CONTENTS

IMBONG VS OCHOA.................................................................................................................................................. 2
ANG LADLAD VS COMELEC................................................................................................................................... 54
ESTRADA VS ESCRITOR, 2003.............................................................................................................................. 70
ESTRADA VS ESCRITOR, 2006............................................................................................................................ 128
AGLIPAY VS RUIZ.................................................................................................................................................. 167
GARCES VS ESTENZO......................................................................................................................................... 171
IGLESIA NI KRISTO VS GIRONELLA.................................................................................................................... 175
AMERICAN BIBLE SOCIETY VS CITY OF MANILA.............................................................................................. 177
PAMIL VS TELERON.............................................................................................................................................. 185
VICTORIANO VS ELIZALDE ROPE WORKERS UNION.......................................................................................188
GERMAN VS BARANGAN..................................................................................................................................... 198
GERONA VS SECRETARY OF EDUCATION......................................................................................................... 201
EBRALINAG VS DIVISION SUPERINTENDENT OF CEBU...................................................................................212

1
IMBONG VS OCHOA

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M.
Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco &
Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of
their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho
for themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning
Secretary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by
its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented
by its President Donato Marcos, Respondents.

x---------------------------------x

2
G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in
his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA,
CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

x---------------------------------x

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.

x---------------------------------x

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes,
Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development
3
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.

x---------------------------------x

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health;
HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

x---------------------------------x

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in
her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO
L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.

x---------------------------------x

G.R. No. 207111

4
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

x---------------------------------x

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department
of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and
Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs , and to live as he
believes he ought to live, consistent with the liberty of others and with the common good." 1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been
geared towards the revitalization of the economy, the bludgeoning dearth in social services remains to be a problem
that concerns not only the poor, but every member of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet of a representative government, endeavors to enact
laws and policies that aim to remedy looming societal woes, while the executive is closed set to fully implement
these measures and bring concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant
is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation vis-a-vis the most vital and enduring
principle that holds Philippine society together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates 2 to sticker campaigns,3 from rallies by

5
socio-political activists to mass gatherings organized by members of the clergy 4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has caused a deep division in every
level of the society. Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress
on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the Court now faces the iuris controversy,
as presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C.
Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor
children; and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution
(Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal capacities as citizens and
on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila,
in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned educational institution, and several others, 13 in their
capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate
of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and
several others19 in their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others, 21 in their capacities as citizens and
taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F.
Paguia is also proceeding in his capacity as a member of the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several
others,25 in their capacities as citizens and taxpayers and on behalf of its associates who are members of
the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers
and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their
capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several
others,31 in their capacities as citizens (CFC);

6
 (14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities
as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the
following GROUNDS:

The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its
declared policy against abortion, the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section
12, Article II of the Constitution which guarantees protection of both the life of the mother and the life of the
unborn from conception.35

The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to one's
health, as it causes cancer and other health problems. 36

The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to
their beliefs is included in the constitutional mandate ensuring religious freedom. 37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and
other forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive
health programs to other doctors; and 2] to provide full and correct information on reproductive health programs
and service, although it is against their religious beliefs and convictions. 38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR), 39 provides
that skilled health professionals who are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians, hospital staff nurses, public health
nurses, or rural health midwives, who are specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be
allowed as it is an affront to their religious beliefs. 41

While the petitioners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law
fails to satisfy the "clear and present danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech. 42

The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the
RH Law subjects medical practitioners to involuntary servitude because, to be accredited under the
PhilHealth program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent
women, under threat of criminal prosecution, imprisonment and other forms of punishment. 43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health services since the lack of PhilHealth accreditation would mean
that the majority of the public would no longer be able to avail of the practitioners services. 44

The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes

7
 contraceptive use. The petitioners argue that, rather than promoting reproductive health among the poor,
the RH Law seeks to introduce contraceptives that would effectively reduce the number of the poor.45

The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing
the penalty of imprisonment and/or fine for "any violation," it is vague because it does not define the type of
conduct to be treated as "violation" of the RH Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from
them (the people) the right to manage their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the management prerogative inherent in corporations for
employers to conduct their affairs in accordance with their own discretion and judgment.

The RH Law violates the right to free speech. To compel a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his own preferred way of family planning. The
petitioners note that although exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to perform the service or
procedure.48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended
that the RH Law providing for mandatory reproductive health education intrudes upon their constitutional
right to raise their children in accordance with their beliefs. 49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH
Law forsakes any real dialogue between the spouses and impedes the right of spouses to mutually decide on
matters pertaining to the overall well-being of their family. In the same breath, it is also claimed that the parents of a
child who has suffered a miscarriage are deprived of parental authority to determine whether their child should use
contraceptives.50

The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is non-
abortifacient and to be included in the Emergency Drugs List (EDL). 51

The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.52

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous
Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon the powers devolved to LGUs and
the ARMM under the Local Government Code and R.A . No. 9054. 54

Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of
the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez, 57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not
yet ripe for judicial determination.; 2] some petitioners lack standing to question the RH Law; and 3] the petitions
are essentially petitions for declaratory relief over which the Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
8
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order
(SQAO), enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or
identify the pertinent issues raised by the parties and the sequence by which these issues were to be discussed in
the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of the Court. 63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification on some contentions of the parties. 64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act
to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices." Although
contraceptive drugs and devices were allowed, they could not be sold, dispensed or distributed "unless such sale,
dispensation and distribution is by a duly licensed drug store or pharmaceutical company and with the prescription
of a qualified medical practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug
or chemical product or device capable of provoking abortion or preventing conception as classified by the Food and
Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed
physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the
population problem should be considered as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate population growth. 67 Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National Policy on
Population, Creating the Commission on Population and for Other Purposes. " The law envisioned that "family
planning will be made part of a broad educational program; safe and effective means will be provided to couples
desiring to space or limit family size; mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved from being a
component of demographic management, to one centered on the promotion of public health, particularly,
reproductive health.69 Under that policy, the country gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the commitments made in the International Conference
on Population and Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to provide for comprehensive health services and
programs for women, including family planning and sex education. 71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable
pace. From a paltry number of just over 27 million Filipinos in 1960, the population of the country reached over 76
9
million in the year 2000 and over 92 million in 2010. 72 The executive and the legislative, thus, felt that the measures
were still not adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor
and the marginalized, access and information to the full range of modem family planning methods, and to ensure
that its objective to provide for the peoples' right to reproductive health be achieved. To make it more effective, the
RH Law made it mandatory for health providers to provide information on the full range of modem family planning
methods, supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH
Law criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on
contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception program, the very essence of the RH Law, violates the right to
health of women and the sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that
"the status quo ante - the situation prior to the passage of the RH Law - must be maintained." 73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic
Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless
dispensed by a prescription duly licensed by a physician. What the Petitioners find deplorable and repugnant under
the RH Law is the role that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to
the barangay officials in the remotest areas of the country - is made to play in the implementation of the
contraception program to the fullest extent possible using taxpayers' money. The State then will be the funder and
provider of all forms of family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and supplies. 74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined
them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family
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 5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve
some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative
and political wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process"75 and "characterized by an inordinate amount of transparency." 76 The
OSG posits that the authority of the Court to review social legislation like the RH Law by certiorari is "weak," since
the Constitution vests the discretion to implement the constitutional policies and positive norms with the political
departments, in particular, with Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are
improper to assail the validity of the acts of the legislature. 79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law
has yet to be enforced and applied to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be challenged "on its face" as it is not a speech-
regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its exercise of judicial power and accord due respect to the
wisdom of its co-equal branch on the basis of the principle of separation of powers. To be clear, the separation of
powers is a fundamental principle in our system of government, which obtains not through express provision but by
actual division in our Constitution. Each department of the government has exclusive cognizance of matters within
its jurisdiction and is supreme within its own sphere. 81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in the President of the Philippines; 83 and (c) the judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law.84 The Constitution
has truly blocked out with deft strokes and in bold lines, the allotment of powers among the three branches of
government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes
upon the courts proper restraint, born of the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. 87 In order to address this,

11
the Constitution impresses upon the Court to respect the acts performed by a co-equal branch done within its
sphere of competence and authority, but at the same time, allows it to cross the line of separation - but only at a
very limited and specific point - to determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion. 88 Thus, while the Court may not pass upon questions
of wisdom, justice or expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse
of discretion results.89 The Court must demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
[Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC, 92 Aldaba v. COMELEC,93Magallona v. Ermita,94 and
countless others. In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition
no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The
question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy
of the Constitution is upheld. " Once a "controversy as to the application or interpretation of constitutional provision
is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control
between them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation. 95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just
any and every claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review
is limited by four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case. 96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because
the RH Law has yet to be implemented.97 They claim that the questions raised by the petitions are not yet concrete
and ripe for adjudication since no one has been charged with violating any of its provisions and that there is no

12
showing that any of the petitioners' rights has been adversely affected by its operation. 98 In short, it is contended
that judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. 99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 101 A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of 102

In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the issues raised as there was yet no concrete
act performed that could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question being not yet effective does not negate ripeness. Concrete acts
under a law are not necessary to render the controversy ripe. Even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing rules have already taken effect and that
budgetary measures to carry out the law have already been passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have
infringed the Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute. 104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of retirement and other benefits. They
must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH
Law cannot be challenged "on its face" as it is not a speech regulating measure. 105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that
is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances. 107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of
expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the application of facial challenges to strictly penal statues, 108 it
has expanded its scope to cover statutes not only regulating free speech, but also those involving religious

13
freedom, and other fundamental rights.109 The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to
life, speech and religion and other fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can
indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual
case or controversy, would diminish this Court as a reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health devices that are abortive. 112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the challenged governmental act. 113 It requires a personal stake
in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions. 114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality
of a statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing. 115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed
to prosper even where there is no direct injury to the party claiming the right of judicial review. In the first
Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge,
still, the Court has time and again acted liberally on the locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material interest affected by a Government act,
provided a constitutional issue of transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing non-
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119

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Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the technical defects and
take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and
just determination is an imperative need. This is in accordance with the well-entrenched principle that rules of
procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar,
the issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution
are being imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs, the Court may consider
them as petitions for prohibition under Rule 65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of
the Constitution,122 prescribing the one subject-one title rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation violates the constitutional standards of due process by
concealing its true intent - to act as a population control measure. 123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure, 124and
that the concepts of "responsible parenthood" and "reproductive health" are both interrelated as they are
inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the reduction of the country's population. While it claims to
save lives and keep our women and children healthy, it also promotes pregnancy-preventing products. As stated
earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with access
to information on the full range of modem family planning products and methods. These family planning methods,
natural or modem, however, are clearly geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of
the law, however, covers the dissemination of information and provisions on access to medically-safe, non-
abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.

15
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH
Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation. 127 As earlier explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women." 128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the population growth.
As expressed in the first paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to
health which includes reproductive health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the
average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its
contents, or which is misleading, either in referring to or indicating one subject where another or different one is
really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act." 129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to deceive the public as to the contents of the assailed
legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section
12, Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient;
thus, sanctioning contraceptives that take effect after fertilization and prior to implantation, contrary to the intent of
the Framers of the Constitution to afford protection to the fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion as they operate to kill the fertilized
ovum which already has life.131

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As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction
of contraceptive use contravenes natural law and is an affront to the dignity of man. 132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to
certify that the product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms
that abortifacients are not prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes. 133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply
the prohibition of abortion. They contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services, methods, devices products and supplies
shall be made accessible to the public.134

According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field, it is asserted that the Court afford
deference and respect to such a determination and pass judgment only when a particular drug or device is later on
determined as an abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are allowed. 136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life. 137

Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the
laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution
provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent
vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of male vasectomy and tubal ligation, 139 and the ratification of
numerous international agreements, the country has long recognized the need to promote population control
through the use of contraceptives in order to achieve long-term economic development. Through the years,
however, the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly, reproductive health. 140

This has resulted in the enactment of various measures promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-coercion." 141 As will be discussed later,

17
these principles are not merely grounded on administrative policy, but rather, originates from the constitutional
protection expressly provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage, without proper hearing and evidence. During the
deliberation, however, it was agreed upon that the individual members of the Court could express their own views
on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which
reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen because, amazingly, there are quarters
who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female
ovum by the male sperm.142 On the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus. 143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council: 144

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well-
settled principle of constitutional construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a statute there
should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the people, in whose consciousness it
should ever be present as an important condition for the rule of law to prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable
zygote; the fertilization that results in a new entity capable of developing into a being like its parents. 145

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Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the
male spermatozoon resulting in human life capable of survival and maturation under normal conditions. 146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, 147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die.
Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has
respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child. 149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the
moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is
human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is:
Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this upon fertilization. Secondly, as it
takes in these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the continuous process
of cell division. All these processes are vital signs of life. Therefore, there is no question that biologically the
fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the
nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only - and I
repeat, only in human cells. Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive
and human, then, as night follows day, it must be human life. Its nature is human. 151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization"
was not because of doubt when human life begins, but rather, because:

19
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific
phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase
"from the moment of conception."152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without
specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission,
he would leave it to Congress to define when life begins. So, Congress can define life to begin from six months
after fertilization; and that would really be very, very, dangerous. It is now determined by science that life begins
from the moment of conception. There can be no doubt about it. So we should not give any doubt to Congress,
too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I
was going to raise during the period of interpellations but it has been expressed already. The provision, as
proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that
we know today are abortifacient or not because it is a fact that some of the so-called contraceptives deter the
rooting of the ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to
travel towards the uterus and to take root. What happens with some contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are already
considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State
shall provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the Framers
of the Constitution intended that to prohibit Congress from enacting measures that would allow it determine when
life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision
on the right to life, recognized that the determination of whether a contraceptive device is an abortifacient is a
question of fact which should be left to the courts to decide on based on established evidence. 155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive
and thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
20
As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not
only to protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-
free world. I would just like to be assured of the legal and pragmatic implications of the term "protection of the life of
the unborn from the moment of conception." I raised some of these implications this afternoon when I interjected in
the interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain contraceptives which are already being encouraged at this point in
time. Is that the sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is
yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-
uterine device which actually stops the egg which has already been fertilized from taking route to the uterus. So if
we say "from the moment of conception," what really occurs is that some of these contraceptives will have to be
unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during
the oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

21
Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied
Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a
spermatozoon enters an ovum and forms a viable zygote." 159

It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo
develops."160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at the moment of fertilization with the union of the egg and
the sperm resulting in the formation of a new individual, with a unique genetic composition that dictates all
developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of
male and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and
ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the
beginning, or primordium, of a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23 chromosomes present in each pronucleus
results in 46 chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is
formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that conception, and thus human life, begins. Human lives are
22
sacred from the moment of conception, and that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human embryology, a human being begins immediately
at fertilization and after that, there is no point along the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal, or political conclusion cannot escape this
objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human
being commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral, political, or religious view of human life or
of human embryos.164

Conclusion: The Moment of Conception is Reckoned from

Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly,
following the intention of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human
organism and that the life of a new human being commences at a scientifically well-defined moment of conception,
that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous." 166 Citing a letter of the WHO, he wrote that "medical
authorities confirm that the implantation of the fertilized ovum is the commencement of conception and it is only
after implantation that pregnancy can be medically detected." 167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to
the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a
living human being complete with DNA and 46 chromosomes. 168 Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would constitute textual infidelity not only to
the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-
based divisiveness.

It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the
1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the protection of the
unborn from conception, explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-
abortion decision passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the
Court has opted not to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly
mandates that protection be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law
is replete with provisions that embody the policy of the law to protect to the fertilized ovum and that it should be
afforded safe travel to the uterus for implantation. 170

23
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

xxx.

(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the enhancement of life and personal relations. The elements of
reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and reproductive health: Provided, however, That reproductive
health rights do not include abortion, and access to abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of
the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination
of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using
the word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any
drug or device that either:

(a) Induces abortion; or

24
 (b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the
FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it.
The conclusion becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first
kind), which, as discussed exhaustively above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the
mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the
mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum must be protected the moment it becomes
existent - all the way until it reaches and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or device
from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does
not sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but that instance of implantation is not the
point of beginning of life. It started earlier. And as defined by the RH Law, any drug or device that induces abortion,
that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply
included or to be included in the EDL must have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its
expertise, cannot fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot
be present in every instance when the contraceptive product or supply will be used. 171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives,
however, the Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and mean
that "any product or supply included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it cannot be used as abortifacient." Such a construction
is consistent with the proviso under the second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive
pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination
of the FDA.

25
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device,
or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as
determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those
that primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb. 172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR 173 must be struck down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of contraceptives which may harm or destroy
the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With such
qualification in the RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient"
if its sole known effect is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are
actually abortifacients because of their fail-safe mechanism. 174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as
abortive. With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared
policy against abortion, the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL
will not only be those contraceptives that do not have the primary action of causing abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb, but also those that do not have the secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should
be construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-
IRR should be declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively "open the floodgates to the
approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution." 175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life
must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary
26
and the inclusion of the same in the regular purchase of essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives as compared to women who never use them.
They point out that the risk is decreased when the use of contraceptives is discontinued. Further, it is contended
that the use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under Sections 4(p) 178 and (w)179 of the
RH Law, the petitioners assert that the assailed legislation only seeks to ensure that women have pleasurable and
satisfying sex lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of women. 181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health. Section 15, Article II of the Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness
among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake
appropriate health, manpower development, and research, responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development,
and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions. 182 In Manila Prince Hotel v. GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is,
as it has always been, that

... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless
the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphases supplied)
27
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and
contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale
and distribution of contraceptives are not prohibited when they are dispensed by a prescription of a duly licensed by
a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No.
4729. There is no intention at all to do away with it. It is still a good law and its requirements are still in to be
complied with. Thus, the Court agrees with the observation of respondent Lagman that the effectivity of the RH Law
will not lead to the unmitigated proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a licensed physician. With R.A. No. 4729 in
place, there exists adequate safeguards to ensure the public that only contraceptives that are safe are made
available to the public. As aptly explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without
prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive
Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other Purposes" are not repealed by the RH Law
and the provisions of said Acts are not inconsistent with the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly
governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified
medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the
purpose of preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of
not more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in
the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of
whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or hospital pharmacy, duly established in
accordance with the provisions of this Act.

28
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension
of the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not,
is completely unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs
and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement and distribution program. The supply
and budget allotments shall be based on, among others, the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug
store or pharmaceutical company and that the actual dispensation of these contraceptive drugs and devices will
done following a prescription of a qualified medical practitioner. The distribution of contraceptive drugs and devices
must not be indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying contraceptive
drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to
their use.187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the
RH Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the constitutional yardstick as expounded herein, to be
determined as the case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intra-
uterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be construed as operative only after they
have been tested, evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of
the third sentence concerning the requirements for the inclusion or removal of a particular family planning supply
from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine
devices, injectables, and other safe, legal, non-abortifacient and effective family planning products and supplies by
the National Drug Formulary in the EDL is not mandatory. There must first be a determination by the FDA that they
are in fact safe, legal, non-abortifacient and effective family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.

3 - Freedom of Religion and the Right to Free Speech

Position of the Petitioners:

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1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are medical practitioners who essentially claim
that their beliefs prohibit not only the use of contraceptives but also the willing participation and cooperation in all
things dealing with contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the spouses; it
harms true love and denies the sovereign rule of God in the transmission of Human life." 188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their
taxes on contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious
beliefs.189

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking reproductive health services to
another medical practitioner who would be able to provide for the patient's needs. For the petitioners, this amounts
to requiring the conscientious objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly
limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the conscientious objector in Section 23 (a)(l)
and (2), i.e. against a patient seeking reproductive health procedures. They claim that the right of other individuals
to conscientiously object, such as: a) those working in public health facilities referred to in Section 7; b) public
officers involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public schools
referred to in Section 14 of the RH Law, are also not recognize. 191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter
to another health care service provider is still considered a compulsion on those objecting healthcare service
providers. They add that compelling them to do the act against their will violates the Doctrine of Benevolent
Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex education, mandatory pro-bono
reproductive health services to indigents encroach upon the religious freedom of those upon whom they are
required.192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking
reproductive health care services to another provider infringes on one's freedom of religion as it forces the objector
to become an unwilling participant in the commission of a serious sin under Catholic teachings. While the right to
act on one's belief may be regulated by the State, the acts prohibited by the RH Law are passive acts which
produce neither harm nor injury to the public.193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat that endangers state interests. It does not explain how
the rights of the people (to equality, non-discrimination of rights, sustainable human development, health,
education, information, choice and to make decisions according to religious convictions, ethics, cultural beliefs and
the demands of responsible parenthood) are being threatened or are not being met as to justify the impairment of
religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH Law even if it contravenes their religious beliefs. 195 As the
assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions,
30
the petitioners claim that the RH Law forcing them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief. 196 They point
out that the RH Law only seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution, 197 and that what the law only prohibits are those acts or
practices, which deprive others of their right to reproductive health. 198 They assert that the assailed law only seeks
to guarantee informed choice, which is an assurance that no one will be compelled to violate his religion against his
free will.199

The respondents add that by asserting that only natural family planning should be allowed, the petitioners are
effectively going against the constitutional right to religious freedom, the same right they invoked to assail the
constitutionality of the RH Law.200 In other words, by seeking the declaration that the RH Law is unconstitutional, the
petitioners are asking that the Court recognize only the Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201

With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee
of religious freedom, it being a carefully balanced compromise between the interests of the religious objector, on
one hand, who is allowed to keep silent but is required to refer -and that of the citizen who needs access to
information and who has the right to expect that the health care professional in front of her will act professionally.
For the respondents, the concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation
to the right to freely exercise one's religion without unnecessarily infringing on the rights of others. 202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration,
location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is argued that those who object to any information received on
account of their attendance in the required seminars are not compelled to accept information given to them. They
are completely free to reject any information they do not agree with and retain the freedom to decide on matters of
family life without intervention of the State. 204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on contraception throughout the years and note the general acceptance
of the benefits of contraceptives by its followers in planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together.
It has embraced minority groups and is tolerant towards all - the religious people of different sects and the non-
believers. The undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be,
and to whom they call for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the
present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and

31
democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest
principles of morality.205 Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church
property, salary of religious officers in government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs
of the church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if
it sincerely believes that they are good for the country.

Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia,
or any other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and
the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in affairs among religious groups." 206 Essentially, it prohibits
the establishment of a state religion and the use of public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the
outside manifestations of one's belief and faith.208 Explaining the concept of religious freedom, the Court, in
Victoriano v. Elizalde Rope Workers Union209 wrote:

32
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen
form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good. Any legislation whose effect or purpose is to impede the observance of one or all religions,
or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as
being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's
secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct.
144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a
single goal-to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while
the establishment clause prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and practices. 210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.212

The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor) 214 where it was
stated "that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution." 215 In the same case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of
religion may be allowed, not to promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The purpose of accommodation is to remove a burden on, or
facilitate the exercise of, a person's or institution's religion." 216 "What is sought under the theory of accommodation
is not a declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its
'burdensome effect,' whether by the legislature or the courts." 217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:

33
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly, all the cases which employed the
"clear and present danger" or "grave and immediate danger" test involved, in one form or another, religious speech
as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set
the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test . Victoriano was the only case that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some
effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a
just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for
to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide.
The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty will not be preserved. [Emphases in the
original. Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or
one's participation in the support of modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For the Court has declared that matters
dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the civil courts." 220 The jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bench
should be understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting religious freedom are the following:

34
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is
the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family planning,
including effective natural and modern methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical research standards such as those
registered and approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they
desire with due consideration to the health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance
with their religious convictions and cultural beliefs, taking into consideration the State's obligations under various
human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the priority needs of women, the poor, and
the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the
family and children. It is likewise a shared responsibility between parents to determine and achieve the desired
number of children, spacing and timing of their children according to their own family life aspirations, taking into
account psychological preparedness, health status, sociocultural and economic concerns consistent with their
religious convictions. [Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion, it also limits
what religious sects can or cannot do with the government. They can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can they not cause the government to restrict other groups. To do
so, in simple terms, would cause the State to adhere to a particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is contrary to their religious
beliefs. Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by
the policies of any one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The
35
demarcation line between Church and State demands that one render unto Caesar the things that are Caesar's and
unto God the things that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections
7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a medical practitioner to
immediately refer a person seeking health care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the
compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious freedom would warrant an exemption
from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious
objectors for exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been
burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side
coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other entices him to a
clean conscience yet under the pain of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking
information on modem reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs. As Commissioner Joaquin
A. Bernas (Commissioner Bernas) has written, "at the basis of the free exercise clause is the respect for the
inviolability of the human conscience.222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it
makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive.
They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is
equally guilty if he abets the offensive act by indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in his mind. 223 While the RH Law seeks
to provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest
of the State, on the other, to provide access and information on reproductive health products, services, procedures
and methods to enable the people to determine the timing, number and spacing of the birth of their children, the
Court is of the strong view that the religious freedom of health providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of
the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of
"the principle of non-coercion" enshrined in the constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and
Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be conscientious objectors
under the provisions of Scotland's Abortion Act of 1967, could not be required to delegate, supervise or support
staff on their labor ward who were involved in abortions. 226 The Inner House stated "that if 'participation' were
36
defined according to whether the person was taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the same - they could not be
forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a
religious group and health care service providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3), the
Court deems that it must be struck down for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the dissemination of information regarding programs
and services and in the performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary 228 it was stressed:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the common good." 10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law is a constitutionally-protected right the
Court firmly chooses to stamp its disapproval. The punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital,
head nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the
duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be
equally protective of the religious belief of public health officers. There is no perceptible distinction why they should
not be considered exempt from the mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they belong to the public or private
sector. After all, the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The
mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs
by oral discourse or through the media and, thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the law must prevail.

37
Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is
replete with provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you
affirmed this with qualifications. Now, you have read, I presumed you have read the IRR-Implementing Rules and
Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of
the provisions.

Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors." Do you agree with
this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious objectors,
skilled health professionals cannot be considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail. 230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors in their
choice of services to render; and 2] discharge the burden of proof that the obligatory character of the law is the
least intrusive means to achieve the objectives of the law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent
in the establishment of a more compelling state interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his religious convictions. During the oral arguments, the OSG
maintained the same silence and evasion. The Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:
38
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this
duty to refer to a conscientious objector which refuses to do so because of his religious belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary
health legislation involving professionals. This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their patients. 231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. 232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to become pregnant at all. On the
other hand, the burden placed upon those who object to contraceptive use is immediate and occurs the moment a
patient seeks consultation on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's
religious freedom, the respondents have failed to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override a person's fundamental right to religious freedom. Also, the respondents
have not presented any government effort exerted to show that the means it takes to achieve its legitimate state
objective is the least intrusive means.234 Other than the assertion that the act of referring would only be momentary,
considering that the act of referral by a conscientious objector is the very action being contested as violative of
religious freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the State
to achieve its objective without violating the rights of the conscientious objector. The health concerns of women may
still be addressed by other practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform an act in utter reluctance deserves
the protection of the Court as the last vanguard of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is
protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No.
6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation to health services and programs. The pertinent provision of
Magna Carta on comprehensive health services and programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide
for a comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of
a woman's life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in
the provision for comprehensive health services, due respect shall be accorded to women's religious convictions,
the rights of the spouses to found a family in accordance with their religious convictions, and the demands of
39
responsible parenthood, and the right of women to protection from hazardous drugs, devices, interventions, and
substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health
and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services without
prejudice to the primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually transmitted
diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and
other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims and survivors
shall be provided with comprehensive health services that include psychosocial, therapeutic,
medical, and legal interventions and assistance towards healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and
medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women and girls. In
addition, healthy lifestyle activities are encouraged and promoted through programs and projects
as strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information and education on all the above-stated aspects of women's
health in government education and training programs, with due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an atmosphere of
morality and rectitude for the enrichment and strengthening of character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x x." 235 He, however,
failed to substantiate this point by concrete facts and figures from reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality
rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths constitute a compelling state interest.
40
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance
of emergency procedures. In these situations, the right to life of the mother should be given preference, considering
that a referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the
life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the
forced referral clause that we are objecting on grounds of violation of freedom of religion does not contemplate an
emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try
to save both lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the mother of the child
is never justified to bring about a "good" effect. In a conflict situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable. 238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be
resorted to even if is against the religious sentiments of the medical practitioner. As quoted above, whatever burden
imposed upon a medical practitioner in this case would have been more than justified considering the life he would
be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power by the government. A cursory reading of the assailed
provision bares that the religious freedom of the petitioners is not at all violated. All the law requires is for would-be
spouses to attend a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the seminar, whether they be natural or artificial. As
correctly noted by the OSG, those who receive any information during their attendance in the required seminars are
not compelled to accept the information given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution
by intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total development. 240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact,
one article, Article XV, is devoted entirely to the family.

41
 ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and implementation of policies and
programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to
wreck the family as a solid social institution. It bars the husband and/or the father from participating in the decision
making process regarding their common future progeny. It likewise deprives the parents of their authority over their
minor daughter simply because she is already a parent or had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the
ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between the husband and the wife as they affect issues
intimately related to the founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall
defend the "right of the spouses to found a family." One person cannot found a family. The right, therefore, is shared
by both spouses. In the same Section 3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the
spouse who would undergo a procedure, and barring the other spouse from participating in the decision would drive
a wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the
family, all for the sake of reducing the population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241

42
Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect their future as a family because the size of the family or
the number of their children significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which has not shown any compelling
interest, the State should see to it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna
Carta for Women," provides that women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their children. Indeed, responsible parenthood,
as Section 3(v) of the RH Law states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health procedure. 242

The right to chart their own destiny together falls within the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction,
the right to privacy was first recognized in Marje v. Mutuc, 243 where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection." 244 Marje adopted the ruling of the US Supreme Court
in Griswold v. Connecticut,245 where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school
system. Marriage 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.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on
the ground of its amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless,
it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy." 246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a
procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to modern methods of family planning without written consent
from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame
population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and strengthen the family as an inviolable social institution.

43
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the
right of parents is superior to that of the State. 248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the
right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract of marriage to as one unit in forming
the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a
minor child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or
with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services, on one hand, and access to the
reproductive health procedures and modern family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would enable her to take proper care of
her own body and that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable a person to
make informed decisions is essential in the protection and maintenance of ones' health, access to such information
with respect to reproductive health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental guidance and control over their
minor child and assist her in deciding whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage
and that of the spouse should not be put at grave risk simply for lack of consent. It should be emphasized that no
person should be denied the appropriate medical care urgently needed to preserve the primordial right, that is, the
right to life.

In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for the two exceptions discussed
above, and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents
should not be deprived of their constitutional right of parental authority. To deny them of this right would be an
affront to the constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions effectively force educational
institutions to teach reproductive health education even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United States and statistical data gathered in the country,
the petitioners aver that the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce

44
and breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth. 251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development of their children by recognizing that
said role shall be "primary," that is, that the right of parents in upbringing the youth is superior to that of the State. 252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the
youth. Indeed, the Constitution makes mention of the importance of developing the youth and their important role in
nation building.253 Considering that Section 14 provides not only for the age-appropriate-reproductive health
education, but also for values formation; the development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms of gender based violence
and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among adolescents - the Court finds that the legal
mandate provided under the assailed provision supplements, rather than supplants, the rights and duties of the
parents in the moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the petitioners. By imposing such a condition,
it becomes apparent that the petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254

While the Court notes the possibility that educators might raise their objection to their participation in the
reproductive health education program provided under Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its judgment should an actual case be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among those who
may be held punishable but does not define who is a "private health care service provider." They argue that
confusion further results since Section 7 only makes reference to a "private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious
groups from rendering reproductive health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information under Section 23(a)(l), or from
rendering reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but
at the same time fails to define "incorrect information."

The arguments fail to persuade.

45
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle. 255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context,
that is, every part of it must be construed together with the other parts and kept subservient to the general intent of
the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must
be made to Section 4(n) of the RH Law which defines a "public health service provider," viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity,
or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in the delivery of health care services; or (4)
barangay health worker who has undergone training programs under any accredited government and NGO and
who voluntarily renders primarily health care services in the community after having been accredited to function as
such by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care
service provider," should not be a cause of confusion for the obvious reason that they are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. Clearly, subject to the qualifications and
exemptions earlier discussed, the right to be exempt from being obligated to render reproductive health service and
modem family planning methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect
information regarding programs and services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide
with the truth. 257 On the other hand, the word "knowingly" means with awareness or deliberateness that is
intentional.258 Used together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead
or misrepresent the public as to the nature and effect of programs and services on reproductive health. Public
health and safety demand that health care service providers give their honest and correct medical information in
accordance with what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health, their right
must be tempered with the need to provide public health and safety. The public deserves no less.

7-Egual Protection

46
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it
discriminates against the poor because it makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive health among the poor, the RH Law
introduces contraceptives that would effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned in the guiding principles 259 and definition
of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive health education
program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of equal
protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's duly constituted authorities." "In
other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all
members of the same class. "Superficial differences do not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class. "The classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does not justify the non-application
of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which

47
recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority
in addressing the health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is, therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. While the petitioners surmise that the assailed law seeks to
charge couples with the duty to have children only if they would raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks to do is to simply provide priority to the poor in the implementation
of government programs to promote basic reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive health education
program under Section 14, suffice it to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial distinction sufficient to annul the assailed
provision. On the other hand, substantial distinction rests between public educational institutions and private
educational institutions, particularly because there is a need to recognize the academic freedom of private
educational institutions especially with respect to religious instruction and to consider their sensitivity towards the
teaching of reproductive health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono reproductive health services, actually
amounts to involuntary servitude because it requires medical practitioners to perform acts against their will. 262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as
forced labor analogous to slavery, as reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out that the imposition is within the powers
of the government, the accreditation of medical practitioners with PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but a privileged burdened with conditions as it directly
involves the very lives of the people. A fortiori, this power includes the power of Congress 263 to prescribe the
qualifications for the practice of professions or trades which affect the public welfare, the public health, the public
morals, and the public safety; and to regulate or control such professions or trades, even to the point of revoking
such right altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion. 265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive healthcare service providers to render
pro bono service. Other than non-accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service providers also enjoy the liberty to choose
which kind of health service they wish to provide, when, where and how to provide it or whether to provide it all.

48
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service against their will.
While the rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive imposed by Congress in the
furtherance of a perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their religious beliefs and convictions do not allow them to
render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a
supply or product is to be included in the Essential Drugs List (EDL). 266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency
to evaluate, register and cover health services and methods. It is the only government entity empowered to render
such services and highly proficient to do so. It should be understood that health services and methods fall under the
gamut of terms that are associated with what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant
to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers,
consumers, and non-consumer users of health products to report to the FDA any incident that reasonably
indicates that said product has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or
not registered with the FDA Provided, That for registered health products, the cease and desist order is
valid for thirty (30) days and may be extended for sixty ( 60) days only after due process has been
observed;

49
 "(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have
caused death, serious illness or serious injury to a consumer or patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was equipped with the necessary powers and functions to make it
effective. Pursuant to the principle of necessary implication, the mandate by Congress to the FDA to ensure public
health and safety by permitting only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be given only those medicines that
are proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted delegation was explained in Echagaray v.
Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of the legislature to
cope directly with the many problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers
devolved to local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17
vested upon the LGUs the duties and functions pertaining to the delivery of basic services and facilities, as follows:

SECTION 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions
and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and responsibilities that
have already been devolved upon them from the national agencies on the aspect of providing for basic
services and facilities in their respective jurisdictions, paragraph (c) of the same provision provides a
categorical exception of cases involving nationally-funded projects, facilities, programs and
services.268Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and
other facilities, programs and services funded by the National Government under the annual General
Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where the local government unit
concerned is duly designated as the implementing agency for such projects, facilities, programs and
services. [Emphases supplied]

50
The essence of this express reservation of power by the national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power over a program for which funding has been provided by
the national government under the annual general appropriations act, even if the program involves the delivery of
basic services within the jurisdiction of the LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the Local Government Code itself weighs
against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which the local government is
called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There
is nothing in the wording of the law which can be construed as making the availability of these services mandatory
for the LGUs. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the
national government upon the autonomy enjoyed by the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the
ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No.
9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the
RH Law in the autonomous region, refer to the policy statements for the guidance of the regional government.
These provisions relied upon by the petitioners simply delineate the powers that may be exercised by the regional
government, which can, in no manner, be characterized as an abdication by the State of its power to enact
legislation that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio in the
relationship between the national and the regional governments. 274 Except for the express and implied limitations
imposed on it by the Constitution, Congress cannot be restricted to exercise its inherent and plenary power to
legislate on all subjects which extends to all matters of general concern or common interest. 275

11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers
and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the
actual law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot serve
as a basis to strike down a law. In Republic v. Sandiganbayan, 278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the
Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances
involving rights inherent to man where no law is applicable. 279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion
in any shape or form. It only seeks to enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods,

51
devices, and supplies. As earlier pointed out, however, the religious freedom of some sectors of society cannot be
trampled upon in pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious
freedom is a recognition that man stands accountable to an authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose
its beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded so that peace and harmony may continue to reign as we exist
alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to
address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these
perennial issues is not the large population but the unequal distribution of wealth. Even if population growth is
controlled, poverty will remain as long as the country's wealth remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European and Asian
countries, which embarked on such a program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their economy. These young workers represent
a significant human capital which could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with
incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation would not be able to support them? This
would be the situation when our total fertility rate would go down below the replacement level of two (2) children per
woman.280

Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like
the penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as
enacted by the lawmaking body. That is not the same as saying what the law should be or what is the correct rule in
a given set of circumstances. It is not the province of the judiciary to look into the wisdom of the law nor to question
the policies adopted by the legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature to enact remedial legislation if that
would be necessary in the premises. But as always, with apt judicial caution and cold neutrality, the Court must
carry out the delicate function of interpreting the law, guided by the Constitution and existing legislation and mindful
of settled jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to the judicial
task of saying what the law is, as enacted by the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729)
and the reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption
of any family planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to
refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-parents or minors who have
suffered a miscarriage access to modem methods of family planning without written consent from their
parents or guardian/s;
52
 2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any healthcare service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement
of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar
as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible regardless of his or her religious
beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any public officer who refuses to support reproductive health programs or shall do any act
that hinders the full implementation of a reproductive health program, regardless of his or her religious
beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 ,
is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.

SO ORDERED.

53
ANG LADLAD VS COMELEC
Republic of the Philippines
Supreme Court
Baguio City

EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582

represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others may make different
choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or
anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and
debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built
on genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal.

54
Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and December 16, 2009[3] (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal
to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List
System Act.[4]

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or
trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization had no substantial membership base.
OnAugust 17, 2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector
that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.[6] Ang Ladlad laid out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the
Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly

disadvantaged because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

55
 For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the men, leaving
the natural use of the woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that recompense of their error
which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a

people transgressing beyond bounds. (7.81) And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime! (7:84) He
said: O my Lord! Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the

Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are
already of age. It is further indicated in par. 24 of the Petition which waves for the record:
In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as
670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship,

or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance
as Any act, omission, establishment, business, condition of property, or anything else
which x x x (3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs, public order or public policy.
Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy are inexistent and void
from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. The penalty of prision mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to

public morals;

2. (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the establishment
selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the obscene
literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals, good customs, established policies,
lawful orders, decrees and edicts.

56
 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture
or literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that older practicing homosexuals are a threat to the youth. As an agency of
the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect
our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First
Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming
that it has properly proven its under-representation and marginalization, it cannot be said that Ladlads
expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent
its constituencies, then all representative organizations would have found themselves into the party-list race.
But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance
and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests are also the nations only
that their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its application for accreditation
under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts
do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a special class of individuals. x x
x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right,
and that nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or
legal equality of homosexual relations, as in the case of race or religion or belief.

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there
can be no denying that Ladlad constituencies are still males and females, and they will remain either male
or female protected by the same Bill of Rights that applies to all citizens alike.

57
 xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices.
Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic]
into society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of
the Revised Penal Code imposes the penalty of prision mayor upon Those who shall publicly expound or
proclaim doctrines openly contrary to public morals. It penalizes immoral doctrines, obscene publications
and exhibition and indecent shows. Ang Ladlad apparently falls under these legal provisions. This is clear
from its Petitions paragraph 6F: Consensual partnerships or relationships by gays and lesbians who are
already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the
Civil Code defines nuisance as any act, omission x x x or anything else x x x which shocks, defies or
disregards decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct
the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a
preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final
ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC
not later than 12:00 noon of January 11, 2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in
support of petitioners application.[13] Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required
it to file its own comment.[14] The COMELEC, through its Law Department, filed its Comment on February 2, 2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010,
effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as
Amicus Curiae, attaching thereto its Comment-in-Intervention.[17] The CHR opined that the denial of Ang Ladlads petition on
moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR),
and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to
intervene.

58
 On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18] which motion was granted on February
2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as
well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners
application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have
their own special interests and concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that
the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful
statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field
personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and

Republic Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under
the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,[20] the
enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is

59
specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA
7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had
nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field
personnel, it was shown that save for a few isolated places in the country, petitioner does not exist in almost all provinces in
the country.[21]
This argument that petitioner made untruthful statements in its petition when it alleged its national existence is a new
one; previously, the COMELEC claimed that petitioner was not being truthful when it said that it or any of its nominees/party-
list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections. Nowhere was
this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is
quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to
the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondents theory, and a serious violation of petitioners right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition
shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in
the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the
country, and 4,044 members in its electronic discussion group.[22] Ang Ladlad also represented itself to be a national LGBT
umbrella organization with affiliates around the Philippines composed of the following LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
60
 San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does
not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence,
nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC
claims, lies in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government neutrality in
religious matters.[24] Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality. [25] We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether
the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise
stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v.
Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as religious programs or agenda.
The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based
its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result, government
will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct

61
 because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress
of human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation punishable
by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes
with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual
institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the
religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.[27]

Public Morals as a Ground to Deny Ang Ladlads Petition for

Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be
religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but
because of the danger it poses to the people especially the youth. Once it is recognized by the government,
a sector which believes that there is nothing wrong in having sexual relations with individuals of the same
gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves,
have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs,
convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual
conduct. Evidently, therefore, these generally accepted public morals have not been convincingly transplanted into the realm
of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees
that there should have been a finding by the COMELEC that the groups members have committed or are committing immoral
acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or
more than one gender, but mere attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC
would have its hands full of disqualification cases against both the straights and the gays. Certainly this is
not the intendment of the law.[31]

62
 Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for
the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly
without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government
will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of
property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a prosecution
under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. [32] A violation of
Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or
culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our
equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be denied
equal protection of the laws, courts have never interpreted the provision as an absolute prohibition on
classification. Equality, said Aristotle, consists in the same treatment of similar persons.[33] The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like circumstances.[34]

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to some legitimate government end. [35] In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction, the standard of analysis of
equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative

63
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.[37]

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted
state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state
interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the
party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves
for the purposes of the equal protection clause.[38] We are not prepared to single out homosexuals as a separate class
meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as
all other groups similarly situated, and that the COMELEC made an unwarranted and impermissible classification not justified
by the circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the
validity of its position through normal democratic means.[39] It is in the public square that deeply held convictions and differing
opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]

In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median
64
 groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies
including protection of religious freedom "not only for a minority, however small not only for a majority,
however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises
not to do what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies
not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this
sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech
for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows
that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.[41] European and United Nations
judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and
equal protection provisions in foreign and international texts.[42] To the extent that there is much to learn from other jurisdictions
that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not
formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines
protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion,
public institutions must show that their actions were caused by something more than a mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human
rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes
are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and
whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of
the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the
population.[44]A political group should not be hindered solely because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone concerned.[45] Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even
defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood,

65
believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community to exclude from consideration the values of other
members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality
through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang
Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on
their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied.

[COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral
party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to
freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the
right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of
Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system,
and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To
the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views
as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates,
we find that there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in
particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups
struggling with inadequate structural and governmental support, international human rights norms are particularly significant,

66
and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal,
standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated
in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be
applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a
status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference
to sex in Article 26 should be construed to include sexual orientation.[48] Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.

Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated
by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:
67
 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the Covenant requires States to adopt such
legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to
enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should
indicate and explain the legislative provisions which exclude any group or category of persons from elective
office.[50]

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We
refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on
the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute
of the International Court of Justice. [52] Petitioner has not undertaken any objective and rigorous analysis of these alleged
principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is
unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social
desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect
of diluting real human rights, and is a result of the notion that if wants are couched in rights language, then they are no
longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various
international law professors, are at best de lege ferenda and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of
which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.[53]

68
 As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged,
societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to
impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by
public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November
11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.
SO ORDERED.

69
ESTRADA VS ESCRITOR, 2003

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.

DECISION
PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an
authority higher than the state. To be held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate
because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is
not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these
clauses for in the United States, there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses. [1] The U.S. Supreme Court itself has acknowledged that in this constitutional
area, there is considerable internal inconsistency in the opinions of the Court. [2] As stated by a professor of law,
(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious
disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed
sovereignty.[3] Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the
case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course
of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case
involving only one person does not alter the paramount importance of the question for the constitution commands
the positive protection by government of religious freedom -not only for a minority, however small- not only for a
majority, however large- but for each of us. [4]

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is
necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an investigation
of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her
husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to
Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the
charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court,
thus she should not be allowed to remain employed therein as it might appear that the court condones her act. [5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the
allegation and challenged Estrada to appear in the open and prove his allegation in the proper forum. [6] Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from
hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and
said case was still pending in the Office of the Court Administrator (OCA). Escritors motion was denied. The
preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the
letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City,
he learned from conversations therein that Escritor was living with a man not her husband and that she had an

70
eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that
employees of the judiciary should be respectable and Escritors live-in arrangement did not command respect. [7]
Respondent Escritor testified that when she entered the judiciary in 1999, [8] she was already a widow, her
husband having died in 1998. [9] She admitted that she has been living with Luciano Quilapio, Jr. without the benefit
of marriage for twenty years and that they have a son. But as a member of the religious sect known as the
Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with
their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a Declaration of
Pledging Faithfulness, viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital
relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I therefore make this public declaration
pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and honored
in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise
to legalize this union.

Signed this 28th day of July 1991.[10]

Escritors partner, Quilapio, executed a similar pledge on the same day. [11] Both pledges were executed in
Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still
alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact from
his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the
truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and
considered her identification of her signature and the signature of Quilapio sufficient authentication of the
documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed
the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting
Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment,
Escritor reiterated her religious congregations approval of her conjugal arrangement with Quilapio, viz:

Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth
as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging
Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the
witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons to be held
to and honored in full accord with the principles of Gods Word.

xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER
BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation
to her case.[13]

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge
Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the
course of Judge Macedas investigation, Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some
clippings which explain the basis of her congregations belief and practice regarding her conjugal

71
arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with
another woman. She met this woman who confirmed to her that she was living with her (Escritors) husband. [14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a presiding
minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained
the import of and procedure for executing a Declaration of Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and
regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we
request them to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic)
to execute this document?
A: This must be signed, the document must be signed by the elders of the congregation; the couple,
who is a member (sic) of the congregation, baptized member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic)
gives the Christian Congregation view that the couple has put themselves on record before God and
man that they are faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who
are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite
member of my congregation, opposite sex, and that this document will give us the right to a marital
relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to
enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to
cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said that everyone divorcing his wife, except on account of fornication,
makes her a subject for adultery, and whoever marries a divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May
2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge
of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the
two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered
comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed
that the personal circumstances of the couple had been considered by the Atimonan Congregation when they
executed their declarations.

72
 Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in
the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the
article, Maintaining Marriage in Honor Before God and Men, [16] in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding
within the congregation all over the world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities
approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation
to check the couples marital status before giving imprimatur to the conjugal arrangement. The execution of the
declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can
remarry. The marital status of the declarants and their respective spouses commission of adultery are investigated
before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation
conducted an investigation on her marital status before the declaration was approved and the declaration is valid
everywhere, including the Almanza Congregation. That Escritors and Quilapios declarations were approved are
shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the
congregations branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998
Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can
already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation. [17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs Witnesses
since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
presented the original copy of the magazine article entitled, Maintaining Marriage Before God and Men to which
Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of
the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible
and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The
article is distributed to the Jehovahs Witnesses congregations which also distribute them to the public. [18]
The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for
resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their
own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the
relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel, that
the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that she
bound herself to seek means to . . . legalize their union. Thus, even assuming arguendo that the declaration is
valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the
internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally
upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law
for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize
their live-in relationship can simply join the Jehovahs Witnesses congregation and use their religion as a defense
against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based
on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine article
entitled, Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate greatly
affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of
the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of
Caesars authority regarding marriage. From country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the
Christian, or the one desiring to become a disciple of Gods Son, can be guided by basic Scriptural principles that
hold true in all cases.

Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or
the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether
in itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives with a wife but
73
also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the
relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on
the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with
an incestuous relationship with a member of ones immediate family, or a homosexual relationship or other such
situation condemned by Gods Word. It is not the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a
situation could not make any kind of Declaration of Faithfulness, since it would have no merit in Gods eyes.

If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do
all one can to establish the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce is
possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may
be available), the present union can receive civil validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one has done
all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of
official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases,
the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to
approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the
political state. She always gives primary concern to Gods view of the union. Along with this, every effort should be
made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable
among all. Such course will bring Gods blessing and result to the honor and praise of the author of marriage,
Jehovah God. (1 Cor. 10:31-33)[20]

Respondent also brought to the attention of the investigating judge that complainants Memorandum came
from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations credible
as they were supported by testimonial and documentary evidence. He also noted that (b)y strict Catholic
standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to
wit: that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He
pointed out, however, that the more relevant question is whether or not to exact from respondent Escritor, a
member of Jehovahs Witnesses, the strict moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar. [22] The investigating judge acknowledged that religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby recommended the dismissal of
the complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court
Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to
dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she
joined the judiciary as her husband had died a year before, it is due to her relationship with a married man,
voluntarily carried on, that respondent may still be subject to disciplinary action. [24] Considering the ruling of the
Court in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to adhere to the exacting standards
of morality and decency in their professional and private conduct in order to preserve the good name and integrity
of the court of justice, DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of
the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she
be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act
will be dealt with more severely in accordance with the Civil Service Rules. [26]

74
 II. Issue

Whether or not respondent should be found guilty of the administrative charge of gross and immoral
conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents right to
religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which
government employees are held administratively liable.

III. Applicable Laws

Respondent is charged with committing gross and immoral conduct under Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code which provides, viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and practices and
moral standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct for which she should be held
administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section
5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or political rights.

