considerable overlap bet%een la% and &oralit". )he overlap, ho%ever, is too li&ited to $ustif" tr"in# to ali#n these t%o s"ste&s of social control 7the sort of pro$ect that Isla&ic nations such as Iran, Pa/istan, and Af#hanistan have been en#a#ed in of late8. It is not a scandal %hen the la% to pronounce it out of phase %ith current &oral feelin#. If often is, and for #ood practical reasons 7in particular, the la% is a fl"%heel, li&itin# the effects of %ide s%in#s in public opinion8. !hen people &a/e that criticis&Las &an" do of the la%s, still found on the statute boo/s of &an" states, punishin# ho&ose?ual relationsL%hat the" &ean is that the la% neither is supported b" public opinion nor serves an" te&poral purpose, even that of stabilit", that it is &erel" a vesti#e, an e&pt" s"&bol.

D'

See %urton, +., Fud#in# in 1ood =aith, 7'::, ed.8, at ,'D.