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to understand not only its birth in
the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the
American experience.[27] This fresh look at the religion clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every significant event in the primitive mans
life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then
bring upon him the wrathful vengeance of a superhuman mysterious power. [28] Distinction between the religious
and non-religious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a
wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the
tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only
interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as
divine decrees.[29]
Time came, however, when the function of acting as intermediary between human and spiritual powers
became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class. This saw the birth of the social and communal problem of the

75
competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out
these functions because he was the head and representative of the community.[30]
There being no distinction between the religious and the secular, the same authority that promulgated laws
regulating relations between man and man promulgated laws concerning mans obligations to the
supernatural. This authority was the king who was the head of the state and the source of all law and who only
delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed
penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons
and tailors and prescribed rules for inheritance of property; [31] and also catalogued the gods and assigned them
their places in the divine hierarchy so as to put Hammurabis own god to a position of equality with existing gods.
[32]
In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the
two forces, with the state almost universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state
with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God. [34] The Mosaic creed
was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should
travel and when to pitch camp, when they should make war and when peace. Saul and David were made kings by
the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws
with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the
contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from
exacting usury, mistreating aliens or using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the
purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-
god to a primary position over the previous reigning gods. [35] Moses, on the other hand, capitalized on the natural
yearnings of the Hebrew slaves for freedom and independence to further Gods purposes. Liberation and Exodus
were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the
building of the temple and the full worship of God. [36]
Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything
else, charted not only the future of religion in western civilization, but equally, the future of the relationship between
religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed
out, viz:

Historically it was the Hebrew and Christian conception of a single and universal God that introduced a
religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions
were regarded as confined to each separate people believing in them, and the question of change from one
religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of
proselytism, change of belief and liberty of religion arose.[37] (emphasis supplied)

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior
to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the
whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each
received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet
and priest. Saul disobeyed and even sought to slay Samuel the prophet of God. [38] Under Solomon, the
subordination of religion to state became complete; he used religion as an engine to further the states
purposes. He reformed the order of priesthood established by Moses because the high priest under that order
endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-
worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the
state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should
not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the
gods, as other emperors before him.[40]

76
 The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness
prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered
outlaws. Their crime was hatred of the human race, placing them in the same category as pirates and brigands
and other enemies of mankind who were subject to summary punishments. [41]
In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more
efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a
state over which he had no control. He had two options: either to force it into submission and break its power or
enter into an alliance with it and procure political control over it. He opted for force and revived the persecution,
destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.
[42]
But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and
Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing is
done by them contrary to discipline.[43] A year later, after Galerius died, Constantine and Licius jointly issued the
epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It
provided that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be
free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were
abrogated and it was enacted that every person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or hindrance. Furthermore, it was provided that
the same free and open power to follow their own religion or worship is granted also to others, in accordance with
the tranquillity of our times, in order that every person may have free opportunity to worship the object of his
choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and
eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a
means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperors command,
great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine
and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently
the church had been the victim of persecution and repression, but this time it welcomed the states persecution and
repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their
error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a constant
struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being consolidated among the numerous
feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by
Pope Leos crowning of Charlemagne, became the churchs accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the
church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his
crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy. [45] The
whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the second quarter of the
13th century, the Inquisition was established, the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope
Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic
Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to
the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate to say that the same causes that gave rise
to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and
ultimately of the principle of separation of church and state. [46] Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of
papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. [47] Papist
and Protestant governments alike accepted the idea of cooperation between church and state and regarded as
77
essential to national unity the uniformity of at least the outward manifestations of religion. [48]Certainly, Luther, leader
of the Reformation, stated that neither pope, nor bishop, nor any man whatever has the right of making one
syllable binding on a Christian man, unless it be done with his own consent. [49] But when the tables had turned and
he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that
(h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful
ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope,
who is a devil in disguise.[50] To Luther, unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made
absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by
death, and to eliminate heresy, he cooperated in the Inquisition. [51]
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the
Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish
nothing except to make the evil more widespread. [52] The minority or dissident sects also ardently advocated
religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends
of the Quakers founded by George Fox in the 17 th century, endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political governments. [53] The English Baptists
proclaimed that the magistrate is not to meddle with religion or matters of conscience, nor compel men to this or
that form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers
belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious
interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the
New World, was discernibly in its incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.[55] After the Reformation, Erastianism pervaded all
Europe except for Calvins theocratic Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage
woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any
substance other than wool.[56] Under Elizabeth, supremacy of the crown over the church was complete:
ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were
adopted and English Protestantism attained its present doctrinal status. [57] Elizabeth was to be recognized as the
only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal. She
and her successors were vested, in their dominions, with all manner of jurisdictions, privileges, and preeminences,
in any wise touching or concerning any spiritual or ecclesiastical jurisdiction. [58] Later, however, Cromwell
established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to
Catholics.[59] In 1689, William III issued the Act of Toleration which established a de facto toleration for all except
Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of
1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament. [60]
When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional
foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy
Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was
Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-
supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet
adopted as the basis of its church-state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an engine to further the policies of
the other, although the principle was in its seminal form in the arguments of some dissident minorities and
intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of
the past by the time America declared its independence from the Old World, but their memory was still
vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of America had been filled with
turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their
absolute political and religious supremacy. With the power of government supporting them, at various times and
78
places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of
belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group
happened to be on top and in league with the government of a particular time and place, men and women had been
fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted
were such things as speaking disrespectfully of the views of ministers of government-established churches, non-
attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to
support them.[61]

In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to
the time the United States Constitution was adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by
proscribing all differences in religious opinions.[62]

In sum, this history shows two salient features: First, with minor exceptions, the history of church-state
relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God
of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religions invaluable service. This was the
context in which the unique experiment of the principle of religious freedom and separation of church and
state saw its birth in American constitutional democracy and in human history.[63]

V. Factors Contributing to the Adoption

of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established
many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their
religious and political ideas from England and English books and pamphlets largely provided their cultural fare.
[64]
But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to
support and attend government favored churches, some of these settlers themselves transplanted into American
soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the colonials authorized them to erect
religious establishments, which all, whether believers or not, were required to support or attend. [65] At one time, six
of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated
a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended
support to several different faiths.[66]
This was the state of the American colonies when the unique American experiment of separation of
church and state came about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among
these were the English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of
most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn
tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and deism. [67] Each of these factors shall be briefly
discussed.
First, the practical factors. Englands policy of opening the gates of the American colonies to different faiths
resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a particular time in order to encourage trade
and commerce. The colonies were large financial investments which would be profitable only if people would settle
there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance
was a necessity. This tended to distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them to think less of the Church and more of the State and of commerce. [68] The
diversity brought about by the colonies open gates encouraged religious freedom and non-establishment in several

79
ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live
together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive
rightness of ones religion, which impels persecution for the sake of ones religion, waned. Finally, because of the
great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could
not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only
about four percent of the entire population of the country had a church affiliation at the time the republic was
founded.[70] This might be attributed to the drifting to the American colonies of the skepticism that characterized
European Enlightenment.[71] Economic considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated
religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to religious
liberty and disestablishment as persons who were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation to support a church to which they did not
belong.[72]
However, for those who were affiliated to churches, the colonial policy regarding their worship generally
followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters
the right to hold public services subject to registration of their ministers and places of worship. [73] Although the
toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious
freedom, it nevertheless was of some influence to the American experiment. [74] Even then, for practical
considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18 th century, an evangelical religious revival
originating in New England, caused a break with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that appealed directly to the individual,
putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to
God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this
group became staunch advocates of separation of church and state. [75]
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island
where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom
was not based on practical considerations but on the concept of mutual independence of religion and
government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it
much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . .
with full libertie in religious concernments. [76] In Williams pamphlet, The Bloudy Tenent of Persecution for cause of
Conscience, discussed in a Conference between Truth and Peace,[77]he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two
but only one principle. Religious persecution is wrong because it confounds the Civil and Religious and because
States . . . are proved essentially Civil. The power of true discerning the true fear of God is not one of the powers
that the people have transferred to Civil Authority.[78] Williams Bloudy Tenet is considered an epochal milestone in
the history of religious freedom and the separation of church and state. [79]
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration,
having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion
in matters of conscience because imposition, restraint and persecution for conscience sake, highly invade the
Divine prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He
attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the
Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious
groups. Penn was responsible in large part for the Concessions and agreements of the Proprietors, Freeholders,
and inhabitants of West Jersey, in America, a monumental document in the history of civil liberty which provided
among others, for liberty of conscience. [80]The Baptist followers of Williams and the Quakers who came after Penn
continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and freedom. [81] The Constitutional fathers
who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791
were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania. [82]
Undeniably, John Locke and the social contract theory also contributed to the American
experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-
evident truth in Americas Declaration of Independence. With the doctrine of natural rights and equality set forth in
80
the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality
in religious treatment by a new nation that severed its political bonds with the English crown which violated the self-
evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in arguing against establishment, putting
emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political
body. That Locke and the social contract theory were influential in the development of religious freedom and
separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself,
his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to
extend any further than the common good, but is obliged to secure every ones property. To give laws, to receive
obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the
magistrates power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are
of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power
consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind,
without which nothing can be acceptable to God.[84] (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and
rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the
realm of religion was not one of the powers conferred on government as part of the social contract. [85]
Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and rationalism, [86] in
general, and some were apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be
among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the
relegation of historic theology to the background. [87] For these men of the enlightenment, religion should be allowed
to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements
has caused intolerance and corruption as witnessed throughout history. [88] Not only the leaders but also the masses
embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paines Age of Reason.
[89]

Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the
American experiment of the First Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and state. [90] Many factors contributed to this, among
which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won
many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution
and had alienated many influential laymen with its identification with the Crowns tyranny, and above all, present in
Virginia was a group of political leaders who were devoted to liberty generally, [91] who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders
were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in the Bill of
Rights of the states first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free
exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice
Christian forbearance, love, and charity towards each other.[92] (emphasis supplied)

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and
Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of
the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and
enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the
dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the establishment. [93] But the dissenters were not satisfied;
they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own

81
religion as others. As members of the established church would not allow that only they would pay taxes while the
rest did not, the legislature enacted in 1779 a bill making permanent the establishments loss of its exclusive status
and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would
be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring
every person to enroll his name with the county clerk and indicate which society for the purpose of Religious
Worship he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over
to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed
to enroll in any society was to be divided proportionately among the societies. [94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was
introduced requiring all persons to pay a moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian
worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill
was the monumental Memorial and Remonstrance against Religious Assessments written by Madison and widely
distributed before the reconvening of legislature in the fall of 1785. [96] It stressed natural rights, the governments
lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of
separation while also citing practical considerations such as loss of population through migration. He wrote, viz:

Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we owe to our
creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or
violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and
it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable
right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own
minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is
a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as
he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation,
to the claims of civil society. Before any man can be considered as a member of civil society, he must be
considered as a subject of the governor of the universe; and if a member of civil society, who enters into any
subordinate association, must always do it with a reservation of his duty to the general authority, much more must
every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal
sovereign.[97] (emphases supplied)

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures
appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been
voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January 1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal
punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and
are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose
not to propagate it by coercions on either, as was in his Almighty power to do;

xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any
religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body
or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise
diminish, enlarge or affect their civil capacities.[98] (emphases supplied)

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or
particular establishment in Virginia.[99] But the passage of this law was obtained not only because of the influence of
the great leaders in Virginia but also because of substantial popular support coming mainly from the two great
dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious to pull down the existing state church as they
realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates of separation [100] grounded on rational,
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secular arguments and to the language of natural religion. [101] Influenced by Roger Williams, the Baptists, on the
other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation with the social order. [102] To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the
spirit of the Gospel.[103] Thus, separation was necessary.[104] Jeffersons religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme Court has not just once
acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives
and intended to afford the same protection against government interference with religious liberty as the
Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area
of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be
deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed
lack of power of Congress to act on any subject not expressly mentioned in the Constitution. [105] However, omission
of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the
Constitution.[106] In the ratifying conventions of almost every state, some objection was expressed to the absence of
a restriction on the Federal Government as regards legislation on religion. [107] Thus, in 1791, this restriction was
made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with
the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally
broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in
Congress renders it difficult to ascertain its meaning. [108] Consequently, the jurisprudence in this area is volatile
and fraught with inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted and in
which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with significant moral dimension - while
government played a supportive and indirect role by maintaining conditions in which these activities may be carried
out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays
the supportive role.[109] Government runs even family planning, sex education, adoption and foster care programs.
[110]
Stated otherwise and with some exaggeration, (w)hereas two centuries ago, in matters of social life which have
a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities,
as contrasted with personal faith and collective worship, is the handmaid of government. [111] With government
regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions
between purely secular government actions and religion clause values. [112]
Parallel to this expansion of government has been the expansion of religious organizations in population,
physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches
run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses,
halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these
activities, religious organizations complement and compete with commercial enterprises, thus blurring the line
between many types of activities undertaken by religious groups and secular activities. Churches have also
concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in
pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on
religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity has significantly changed the
environment in which religious organizations and activities exist and the laws affecting them are made. It is no
longer easy for individuals to live solely among their own kind or to shelter their children from exposure to
competing values. The result is disagreement over what laws should require, permit or prohibit; [113] and agreement
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that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid,
wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided. [114]
Religion cases arise from different circumstances. The more obvious ones arise from a government action
which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.
[115]
The more difficult religion clause cases involve government action with a secular purpose and general
applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases,
these government actions are referred to as those with burdensome effect on religious exercise even if the
government action is not religiously motivated. [116] Ideally, the legislature would recognize the religions and their
practices and would consider them, when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened turn to the courts for protection. [117] Most of
these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has
a burdensome effect.[118]
With the change in political and social context and the increasing inadvertent collisions between law and
religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified
to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot
agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal
purposes.[119] It was in the 1890 case of Davis v. Beason[120] that the United States Supreme Courtfirst had
occasion to define religion, viz:

The term religion has reference to ones views of his relations to his Creator, and to the obligations they
impose of reverence for his being and character, and of obedience to his will. It is often confounded with
the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the
free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such
notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and
conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal
rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any
sect.[121]

The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces the right
to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox
faiths.[123] By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia
such as Buddhism and Taoism. [124]In 1961, the Court, in Torcaso v. Watkins,[125] expanded the term religion to
non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court
faced a definitional problem in United States v. Seeger[126] which involved four men who claimed conscientious
objector status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any
organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated
that you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use.
Forest Peter, another one of the four claimed that after considerable meditation and reflection on values derived
from the Western religious and philosophical tradition, he determined that it would be a violation of his moral code
to take human life and that he considered this belief superior to any obligation to the state. The Court avoided a
constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in
the Universal Military Training and Service Act of 1940 which exempt from combat anyone who, by reason of
religious training and belief, is conscientiously opposed to participation in war in any form. Speaking for the Court,
Justice Clark ruled, viz:

Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the
meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the test of belief in relation to a Supreme Being is whether a given
belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox
belief in God. (emphasis supplied)

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such
religious belief and training.
84
 Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic
beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to
qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that
occupies a central place in the believers life. Second, the religion must involve a moral code transcending
individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the
court must not inquire into the truth or reasonableness of the belief. [127] Fourth, there must be some associational
ties,[128] although there is also a view that religious beliefs held by a single person rather than being part of the
teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause. [129]
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled
the issue of definition, the court then has to draw lines to determine what is or is not permissible under the
religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two
sides of the same coin.[130] In devoting two clauses to religion, the Founders were stating not two opposing thoughts
that would cancel each other out, but two complementary thoughts that apply in different ways in different
circumstances.[131] The purpose of the religion clauses - both in the restriction it imposes on the power of the
government to interfere with the free exercise of religion and the limitation on the power of government to establish,
aid, and support religion - is the protection and promotion of religious liberty.[132] The end, the goal, and the
rationale of the religion clauses is this liberty.[133] Both clauses were adopted to prevent government imposition of
religious orthodoxy; the great evil against which they are directed is government-induced homogeneity. [134] The Free
Exercise Clause directly articulates the common objective of the two clauses and the Establishment
Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar
and for which government historically had demonstrated a propensity.[135] In other words, free exercise is the end,
proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from
whatever religion is established. [136] It has even been suggested that the sense of the First Amendment is captured
if it were to read as Congress shall make no law respecting an establishment of religion or otherwise prohibiting
the free exercise thereof because the fundamental and single purpose of the two religious clauses is to avoid any
infringement on the free exercise of religions [137] Thus, the Establishment Clause mandates separation of church
and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the
separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of
those of other faiths, or of no faith at all [138] because history has shown that religious fervor conjoined with state
power is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs
than an enlightened secular state.[139] In the words of the U.S. Supreme Court, the two clauses are interrelated, viz:
(t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from
religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority. [140]
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat
the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none
commanded and none inhibited.[141] (emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably different, [142] even opposing, strains of
jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the
tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause
cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.[143] This
landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when circumstances would permit would be
punished with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds
85
conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to
belief but not to action. It cited Jeffersons Bill Establishing Religious Freedom which, according to the Court,
declares the true distinction between what properly belongs to the Church and what to the State. [144] The bill,
making a distinction between belief and action, states in relevant part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession
or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all
religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order.[145] (emphasis supplied)

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which
were in violation of social duties or subversive of good order. . .

Laws are made for the government of actions, and while they cannot interfere with mere religious belief
and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of
religious worship, would it be seriously contended that the civil government under which he lived could not interfere
to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her
dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that
plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious
belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such
circumstances.[146]

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating
individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a
particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of
religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the legislatures religious preferences. Any
burden on religion that results from state regulation of conduct arises only when particular individuals are engaging
in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action
rather than belief, the Free Exercise Clause did not pose any problem. [147] The Free Exercise Clause thus gave no
protection against the proscription of actions even if considered central to a religion unless the legislature formally
outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown by cases where the Court
upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy
such as the Davis case and Church of Latter Day Saints v. United States.[149] However, more than a century
since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have
gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs [151] and
proscribes government from questioning a persons beliefs or imposing penalties or disabilities based solely on
those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152] a
unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the
existence of God. The protection also allows courts to look into the good faith of a person in his belief, but
prohibits inquiry into the truth of a persons religious beliefs. As held in United States v. Ballard,[153] (h)eresy

86
trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,
[154]
the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause
without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovahs
Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval
necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one
may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know,
resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false
statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of
excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the
part of citizens of a democracy.[155]

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed
protection of belief but also freedom to act for the propagation of that belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in
the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In
every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom. (emphasis supplied)[156]

The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation
on the streets and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police could not prohibit
members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other
citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the
Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the
city park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the
Jehovahs Witnesses to questions about Catholicism, military service, and other issues. The denial of the public
forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in
congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians
and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness.[159]
The least protected under the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. Protection in this realm depends on the character of the action and the
government rationale for regulating the action. [160] The Mormons religious conduct of polygamy is an example of
unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to
the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court
held, viz: (c)rime is not the less odious because sanctioned by what any particular sect may designate as
religion.[161]
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously
dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter
how insignificant was the governments non-religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic belief-action distinction and instead
recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of
religious exercise for religious reasons which was plainly unconstitutional and governments inadvertent
interference with religion in pursuing some secular objective. [162] In the 1940 case ofMinersville School District v.
Gobitis,[163] the Court upheld a local school board requirement that all public school students participate in a daily
flag salute program, including the Jehovahs Witnesses who were forced to salute the American flag in violation of
their religious training, which considered flag salute to be worship of a graven image. The Court recognized that
the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses practice of their
religion, but justified the government regulation as an appropriate means of attaining national unity, which was the

87
basis of national security. Thus, although the Court was already aware of the deliberate-inadvertent distinction in
government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the
states non-religious objectives, and no matter how many alternative approaches were available to the state to
pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette[164] which involved a
similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled
that compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students who
were members of the Jehovahs Witnesses from saluting the flag. A close scrutiny of the case, however, would
show that it was decided not on the issue of religious conduct as the Court said, (n)or does the issue as we see it
turn on ones possession of particular religious views or the sincerity with which they are held. While religion
supplies appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not
share these religious views hold such a compulsory rite to infringe constitutional liberty of the
individual. (emphasis supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to
interests which the state may lawfully protect.[166] The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional
value - to the common everyday economic and public welfare objectives of the majority in the legislature. This
time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with
only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny
would only grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free
exercise jurisprudence.[168] A two-part balancing test was established inBraunfeld v. Brown[169] where the Court
considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to
observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren,
writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that
since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise
Clause only if there were alternative ways of achieving the states interest. He employed a two-part
balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on
his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding
secular goal by the means which imposed the least burden on religious practices. [170] The Court found that the state
had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no
alternative means of pursuing this interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.
[171]
This test was similar to the two-part balancing test in Braunfeld, [172] but this latter test stressed that the state
interest was not merely any colorable state interest, but must be paramount and compelling to override the
free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under
the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the
denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious
principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme
Court is to withstand appellants constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because
any incidental burden on the free exercise of appellants religion may be justified by a compelling state
interest in the regulation of a subject within the States constitutional power to regulate. . . NAACP v.
Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. [173] (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state
interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315.[174] The Court found that there was no such compelling state interest to override Sherberts religious liberty. It

88
added that even if the state could show that Sherberts exemption would pose serious detrimental effects to the
unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects without infringing religious liberty. The
state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the
Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to choose between receiving benefits and
following her religion. This choice placed the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship. This germinal case of Sherbert firmly established the
exemption doctrine, [175] viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some compelling state
interest intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court
moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free
Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a
compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se violation. Thus,
the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment Appeals
Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job
requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a
sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United
States v. Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal
governments refusal to exempt Amish employers who requested for exemption from paying social security taxes on
wages on the ground of religious beliefs. The Court held that (b)ecause the broad public interest in maintaining a
sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for
resisting the tax.[180] It reasoned that unlike in Sherbert, an exemption would significantly impair governments
achievement of its objective - the fiscal vitality of the social security system; mandatory participation is
indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify
not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs
require him to reduce or eliminate his payments so that he will not contribute to the governments war-related
activities, for example.
The strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general
test established a strong presumption in favor of the free exercise of religion. [181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the Court upheld the
religious practice of the Old Order Amish faith over the states compulsory high school attendance law. The Amish
parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger,
writing for the majority, held,viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does
not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there
was general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly
fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if
less explicit, prohibition against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly
high social importance. . .
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The essence of all that has been said and written on the subject is that only those interests of the highest order
and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of
the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare,
or the Federal government in the exercise of its delegated powers . . .But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to deny that there are areas of
conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the
State to control, even under regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their actions in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . [183]

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise
Clause. In Employment Division, Oregon Department of Human Resources v. Smith,[184] the sharply
divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach
and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this
case, the well-established practice of the Native American Church, a sect outside the Judeo-Christian mainstream
of American religion, came in conflict with the states interest in prohibiting the use of illicit drugs. Oregons
controlled substances statute made the possession of peyote a criminal offense. Two members of the church,
Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along
with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony
practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their
use of peyote as job-related misconduct. They applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were discharged for job-related misconduct. Justice
Scalia, writing for the majority, ruled that if prohibiting the exercise of religion . . . is . . . merely the incidental
effect of a generally applicable and otherwise valid law, the First Amendment has not been offended. In
other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregons drug
prohibition law with the anti-polygamy statute inReynolds. The relevant portion of the majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of
unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal law. . .

We conclude today that the sounder approach, and the approach in accord with the vast majority of our
precedents, is to hold the test inapplicable to such challenges. The governments ability to enforce generally
applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot
depend on measuring the effects of a governmental action on a religious objectors spiritual development. . . .To
make an individuals obligation to obey such a law contingent upon the laws coincidence with his religious
beliefs except where the States interest is compelling - permitting him, by virtue of his beliefs, to
become a law unto himself, . . . - contradicts both constitutional tradition and common sense.

Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling
governmental interest test was the most controversial part of the decision. Although she concurred in the result that
the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure
from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations fundamental
commitment to religious liberty. This portion of her concurring opinion was supported by Justices Brennan,
Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he
compelling state interest test effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments
upon this liberty, whether direct or indirect, unless required by clear and compelling government interest
of the highest order. Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan
and Marshall. He charged the majority with mischaracterizing precedents and overturning. . . settled law
concerning the Religion Clauses of our Constitution. He pointed out that the Native American Church restricted

90
and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for
regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or
Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that
Oregons interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to
outweigh respondents right to the free exercise of their religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard in Smith virtually
eliminated the requirement that the government justify with a compelling state interest the burdens on religious
exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects
and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence. [185] First, the First
amendment was intended to protect minority religions from the tyranny of the religious and political majority. A
deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no
less an interference with the minoritys religious freedom. If the regulation had instead restricted the majoritys
religious practice, the majoritarian legislative process would in all probability have modified or rejected the
regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys
religious interests implements the majoritys religious viewpoint at the expense of the minoritys. Second,
government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the
political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If
the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to pursue
some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches
for the state to effectively pursue its objective without serious inadvertent impact on religion. [186]
Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as
discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative
clout,[187] contrary to the original theory of the First Amendment. [188] Undeniably, claims for judicial exemption
emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.[189] Thus, the Smith decision elicited much negative public reaction especially from
the religious community, and commentaries insisted that the Court was allowing the Free Exercise Clause to
disappear.[190] So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a
persons free exercise of religion, even if such burden resulted from a generally applicable rule, unless the
government could demonstrate a compelling state interest and the rule constituted the least restrictive means of
furthering that interest.[191] RFRA, in effect, sought to overturn the substance of the Smith ruling and restore
the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3,
declared the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital
principles necessary to maintain separation of powers and the federal balance. It emphasized the primacy of its
role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct
congressional challenge of final judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah [193] which was ruled consistent
with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to
unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary
purpose of food consumption. The ordinance came as a response to the local concern over the sacrificial
practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned
ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in
that it forbade animal slaughter only insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely
protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-
religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its
violates a law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause

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 The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of
Education.[195] Prior cases had made passing reference to the Establishment Clause [196] and raised establishment
questions but were decided on other grounds. [197] It was in the Everson case that the U.S. Supreme Court adopted
Jeffersons metaphor of a wall of separation between church and state as encapsulating the meaning of the
Establishment Clause. The often and loosely used phrase separation of church and state does not appear in the
U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist Association in narrating the history of the
religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to
none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not
opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their
Legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof,
thus building a wall of separation between Church and State.[199] (emphasis supplied)

Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader of
the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of
the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in cases involving education, notably
state aid to private religious schools and prayer in public schools. [201] InEverson v. Board of Education, for
example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in
transporting their children to and from Catholic schools. The reimbursement was part of a general program under
which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was merely furthering the states legitimate
interest in getting children regardless of their religion, safely and expeditiously to and from accredited
schools. The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment
Clause, viz:

The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one
religion over another. Neither can force nor influence a person to go to or remain away from church against his
will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly
participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was intended to erect a wall of separation between Church
and State.[202]

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must be kept high and
impregnable. We could not approve the slightest breach. New Jersey has not breached it here.[203]

By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that
evolved in the 1950s and 1960s and laid down a three-pronged test inLemon v. Kurtzman[204] in determining the
constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania
statutory program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in
parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny
under the Establishment Clause. First, the statute must have a secular legislative purpose; second, its
primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v.
Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an
excessive entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S
Ct 1409 [1970]) (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania statutory program

92
and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and
religion.
The most controversial of the education cases involving the Establishment Clause are the school prayer
decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school
prayer decisions of the early 1960s. [206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a New York
Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public
schools at the start of each school day. The majority opinion written by Justice Black stated that in this country it is
no part of the business of government to compose official prayers for any group of the American people to recite as
part of a religious program carried on by government. In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most
immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends
to destroy government and to degrade religion. The following year, the Engel decision was reinforced in
Abington School District v. Schempp[208] and Murray v. Curlett[209] where the Court struck down the practice of
Bible reading and the recitation of the Lords prayer in the Pennsylvania and Maryland schools. The Court held that
to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. It reiterated, viz:

The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of
history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert
or dependency of one upon the other to the end that official support of the State of Federal Government would be
placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further
reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching
and observance and, more particularly, the right of every person to freely choose his own course with reference
thereto, free of any compulsion from the state.[210]

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and
resolutions passed by several state legislatures condemned these decisions. [211] On several occasions,
constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the
Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where the
Court struck down an Alabama law that required public school students to observe a moment of silence for the
purpose of meditation or voluntary prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were declared offensive
of the Establishment Clause in the 1948 case of McCollum v. Board of Education,[213] decided just a year after the
seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant
faiths obtained permission from the Board of Education to offer classes in religious instruction to public school
students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards
requesting that their children be permitted to attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of the school building. The religious teachers were employed at no
expense to the school authorities but they were subject to the approval and supervision of the superintendent of
schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to
some other place in the school building for their secular studies while those who were released from their secular
study for religious instruction were required to attend the religious classes. The Court held that the use of tax-
supported property for religious instruction and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a prohibited use of tax-established and tax-
supported public school system to aid religious groups spread their faith. The Court rejected the claim that the
Establishment Clause only prohibited government preference of one religion over another and not an impartial
governmental assistance of all religions. In Zorach v. Clauson,[214] however, the Court upheld released time
programs allowing students in public schools to leave campus upon parental permission to attend religious services
while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that (t)he First
Amendment does not require that in every and all respects there shall be a separation of Church and State. The
Court distinguished Zorach from McCollum, viz:

In the McCollum case the classrooms were used for religious instruction and the force of the public school was
used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present
93
released time program unless separation of Church and State means that public institutions can make no
adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of
Rights such a philosophy of hostility to religion.[215]

In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and
practices which have acquired a secular meaning and have become deeply entrenched in history. For instance,
in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain businesses from operating on Sunday
despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing
laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians,
the Court held, viz:

It is common knowledge that the first day of the week has come to have special significance as a rest day in this
country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like. [217]

In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of beginning
legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The majority
opinion did not rely on the Lemon test and instead drew heavily from history and the need for
accommodation of popular religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of
opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step
toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of
this country. As Justice Douglas observed, (w)e are a religious people whose institutions presuppose a
Supreme Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis supplied)

Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were to
attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S.
Congress.[220] That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history and the fact that the creche had
become a neutral harbinger of the holiday season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and
charitable institutions have been exempt from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax Commissions grant of
property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this
required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as such; rather, it has granted
exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the public interest. [223]

The Court added that the exemption was not establishing religion but sparing the exercise of religion from the
burden of property taxation levied on private profit institutions [224] and preventing excessive entanglement between
state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption
and the Courts traditional deference to legislative bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches
and religious exercise generally so long as none was favored over others and none suffered interference.
[225]
(emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

94
 To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are
but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court
rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly
recognizes this, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers
(Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees work schedules to their sabbath observances (Estate
of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to
discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money
to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487
US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It
is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392
US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious
schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip
(Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated standardized tests
(Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-
related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226]

But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to
extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of
jurisprudence has demonstrated two main standards used by the Court in deciding religion clause
cases: separation (in the form of strict separation or the tamer version of strict neutrality or
separation) andbenevolent neutrality or accommodation. The weight of current authority, judicial and in terms
of sheer volume, appears to lie with the separationists, strict or tame. [227] But the accommodationists have also
attracted a number of influential scholars and jurists. [228] The two standards producing two streams of jurisprudence
branch out respectively from the history of the First Amendment in England and the American colonies and
climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from
American societal life which reveres religion and practices age-old religious traditions. Stated
otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid reading of the
principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible
reading of the principle.[229] The latter also appeals to history in support of its position, viz:

The opposing school of thought argues that the First Congress intended to allow government support of religion,
at least as long as that support did not discriminate in favor of one particular religion. . . the Supreme Court
has overlooked many important pieces of history. Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he
sponsored Jeffersons bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal
support of religious missions to the Indians. . . And so, concludes one recent book, there is no support in the
Congressional records that either the First Congress, which framed the First Amendment, or its principal author and
sponsor, James Madison, intended that Amendment to create a state of complete independence between religion
and government. In fact, the evidence in the public documents goes the other way.[230] (emphasis supplied)

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room
for accommodation, less than twenty-four hours after Congress adopted the First Amendments prohibition on
laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many
blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the ground that the
move was a mimicking of European customs, where they made a mere mockery of thanksgivings, the other on
establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further recorded discussion. [231] Thus, accommodationists also
go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than
words. Contrary to the claim of separationists that rationalism pervaded America in the late 19 thcentury and that
America was less specifically Christian during those years than at any other time before or since,

95
[232]
accommodationaists claim that American citizens at the time of the Constitutions origins were a remarkably
religious people in particularly Christian terms.[233]
The two streams of jurisprudence - separationist or accommodationist - are anchored on a different
reading of the wall of separation. The strict separtionist view holds that Jefferson meant the wall of
separation to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth
century, characterized by the rationalism and anticlericalism of that philosophic bent. [234] He has often been
regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its
medieval connection with divine law, and instead adhering to a secular belief in a universal harmony. [235] Thus,
according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the
states hostility towards religion allows no interaction between the two. [236] In fact, when Jefferson became
President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with religion. [237] This approach erects an absolute
barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct
or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed
on believers.[238] Only the complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views thus a strict wall of separation is
necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to. [240]
A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by
the Court, showing the Courts tendency to press relentlessly towards a more secular society. [241] It finds basis in
the Everson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the
First Amendment but at the same time held that the First Amendment requires the state to be neutral in its
relations with groups of religious believers and non-believers; it does not require the state to be their
adversary. State power is no more to be used so as to handicap religions than it is to favor them.
(emphasis supplied)[242] While the strict neutrality approach is not hostile to religion, it is strict in holding that religion
may not be used as a basis for classification for purposes of governmental action, whether the action confers rights
or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does
not permit, much less require, accommodation of secular programs to religious belief. [243] Professor Kurland
wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the
freedom and separation clauses should be read as a single precept that government cannot utilize religion as a
standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden.[244]

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the
Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects. [245]
Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form
of prayer, spoken or silent, in the public schools as in Engel andSchempp.[246] The McCollum case prohibiting
optional religious instruction within public school premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the government action as they were based not on
a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if
government acts in pursuit of a generally applicable law with a secular purpose that merely incidentally burdens
religious exercise, the First Amendment has not been offended. However, if the strict neutrality standard is applied
in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As
pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to a brooding
and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is prohibited by
the Constitution.[247] Professor Laurence Tribe commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The
Framers, whatever specific applications they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or

96
science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme
Court has rejected strict neutrality, permitting and sometimes mandating religious classifications. [248]

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of
separation captures the spirit of the American ideal of church-state separation, in real life church and state are not
and cannot be totally separate. [249] This is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of
government and religion at many points.[250]
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation is buttressed by a different view of the wall of separation
associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden and
the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the church
from the state,[251] i.e., the garden of the church must be walled in for its own protection from the wilderness of
the world[252] with its potential for corrupting those values so necessary to religious commitment. [253] Howe called this
the theological or evangelical rationale for church-state separation while the wall espoused by enlightened
statesmen such as Jefferson and Madison, was a political rationale seeking to protect politics from intrusions by
the church.[254] But it has been asserted that this contrast between the Williams and Jeffersonian positions is more
accurately described as a difference in kinds or styles of religious thinking, not as a conflict between religious and
secular (political); the religious style was biblical and evangelical in character while the secular style was
grounded in natural religion, more generic and philosophical in its religious orientation. [255]
The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall
is to safeguard religious liberty. Williams view would therefore allow for interaction between church and state, but
is strict with regard to state action which would threaten the integrity of religious commitment. [256] His conception of
separation is not total such that it provides basis for certain interactions between church and state dictated by
apparent necessity or practicality.[257] This theological view of separation is found in Williams writings,viz:

. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the
wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of
necessity be walled in peculiarly unto Himself from the world. . . [258]

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all that has been said by the Court is this: that we
will not tolerate either governmentally established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without sponsorship and without interference.[259] (emphasis
supplied)

The Zorach case expressed the doctrine of accommodation,[260] viz:

The First Amendment, however, does not say that in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no
concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the
state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could
not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection
to religious groups. Policemen who helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive;
the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and all
other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens
each session: God save the United States and this Honorable Court.

xxx xxx xxx

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We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the Constitution a requirement that the government show
a callous indifference to religious groups. . . But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its weight against efforts to widen their effective
scope of religious influence.[261] (emphases supplied)

Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the
survival of society itself, thus there is no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or
even dispensable, for society it is not, which is why there is no human society without one or more ways of
performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground
religion(s) and surrogate religion(s) in their ideology.[262] As one sociologist wrote:

It is widely held by students of society that there are certain functional prerequisites without which society would not
continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not
exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites. [263]

Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which
modern social scientists would classify as a religionReligion is as much a human universal as language. [264]
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United
States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of In God We Trust on American currency, the recognition of America
as one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-honored practice
of opening oral argument with the invocation God save the United States and this honorable Court, and the
practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant
denomination to lead representatives in prayer.[265] These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of
poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with
strong moral dimension.[266] The persistence of these de facto establishments are in large part explained by the fact
that throughout history, the evangelical theory of separation, i.e., Williams wall, has demanded respect for these de
facto establishments.[267] But the separationists have a different explanation. To characterize these as de
jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many
dissenting and concurring opinions explain some of these practices as de minimis instances of government
endorsement or as historic governmental practices that have largely lost their religious significance or at least have
proven not to lead the government into further involvement with religion. [268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically into account not to promote the governments favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore
is to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan
explained, the government [may] take religion into accountto exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may
flourish.[269] (emphasis supplied) Accommodation is forbearance and not alliance. it does not
reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which
the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in that the latter holds that government should
base public policy solely on secular considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at base a question of means: Is the freedom
of religion best achieved when the government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a
policy of religious blindness - keeping government aloof from religious practices and issues? An
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accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality
adherent believes that it is good public policy, and also constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting religious exercise. [271]
There are strong and compelling reasons, however, to take the accommodationist position rather than the
strict neutrality position. First, the accommodationist interpretation is most consistent with the language of
the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at
religion. The government may not establish religion and neither may government prohibit it. Taken together,
the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom -
government action that promotes the (political) majoritys favored brand of religion and government action that
impedes religious practices not favored by the majority. Thesubstantive end in view is the preservation of the
autonomy of religious life and not just the formal process value of ensuring that government does not act on the
basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to
do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for
example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak,
since the religion clauses single out religion by name for special protection. Second, the accommodationist
position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is
that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right
of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory
legislation. The accomplishment of the purpose of the First Amendment requires more than the religion blindness
of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become
frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities,
thus the government must make special provisions to preserve a degree of independence for religious entities for
them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just
like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist
interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects
of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent
to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are
so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes so small or incomparable that only indifference or
hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials
are frequently willing to make such exemptions when the need is brought to their attention, but this may not always
be the case when the religious practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless
injury to the religious consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as
it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic
nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious
freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion,
regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace,
or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among
others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose
between violating religious conscience of a segment of the population or dispensing with legislation it
considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the
alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally
compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause. [273] Some
Justices of the Supreme Court have also used the term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on
public property or the delivery of a prayer at public ceremonial events. [274] Stated otherwise, using benevolent

99
neutrality as a standard could result to three situations of accommodation:those
where accommodation is required, those where it is permissible, and those where it is prohibited. In the first
situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on
religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise
exemptions are intentional government advancement, these exemptions merely relieve the prohibition on the free
exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of
general applicability when these laws threaten religious convictions or practices in the absence of a compelling
state interest.[275] By allowing such exemptions, the Free Exercise Clause does not give believers the right or
privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather
than temporal authority[276] for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn
duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from
duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet
more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. Because
they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness
to that which transcends the political order, such denials should be rare and painfully reluctant. [277]
The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of
the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another
example where the Court held that the state unemployment compensation plan must accommodate the religious
convictions of Sherbert.[278]In these cases of burdensome effect, the modern approach of the Court has been to
apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the
regulation which burdens the religious exercise pursues a particularly important or compelling government goal
through the least restrictive means. If the states objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.
[279]
This approach of the Court on burdensome effect was only applied since the 1960s. Prior to this time, the
Court took the separationist view that as long as the state was acting in pursuit of non-religious ends and regulating
conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.
[280]
In the second situation where accommodation is permissible, the state may, but is not required to,
accommodate religious interests. The Walz case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state was
required to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to
religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. [281] The
Court held that New York could have an interest in encouraging religious values and avoiding threats to those
values through the burden of property taxes. Other examples are the Zorach case allowing released time in public
schools andMarsh allowing payment of legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say that
there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.[282] An example where accommodation was prohibited is McCollum where the Court ruled
against optional religious instruction in the public school premises. [283] In effect, the last situation would arrive at a
strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the
burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from
the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they need not
necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs, however
sincere and conscientious, do not suffice.[284]

In other words, a three-step process (also referred to as the two-step balancing process supra when the
second and third steps are combined) as in Sherbert is followed in weighing the states interest and religious
freedom when these collide. Three questions are answered in this process. First, (h)as the statute or government
action created a burden on the free exercise of religion? The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its
truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim
of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
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considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to
enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of
Columbia,[285] the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a
Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the
Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject
all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his
religious community, but for the most part, the injustice is done only in the particular case. [286] Aside from the
sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in
terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that
the Amish peoples convictions against becoming involved in public high schools were central to their way of life
and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a cardinal
principle.[287] Professor Lupu puts to task the person claiming exemption, viz:

On the claimants side, the meaning and significance of the relevant religious practice must be
demonstrated. Religious command should outweigh custom, individual conscience should count for more than
personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity
matters, (footnote omitted) and longevity of practice - both by the individual and within the individuals religious
tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their
Christian counterparts, and accepting of the intensity and scope of fundamentalist creed. [288]

Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of religious
liberty? In this step, the government has to establish that its purposes are legitimate for the state and that
they are compelling. Government must do more than assert the objectives at risk if exemption is given; it must
precisely show how and to what extent those objectives will be undermined if exemptions are granted. [289] The
person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that
the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step
involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more
compelling under the particular set of facts. The greater the states interests, the more central the religious belief
would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of
the secular interest and the extent to which that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the
effectiveness of its regulation by granting the exemption. [290]
Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for
the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of
insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court
should give careful attention to context, both religious and regulatory, to achieve refined judgment. [292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government
and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled,
mirroring the evolving views of a dynamic society.[293]

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a
union of church and state and Catholicism was the state religion under theSpanish Constitution of 1876. Civil
authorities exercised religious functions and the friars exercised civil powers. [294] Catholics alone enjoyed the right of
engaging in public ceremonies of worship.[295] Although the Spanish Constitution itself was not extended to the
Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in

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fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state
religion.[296] The coming of the Americans to our country, however, changed this state-church scheme for with the
advent of this regime, the unique American experiment of separation of church and state was transported to
Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10,
1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that
the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free
exercise of religion.[297]Even the Filipinos themselves guaranteed religious freedom a month later or on January 22,
1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It
provided that the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner
as the separation of the Church and State. But the Malolos Constitution and government was short-lived as the
Americans took over the reigns of government.[298]
With the Philippines under the American regime, President McKinley issued Instructions to the Second
Philippine Commission, the body created to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:

That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that
the free exercise and enjoyment of religious profession and worship without discrimination or preference shall
forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon
any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in
following his calling.[299]

This provision was based on the First Amendment of the United States Constitution. Likewise,
the Instructions declared that (t)he separation between State and Church shall be real, entire and absolute. [300]
Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the
religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free
exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed.

In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the complete separation of church
and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any
particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public
money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that
the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall
forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public
money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or
support of any priest, preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed
independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the grant of independence. The law
prescribed that (a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious belief or mode of worship. [303]
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate
Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of
December 10, 1898, which first introduced religious toleration in our country. President McKinleys Instructions to
the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902

102
and in the Jones Law.[304] In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill
of Rights, Article IV, Section 7, viz:

Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and
the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the Convention. [305] In his speech as
Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because the principles must remain couched in a
language expressive of their historical background, nature, extent and limitations as construed and interpreted by
the great statesmen and jurists that vitalized them. [306]
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on
religious freedom in the Bill of Rights in Article IV, Section 8, viz:

Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or political rights.

This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church and
state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in
the 1987 Constitution under the Bill of Rights in Article III, Section 5. [307]Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II
entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in
the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses
turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close
scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main
streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine jurisprudence
on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of
religion. Religion is derived from the Middle English religioun, from Old French religion, from Latin religio,
vaguely referring to a bond between man and the gods. [308] This pre-Christian term for the cult and rituals of pagan
Rome was first Christianized in the Latin translation of the Bible. [309] While the U.S. Supreme Court has had to take
up the challenge of defining the parameters and contours of religion to determine whether a non-theistic belief or
act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined religion as a profession of faith
to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited
the Aglipay definition in American Bible Society v. City of Manila, [311] a case involving the Free Exercise
clause. The latter also cited the American case of Davis in defining religion, viz: (i)t has reference to ones views of
his relations to His Creator and to the obligations they impose of reverence to His being and character and
obedience to His Will. The Beason definition, however, has been expanded in U.S. jurisprudence to include non-
theistic beliefs.

1. Free Exercise Clause

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 Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion
or burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the
advancement of religious groups on their intrinsic merits and not on the support of the state. [312]
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v.
Secretary of Education[313] is instructive on the matter, viz:

The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is
the freedom of belief, including religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of
said belief, there is quite a stretch of road to travel. [314]

The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible
Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The
defendant City of Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily required
of those engaged in the business of general merchandise under the citys ordinances. Plaintiff argued that this
amounted to religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the
right to disseminate religious information. Any restraint of such right can only be justifiedlike other restraints of
freedom of expression on the grounds that there is a clear and present danger of any substantive evil which
the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4 th ed., p.
297) (emphasis supplied)

This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the religious
freedom area, and in Philippine jurisprudence, for that matter.[315]The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular
value the government regulation sought to protect, whether the religious speech posed a clear and present danger
to this or other secular value protected by government, or whether there was danger but it could not be
characterized as clear and present. It is one thing to apply the test and find that there is no clear and present
danger, and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was
not engaged in the business or occupation of selling said merchandise for profit. To add, the Court,
citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay a
license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of
religious beliefs as the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment. Thus, inAmerican Bible Society, the clear and present danger rule was laid down but it was not
clearly applied.
In the much later case of Tolentino v. Secretary of Finance, [317] also involving the sale of religious books, the
Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the
registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the
fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax whichAmerican
Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative
fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart
Ministries v. Board of Equalization, [318] the Court also declared prefatorily that the Free Exercise of Religion
Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a
religious organization. In the Courts resolution of the motion for reconsideration of theTolentino decision, the
Court noted that the burden on religious freedom caused by the tax was just similar to any other economic
imposition that might make the right to disseminate religious doctrines costly.
104
 Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,[319] this
time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this
case, petitioners were members of the Jehovahs Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all
public schools. In violation of the Order, petitioners children refused to salute the Philippine flag, sing the national
anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free
Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag
is an image and saluting the same is contrary to their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the
former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the
one exercising it. (emphasis supplied)[320]

The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the
beliefs of the petitioners with the following justification:

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It
cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or ceremony.[321]

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing
objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and
the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioners
children, stressing that:

Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws,
even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag,
national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and
vitally interested, for to them, they mean national existence and survival as a nation or national extinction. [322]

In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz:

The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. [323]

It stated in categorical terms, viz:

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority.[324]

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to
determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when a law of general applicability (in this
case the Department Order) incidentally burdens the exercise of ones religion, ones right to religious
freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated
inBalbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union. [326] In this
unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation
of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the
Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No.
875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No.
105
3350 took effect. The union notified the company of Victorianos resignation, which in turn notified Victoriano that
unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss him
from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having
granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act
No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of
the Establishment Clause. With respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308
U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual
rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary.[327] (emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and
free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones chosen
form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution
are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is
to impede the observance of one or all religions, or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S.
398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the states secular goals, the statute is valid
despite its indirect burden on religious observance, unless the state can accomplish its purpose without
imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v.
Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)

Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to a religion or sect. It also cited Board of
Education v. Allen,[330] which held that in order to withstand the strictures of constitutional prohibition, a statute
must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using
these criteria in upholding Republic Act No. 3350, the Court pointed out, viz:

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free
exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of
union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of
members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of
said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of
a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to
unemployment.[331]

The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects that
prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and
indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain
persons of a burden imposed by union security agreements which Congress itself also imposed through
the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the
rule that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some
compelling state interest intervenes. The Court then abruptly added that (i)n the instant case, We see no
compelling state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several tests in determining when religious
freedom may be validly limited. First, the Court mentioned the test of immediate and grave danger to the security
and welfare of the community and infringement of religious freedom only to the smallest extent necessary to
106
justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law
which has for its purpose and effect the advancement of the states secular goals, provided that there is no other
means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to
the compelling state interest test which grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the
importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another
law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned
in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the compelling state
interest test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350
was not unconstitutional. It upheld the exemption, stating that there was no compelling state interest to strike it
down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the
inevitable conclusion is that the compelling state interest test was not appropriate and could not find application in
the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming
unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a
government agency, who propounded the state interest to justify overriding Sherberts claim of religious
freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state
interest was not sufficiently compelling to prevail over Sherberts free exercise claim. This situation did not obtain in
the Victoriano case where it was the government itself, through Congress, which provided the exemption in
Republic Act No. 3350 to allow Victorianos exercise of religion. Thus, the government could not argue against the
exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would
not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such
an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise
issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious
freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion
Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,[334] Anucension v. National Labor Union,
et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were
walking to St. Jude Church within the Malacanang security area to pray for an end to violence when they were
barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the
Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was
divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good
faith and concluded that they were using their religious liberty to express their opposition to the
government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters
of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is
absolute, but in the nature of things, the second cannot be. [337]

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but
only in the manner by which they had attempted to translate the same to action. This curtailment is in accord
with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either restrains said exercise or even
prosecutes the one exercising it. (italics supplied)

The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth functioning
of the executive branch of the government, which petitioners mass action would certainly disrupt [338] and denied
the petition. Thus, without considering the tests mentioned in Victoriano, German went back to the Gerona rule
107
that religious freedom will not be upheld if it clashes with the established institutions of society and the
law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a
test in religious freedom cases. His dissent stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v.
Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.

1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote
omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly
along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It
cannot be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave
and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes as the
sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA
at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent
punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a
prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public safety, public morals, public
health or any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp.
560-561).[339] (emphasis supplied)

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the
rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit
sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a
peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by
Justice Teehankee in his dissent which had overtones of petitioner German and his companions right to assemble
and petition the government for redress of grievances. [340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the Court
in Ebralinag v. The Division Superintendent of Schools. [341] A unanimous Court overturned the Gerona ruling
after three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who were expelled from
school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time
transported the grave and imminent danger test laid down in Justice Teehankees dissent in German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late
Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.
[342]
(emphasis supplied)

The Court added, viz:

We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national
anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the
school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated in
and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes (Gerona v.
Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life
and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive
training for a vocation or profession and be taught the virtues of patriotism, respect for human rights, appreciation
of national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
108
Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about
the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the
law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or
respect for duly constituted authorities.[343]

Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and
loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed.
1042, 1046).[344]

Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state
interest test in according exemption to the Jehovahs Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the
Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any group:

x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest
intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)

We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others. [345]

The Court annulled the orders expelling petitioners from school.

Thus, the grave and imminent danger test laid down in a dissenting opinion in German which involved prior
restraint of religious worship with overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied thatEbralinag also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience
of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech and the free exercise of religious profession and worship; the Court then stated in a footnote that the flag
salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances. [346]
The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents
was that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not
warrant exemption of the school children of the Jehovahs Witnesses from the flag salute ceremonies on the basis
of their own self-perceived religious convictions. [347] The Court, however, referred to the test only towards the end
of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much
less did the Court explain why the interest was not sufficiently compelling to override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.
[348]
Although there was a dissent with respect to the applicability of the clear and present danger test in this case,
the majority opinion in unequivocal terms applied the clear and present danger test to religious speech. This case
involved the television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner Iglesia ni
Cristos submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and
Television classified these as X or not for public viewing on the ground that they offend and constitute an attack
against other religions which is expressly prohibited by law. Invoking religious freedom, petitioner alleged that the
Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its
television program and x-rating them. While upholding the Boards power to review the Iglesia television show,
the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz commentary
on the constitution, the Court held that freedom to believe is absolute but freedom to act on ones belief, where it
affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent
in Barnette which was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated

109
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of religious dogma. [349] Nevertheless,
the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is,
when the exercise will bring about the clear and present danger of some substantive evil which the State is duty
bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public
welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on
speech, including religious speech and the x-rating was a suppression of petitioners freedom of speech as much
as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the
different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the
state from protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid down in the American Bible
Society case and the test of immediate and grave danger with infringement only to the smallest extent necessary
to avoid danger in Victoriano and pointed out that the reviewing board failed to apply the clear and present
danger test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.

Replying to the challenge on the applicability of the clear and present danger test to the case, the Court
acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types
of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial [351] and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to
the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb terribly.[352]

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be
invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated the
clear and present danger test in American Bible Society and the grave and imminent danger in Victoriano, but
this time clearly justifying its applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to
religious freedom, but carving out an exception or upholding an exception to accommodate religious
exercise where it is justified.[353]

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the
Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to
the inviolability of the human conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious
efficacy. Compelled religion is a contradiction in terms. [354] As a social value, it means that the growth of a
religious sect as a social force must come from the voluntary support of its members because of the belief that both
spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from
religion and unless religion is insulated from politics.[355] Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension. [356]

110
 The neutrality principle was applied in the first significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged the issuance
and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic
Church on the ground that the constitutional prohibition against the use of public money for religious purposes has
been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No.
4052[358] which appropriated a sum for the cost of plates and printing of postage stamps with new designs and
authorized the Director of Posts to dispose of the sum in a manner and frequency advantageous to the
Government. The printing and issuance of the postage stamps in question appears to have been approved by
authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the
role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the
stamps,viz:

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the
necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our
history, not to speak of the history of mankind, has taught us that the union of church and state is
prejudicial to both, for occasions might arise when the state will use the church, and the church the state,
as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this
country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest,
in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be
stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for
religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds
the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the blessings of independence under a
regime of justice, liberty and democracy, they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations. . . [359]

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an
event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not
the aim and purpose of the Government. We are of the opinion that the Government should not be
embarrassed in its activities simply because of incidental results, more or less religious in character, if the
purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield
vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168) [360] (emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government
action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the
separation of church and state was not at issue as the controversy was over who should have custody of a saints
image, it nevertheless made pronouncements on the separation of church and state along the same line as
the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having
a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that
thebarrio fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in rural communities that
relieves the monotony and drudgery of the lives of the masses. Corollarily, the Court found nothing illegal about
any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image
bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of
the patron saint was purchased in connection with the celebration of the barrio fiesta honoring the patron saint,
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San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the
religious beliefs of the barrio residents. Citing the Aglipay ruling, the Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is
violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning
the use of public money or property.

Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel issue involving the religion
clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply
divided on the issue. Seven members of the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test
offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, theponente, stated, viz: The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive
office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. Citing Torcaso v.
Watkins,[363] the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was
the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be required as
a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of
God ***. Such a constitutional requirement was assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would
not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme
Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by
Justice Black: this Maryland religious test for public office unconstitutionally invades the appellants freedom of
belief and religion and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here
being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus
an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional
mandate.[364]

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo,
Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as
a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice
Makasiar stated: To allow an ecclesiastic to head the executive department of a municipality is to permit the
erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the
cherished liberty of religion which the constitutional provision seeks to enforce and protect. Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier
v. Court of Appeals[365] is the leading case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate
bishop of the church. The Court cited American Jurisprudence,[366] viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in
conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil
courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they
have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the
church. . .[367]

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly
elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,[368] declared that the rule in property controversies within religious congregations strictly
independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the

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rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the
majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the
congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court
exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration
alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church those allegedly unworthy of
membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts. [369]

VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise
Clause and the Establishment Clause in their application. There is a natural antagonism between a command
not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often
leaves the courts with a choice between competing values in religion cases. [370]
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the
Free Exercise Clause point of view, and decided in opposite directions. InPamil, the majority gave more weight to
the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive
government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices
gave importance to the Establishment Clause in stating that the principle of separation of church and state justified
the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently
exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom;
the question arises whether the exemption does not amount to support of the religion in violation of the
Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme
Court ruled, viz:

In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in
South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and
does not represent that involvement of religious with secular institutions which it is the object of the Establishment
Clause to forestall.[371] (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free exercise as in
the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required
him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption
was not a case of establishing religion but merely upholding the Free Exercise Clause by sparing the exercise of
religion from the burden of property taxation levied on private profit institutions. Justice Burger wrote,viz:

(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. [372]

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious
sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional
provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by
union security agreements.[373] (emphasis supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless
upholds it. In Schempp, Justice Brennan stated: (t)here are certain practices, conceivably violative of the

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Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also
protected by the First Amendment.
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a
question for determination in the actual cases that come to the Court. In cases involving both the Establishment
Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must
review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should
prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the
free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and
early national period of the United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizens
free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the
courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts
convey a message of hostility to the religion that in that case cannot be freely exercised. [374] American professor of
constitutional law, Laurence Tribe, similarly suggests that the free exercise principle should be dominant in any
conflict with the anti-establishment principle. This dominance would be the result of commitment to religious
tolerance instead of thwarting at all costs even the faintest appearance of establishment. [375] In our jurisdiction, Fr.
Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is
characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct
and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values
the religion clauses are intended to protect must be considered in their interpretation and resolution of the
tension. This, in fact, has been the approach followed by the Philippine Court. [376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from
the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every
organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional
Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature,
extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S.
Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause
cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause
cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the
religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating
contradictions so that two main streams of jurisprudence had become identifiable. The first stream
employs separation while the second employs benevolent neutrality in interpreting the religious
clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to
adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion
clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court,
a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court
in Everson supports the separationistapproach, Philippine jurisprudence should also follow this approach in light
of the Philippine religion clauses history. As a result, in a case where the party claims religious liberty in the face of
a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in
convincing the Court that the wall of separation would not be breached if the Court grants him an
exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a whole and apparently conflicting provisions
should be reconciled and harmonized in a manner that will give to all of them full force and effect. [377] From this
construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality
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approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935
Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article
VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar
exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the
Philippine government during the Commonwealth period. [379] The original draft of the Constitution placed this
provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by
the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even
beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that
if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the
exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting
them from taxation.[380] The amendment was readily approved with 83 affirmative votes against 15 negative votes.
[381]

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case
of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating
that church property was not singled out but was exempt along with property owned by non-profit, quasi-public
corporations because the state upheld the secular policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the public interest. The Court also
stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the
same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in
the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent
neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit
or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)

The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not
contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit,
or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or
support of any priest, preacher, minister, or dignitary as such [382]

In the deliberations of this draft provision, an amendment was proposed to strike down everything after church
denomination.[383] The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation
under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay
from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under
the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld
its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did
not contain a prohibition on appropriations similar to the Jones Law. [384] To settle the question on the constitutionality
of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where

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the enumerated government institutions could not employ religious officials with compensation, the exception in the
1935 provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative
votes.[385] As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However,
the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved
the state of Texas payment of prison chaplains salaries as reasonably necessary to permit inmates to practice their
religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning
legislative sessions with prayers offered by legislative chaplains retained at taxpayers expense. The constitutional
provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution
from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision
prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time
gives constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause,
the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the town where a public school is
situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a
week, in the school building, to those public-school pupils whose parents or guardians desire it and express their
desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction
in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a
violation of the principle of separation of church and state and the prohibition against the use of public funds for
religious purposes. The second favored the proposed optional religious instruction as authorized by the
Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools
was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.
[386]
The third wanted religion to be included as a course in the curriculum of the public schools but would only be
taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the
opposition to the provision on the ground of separation of church and state. [387] As in the provisions on church
property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does
not provide for optional religious instruction in public schools. In fact, in theMcCollum case, the Court, using strict
neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the
school premises. The constitutional provision on optional religious instruction shows that Philippine jurisdiction
rejects the strict neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid of
Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution. A preamble is a key to open the mind of the authors of the constitution as to the evil sought to be
prevented and the objects sought to be accomplished by the provisions thereof. [388] There was no debate on the
inclusion of a Divine Providence in the preamble. In Aglipay,Justice Laurel noted that when the Filipino people
implored the aid of Divine Providence, (t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations. [389] The 1935 Constitutions religion
clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility,
but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par.
3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property
should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to
Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935
Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8)
with the modification that optional religious instruction shall be conducted as may be provided by law and not as
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now authorized by law as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high schools shall be done (a)t the option
expressed in writing by the parents or guardians, and without cost to them and the government. With the adoption
of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional
sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its
maiden appearance: (t)he separation of church and state shall be inviolable. The 1973 Constitution retained the
portion of the preamble imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church
and State of the 1971 Constitutional Convention, the question arose as to whether the absolute separation of
Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as
between one religion and another but even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committees answer was that it did not seem so. Citing the Aglipay case where Justice
Laurel recognized the elevating influence of religion in human society and the Filipinos imploring of Divine
Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion
over another, but may aid all religions equally or the cause of religion in general. [391] Among the position papers
submitted to the Committee on Church on State was a background paper for reconsideration of the religion
provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to
religion and in fact recognizes the value of religion and accommodates religious values. [392] Stated otherwise, the
Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee
introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this
was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a
similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was
retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect
to the prohibition on the use of public money and property for religious purposes and the salaries of religious
officers serving in the enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public
money for purposes which might have religious connections but which would benefit the public generally. Citing
the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government
directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal. [394]
The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section
3(3) with the modification that it was expressly provided that optional instruction shall be conducted within the
regular class hours and without additional cost to the government. There were protracted debates on what
additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear,
electricity, janitorial services,[395] and when during the day instruction would be conducted. [396] In deliberating on the
phrase within the regular class hours, Commissioner Aquino expressed her reservations to this proposal as this
would violate the time-honored principle of separation of church and state. She cited the McCullom case where
religious instruction during regular school hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S.
Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of
religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then
we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce
something here which is contrary to American practices.[397](emphasis supplied)

(W)ithin regular class hours was approved.

The provision on the separation of church and state was retained but placed under the Principles in the
Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision,
Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is inviolable, is
almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there,

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because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the non-establishment clause in the Bill of Rights. [398]

The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was
considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God. [399] God of History, Lord of History and God
were also proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is
obvious that the 1987 Constitution is not hostile nor indifferent to religion; [400] its wall of separation is not a wall of
hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of
religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt
that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of
separation between the church and state. [402]The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects
such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their
adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks
further than the secular purposes of government action and examines the effect of these actions on religious
exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence
of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing
these goals, however, government might adopt laws or actions of general applicability which inadvertently burden
religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises
as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious
liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type
of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens
religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before
it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs
and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it
does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the
conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the
religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of
general applicability, the Court can carve out an exception when the religion clauses justify it. While the
Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the
degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by
the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed.[403] We here lay down the doctrine that in Philippine jurisdiction, we adopt
the benevolent neutrality approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious liberty not only for
a minority, however small- not only for a majority, however large- but for each of us to the greatest extent
possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine
jurisprudence, albeit not expressly called benevolent neutrality or accommodation. In Aglipay, the Court not
only stressed the elevating influence of religion in human society but acknowledged the Constitutional provisions
on exemption from tax of church property, salary of religious officers in government institutions, and optional
religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy
Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that
government participation in long-standing traditions which have acquired a social character - the barrio fiesta is a
socio-religious affair - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption
from closed shop provisions of members of religious sects who prohibited their members from joining unions upon
the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve
the burden on free exercise of religion. In Ebralinag,members of the Jehovahs Witnesses were exempt from

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saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise
Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional
law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent
neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and
impregnable as the wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses are a unique
American experiment which understandably came about as a result of Americas English background and
colonization, the life that these clauses have taken in this jurisdiction is the Philippines own experiment, reflective
of the Filipinos own national soul, history and tradition. After all, the life of the law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent
neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the
line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a
society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise
offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in
the state and foment anarchy, eventually destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people establish the state is for the state to protect
their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise
- to the state. It was certainly not the intention of the authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that guarantees free exercise. [405]
The all important question then is the test that should be used in ascertaining the limits of the exercise of
religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the
first case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and present
danger test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the immediate and grave danger
test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
compelling state interest test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed
the grave and immediate danger test and overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the clear and present danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present danger or grave and immediate
danger test involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will
not prevail over established institutions of society and law. Gerona, however, which was the authority cited
byGerman has been overruled by Ebralinag which employed the grave and immediate danger
test. Victoriano was the only case that employed the compelling state interest test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the clear and present danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled,
is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar
to Victoriano, the present case involves purely conduct arising from religious belief. The compelling state
interest test is proper where conduct is involved for the whole gamut of human conduct has different
effects on the states interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over
the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights
- the most inalienable and sacred of all human rights, in the words of Jefferson. [406] This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty, [407] thus the Filipinos implore
the aid of Almighty God in order to build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious
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liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful ones until they are destroyed. [408] In determining which shall
prevail between the states interest and religious liberty, reasonableness shall be the guide. [409] The compelling
state interest serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the compelling state interest test, by upholding the paramount interests of the state, seeks
to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of
disgraceful and immoral conduct for which he/she may be held administratively liable. [410] In these cases, there
was not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves did not
foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the
alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo[411]and the 1999
case of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the complainant is a mere stranger and the
legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral
sensibilities of the community in which the respondent and the partner live and work, and the government employee
is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court
found the government employees administratively liable for disgraceful and immoral conduct and only considered
the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the
settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government
employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have
shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such
error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes
disgraceful and immoral conduct punishable under the Civil Service Law. Respondent having admitted the alleged
immoral conduct, she, like the respondents in the above-cited cases, could be held administratively
liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a
defense, respondent invokes religious freedom since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the churchs religious beliefs and
practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme.
Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than
on the religion clauses in deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality
beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding what it
means to live morally.[413] The answer to the question of how we ought to live necessarily considers that man does
not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up
not only of political ideas but also of ideas about the manner its members should behave and govern their
lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what
is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good
and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society
will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too
loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the
price of society; and mankind, which needs society, must pay its price. [414] This design is parallel with the social
contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect
their liberties. In a constitutional order, people make a fundamental agreement about the powers of government
and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the
land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a
new one.[415] Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a
societys members should behave and govern their lives would disintegrate society. Thus, society is justified in

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taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions.
[416]
From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely
saying that in the midst of this diversity, there should nevertheless be a fundamental agreement about good and
evil that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the
need to come to an agreement; his position also allows for change of morality from time to time which may be
brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in
their constitution in establishing and maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be amended from time to time. Harts
argument propounded in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a single society
as having common moral foundation (is) overly simplistic because societies have always been diverse fails to
recognize the necessity of Devlins proposition in a democracy. Without fundamental agreement on political and
moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including
opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance. [417] Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the
majority, i.e., the mainstream or median groups. [418] Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of religious freedom not only for a minority, however
small- not only for a majority, however large- but for each of us -- the majority imposes upon itself a self-denying
ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. [419] In
the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this
promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary
to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such
as the United States and the Philippines to accommodate those minority religions which are politically powerless. It
is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious
accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness
and deposit of our moral life.[420] In a liberal democracy, the law reflects social morality over a period of
time.[421] Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with
public morality or legislature might fail to repeal laws embodying outdated traditional moral views. [422] Law has also
been defined as something men create in their best moments to protect themselves in their worst
moments.[423]Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a given time. After all, the life of the
law...has been experience, in the words of Justice Holmes. This is not to say though that law is all of
morality. Law deals with the minimum standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not
meet the higher moral standards set by society for him to be called a morally upright person. [424] Law also serves as
a helpful starting point for thinking about a proper or ideal public morality for a society [425] in pursuit of moral
progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law and public morality. We
held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral
opinions of all. x x x That which we call punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of punishment. [427]Stated otherwise, there are
certain standards of behavior or moral principles which society requires to be observed and these form the bases of
criminal law. Their breach is an offense not only against the person injured but against society as a whole.
[428]
Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to
the public morals and the public interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point in
his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such
as sexual congress between a man and a prostitute, though consensual and private, and with no injured third
party, remains illegal in this country. His opinion asks whether these laws on private morality are justified or they
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constitute impingement on ones freedom of belief. Discussion on private morality, however, is not material to the
case at bar for whether respondents conduct, which constitutes concubinage, [430] is private in the sense that there
is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature
has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under
the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition
of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime
unlike in rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the
offended spouse in concubinage negates the prosecution of the action, [432] but does not alter the legislatures
characterization of the act as a moral disapprobation punishable by law. The separate opinion states that,
(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion
that the law, as an instrument of the secular State should only concern itself with secular morality. The Court does
not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by
the separate opinion, between secular and private morality, but between public and secular morality on the one
hand, and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality
in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are
not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with
Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of
damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commissions comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate
legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide
for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The
answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles
which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is
a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience
of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with
impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be
defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government
to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.
[433]
(emphases supplied)

The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality
proceeds from a persons views of his relations to His Creator and to the obligations they impose of reverence to
His being and character and obedience to His Will, in accordance with this Courts definition of religion
in American Bible Society citing Davis. Religion also dictates how we ought to live for the nature of religion is
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not just to know, but often, to act in accordance with mans views of his relations to His Creator. [434] But the
Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the
other, and implies the affirmative establishment of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the war of all sects against all; the establishment of a
secular public moral order is the social contract produced by religious truce. [435]
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional
Responsibility for lawyers[436], or public morals in the Revised Penal Code, [437] or morals in the New Civil Code,
[438]
or moral character in the Constitution,[439] the distinction between public and secular morality on the one hand,
and religious morality, on the other, should be kept in mind. [440] The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms.[441] Otherwise, if government relies upon religious beliefs in formulating public policies
and morals, the resulting policies and morals would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also
tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs
are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of
neutrality.[442]
In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society
and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on those engaged in public deliberations over what
actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with
heaven.[443] Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory
and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as
in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of
religion in society, however, the Philippine constitutions religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at
the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional
limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in
deciding the case at bar, the approach should consider that, (a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid
application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they
are enacted would, a departure be justified. In religion clause parlance, the separate opinion holds that laws of
general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests
of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would
erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage
and the family), then in abenevolent neutrality framework, an accommodation of the unconventional religious
belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that
would promote the very same secular purpose of upholding the sanctity of marriage and family through the
Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by
the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks
to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the
applicable laws should be thoroughly examined and evidence in relation thereto presented in the
OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and

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presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes
the accommodation of the unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the
one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood
only in this realm where it has authority. More concretely, should the Court declare respondents conduct as
immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her
conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is
being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot
say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and
that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct permissible, the Court will be holding that under
her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest
higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches which do not allow respondents conjugal
arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and
therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot
speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly, inFonacier, this Court declared that matters dealing with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare unquestionably
ecclesiastical matters which are outside the province of the civil courts. [444] But while the state, including the Court,
accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that when religious belief flows into speech
and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the
power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the
interests of the state. The states inroad on religion exercise in excess of this constitutional design is prohibited by
the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this
proscription.
Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase disgraceful and
immoral conduct for which a government employee may be held administratively liable. The line is not easy to
draw for it is like a line that divides land and sea, a coastline of irregularities and indentations. [445] But the case at
bar does not require us to comprehensively delineate between those immoral acts for which one may be held
administratively liable and those to which administrative liability does not attach. We need not concern ourselves in
this case therefore whether laziness, gluttony, vanity, selfishness, avarice and cowardice are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions
that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different
standards of morality as discussed by the dissents and separate opinions, although these observations and
propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the
general rule that the law is the witness and deposit of our moral life, then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different
jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling,
without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to another which Philippine law and
jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of
prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in
question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice Ynares-Santiago
groped for standards of morality and stated that the ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards but did not articulate how these standards are to be
ascertained. Instead, it held that, (f)or those in the service of the Government, provisions of law and court
precedents . . . have to be considered. It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondents conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a disgraceful and immoral conduct for maintaining illicit
relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence,
respondents conduct constitutes disgraceful and immoral conduct. However, the cases cited by the dissent do
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not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases
cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in laying down the standard
of morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined by
respondents concept of morality. The law provides the standard; the offense is complete if respondent intended to
perform, and did in fact perform, the act which it condemns. The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose. [447] The resolution of that case hinged on the
interpretation of the phrase immoral purpose. The U.S. Supreme Court held that the petitioner Mormons act of
transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was covered by the phrase immoral purpose. In so
ruling, the Court relied on Reynolds which held that the Mormons practice of polygamy, in spite of their defense of
religious freedom, was odious among the northern and western nations of Europe, [448] a return to
barbarism,[449] contrary to the spirit of Christianity and of the civilization which Christianity has produced in the
Western world,[450] and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements
of the U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the Philippines where
Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore that her conduct is likewise so odious and barbaric as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on determining the applicable moral
standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed
respondents plea of religious freedom and disposed of this defense by stating that (a) clear and present danger of
a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and
enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the
destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and
discipline in the judiciary. However, the foregoing discussion has shown that the clear and present danger test
that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which
involves purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is
guilty of disgraceful and immoral conduct. The Reynolds ruling, however, was reached with a strict neutrality
approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine
jurisdiction adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the constitutional
intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that
respondent should be held administratively liable not for disgraceful and immoral conduct but conduct prejudicial
to the best interest of the service as she is a necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice.
Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself against the
charge of conduct prejudicial to the best interest of the service. In addition, there is no evidence of the alleged
prejudice to the best interest of the service. Most importantly, the dissent concludes that respondents plea of
religious freedom cannot prevail without so much as employing a test that would balance respondents religious
freedom and the states interest at stake in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject
respondents plea of religious freedom without even subjecting it to the compelling state interest test that would
balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the
dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably
shows adherence to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik [451] cited in Mr. Justice
Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of
immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he
had three children because it (was) not immoral by Muslim standards for Judge Malik to marry a second time
while his first marriage (existed). Putting the quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the
dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
125
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a
person married x x x under Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry a second
time while his first marriage exists.[452] It was by law, therefore, that the Muslim conduct in question was classified
as an exception to the crime of bigamy and thus an exception to the general standards of morality. The
constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in
the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional
infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in
holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is
no similar law which the Court can apply as basis for treating respondents conduct as an exception to the
prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to
justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondents claim of religious freedom to
the compelling state interest test from a benevolent neutrality stance- i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a
more compelling state interest.
In applying the test, the first inquiry is whether respondents right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief
and practice and family on the one hand, and giving up her employment and keeping her religious practice and
family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that
Sherberts religious exercise was burdened as the denial of unemployment benefits forces her to choose between
following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts
of her religion in order to accept work, on the other hand. The burden on respondent in the case at bar is even
greater as the price she has to pay for her employment is not only her religious precept but also her family which,
by the Declaration Pledging Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be
sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to
avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the
moral standards are strict and defined, much less only after an administrative case for immorality was filed against
her. The Declaration was issued to her by her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the
authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for
illicit conduct but to make the union of their members under respondents circumstances honorable before God
and men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed
letters[453] of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after
Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCAs letters were not submitted
by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma
whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator
had different positions regarding respondents request for exemption from the flag ceremony on the ground of the
Jehovahs Witnesses contrary belief and practice. Respondents request for exemption from the flag ceremony
shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that she is
a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further
question the respondents sincerity and the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents evidence on the sincerity of her religious
belief and its centrality in her faith, the case at bar cannot still be decided using the compelling state
interest test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof
they should discharge in the Courts use of the compelling state interest test. We note that the OCA found

126
respondents defense of religious freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et
al., viz:

It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the
personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to
adhere to the exacting standards of morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the courts of justice.

It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation of
the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However,
there is nothing in the OCAs memorandum to the Court that demonstrates how this interest is so compelling that it
should override respondents plea of religious freedom nor is it shown that the means employed by the government
in pursuing its interest is the least restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest
of the state. The burden of evidence should be discharged by the proper agency of the government which is the
Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondents stance that
her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise
protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise
Clause, the Courts action would be an unconstitutional encroachment of her right to religious freedom.
[454]
We cannot therefore simply take a passing look at respondents claim of religious freedom, but must instead
apply the compelling state interest test. The government must be heard on the issue as it has not been given an
opportunity to discharge its burden of demonstrating the states compelling interest which can override respondents
religious belief and practice. To repeat, this is a case of first impression where we are applying the compelling
state interest test in a case involving purely religious conduct. The careful application of the test is indispensable
as how we will decide the case will make a decisive difference in the life of the respondent who stands not only
before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is
ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to
override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30)
days from the Office of the Court Administrators receipt of this Decision.
SO ORDERED.

127
ESTRADA VS ESCRITOR, 2006
EN BANC

ALEJANDRO ESTRADA, A.M. No. P-02-1651

Complainant, (formerly OCA I.P.I. No. 00-1021-P)

Present:

PANGANIBAN, CJ.,

PUNO,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

-versus- CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA, and

VELASCO, JR., JJ.

Promulgated:

SOLEDAD S. ESCRITOR,

Respondent. June 22, 2006

x--------------------------------------------------x

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 RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again

stands before the Court invoking her religious freedom and her Jehovah God in a bid to save her family united

without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its power to

regulate her behavior and protect its interest in marriage and family and the integrity of the courts where respondent

is an employee. How the Court will tilt the scales of justice in the case at bar will decide not only the fate of

respondent Escritor but of other believers coming to Court bearing grievances on their free exercise of

religion. This case comes to us from our remand to the Office of the Court Administrator on August 4, 2003.[1]

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.

Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, for an investigation of

respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and having borne

a child within this live-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the

image of the court, thus she should not be allowed to remain employed therein as it might appear that the court

condones her act.[2] Consequently, respondent was charged with committing disgraceful and immoral conduct

under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. [3]

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her

husband having died in 1998.[4] She admitted that she started living with Luciano Quilapio, Jr. without the benefit of

marriage more than twenty years ago when her husband was still alive but living with another woman. She also

admitted that she and Quilapio have a son.[5] But as a member of the religious sect known as the Jehovahs

Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their conjugal arrangement is in

conformity with their religious beliefs and has the approval of her congregation. [6] In fact, after ten years of living

together, she executed onJuly 28, 1991, a Declaration of Pledging Faithfulness. [7]

For Jehovahs Witnesses, the Declaration allows members of the congregation who have been abandoned

by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding
129
within the congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of

their faith, the Jehovahs congregation requires that at the time the declarations are executed, the couple cannot

secure the civil authorities approval of the marital relationship because of legal impediments. Only couples who

have been baptized and in good standing may execute the Declaration, which requires the approval of the elders of

the congregation. As a matter of practice, the marital status of the declarants and their respective spouses

commission of adultery are investigated before the declarations are executed. [8] Escritor and Quilapios declarations

were executed in the usual and approved form prescribed by the Jehovahs Witnesses, [9] approved by elders of the

congregation where the declarations were executed,[10] and recorded in the Watch Tower Central Office.[11]

Moreover, the Jehovahs congregation believes that once all legal impediments for the couple are lifted, the

validity of the declarations ceases, and the couple should legalize their union. In Escritors case, although she was

widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to

remarry. Thus, their declarations remained valid. [12] In sum, therefore, insofar as the congregation is concerned,

there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members

in good standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her

conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held

administratively liable,[13] the Court had to determine the contours of religious freedom under Article III, Section 5 of

the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

A. RULING

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of

the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving

religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit,

intent and framework underlying the religion clauses in our Constitution; and (2) in deciding respondents plea of

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exemption based on the Free Exercise Clause (from the law with which she is administratively charged), it

is the compelling state interest test, the strictest test, which must be applied. [14]

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of

whether respondent was to be held administratively liable for there was need to give the State the opportunity to

adduce evidence that it has a more compelling interest to defeat the claim of the respondent to religious

freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to the Office of the Court

Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene in the case so it

can:

(a) examine the sincerity and centrality of respondents claimed religious belief and
practice;

(b) present evidence on the states compelling interest to override respondents

religious belief and practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to
respondents religious freedom. [15]

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH

THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST

APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues

have already been ruled upon prior to the remand, and constitute the law of the case insofar as they

resolved the issues of which framework and test are to be applied in this case, and no motion for its

reconsideration having been filed.[16] The only task that the Court is left to do is to determine whether the

evidence adduced by the State proves its more compelling interest. This issue involves a pure question of fact.

B. LAW OF THE CASE

Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case interpreting the religious

clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the
131
complainant, respondent nor the government has filed a motion for reconsideration assailing this ruling, the same

has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crass

contravention of elementary rules of procedure. Worse, insofar as it would overturn the parties right to rely upon

our interpretation which has long attained finality, it also runs counter to substantive due process.

Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice

Carpios belated attempts to disturb settled issues, and that he had timely presented his arguments, the results

would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. OLD WORLD ANTECEDENTS

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 In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion

clauses, because one cannot understand, much less intelligently criticize the approaches of the courts and the

political branches to religious freedom in the recent past in the United States without a deep appreciation of the

roots of these controversies in the ancient and medieval world and in the American experience. [17] We delved into

the conception of religion from primitive times, when it started out as the state itself, when the authority and power

of the state were ascribed to God. [18] Then, religion developed on its own and became superior to the state, [19] its

subordinate,[20] and even becoming an engine of state policy.[21]

We ascertained two salient features in the review of religious history: First, with minor exceptions, the

history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all

in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history

witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the

willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits

conferred by ambitious princes and emperors in exchange for religions invaluable service. This was the context in

which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in

American constitutional democracy and in human history. [22]

Strictly speaking, the American experiment of freedom and separation was not translated in the First

Amendment. That experiment had been launched four years earlier, when the founders of the republic carefully

withheld from the new national government any power to deal with religion. As James Madison said, the national

government had no jurisdiction over religion or any shadow of right to intermeddle with it. [23]

The omission of an express guaranty of religious freedom and other natural rights, however, nearly

prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of the

religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did not take

away or abridge any power of the national government; its intent was to make express the absence of power. [24] It

commands, in two parts (with the first part usually referred to as the Establishment Clause and the second part, the

Free Exercise Clause), viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof. [25]

133
 The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve

contradictory purposes. They have a single goalto promote freedom of individual religious beliefs and

practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with

penalties for religious beliefs and practice, while the Establishment Clause prohibits government from inhibiting

religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses were

intended to deny government the power to use either the carrot or the stick to influence individual religious beliefs

and practices.[26]

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion

as an engine to promote state interests, to the principle of non-establishment to allow the free exercise of religion.

2. RELIGION CLAUSES IN THE U.S. CONTEXT

The Court then turned to the religion clauses interpretation and construction in the United States, not

because we are bound by their interpretation, but because the U.S.religion clauses are the precursors to the

Philippine religion clauses, although we have significantly departed from the U.S. interpretation as will be discussed

later on.

At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with

inconsistencies whether within a Court decision or across decisions. For while there is widespread agreement

regarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to what

these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied

the religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress renders it difficult

to ascertain its meaning.[27]

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion

clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the

tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory

of governmental neutrality. Although the latter form is not as hostile to religion as the former, both are anchored

on the Jeffersonian premise that a wall of separation must exist between the state and the Church to protect the

state from the church.[28] Both protect the principle of church-state separation with a rigid reading of the principle.

On the other hand, thesecond standard, the benevolent neutrality or accommodation, is buttressed by the view

that the wall of separation is meant to protect the church from the state. A brief review of each theory is in order.

134
 a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from the

church, and the states hostility towards religion allows no interaction between the two. According to this

Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be erected.

Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its

secular programs to alleviate burdens the programs placed on believers. [29] Only the complete separation of religion

from politics would eliminate the formal influence of religious institutions and provide for a free choice among

political views, thus a strict wall of separation is necessary. [30]

Strict separation faces difficulties, however, as it is deeply embedded in American history and

contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in

return for huge amounts of mostly indirect aid from religion. [31] For example, less than twenty-four hours after

Congress adopted the First Amendments prohibition on laws respecting an establishment of religion, Congress

decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in

favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer. [32] Thus, strict

separationists are caught in an awkward position of claiming a constitutional principle that has never existed and

is never likely to.[33]

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or,

the governmental neutrality theory) finds basis in Everson v. Board of Education, [34] where the Court declared

that Jeffersons wall of separation encapsulated the meaning of the First Amendment. However, unlike the strict

separationists, thestrict neutrality view believes that the wall of separation does not require the state to be their

adversary. Rather, the state must be neutral in its relations with groups of religious believers and non-

believers. State power is no more to be used so as to handicap religions than it is to favor them. [35] The strict

neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used as a basis for

classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties

or obligations. Only secular criteria may be the basis of government action. It does not permit, much less

require, accommodation of secular programs to religious belief.[36]

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment

Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by

Justice Goldberg in his concurring opinion in Abington School District v. Schempp,[37] strict neutrality could lead

135
to a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is

prohibited by the Constitution.[38] Professor Laurence Tribe commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise
clause. The Framers, whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious classifications. [39]

Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict

neutrality, is that while the Jeffersonian wall of separation captures the spirit of the American ideal of church-state

separation, in real life, church and state are not and cannot be totally separate. This is all the more true in

contemporary times when both the government and religion are growing and expanding their spheres of

involvement and activity, resulting in the intersection of government and religion at many points. [40]

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of the wall of

separation, associated with Williams, founder of the Rhode Islandcolony. Unlike the Jeffersonian wall that is meant

to protect the state from the church, the wall is meant to protect the church from the state. [41] This doctrine was

expressed inZorach v. Clauson,[42] which held, viz:

The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection to religious
groups. Policemen who helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the
Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God in our
courtroom oaths- these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each session: God save
the United States and this Honorable Court.

xxx xxx xxx

136
 We are a religious people whose institutions presuppose a Supreme Being. We guarantee
the freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the best
of our traditions. For it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious influence. [43]

Benevolent neutrality recognizes that religion plays an important role in the public life of the United

States as shown by many traditional government practices which, tostrict neutrality, pose Establishment Clause

questions. Among these are the inscription of In God We Trust on American currency; the recognition of America

as one nation under God in the official pledge of allegiance to the flag; the Supreme Courts time-honored practice

of opening oral argument with the invocation God save the United States and this Honorable Court; and the

practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant

denomination, to lead representatives in prayer. These practices clearly show the preference for one theological

viewpointthe existence of and potential for intervention by a godover the contrary theological viewpoint of

atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of

poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with

strong moral dimension. [44]

Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.

Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in

daily prayers,[45] or requiring employers to pay workers compensation when the resulting inconsistency between

work and Sabbath leads to discharge; [46] for government to give money to religiously-affiliated organizations to

teach adolescents about proper sexual behavior; [47] or to provide religious school pupils with books; [48] or bus rides

to religious schools;[49] or with cash to pay for state-mandated standardized tests. [50]

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in

relation to governmental action, almost invariably in the form of legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as

unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both. This is

137
true whether one subscribes to the separationist approach or the benevolent

neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular purpose and general

applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government action is

not religiously motivated, these laws have a burdensome effect on religious exercise.

The benevolent neutrality theory believes that with respect to these governmental

actions, accommodation of religion may be allowed, not to promote the governments favored form of religion, but

to allow individuals and groups to exercise their religion without hindrance. The purpose of accommodations is to

remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan explained,

the government [may] take religion into accountto exempt, when possible, from generally applicable

governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed,

or to create without state involvement an atmosphere in which voluntary religious exercise may flourish. [51] In the

ideal world, the legislature would recognize the religions and their practices and would consider them, when

practical, in enacting laws of general application. But when the legislature fails to do so, religions that are

threatened and burdened may turn to the courts for protection. [52]

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a

facially neutral law, but an exemption from its application or its burdensome effect, whether by the legislature or

the courts.[53] Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of the

facially neutral law that has a burdensome effect.[54]

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the

case of Sherbert v. Verner,[55] which ruled that state regulation that indirectly restrains or punishes religious belief

or conduct must be subjected to strict scrutiny under the Free Exercise Clause. [56] According to Sherbert, when a

law of general application infringes religious exercise, albeit incidentally, the state interest sought to be promoted

must be so paramount and compelling as to override the free exercise claim. Otherwise, the Court itself will carve

out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as

her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She

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sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits

could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct

prompted by religious principles of a kind within the reach of state legislation. If, therefore, the
decision of the South Carolina Supreme Court is to withstand appellants constitutional challenge, it
must be either because her disqualification as a beneficiary represents no infringement by
the State of her constitutional right of free exercise, or because any incidental burden on
the free exercise of appellants religion may be justified by a compelling state interest in
the regulation of a subject within the States constitutional power to
regulate. . . .[57] (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely

show a rational relationship of the substantial infringement to the religious right and a colorable state

interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount

interests, give occasion for permissible limitation.[58] The Court found that there was no such compelling state

interest to override Sherberts religious liberty. It added that even if the state could show that Sherberts exemption

would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was

incumbent upon the state to show thatno alternative means of regulations would address such detrimental effects

without infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for

Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the

unemployment benefits. The Court reasoned that upholding the denial of Sherberts benefits would force her to

choose between receiving benefits and following her religion. This choice placed the same kind of burden upon

the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This germinal case

of Sherbert firmly established the exemption doctrine,[59] viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless
some compelling state interest intervenes.

Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a

sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law embodies

a compelling interest, that no less restrictive alternative exists, and that a religious exemption would impair the

states ability to effectuate its compelling interest. As in other instances of state action affecting fundamental rights,

negative impacts on those rights demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny
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balancing test resulted in court-mandated religious exemptions from facially-neutral laws of general application

whenever unjustified burdens were found. [60]

Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S. Court again ruled that religious exemption was

in order, notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny,

the Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws.

The Court, in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct.

Chief Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice of a legitimate religious belief, it
must appear either that the State does not deny the free exercise of religious belief by its
requirement, or that there is a state interest of sufficient magnitude to override the interest
claiming protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had specially and
firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was
an equally firm, even if less explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social importance. . .

The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always outside the
protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously
based, are often subject to regulation by the States in the exercise of their undoubted power to
promote the health, safety, and general welfare, or the Federal government in the exercise of its
delegated powers . . . But to agree that religiously grounded conduct must often be subject
to the broad police power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus beyond the power
of the State to control, even under regulations of general applicability. . . .This case,
therefore, does not become easier because respondents were convicted for their actions in
refusing to send their children to the public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . [62]

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were

subject to heightened scrutiny or compelling interest test if government substantially burdened the exercise of

religion; (b) heightened scrutiny or compelling interest test governed cases where the burden was direct, i.e., the

exercise of religion triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e.,

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the exercise of religion resulted in the forfeiture of a government benefit; [63]and (c) the Court could carve out

accommodations or exemptions from a facially neutral law of general application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protectedconduct beyond

speech, press, or worship was included in the shelter of freedom of religion. Neither Sherberts refusal to work on

the Sabbath nor the Amish parents refusal to let their children attend ninth and tenth grades can be classified as

conduct protected by the other clauses of the First Amendment. Second, indirect impositions on religious conduct,

such as the denial of twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well as direct

restraints, such as the criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the two

cases indicate, the protection granted was extensive. Only extremely strong governmental interests justified

impingement on religious conduct, as the absolute language of the test of the Free Exercise Clause suggests. [64]

Fourth, the strong language was backed by a requirement that the government provide proof of the

important interest at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in

determining the injury to the governments interest, a court was required to focus on the effect that exempting

religious claimants from the regulation would have, rather than on the value of the regulation in general. Thus,

injury to governmental interest had to be measured at the margin: assuming the law still applied to all others, what

would be the effect of exempting the religious claimant in this case and other similarly situated religious claimants in

the future? Together, the fourth and fifth elements required that facts, rather than speculation, had to be presented

concerning how the governments interest would be harmed by excepting religious conduct from the law being

challenged. [65]

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a

discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the

likelihood of exaggeration of the weight on the governmental interest side of the balance, by not allowing

speculation about the effects of a decision adverse to those interests nor accepting that those interests would be

defined at a higher level of generality than the constitutional interests on the other side of the balance. [66]

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection

afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling

secular justification was necessary to uphold public policies that collided with religious practices. Although the

members of the U.S. Court often disagreed over which governmental interests should be considered compelling,

thereby producing dissenting and separate opinions in religious conduct cases, this general test established a

strong presumption in favor of the free exercise of religion. [67] Most scholars and courts agreed that
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under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of heightened scrutiny

protection, if not always a compelling interest one. [68] The 1990 case of Employment Division, Oregon

Department of Human Resources v. Smith,[69] drastically changed all that.

Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a

hallucinogenic substance. Specifically, individuals challenged the states determination that their religious use of

peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from receipt of

unemployment compensation benefits. [70]

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an

exemption from an otherwise valid law. Scalia said that [w]e have never held that an individuals religious beliefs

excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On

the contrary, the record of more than a century of our free exercise jurisprudence contradicts that

proposition. [71] Scalia thus declared that the right of free exercise does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability of the ground that the law proscribes (or prescribes)

conduct that his religion prescribes (or proscribes). [72]

Justice Scalias opinion then reviewed the cases where free exercise challenges had been upheldsuch

as Cantwell, Murdock, Follet, Pierce, and Yoderand said that none involved the free exercise clause claims

alone. All involved the Free Exercise Clause in conjunction with other constitutional protections, such as freedom

of speech and of the press, or the right of parents to direct the education of their children. [73] The Court said

that Smith was distinguishable because it did not involve such a hybrid situation, but was a free exercise claim

unconnected with any communicative activity or parental right. [74]

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of

unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that [e]ven if we

were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply

it to require exemptions from a generally applicable criminal law. [75]

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability

that burden religion. Justice Scalia said that [p]recisely because we are a cosmopolitan nation made up of people

of almost conceivable religious preference, and precisely because we value and protect that religious divergence,

we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation

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of conduct that does not protect an interest of the highest order. The Court said that those seeking religious

exemptions from laws should look to the democratic process for protection, not the courts. [76]

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling

justification approach were abandoned for evaluating laws burdening religion; neutral laws of general applicability

only have to meet the rational basis test, no matter how much they burden religion. [77]

Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest

test, asserting that (t)he compelling state interest test effectuates the First Amendments command that religious

liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit

encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government

interest of the highest order.[78] She said that strict scrutiny is appropriate for free exercise challenges because

[t]he compelling interest test reflects the First Amendments mandate of preserving religious liberty to the fullest

extent possible in a pluralistic society. [79]

Justice OConnor also disagreed with the majoritys description of prior cases and especially its leaving the

protection of minority religions to the political process. She said that, First Amendment was enacted precisely to

protect the rights of those whose religious practice are not shared by the majority and may be viewed with

hostility. [80]

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The

dissenting Justices agreed with Justice OConnor that the majority had mischaracterized precedents, such as in

describing Yoder as a hybrid case rather than as one under the free exercise clause. The dissent also argued that

strict scrutiny should be used in evaluating government laws burdening religion. [81]

Criticism of Smith was intense and widespread.[82] Academics, Justices, and a bipartisan majority of

Congress noisily denounced the decision.[83] Smith has the rather unusual distinction of being one case that is

almost universally despised (and this is not too strong a word) by both the liberals and conservatives. [84] Liberals

chasten the Court for its hostility to minority faiths which, in light of Smiths general applicability rule, will allegedly

suffer at the hands of the majority faith whether through outright hostility or neglect. Conservatives bemoan the

decision as an assault on religious belief leaving religion, more than ever, subject to the caprice of an ever more

secular nation that is increasingly hostile to religious belief as an oppressive and archaic anachronism. [85]

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 The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a

shallow understanding of free exercise jurisprudence. [86] First, the First amendment was intended to protect

minority religions from the tyranny of the religious and political majority. [87] Critics of Smith have worried about

religious minorities, who can suffer disproportionately from laws that enact majoritarian mores. [88] Smith, in effect

would allow discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack

legislative clout,[89] contrary to the original theory of the First Amendment. [90] Undeniably, claims for judicial

exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually

wiped out their judicial recourse for exemption. [91] Second, Smith leaves too much leeway for pervasive welfare-

state regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinder

observance just as effectively as those that target religion. [92] Government impairment of religious liberty would most

often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory

imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to

inadvertent interference, it would be left almost meaningless. [93] Third, the Reynolds-Gobitis-Smith[94] doctrine

simply defies common sense. The state should not be allowed to interfere with the most deeply held fundamental

religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This

is especially true when there are alternative approaches for the state to effectively pursue its objective without

serious inadvertent impact on religion.[95]

At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and

limiting the term religion in todays pluralistic society, and (2) the belief that courts have no business determining

the significance of an individuals religious beliefs. For the Smith Court, these two concerns appear to lead to the

conclusion that the Free Exercise Clause must protect everything or it must protect virtually nothing. As a result,

the Court perceives its only viable options are to leave free exercise protection to the political process or to allow a

system in which each conscience is a law unto itself. [96] The Courts characterization of its choices have been

soundly rejected as false, viz:

If one accepts the Courts assumption that these are the only two viable options, then admittedly,
the Court has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed
as too difficult to apply and this should not be applied at all. The Constitution does not give the
judiciary the option of simply refusing to interpret its provisions. The First Amendment dictates that
free exercise of religion must be protected. Accordingly, the Constitution compels the Court to
struggle with the contours of what constitutes religion. There is no constitutional opt-out provision
for constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A
large area of middle ground exists between the Courts two opposing alternatives for free exercise
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jurisprudence. Unfortunately, this middle ground requires the Court to tackle difficult issues such as
defining religion and possibly evaluating the significance of a religious belief against the importance
of a specific law. The Court describes the results of this middle ground where federal judges will
regularly balance against the importance of general laws the significance of religious practice, and
then dismisses it as a parade of horribles that is too horrible to contemplate.

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 It is not clear whom the Court feels would be most hurt by this parade of horribles. Surely not
religious individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity
and significance rather than acquiesce to the Courts approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned about requiring
lawmakers at times constitutionally to exempt religious individuals from statutory provisions, its
concern is misplaced. It is the lawmakers who have sought to prevent the Court from dismantling
the Free Exercise Clause through such legislation as the [Religious Freedom Restoration Act of
1993], and in any case, the Court should not be overly concerned about hurting legislatures
feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court is
concerned about putting such burden on judges. If so, it would truly be odd to say that requiring
the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should
be expected to fulfill.[97]

Parenthetically, Smiths characterization that the U.S. Court has never held that an individuals religious

beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to

regulatean assertion which Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply criticized

even implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by

opposing the arguments that the Court was wrong as a matter of original meaning [of the religion clauses] or that

the decision conflicted with precedent [i.e. the Smith decision made shocking use of precedent]those points

were often conceded. [98]

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made

in Yoder, by asserting that these were premised on two constitutional rights combinedthe right of parents to direct

the education of their children and the right of free exercise of religion. Under the Courts opinion in Smith, the right

of free exercise of religion standing alone would not allow Amish parents to disregard the compulsory school

attendance law, and under the Courts opinion in Yoder, parents whose objection to the law was not religious would

also have to obey it. The fatal flaw in this argument, however, is that if two constitutional claims will fail on its own,

how would it prevail if combined? [99] As for Sherbert, the Smith Court attempted to limit its doctrine as applicable

only to denials of unemployment compensation benefits where the religiously-compelled conduct that leads to job

loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was so damaging in its

effect: the religious person was more likely to be entitled to constitutional protection when forced to choose between

religious conscience and going to jail than when forced to choose between religious conscience and financial

loss. [100]

Thus, the Smith decision elicited much negative public reaction especially from the religious community,

and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. [101] So much was
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the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of

1993.[102] The RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise

claims. Indeed, the findings section of the Act notes that Smith virtually eliminated the requirement that the

government justify burdens on religious exercise imposed by laws neutral toward religion. [103] The Act declares that

its purpose is to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder,

and to guarantee its application in all cases where free exercise of religion is substantially burdened; and to provide

a claim of defense to a person whose religious exercise is substantially burdened by government. [104] The RFRA

thus sought to overrule Smith and make strict scrutiny the test for all free exercise clause claims. [105]

In the City of Boerne v. Flores, [106] the U.S. Supreme Court declared the RFRA unconstitutional, ruling

that Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled that

Congress is empowered to enact laws to enforce the amendment, but Congress is not enforcing when it creates

new constitutional rights or expands the scope of rights. [107]

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial

respect for the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia

wrote:

Values that are protected against governmental interference through enshrinement in the
Bill of Rights are not thereby banished from the political process. Just as society believes in the
negative protection accorded to the press by the First Amendment is likely to enact laws that
affirmatively foster the dissemination of the printed word, so also a society that believes in the
negative protection accorded to religious belief can be expected to be solicitous of that value in its
legislation as well.

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous

Congress. Contrary to the Courts characterization of the RFRA as a kind of usurpation of the judicial power to say

what the Constitution means, the law offered no definition of Free Exercise, and on its face appeared to be a

procedural measure establishing a standard of proof and allocating the duty of meeting it. In effect, the Court ruled

that Congress had no power in the area of religion. And yet, Free Exercise exists in the First Amendment as a

negative on Congress. The power of Congress to act towards the states in matters of religion arises from the

Fourteenth Amendment. [108]

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give

accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we

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consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grossly

inconsistent with the importance placed by the framers on religious faith. Smith is dangerous precedent because it

subordinates fundamental rights of religious belief and practice to all neutral, general

legislation. Sherbert recognized the need to protect religious exercise in light of the massive increase in the size of

government, the concerns within its reach, and the number of laws administered by it. However, Smith abandons

the protection of religious exercise at a time when the scope and reach of government has never been greater. It

has been pointed out that Smith creates the legal framework for persecution: through general, neutral laws,

legislatures are now able to force conformity on religious minorities whose practice irritate or frighten an intolerant

majority.[109]

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating

the Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly

where it would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of

Rights, the religion clauses of the First Amendment are most important to those who cannot prevail in the political

process. The Court in Smith ignores the fact that the protections found in the Bill of Rights were deemed too

important to leave to the political process. Because mainstream religions generally have been successful in

protecting their interests through the political process, it is the non-mainstream religions that are adversely affected

by Smith. In short, the U.S. Supreme Court has made it clear to such religions that they should not look to the First

Amendment for religious freedom. [110]

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a) those which are found to be

constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or

legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause;

and (c) those which the religion clauses prohibit.[111]

Mandatory accommodation results when the Court finds that accommodation is required by the Free

Exercise Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all three

conditions of the compelling interest test are met, i.e, a statute or government action has burdened claimants free

exercise of religion, and there is no doubt as to the sincerity of the religious belief; the state has failed to

demonstrate a particularly important or compelling governmental goal in preventing an exemption; and that the

state has failed to demonstrate that it used the least restrictive means. In these cases, the Court finds that the

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injury to religious conscience is so great and the advancement of public purposes is incomparable that only

indifference or hostility could explain a refusal to make exemptions. Thus, if the states objective could be served as

well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, the

Court must grant the exemption. The Yoder case is an example where the Court held that the state must

accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as required

by law. TheSherbert case is another example where the Court held that the state unemployment compensation

plan must accommodate the religious convictions of Sherbert. [112]

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate

religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the

constitutionality of tax exemption given by New York to church properties, but did not rule that the state was

required to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to

religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. [113] Other

examples are Zorach v. Clauson,[114] allowing released time in public schools and Marsh v. Chambers,
[115]
allowing payment of legislative chaplains from public funds. Parenthetically, the Court in Smith has ruled that

this is the only accommodation allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative

accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited

accommodation. In this case, the Court finds that establishment concerns prevail over potential accommodation

interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all

claims for free exercise exemptions are valid.[116] An example where accommodation was prohibited is McCollum

v. Board of Education,[117] where the Court ruled against optional religious instruction in the public school

premises.[118]

Given that a free exercise claim could lead to three different results, the question now remains as to how

the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state

interest test which is most in line with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to

carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the grace of

legislature. Religious freedom is seen as a substantive right and not merely a privilege against discriminatory

legislation. With religion looked upon with benevolence and not hostility, benevolent neutrality allows

accommodation of religion under certain circumstances.

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 Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free

exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face is

argued to prevent or burden what someones religious faith requires, or alternatively, requires someone to

undertake an act that faith would preclude. In essence, then, free exercise arguments contemplate religious

exemptions from otherwise general laws.[119]

Strict scrutiny is appropriate for free exercise challenges because [t]he compelling interest test reflects the

First Amendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.
[120]
Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that laws

burdening it should be subject to strict scrutiny.[121]

In its application, the compelling state interest test follows a three-step process, summarized as follows:

If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or practice is
necessary to the accomplishment of some important (or compelling) secular objective and that it is
the least restrictive means of achieving that objective. If the plaintiff meets this burden and the
government does not, the plaintiff is entitled to exemption from the law or practice at issue. In
order to be protected, the claimants beliefs must be sincere, but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular
beliefs, however sincere and conscientious, do not suffice. [122]

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the

separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has also further

been split by the view that the First Amendment requires accommodation, or that it only allows permissible

legislative accommodations. The current prevailing view as pronounced in Smith, however, is that that there are

no required accommodation under the First Amendment, although it permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice

a. US Constitution and jurisprudence vis--vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately

clear that one cannot simply conclude that we have adoptedlock, stock and barrelthe religion clauses as

embodied in the First Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in

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the U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme Court as

constituting permissive accommodations, similar exemptions for religion are mandatory accommodationsunder

our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church

property,[123] salary of religious officers in government institutions, [124] and optional religious instruction.[125] Our own

preamble also invokes the aid of a divine being. [126] These constitutional provisions are wholly ours and have

no counterpart in the U.S. Constitution or its amendments. They all reveal without doubt that the Filipino

people, in adopting these constitutions, manifested their adherence to the benevolent neutrality approach that

requires accommodations in interpreting the religion clauses.[127]

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted

that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935

Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as early as 1935, or

more than three decadesbefore the U.S. Court could validate the exemption in Walz as a form or permissible

accommodation, we have already incorporated the same in our Constitution, as amandatory accommodation.

There is no ambiguity with regard to the Philippine Constitutions departure from the U.S. Constitution,

insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-accommodation,

whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution.
[128]
Asstated in our Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that these clauses were
largely adopted from the First Amendment of the U.S. Constitution xxxx Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might simply
conclude that the Philippine Constitutions and jurisprudence also inherited the disarray
of U.S.religion clause jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent neutrality approach
might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as
the history of the First Amendment as narrated by the Court
in Everson supports the separationistapproach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens his religious
exercise, he faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as
shown by other provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner that will give to all of
them full force and effect. From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the religious clauses

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 in the Philippine constitutions, and the enforcement of this intent is the goal of construing the
constitution.[129] [citations omitted]

We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of the religion

clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of general

application. For even if it were true that an unbroken line of U.S. Supreme Court decisions has never held that

an individuals religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct

that the State is free to regulate, our own Constitutions have made significant changes to accommodate and

exempt religion. Philippine jurisprudence shows that the Court has allowed exemptions from a law of

general application, in effect, interpreting our religion clauses to cover both mandatory and permissive

accommodations.[130]

To illustrate, in American Bible Society v. City of Manila, [131] the Court granted to plaintiff exemption from

a law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance

to secure a mayors permit and a municipal license as ordinarily required of those engaged in the business of

general merchandise under the citys ordinances. Plaintiff argued that this amounted to religious censorship and

restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and

other religious literature to the people of the Philippines. Although the Court categorically held that the questioned

ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said

merchandise for profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure a license and

pay a license fee or tax would impair its free exercise of religious profession and worship and its right of

dissemination of religious beliefs as the power to tax the exercise of a privilege is the power to control or suppress

its enjoyment. The decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on the grounds that there is
a clear and present danger of any substantive evil which the State has the right to prevent.
(citations omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of

Schools.[132] The case involved several Jehovahs Witnesses who were expelled from school for refusing to salute

the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In

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resolving the religious freedom issue, a unanimous Court overturned an earlier ruling denying such exemption,
[133]
using the grave and imminent danger test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from the schools is not justified. [134]
(emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the

strength directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde

Rope Workers Union[135] is an example of the application of Mr. Justice Carpios theory of permissive

accommodation, where religious exemption is granted by a legislative act. In Victoriano, the constitutionality of

Republic Act No. 3350 was questioned. The said R.A. exempt employees from the application and coverage of a

closed shop agreementmandated in another lawbased on religious objections. A unanimous Court upheld the

constitutionality of the law, holding that government is not precluded from pursuing valid objectives secular in

character even if the incidental result would be favorable to a religion or sect. Interestingly, the secular purpose of

the challenged law which the Court upheld was the advancement of the constitutional right to the free exercise of

religion.[136]

Having established that benevolent neutrality-accommodation is the framework by which free exercise

cases must be decided, the next question then turned to the test that should be used in ascertaining the limits of the

exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that

in cases involving purely conduct based on religious belief, as in the case at bar, the compelling state interest

test, is proper, viz:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and
present danger test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the immediate and grave danger test as well as the
doctrine that a law of general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the compelling state interest test. After Victoriano, German went back to
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 the Gerona rule. Ebralinag then employed the grave and immediate danger test and overruled
the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the clear and present
danger test in the maiden case of American Bible Society. Not surprisingly, all the cases
which employed the clear and present danger or grave and immediate danger test
involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag which employed the
grave and immediate danger test. Victoriano was the only case that employed the compelling
state interest test, but as explained previously, the use of the test was inappropriate to the facts
of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the clear and present danger and grave and immediate danger tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent
neutralityapproach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present
case involves purely conduct arising from religious belief. The compelling state interest test
is proper where conduct is involved for the whole gamut of human conduct has different
effects on the states interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest
of the state would suffice to prevail over the right to religious freedom as this is a fundamental right
that enjoys a preferred position in the hierarchy of rights - the most inalienable and sacred of all
human rights, in the words of Jefferson. This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government
is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the aid
of Almighty God in order to build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail between the states
interest and religious liberty, reasonableness shall be the guide. The compelling state interest
serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the compelling state interest test, by
upholding the paramount interests of the state, seeks to protect the very state, without which,
religious liberty will not be preserved. [137] (citations omitted)

At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the applicability of

the benevolent neutrality framework and compelling state interest test, states that [i]t is true that a test needs

to be applied by the Court in determining the validity of a free exercise claim of exemption as made here by

Escritor. This assertion is inconsistent with the position negating the benevolent

neutrality or accommodation approach. If it were true, indeed, that the religion clauses do
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not requireaccommodations based on the free exercise of religion, then there would be no need for a test to

determine the validity of a free exercise claim, as any and all claims for religious exemptions from a law of general

application would fail.

Mr. Justice Carpio also asserts that [m]aking a distinction between permissive accommodation and

mandatory accommodation is more critically important in analyzing free exercise exemption claims because it

forces the Court to confront how far it can validly set the limits of religious liberty under the Free Exercise Clause,

rather than presenting the separation theory and accommodation theory as opposite concepts, and then rejecting

relevant and instructive American jurisprudence (such as the Smith case) just because it does not espouse the

theory selected. He then asserts that the Smith doctrine cannot be dismissed because it does not really espouse

the strict neutrality approach, but more of permissive accommodation.

Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith is that only

legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim

of religion exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine

actually espouses the theory of accommodation or benevolent neutrality, the accommodation is limited to the

permissive, or legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious

exemptions directly under the Free Exercise Clause because Smith does not recognize such exemption.

Moreover, Mr. Justice Carpios advocacy of the Smith doctrine would effectively render the Free Exercise

protectiona fundamental right under our Constitutionnugatory because he would deny its status as an

independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process. We explained this

process in detail, by showing the questions which must be answered in each step, viz:

First, [H]as the statute or government action created a burden on the free exercise of
religion? The courts often look into the sincerity of the religious belief, but without inquiring into
the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. xxx

xxx xxx xxx

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 Second, the court asks: [I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty? In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do more
than assert the objectives at risk if exemption is given; it must precisely show how and to what
extent those objectives will be undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: [H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state? The analysis requires the state to show that the means in
which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on religious liberties xxx.
[138]
[citations omitted]

Again, the application of the compelling state interest test could result to three situations

of accommodation: First, mandatory accommodation would result if the Court finds that accommodation

is required by the Free Exercise Clause. Second, if the Court finds that the State may, but is not required to,

accommodate religious interests,permissive accommodation results. Finally, if the Court finds that that

establishment concerns prevail over potential accommodation interests, then it must rule that

theaccommodation is prohibited.

One of the central arguments in Mr. Justice Carpios dissent is that only permissive accommodation can

carve out an exemption from a law of general application. He posits the view that the law should prevail in the

absence of a legislative exemption, and the Court cannot make the accommodation or exemption.

Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases of American

Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent

neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but

also mandatory accommodations. Thus, an exemption from a law of general application is possible, even if

anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an

accommodation/exemption to a religious act from the application of general penal laws, permissive accommodation

based on religious freedom has been granted with respect to one of the crimes penalized under the Revised Penal

Code, that of bigamy.

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 In the U.S. case of Reynolds v. United States,[139] the U.S. Court expressly denied to Mormons an

exemption from a general federal law criminalizing polygamy, even if it was proven that the practice constituted a

religious duty under their faith. [140] In contradistinction, Philippine law accommodates the same practice among

Moslems, through a legislative act. For while the act of marrying more than one still constitutes bigamy under the

Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the

Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a person marriedunder

Muslim law. Thus, by legislative action, accommodation is granted of a Muslim practice which would otherwise

violate a valid and general criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in

our Decision dated August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik,[141] he

stated that a Muslim Judge is not criminally liable for bigamy because Sharia law allows a Muslim to have more

than one wife.

From the foregoing, the weakness of Mr. Justice Carpios permissive-accommodation only advocacy in

this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that the guaranty of

religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from generally

applicable laws to individuals whose religious practice conflict with those laws, his theory is infirmed by the

showing that the benevolent neutrality approach which allows for both mandatory and permissive

accommodations was unequivocally adopted by our framers in the Philippine Constitution, our legislature,

and our jurisprudence.

Parenthetically, it should be pointed out that a permissive accommodation-only stance is the antithesis to

the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right

and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not

applicable when the law in question is a generally applicable criminallaw. Stated differently, even if Mr. Justice

Carpio conceded that there is no question that in the Philippine context, accommodations are made, the question

remains as to how far the exemptions will be made and who would make these exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the question of

mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed legislative

accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding that the Free

Exercise Clause required the accommodation, or mandatory accommodations) has already been decided, not

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just once, but twice by the Court. Thus, the crux of the matter is whether this Court can make exemptions as

in Ebralinag and the American Bible Society, in cases involving criminal laws of general application.

We hold that the Constitution itself mandates the Court to do so for the following reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion

clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and

given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of mandatory

accommodations, was to address the inadvertent burdensome effect that an otherwise facially neutral law would

have on religious exercise. Just because the law is criminal in nature, therefore, should not bring it out of the ambit

of the Free Exercise Clause. As stated by Justice OConnor in her concurring opinion in Smith, [t]here is nothing

talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral towards

religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively

as laws aimed at religion.[142]

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions

who are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to

protect adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and

indifference and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:

....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus
not infrequently, they come into conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with religious practice. At times, this
effect is unavoidable as a practical matter because some laws are so necessary to the common
good that exceptions are intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable that only indifference or
hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and
executive officials are frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either unknown at the
time of enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena.

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 Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be

applied for the first time, as an exemption of such nature, albeit by legislative act, has already been granted to

Moslem polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis--vis the other fundamental rights in the

Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the

Religion Clauses are stated in absolute terms, unqualified by the requirement of due process,

unreasonableness, or lawful order. Only the right to free speech is comparable in its absolute grant. Given the

unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a claim of exemption

based on the Free Exercise Clause, solely on the premise that the law in question is a general criminal law. [143] If

the burden is great and the sincerity of the religious belief is not in question, adherence to the benevolent

neutrality-accommodation approach require that the Court make an individual determination and not dismiss the

claim outright.

At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation

approach does not mean that the Court ought to grant exemptions every time a free exercise claim comes before

it. This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to

entertain. Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the

interest of the state should also be afforded utmost protection. This is precisely the purpose of the testto

draw the line between mandatory, permissible and forbidden religious exercise. Thus, under the framework, the

Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in question

offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded

by the religion clauses of the Constitution.[144] As stated in the Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set
a doctrine on the ideal towards which religious clause jurisprudence should be directed. We here
lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but more importantly, because
our constitutional history and interpretation indubitably show that benevolent neutrality is
the launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious
liberty not only for a minority, however small- not only for a majority, however large but
for each of us to the greatest extent possible within flexible constitutional limits. [145]

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 II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be

resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the careful

application of the compelling state interest test, i.e., determining whether respondent is entitled to

exemption, an issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officers

report,[146] along with the evidence submitted by the OSG, this case is once again with us, to resolve the

penultimate question of whether respondent should be found guilty of the administrative charge of disgraceful and

immoral conduct. It is at this point then that we examine the report and documents submitted by the hearing officer

of this case, and apply the three-step process of the compelling state interest test based on the evidence

presented by the parties, especially the government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and

centrality of respondents claimed religious belief and practice are beyond serious doubt. [147] Thus, having

previously established the preliminary conditions required by the compelling state interest test, i.e., that a law

or government practice inhibits the free exercise of respondents religious beliefs, and there being no doubt as to

the sincerity and centrality of her faith to claim the exemption based on the free exercise clause, the burden

shifted to the government to demonstrate that the law or practice justifies a compelling secular objective and that

it is the least restrictive means of achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate the gravest abuses,

endangering paramount interests which could limit or override respondents fundamental right to

religious freedom. Neither did the government exert any effort to show that the means it seeks to achieve

its legitimate state objective is the least intrusive means.

The OSG merely offered the following as exhibits and their purposes:

1. EXHIBIT A-OSG AND SUBMARKING The September 30, 2003 Letter to the OSG of Bro.
Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract Society of the
Philippines, Inc.

PURPOSE: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondents claimed religious belief and practice.

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 2. EXHIBIT B-OSG AND SUBMARKING The duly notarized certification dated September 30,
2003 issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed religious
belief and practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a
purely internal arrangement within the congregation of the Jehovahs Witnesses, cannot be a
source of any legal protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override

respondents claimed religious belief and practice, in order to protect marriage and the family as basic social

institutions. The Solicitor General, quoting the Constitution [148] and the Family Code,[149] argues that marriage and

the family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in the

Declaration of Pledging Faithfulness should not be recognized or given effect, as it is utterly destructive of the

avowed institutions of marriage and the family for it reduces to a mockery these legally exalted and socially

significant institutions which in their purity demand respect and dignity. [150]

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he

asserts that the State has a compelling interest in the preservation of marriage and the family as basic social

institutions, which is ultimately the public policy underlying the criminal sanctions against concubinage and bigamy.

He also argues that in dismissing the administrative complaint against respondent, the majority opinion effectively

condones and accords a semblance of legitimacy to her patently unlawful cohabitation... and facilitates the

circumvention of the Revised Penal Code. According to Mr. Justice Carpio, by choosing to turn a blind eye to

respondents criminal conduct, the majority is in fact recognizing a practice, custom or agreement that subverts

marriage. He argues in a similar fashion as regards the states interest in the sound administration of justice.

There has never been any question that the state has an interest in protecting the institutions of marriage

and the family, or even in the sound administration of justice. Indeed, the provisions by which respondents

relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative

Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage and family in the Civil

Code and Family Code, all clearly demonstrate the States need to protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in

our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights the

most inalienable and sacred of human rights, in the words of Jefferson. Hence, it is not enough to contend

that the states interest is important, because our Constitution itself holds the right to religious freedom sacred. The
161
State must articulate in specific terms the state interest involved in preventing the exemption, which must

be compelling, for only the gravest abuses, endangering paramount interests can limit the fundamental right to

religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause as a source of right by itself.

Thus, it is not the States broad interest in protecting the institutions of marriage and the family, or even in

the sound administration of justice that must be weighed against respondents claim, but the States narrow

interest in refusing to make an exception for the cohabitation which respondents faith finds moral. In other

words, the government must do more than assert the objectives at risk if exemption is given; it must

precisely show how and to what extent those objectives will be undermined if exemptions are granted .
[151]
This, the Solicitor General failed to do.

To paraphrase Justice Blackmuns application of the compelling interest test, the States interest in

enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely

abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is

essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case at

bar, the State has not evinced any concrete interest in enforcing the concubinage or bigamy charges against

respondent or her partner. The State has never sought to prosecute respondent nor her partner. The States

asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. Incidentally, as

echoes of the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4,

2003, to deny the exemption would effectively break up an otherwise ideal union of two individuals who have

managed to stay together as husband and wife [approximately twenty-five years] and have the effect of defeating

the very substance of marriage and the family.

The Solicitor General also argued against respondents religious freedom on the basis of morality, i.e., that

the conjugal arrangement of respondent and her live-in partner should not be condoned because adulterous

relationships are constantly frowned upon by society; [152] and that State laws on marriage, which are moral in

nature, take clear precedence over the religious beliefs and practices of any church, religious sect or denomination

on marriage. Verily, religious beliefs and practices should not be permitted to override laws relating to public policy

such as those of marriage.[153]

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 The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in

her dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have

already been addressed in our decision dated August 4, 2003.[154] In said Decision, we noted that Mme. Justice

Ynares-Santiagos dissenting opinion dwelt more on the standards of morality, without categorically holding that

religious freedom is not in issue.[155] We, therefore, went into a discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the morality it
sanctions.[156] Thus, when the law speaks of immorality in the Civil Service Law or immoral in the
Code of Professional Responsibility for lawyers, [157] or public morals in the Revised Penal Code,
[158]
or morals in the New Civil Code, [159] or moral character in the Constitution, [160] the distinction
between public and secular morality on the one hand, and religious morality, on the other, should
be kept in mind;[161]

(b) Although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling
state interests;[162]

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm where
it has authority.[163]

(d) Having distinguished between public and secular morality and religious morality, the
more difficult task is determining which immoral acts under this public and secular morality fall
under the phrase disgraceful and immoral conduct for which a government employee may be held
administratively liable.[164] Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to another which
Philippine law and jurisprudence consider both immoral and illegal. [165]

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 (e) While there is no dispute that under settled jurisprudence, respondents conduct
constitutes disgraceful and immoral conduct, the case at bar involves the defense of religious
freedom, therefore none of the cases cited by Mme. Justice Ynares-Santiago apply. [166] There is no
jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of
the Jehovahs Witnesses under the same circumstances as respondent will not prevail over the
laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that
her conduct is likewise so odious and barbaric as to be immoral and punishable by law.[167]

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with

conduct prejudicial to the best interest of the service, and we reiterate that the dissent offends due process as

respondent was not given an opportunity to defend herself against the charge of conduct prejudicial to the best

interest of the service. Indeed, there is no evidence of the alleged prejudice to the best interest of the service. [168]

Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court grants

respondent exemption from the laws which respondent Escritor has been charged to have violated, the exemption

would not apply to Catholics who have secured church annulment of their marriage even without a final annulment

from a civil court. First, unlike Jehovahs Witnesses, the Catholic faith considers cohabitation without marriage as

immoral. Second, but more important, the Jehovahs Witnesses have standards and procedures which must be

followed before cohabitation without marriage is given the blessing of the congregation. This includes an

investigative process whereby the elders of the congregation verify the circumstances of the declarants. Also, the

Declaration is not a blanket authority to cohabit without marriage because once all legal impediments for the couple

are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he

raises the issue of equality among religions, we look to the words of the Religion Clauses, which clearly single out

religion for both a benefit and a burden: No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof On its face, the language grants a unique advantage to religious conduct,

protecting it from governmental imposition; and imposes a unique disadvantage, preventing the government from

supporting it. To understand this as a provision which puts religion on an equal footing with other bases for action

seems to be a curious reading. There are no free exercise of establishment provisions for science, sports,

164
philosophy, or family relations. The language itself thus seems to answer whether we have a paradigm of equality

or liberty; the language of the Clause is clearly in the form of a grant of liberty. [169]

In this case, the governments conduct may appear innocent and nondiscriminatory but in effect, it is

oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the

minority from the majority, the question of which perspective is appropriate would seem easy to answer. Moreover,

the text, history, structure and values implicated in the interpretation of the clauses, all point toward this

perspective. Thus, substantive equalitya reading of the religion clauses which leaves both politically dominant

and the politically weak religious groups equal in their inability to use the government (law) to assist their own

religion or burden othersmakes the most sense in the interpretation of the Bill of Rights, a document designed to

protect minorities and individuals from mobocracy in a democracy (the majority or a coalition of minorities). [170]

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room

for accommodation of religious exercises as required by the Free Exercise Clause. [171] Thus, in arguing that

respondent should be held administratively liable as the arrangement she had was illegal per se because, by

universally recognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to good

conscience,[172] the Solicitor General failed to appreciate that benevolent neutrality could allow

for accommodation of morality based on religion, provided it does not offend compelling state interests. [173]

Finally, even assuming that the OSG has proved a compelling state interest, it has to further

demonstrate that the state has used the least intrusive means possible so that the free exercise is not

infringed any more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to

achieve its legitimate state end that imposes as little as possible on religious liberties. [174] Again, the Solicitor

General utterly failed to prove this element of the test. Other than the two documents offered as cited above which

established the sincerity of respondents religious belief and the fact that the agreement was an internal

arrangement within respondents congregation, no iota of evidence was offered. In fact, the records are bereft of

even a feeble attempt to procure any such evidence to show that the means the state adopted in pursuing this

compelling interest is the least restrictive to respondents religious freedom.

165
 Thus, we find that in this particular case and under these distinct circumstances, respondent

Escritors conjugal arrangement cannot be penalized as she has made out a case for exemption from the law

based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in

order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred

freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to

be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the

freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the

Infinite.

IN VIEW WHEREOF, the instant administrative complaint is DISMISSED.

SO ORDERED.

166
AGLIPAY VS RUIZ
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.

Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.

LAUREL, J.:

The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance
from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage
stamps commemorative of the Thirty-third International Eucharistic Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage
stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty,
requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the
United States the designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown,
cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50
centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains
unsold. The further sale of the stamps is sought to be prevented by the petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case,
although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial
functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to
. . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which
are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226,
Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are
undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case,
which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or
tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or
in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of
actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
167
The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing
and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that
this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution
of the Philippines, which provides as follows:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for
the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium.

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the
necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our
history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both,
for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the
furtherance of their recognized this principle of separation of church and state in the early stages of our
constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December
10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine
Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both
religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is
not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality,
its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity
the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance
upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended
thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher,
minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution,
orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction
in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation
to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and
made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to
beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against
religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised
Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the
provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:

No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE
SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE
168
 APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW
DESIGNS, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and
by the authority of the same:

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any
funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with
new designs, and other expenses incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby
authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as
often as may be deemed advantageous to the Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of
postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the
manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance
of the postage stamps in question appears to have been approved by authority of the President of the Philippines in
a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent
alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the
revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still
remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary
power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does
not authorize the appropriation, use or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the postage stamps in question by the
Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money
derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of
Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and
selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned
merely, took advantage of an event considered of international importance "to give publicity to the Philippines and
its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines,
June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed
(Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines
and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress,
Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines,
as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to
be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the
Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarassed in its activities simply because of incidental results, more or less religious
in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The
169
main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide
Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete
separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in
the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of
our political development nothing is done by the Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection,
examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that
there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the
approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the
petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming
within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.

170
GARCES VS ESTENZO
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-53487 May 25, 1981

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS DAGAR and JESUS
EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc City Branch
V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen
GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay Secretary
CONCHITA MARAYA and Barangay Treasurer LUCENA BALTAZAR, respondents.

AQUINO, J.:1wph1.t

This case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc City, regarding
the acquisition of the wooden image of San Vicente Ferrer to be used in the celebration of his annual feast day.
That issue was spawned by the controversy as to whether the parish priest or a layman should have the custody of
the image.

On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socio-religious
celebration" every fifth day of April "of the feast day of Seor San Vicente Ferrer, the patron saint of Valencia".

That resolution designated the members of nine committees who would take charge of the 1976 festivity. lt provided
for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting shed as the
barangay's projects. Funds for the two projects would be obtained through the selling of tickets and cash donations
" (Exh A or 6).

On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance with the
practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of the fiesta, would be
the caretaker of the image of San Vicente Ferrer and that the image would remain in his residence for one year and
until the election of his successor as chairman of the next feast day.

It was further provided in the resolution that the image would be made available to the Catholic parish church during
the celebration of the saint's feast day (Exh. B or 7).

Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general assembly
on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and 5).

Funds were raised by means of solicitations0 and cash donations of the barangay residents and those of the
neighboring places of Valencia. With those funds, the waiting shed was constructed and the wooden image of San
Vicente Ferrer was acquired in Cebu City by the barangay council for four hundred pesos (Exh. F-l, 3 and 4).

171
On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay Valencia so that
the devotees could worship the saint during the mass for the fiesta.

A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmea refused to return that
image to the barangay council on the pretext that it was the property of the church because church funds were used
for its acquisition.

Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father Osmea
allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso, apparently in connection
with the disputed image. That incident provoked Veloso to file against Father Osmea in the city court of Ormoc
City a charge for grave oral defamation.

Father Osmea retaliated by filing administrative complaints against Veloso with the city mayor's office and the
Department of Local Government and Community Development on the grounds of immorality, grave abuse of
authority, acts unbecoming a public official and ignorance of the law.

Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father Osmea
did not accede to the request of Cabatingan to have custody of the image and "maliciously ignored" the council's
Resolution No. 6, the council enacted on May 12, 1976 Resolution No. 10, authorizing the hiring of a lawyer to file a
replevin case against Father Osmea for the recovery of the image (Exh. C or 8). On June 14, 1976, the barangay
council passed Resolution No. 12, appointing Veloso as its representative in the replevin case (Exh. D or 9).

The replevin case was filed in the city court of Ormoc City against Father Osmea and Bishop Cipriano Urgel (Exh.
F). After the barangay council had posted a cash bond of eight hundred pesos, Father Osmea turned over the
image to the council (p. 10, Rollo). ln his answer to the complaint for replevin, he assailed the constitutionality of the
said resolutions (Exh. F-1).

Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic laymen,
Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members (excluding two members)
a complaint in the Court of First Instance at Ormoc City, praying for the annulment of the said resolutions (Civil
Case No. 1680-0).

The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners appealed under
Republic Act No. 5440. The petitioners contend that the barangay council was not duly constituted because lsidoro
M. Maago, Jr., the chairman of the kabataang barangay, was not allowed to participate in its sessions.

Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A). Presidential Decree
No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed that all barrios should be known as
barangays and adopted the Revised Barrio Charter as the Barangay Charter.

Barrios are units of municipalities or municipal districts in which they are situated. They are quasi-municipal
corporations endowed with such powers" as are provided by law "for the performance of particular government
functions, to be exercised by and through their respective barrio governments in conformity with law" (Sec. 2,
Revised Barrio Charter, R.A. No. 3590).

The barrio assembly consists of all persons who are residents of the barrio for at least six months, eighteen years
of age or over and Filipino citizens duly registered in the list kept by the barrio secretary (Sec. 4, Ibid).

The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec. 7, Ibid).
Section 3 of Presidential Decree No. 684, which took effect on April 15, 1975, provides that "the barangay youth

172
chairman shall be an ex-officio member of the barangay council", having the same powers and functions as a
barangay councilman.

In this case, Maago, the barangay youth chairman, was notified of the sessions of the barangay council to be held
on March 23 and 26, 1976 but he was not able to attend those sessions because he was working with a
construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).

Maago's absence from the sessions of the barangay council did not render the said resolutions void. There was a
quorum when the said resolutions were passed.

The other contention of the petitioners is that the resolutions contravene the constitutional provisions that "no law
shall be made respecting an establishment of religion" and that "no public money or property shall ever be
appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such. except when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium (Sec. 8, Article
IV and sec. 18[2], Article VIII, Constitution).

That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly establish any
religion, nor abridge religious liberty, nor appropriate public money or property for the benefit of any sect, priest or
clergyman. The image was purchased with private funds, not with tax money. The construction of a waiting shed is
entirely a secular matter.

Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic religion by
using the funds raised by solicitations and donations for the purchase of the patron saint's wooden image and
making the image available to the Catholic church.

The preposterousness of that argument is rendered more evident by the fact that counsel advanced that argument
in behalf of the petitioner, Father Osmea the parish priest.

The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint,
San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the
religious beliefs of the barrio residents. One of the highlights of the fiesta was the mass. Consequently, the image of
the patron saint had to be placed in the church when the mass was celebrated.

If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any
activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image)
cannot be branded as illegal.

As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in
rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses.

The barangay council designated a layman as the custodian of the wooden image in order to forestall any suspicion
that it is favoring the Catholic church. A more practical reason for that arrangement would be that the image, if
placed in a layman's custody, could easily be made available to any family desiring to borrow the image in
connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore that the said
resolutions favored the Catholic church. On the other hand, petitioners Dagar and Edullantes swore that the

173
resolutions prejudiced the Catholics because they could see the image in the church only once a year or during the
fiesta (Exh. H and J).

We find that the momentous issues of separation of church and state, freedom of religion annd the use of public
money to favor any sect or church are not involved at all in this case even remotely or indirectly. lt is not a
microcosmic test case on those issues.

This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties had been
more diplomatic and tactful and if Father Osmea had taken the trouble of causing contributions to be solicited from
his own parishioners for the purchase of another image of San Vicente Ferrer to be installed in his church.

There can be no question that the image in question belongs to the barangay council. Father Osmea claim that it
belongs to his church is wrong. The barangay council, as owner of the image, has the right to determine who
should have custody thereof.

If it chooses to change its mind and decides to give the image to the Catholic church. that action would not violate
the Constitution because the image was acquired with private funds and is its private property.

The council has the right to take measures to recover possession of the image by enacting Resolutions Nos. 10
and 12.

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is
violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning
the use of public money or property.

In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty thousand pesos for
the cost of plates and the printing of postage stamps with new designs. Under the law, the Director of Posts, with
the approval of the Department Head and the President of the Philippines, issued in 1936 postage stamps to
commemorate the celebration in Manila of the 33rd International Eucharistic Congress sponsored by the Catholic
Church.

The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the stamps showed a
map of the Philippines and nothing about the Catholic Church. No religious purpose was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to enjoin the sale
of those commemorative postage stamps.

It was held that the issuance of the stamps, while linked inseparably with an event of a religious character, was not
designed as a propaganda for the Catholic Church. Aglipay's prohibition suit was dismissed.

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307, where a
religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the purpose of raising funds to
meet the expenses for the annual fiesta in honor of the Most Holy Sacrament and the Virgin Lady of Guadalupe,
was held accountable for the funds which it held as trustee. 0

Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the lower court's
judgment dismissing their amended petition is affirmed. No costs.

SO ORDERED.

174
175
IGLESIA NI KRISTO VS GIRONELLA
EN BANC
[A.M. No. 2440-CFI : July 25, 1981.]
IGLESIA NI CRISTO, Complainant, vs. JUDGE LEOPOLDO B. GIRONELLA, COURT OF FIRST INSTANCE OF
ABRA, Respondent.

RESOLUTION
FERNANDO, J.:

It is easily understandable why Mr. Teofilo C. Ramos, Sr. on behalf of the Iglesia ni Cristo would take umbrage on
the portion of the opinion of respondent Judge Leopoldo B. Gironella in the course of acquitting the defendants
accused of Triple Rape. Thus: "it will also be observed that Florencio Ola was released on July 27, 1979, yet no
action was taken by him from July 28, 1979, to August 21 to denounce to the proper authorities what allegedly had
happened to his wife Merlinda Ola. Merlinda Ola, however, is a member of the Iglesia ni Cristo. Her husband
Florencio Ola and her in-laws were still in the process of being convinced to become members of the Iglesia ni
Cristo. As testified to by complainant Merlinda Ola, she also consulted her brothers of the Iglesia ni Cristo as it was
thru their assistance that made possible the institution of this action. Her husband and in-laws are now members of
the Iglesia ni Cristo. It cannot, therefore, be discarded that the filing of the charge was resorted to as a gimmick of
showing to the community of La Paz, Abra in particular and to the public in general that the Iglesia ni Cristo
unhesitatingly helps its member of his/her problem." 1 There was absolutely no need for the last sentence therein
being included. Respondent judge was charged with ignorance of the law and conduct unbecoming a member of
the bench. While the offending portion of such opinion is not impressed with such gravity, disciplinary action
nonetheless is warranted.
As noted in the report of Court Administrator Lorenzo Relova, adopting the memorandum of Deputy Court
Administrator Romeo D. Mendoza: "Respondent judge, in his comment dated January 20, 1981, alleged that the
charges made against him by herein complainant are unfair and unfounded as the decision rendered by him in
Criminal Case No. 2003, acquitting the three (3) accused of Triple Rape, was prepared by him in the honest
conviction that the evidence adduced at the trial of said case was not sufficiently clear to establish the guilt of the
accused beyond reasonable doubt. Respondent judge further contended that the statements complained of are his
honest appraisal and evaluation of the evidence for the prosecution, particularly the statement of the complainant
witness (Merlinda Ola), in addition to the fact that she had always been accompanied in court during the trial by
Ministers of the Iglesia ni Cristo and numerous members of the sect." 2 There was a reply on the part of
complainant, Teofilo Ramos, Sr. who, according to the report, "claimed that the statement made by the herein
respondent judge that the complaining witness had always been accompanied in court during the trial by Ministers
of the Iglesia ni Cristo and numerous members of said sect, was uncalled for and intended to further malign the
Iglesia ni Cristo, thereby seriously putting under doubt respondent judge's competency and integrity as a magistrate
of the law. He also claimed that the inconsistencies in the testimony of the rape victim in the said criminal case were
minor matters that did not disprove the commission of the crime of rape by the members of the police authorities as
well as their identities. Complainant proferred as an excuse for said inconsistencies the fact that the victim is a
simple and unlearned housewife and no malicious motive or evil intent had been shown at the trial which had
impelled said victim to point an accusing finger against the three cranad(3) accused in the subject criminal case." 3
In the state of the record, it was submitted in such report that "on the basis of the pleadings and other documents of
record, respondent judge's liability or lack of it can already be determined without need of further investigation.
Accordingly, the undersigned finds it unnecessary to refer this case to a Justice of the Court of Appeals for
investigation. This Court, in the case of Sta. Maria. v. Ubay, held that 'cumbersome, time-consuming procedure of
investigation need not be resorted to if the allegations in the complaint, the comments thereon, and the documents
presented provide ample basis for a resolution of the complainant's charges.'" 4
This administrative complaint, therefore, is ripe for resolution. The use of the word "gimmick" could offend the
sensibilities of the members of Iglesia ni Cristo. It is not inaccurate to state that as understood in the popular sense,
it is not exactly complimentary. It may indicate lack of sincerity. It is a ploy or device to persuade others to take a
course of action, which without it may not be acceptable. While it would be going too far to assert that intentional

176
deceit is employed, it could have that effect. The Latin maxim, Suggestio falsi est suppressio veri, comes to mind. It
is to be expected that a religious sect accused of having to resort to a "gimmick" to gain converts would certainly be
far from pleased. Freedom of religion 5 implies respect for every creed. No one, much less a public official, is
privileged to characterize the actuation of its adherents in a derogatory sense. It should not be lost sight of either
that the attendance at a trial of many members of a religious sect finds support in the Constitution. The right to a
public trial is safeguarded by the fundamental law. 6 No adverse implication can arise from such an occurrence. It
goes without saying that if their presence would create disorder, it lies within the power of a trial judge to maintain
the proper decorum.
The Court, however, takes into consideration the fact that the right of a court to give expression to its views is
equally deserving of protection. At any rate, it is not an affront to rationality if note be taken that not all members of
the bench are possessed of such an extensive vocabulary in the English language that the misuse of a word is to
be followed automatically by reprisal of a severe character. While under the circumstances, some members of the
Court are of the opinion that censure is warranted, it is the view of the majority that an admonition would suffice.
WHEREFORE, Judge Leopoldo B. Gironella is hereby admonished to be much more careful in the use of language
likely to offend an individual or religious sect.
Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.

177
AMERICAN BIBLE SOCIETY VS CITY OF MANILA

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9637 April 30, 1957

AMERICAN BIBLE SOCIETY, plaintiff-appellant,

vs.
CITY OF MANILA, defendant-appellee.

City Fiscal Eugenio Angeles and Juan Nabong for appellant.

Assistant City Fiscal Arsenio Naawa for appellee.

FELIX, J.:

Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary corporation duly registered and doing
business in the Philippines through its Philippine agency established in Manila in November, 1898, with its principal
office at 636 Isaac Peral in said City. The defendant appellee is a municipal corporation with powers that are to be
exercised in conformity with the provisions of Republic Act No. 409, known as the Revised Charter of the City of
Manila.

In the course of its ministry, plaintiff's Philippine agency has been distributing and selling bibles and/or gospel
portions thereof (except during the Japanese occupation) throughout the Philippines and translating the same into
several Philippine dialects. On May 29 1953, the acting City Treasurer of the City of Manila informed plaintiff that it
was conducting the business of general merchandise since November, 1945, without providing itself with the
necessary Mayor's permit and municipal license, in violation of Ordinance No. 3000, as amended, and Ordinances
Nos. 2529, 3028 and 3364, and required plaintiff to secure, within three days, the corresponding permit and license
fees, together with compromise covering the period from the 4th quarter of 1945 to the 2nd quarter of 1953, in the
total sum of P5,821.45 (Annex A).

Plaintiff protested against this requirement, but the City Treasurer demanded that plaintiff deposit and pay under
protest the sum of P5,891.45, if suit was to be taken in court regarding the same (Annex B). To avoid the closing of
its business as well as further fines and penalties in the premises on October 24, 1953, plaintiff paid to the
defendant under protest the said permit and license fees in the aforementioned amount, giving at the same time
notice to the City Treasurer that suit would be taken in court to question the legality of the ordinances under which,
the said fees were being collected (Annex C), which was done on the same date by filing the complaint that gave
rise to this action. In its complaint plaintiff prays that judgment be rendered declaring the said Municipal Ordinance
No. 3000, as amended, and Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and that the
defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid under protest, together with legal interest
thereon, and the costs, plaintiff further praying for such other relief and remedy as the court may deem just
equitable.

Defendant answered the complaint, maintaining in turn that said ordinances were enacted by the Municipal Board
of the City of Manila by virtue of the power granted to it by section 2444, subsection (m-2) of the Revised
Administrative Code, superseded on June 18, 1949, by section 18, subsection (1) of Republic Act No. 409, known
as the Revised Charter of the City of Manila, and praying that the complaint be dismissed, with costs against
plaintiff. This answer was replied by the plaintiff reiterating the unconstitutionality of the often-repeated ordinances.

Before trial the parties submitted the following stipulation of facts:

178
COME NOW the parties in the above-entitled case, thru their undersigned attorneys and respectfully submit
the following stipulation of facts:

1. That the plaintiff sold for the use of the purchasers at its principal office at 636 Isaac Peral, Manila,
Bibles, New Testaments, bible portions and bible concordance in English and other foreign languages
imported by it from the United States as well as Bibles, New Testaments and bible portions in the local
dialects imported and/or purchased locally; that from the fourth quarter of 1945 to the first quarter of 1953
inclusive the sales made by the plaintiff were as follows:

Quarter Amount of Sales

4th quarter 1945 P1,244.21

1st quarter 1946 2,206.85

2nd quarter 1946 1,950.38

3rd quarter 1946 2,235.99

4th quarter 1946 3,256.04

1st quarter 1947 13,241.07

2nd quarter 1947 15,774.55

3rd quarter 1947 14,654.13

4th quarter 1947 12,590.94

1st quarter 1948 11,143.90

179
2nd quarter 1948 14,715.26

3rd quarter 1948 38,333.83

4th quarter 1948 16,179.90

1st quarter 1949 23,975.10

2nd quarter 1949 17,802.08

3rd quarter 1949 16,640.79

4th quarter 1949 15,961.38

1st quarter 1950 18,562.46

2nd quarter 1950 21,816.32

3rd quarter 1950 25,004.55

4th quarter 1950 45,287.92

1st quarter 1951 37,841.21

2nd quarter 1951 29,103.98

180
 3rd quarter 1951 20,181.10

4th quarter 1951 22,968.91

1st quarter 1952 23,002.65

2nd quarter 1952 17,626.96

3rd quarter 1952 17,921.01

4th quarter 1952 24,180.72

1st quarter 1953 29,516.21

2. That the parties hereby reserve the right to present evidence of other facts not herein stipulated.

WHEREFORE, it is respectfully prayed that this case be set for hearing so that the parties may present
further evidence on their behalf. (Record on Appeal, pp. 15-16).

When the case was set for hearing, plaintiff proved, among other things, that it has been in existence in the
Philippines since 1899, and that its parent society is in New York, United States of America; that its, contiguous real
properties located at Isaac Peral are exempt from real estate taxes; and that it was never required to pay any
municipal license fee or tax before the war, nor does the American Bible Society in the United States pay any
license fee or sales tax for the sale of bible therein. Plaintiff further tried to establish that it never made any profit
from the sale of its bibles, which are disposed of for as low as one third of the cost, and that in order to maintain its
operating cost it obtains substantial remittances from its New York office and voluntary contributions and gifts from
certain churches, both in the United States and in the Philippines, which are interested in its missionary work.
Regarding plaintiff's contention of lack of profit in the sale of bibles, defendant retorts that the admissions of plaintiff-
appellant's lone witness who testified on cross-examination that bibles bearing the price of 70 cents each from
plaintiff-appellant's New York office are sold here by plaintiff-appellant at P1.30 each; those bearing the price of
$4.50 each are sold here at P10 each; those bearing the price of $7 each are sold here at P15 each; and those
bearing the price of $11 each are sold here at P22 each, clearly show that plaintiff's contention that it never makes
any profit from the sale of its bible, is evidently untenable.

After hearing the Court rendered judgment, the last part of which is as follows:

As may be seen from the repealed section (m-2) of the Revised Administrative Code and the repealing
portions (o) of section 18 of Republic Act No. 409, although they seemingly differ in the way the legislative
intent is expressed, yet their meaning is practically the same for the purpose of taxing the merchandise
mentioned in said legal provisions, and that the taxes to be levied by said ordinances is in the nature of
181
 percentage graduated taxes (Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1, Group 2, of
Ordinance No. 2529, as amended by Ordinance No. 3364).

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the opinion and so holds that this
case should be dismissed, as it is hereby dismissed, for lack of merits, with costs against the plaintiff.

Not satisfied with this verdict plaintiff took up the matter to the Court of Appeals which certified the case to Us for
the reason that the errors assigned to the lower Court involved only questions of law.

Appellant contends that the lower Court erred:

1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended, are not unconstitutional;

2. In holding that subsection m-2 of Section 2444 of the Revised Administrative Code under which
Ordinances Nos. 2592 and 3000 were promulgated, was not repealed by Section 18 of Republic Act No.
409;

3. In not holding that an ordinance providing for taxes based on gross sales or receipts, in order to be valid
under the new Charter of the City of Manila, must first be approved by the President of the Philippines; and

4. In holding that, as the sales made by the plaintiff-appellant have assumed commercial proportions, it
cannot escape from the operation of said municipal ordinances under the cloak of religious privilege.

The issues. As may be seen from the proceeding statement of the case, the issues involved in the present
controversy may be reduced to the following: (1) whether or not the ordinances of the City of Manila, Nos. 3000, as
amended, and 2529, 3028 and 3364, are constitutional and valid; and (2) whether the provisions of said ordinances
are applicable or not to the case at bar.

Section 1, subsection (7) of Article III of the Constitution of the Republic of the Philippines, provides that:

(7) No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof,
and the free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religion test shall be required for the exercise of civil or political
rights.

Predicated on this constitutional mandate, plaintiff-appellant contends that Ordinances Nos. 2529 and 3000, as
respectively amended, are unconstitutional and illegal in so far as its society is concerned, because they provide for
religious censorship and restrain the free exercise and enjoyment of its religious profession, to wit: the distribution
and sale of bibles and other religious literature to the people of the Philippines.

Before entering into a discussion of the constitutional aspect of the case, We shall first consider the provisions of
the questioned ordinances in relation to their application to the sale of bibles, etc. by appellant. The records, show
that by letter of May 29, 1953 (Annex A), the City Treasurer required plaintiff to secure a Mayor's permit in
connection with the society's alleged business of distributing and selling bibles, etc. and to pay permit dues in the
sum of P35 for the period covered in this litigation, plus the sum of P35 for compromise on account of plaintiff's
failure to secure the permit required by Ordinance No. 3000 of the City of Manila, as amended. This Ordinance is of
general application and not particularly directed against institutions like the plaintiff, and it does not contain any
provisions whatever prescribing religious censorship nor restraining the free exercise and enjoyment of any
religious profession. Section 1 of Ordinance No. 3000 reads as follows:

SEC. 1. PERMITS NECESSARY. It shall be unlawful for any person or entity to conduct or engage in
any of the businesses, trades, or occupations enumerated in Section 3 of this Ordinance or other
businesses, trades, or occupations for which a permit is required for the proper supervision and
enforcement of existing laws and ordinances governing the sanitation, security, and welfare of the public
and the health of the employees engaged in the business specified in said section 3 hereof, WITHOUT

182
 FIRST HAVING OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE NECESSARY
LICENSE FROM THE CITY TREASURER.

The business, trade or occupation of the plaintiff involved in this case is not particularly mentioned in Section 3 of
the Ordinance, and the record does not show that a permit is required therefor under existing laws and ordinances
for the proper supervision and enforcement of their provisions governing the sanitation, security and welfare of the
public and the health of the employees engaged in the business of the plaintiff. However, sections 3 of Ordinance
3000 contains item No. 79, which reads as follows:

79. All other businesses, trades or occupations not

mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00

Therefore, the necessity of the permit is made to depend upon the power of the City to license or tax said business,
trade or occupation.

As to the license fees that the Treasurer of the City of Manila required the society to pay from the 4th quarter of
1945 to the 1st quarter of 1953 in the sum of P5,821.45, including the sum of P50 as compromise, Ordinance No.
2529, as amended by Ordinances Nos. 2779, 2821 and 3028 prescribes the following:

SEC. 1. FEES. Subject to the provisions of section 578 of the Revised Ordinances of the City of Manila,
as amended, there shall be paid to the City Treasurer for engaging in any of the businesses or occupations
below enumerated, quarterly, license fees based on gross sales or receipts realized during the preceding
quarter in accordance with the rates herein prescribed: PROVIDED, HOWEVER, That a person engaged in
any businesses or occupation for the first time shall pay the initial license fee based on the probable gross
sales or receipts for the first quarter beginning from the date of the opening of the business as indicated
herein for the corresponding business or occupation.

xxx xxx xxx

GROUP 2. Retail dealers in new (not yet used) merchandise, which dealers are not yet subject to the
payment of any municipal tax, such as (1) retail dealers in general merchandise; (2) retail dealers
exclusively engaged in the sale of . . . books, including stationery.

xxx xxx xxx

As may be seen, the license fees required to be paid quarterly in Section 1 of said Ordinance No. 2529, as
amended, are not imposed directly upon any religious institution but upon those engaged in any of the business or
occupations therein enumerated, such as retail "dealers in general merchandise" which, it is alleged, cover the
business or occupation of selling bibles, books, etc.

Chapter 60 of the Revised Administrative Code which includes section 2444, subsection (m-2) of said legal body, as
amended by Act No. 3659, approved on December 8, 1929, empowers the Municipal Board of the City of Manila:

(M-2) To tax and fix the license fee on (a) dealers in new automobiles or accessories or both, and (b) retail
dealers in new (not yet used) merchandise, which dealers are not yet subject to the payment of any
municipal tax.

For the purpose of taxation, these retail dealers shall be classified as (1) retail dealers in general
merchandise, and (2) retail dealers exclusively engaged in the sale of (a) textiles . . . (e) books, including
stationery, paper and office supplies, . . .: PROVIDED, HOWEVER, That the combined total tax of any
debtor or manufacturer, or both, enumerated under these subsections (m-1) and (m-2), whether dealing in
one or all of the articles mentioned herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED PESOS PER
ANNUM.

183
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000, as amended, were enacted in virtue of
the power that said Act No. 3669 conferred upon the City of Manila. Appellant, however, contends that said
ordinances are longer in force and effect as the law under which they were promulgated has been expressly
repealed by Section 102 of Republic Act No. 409 passed on June 18, 1949, known as the Revised Manila Charter.

Passing upon this point the lower Court categorically stated that Republic Act No. 409 expressly repealed the
provisions of Chapter 60 of the Revised Administrative Code but in the opinion of the trial Judge, although Section
2444 (m-2) of the former Manila Charter and section 18 (o) of the new seemingly differ in the way the legislative
intent was expressed, yet their meaning is practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances Nos. 2529 and 3000, as amended, are to be
considered as still in full force and effect uninterruptedly up to the present.

Often the legislature, instead of simply amending the pre-existing statute, will repeal the old statute in its
entirety and by the same enactment re-enact all or certain portions of the preexisting law. Of course, the
problem created by this sort of legislative action involves mainly the effect of the repeal upon rights and
liabilities which accrued under the original statute. Are those rights and liabilities destroyed or preserved?
The authorities are divided as to the effect of simultaneous repeals and re-enactments. Some adhere to the
view that the rights and liabilities accrued under the repealed act are destroyed, since the statutes from
which they sprang are actually terminated, even though for only a very short period of time. Others, and
they seem to be in the majority, refuse to accept this view of the situation, and consequently maintain that
all rights an liabilities which have accrued under the original statute are preserved and may be enforced,
since the re-enactment neutralizes the repeal, therefore, continuing the law in force without interruption.
(Crawford-Statutory Construction, Sec. 322).

Appellant's counsel states that section 18 (o) of Republic Act No, 409 introduces a new and wider concept of
taxation and is different from the provisions of Section 2444(m-2) that the former cannot be considered as a
substantial re-enactment of the provisions of the latter. We have quoted above the provisions of section 2444(m-2)
of the Revised Administrative Code and We shall now copy hereunder the provisions of Section 18, subdivision ( o)
of Republic Act No. 409, which reads as follows:

(o) To tax and fix the license fee on dealers in general merchandise, including importers and indentors,
except those dealers who may be expressly subject to the payment of some other municipal tax under the
provisions of this section.

Dealers in general merchandise shall be classified as (a) wholesale dealers and (b) retail dealers. For
purposes of the tax on retail dealers, general merchandise shall be classified into four main classes:
namely (1) luxury articles, (2) semi-luxury articles, (3) essential commodities, and (4) miscellaneous
articles. A separate license shall be prescribed for each class but where commodities of different classes
are sold in the same establishment, it shall not be compulsory for the owner to secure more than one
license if he pays the higher or highest rate of tax prescribed by ordinance. Wholesale dealers shall pay the
license tax as such, as may be provided by ordinance.

For purposes of this section, the term "General merchandise" shall include poultry and livestock,
agricultural products, fish and other allied products.

The only essential difference that We find between these two provisions that may have any bearing on the case at
bar, is that, while subsection (m-2) prescribes that the combined total tax of any dealer or manufacturer, or both,
enumerated under subsections (m-1) and (m-2), whether dealing in one or all of the articles mentioned therein, shall
not be in excess of P500 per annum, the corresponding section 18, subsection (o) of Republic Act No. 409, does
not contain any limitation as to the amount of tax or license fee that the retail dealer has to pay per annum. Hence,
and in accordance with the weight of the authorities above referred to that maintain that "all rights and liabilities
which have accrued under the original statute are preserved and may be enforced, since the reenactment
neutralizes the repeal, therefore continuing the law in force without interruption", We hold that the questioned
ordinances of the City of Manila are still in force and effect.

Plaintiff, however, argues that the questioned ordinances, to be valid, must first be approved by the President of the
Philippines as per section 18, subsection (ii) of Republic Act No. 409, which reads as follows:
184
 (ii) To tax, license and regulate any business, trade or occupation being conducted within the City of
Manila, not otherwise enumerated in the preceding subsections, including percentage taxes based on
gross sales or receipts, subject to the approval of the PRESIDENT, except amusement taxes.

but this requirement of the President's approval was not contained in section 2444 of the former Charter of the City
of Manila under which Ordinance No. 2529 was promulgated. Anyway, as stated by appellee's counsel, the
business of "retail dealers in general merchandise" is expressly enumerated in subsection ( o), section 18 of
Republic Act No. 409; hence, an ordinance prescribing a municipal tax on said business does not have to be
approved by the President to be effective, as it is not among those referred to in said subsection ( ii). Moreover, the
questioned ordinances are still in force, having been promulgated by the Municipal Board of the City of Manila
under the authority granted to it by law.

The question that now remains to be determined is whether said ordinances are inapplicable, invalid or
unconstitutional if applied to the alleged business of distribution and sale of bibles to the people of the Philippines
by a religious corporation like the American Bible Society, plaintiff herein.

With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779, 2821 and 3028, appellant contends
that it is unconstitutional and illegal because it restrains the free exercise and enjoyment of the religious profession
and worship of appellant.

Article III, section 1, clause (7) of the Constitution of the Philippines aforequoted, guarantees the freedom of
religious profession and worship. "Religion has been spoken of as a profession of faith to an active power that
binds and elevates man to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has reference to one's views of his
relations to His Creator and to the obligations they impose of reverence to His being and character, and obedience
to His Will (Davis vs. Beason, 133 U.S., 342). The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate religious information. Any restraints of such
right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent". (Taada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the license fee herein involved is imposed
upon appellant for its distribution and sale of bibles and other religious literature:

In the case of Murdock vs. Pennsylvania, it was held that an ordinance requiring that a license be obtained
before a person could canvass or solicit orders for goods, paintings, pictures, wares or merchandise cannot
be made to apply to members of Jehovah's Witnesses who went about from door to door distributing
literature and soliciting people to "purchase" certain religious books and pamphlets, all published by the
Watch Tower Bible & Tract Society. The "price" of the books was twenty-five cents each, the "price" of the
pamphlets five cents each. It was shown that in making the solicitations there was a request for additional
"contribution" of twenty-five cents each for the books and five cents each for the pamphlets. Lesser sum
were accepted, however, and books were even donated in case interested persons were without funds.

On the above facts the Supreme Court held that it could not be said that petitioners were engaged in
commercial rather than a religious venture. Their activities could not be described as embraced in the
occupation of selling books and pamphlets. Then the Court continued:

"We do not mean to say that religious groups and the press are free from all financial burdens of
government. See Grosjean vs. American Press Co., 297 U.S., 233, 250, 80 L. ed. 660, 668, 56 S. Ct. 444.
We have here something quite different, for example, from a tax on the income of one who engages in
religious activities or a tax on property used or employed in connection with activities. It is one thing to
impose a tax on the income or property of a preacher. It is quite another to exact a tax from him for the
privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, payment of
which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a
privilege is the power to control or suppress its enjoyment. . . . Those who can tax the exercise of this
religious practice can make its exercise so costly as to deprive it of the resources necessary for its
maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close
all its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and
honorable manner would thus be denied the needy. . . .

185
 It is contended however that the fact that the license tax can suppress or control this activity is unimportant
if it does not do so. But that is to disregard the nature of this tax. It is a license tax a flat tax imposed on
the exercise of a privilege granted by the Bill of Rights . . . The power to impose a license tax on the
exercise of these freedom is indeed as potent as the power of censorship which this Court has repeatedly
struck down. . . . It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing
the activities in question. It is in no way apportioned. It is flat license tax levied and collected as a condition
to the pursuit of activities whose enjoyment is guaranteed by the constitutional liberties of press and religion
and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice
and evil of this flat license tax."

Nor could dissemination of religious information be conditioned upon the approval of an official or manager
even if the town were owned by a corporation as held in the case of Marsh vs. State of Alabama (326 U.S.
501), or by the United States itself as held in the case of Tucker vs. Texas (326 U.S. 517). In the former
case the Supreme Court expressed the opinion that the right to enjoy freedom of the press and religion
occupies a preferred position as against the constitutional right of property owners.

"When we balance the constitutional rights of owners of property against those of the people to enjoy
freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a
preferred position. . . . In our view the circumstance that the property rights to the premises where the
deprivation of property here involved, took place, were held by others than the public, is not sufficient to
justify the State's permitting a corporation to govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint by the application of a State statute." (Taada
and Fernando on the Constitution of the Philippines, Vol. 1, 4th ed., p. 304-306).

Section 27 of Commonwealth Act No. 466, otherwise known as the National Internal Revenue Code, provides:

SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. The following organizations shall not be
taxed under this Title in respect to income received by them as such

(e) Corporations or associations organized and operated exclusively for religious, charitable, . . . or
educational purposes, . . .: Provided, however, That the income of whatever kind and character from any of
its properties, real or personal, or from any activity conducted for profit, regardless of the disposition made
of such income, shall be liable to the tax imposed under this Code;

Appellant's counsel claims that the Collector of Internal Revenue has exempted the plaintiff from this tax and says
that such exemption clearly indicates that the act of distributing and selling bibles, etc. is purely religious and does
not fall under the above legal provisions.

It may be true that in the case at bar the price asked for the bibles and other religious pamphlets was in some
instances a little bit higher than the actual cost of the same but this cannot mean that appellant was engaged in the
business or occupation of selling said "merchandise" for profit. For this reason We believe that the provisions of
City of Manila Ordinance No. 2529, as amended, cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and worship as well as its rights of dissemination of religious
beliefs.

With respect to Ordinance No. 3000, as amended, which requires the obtention the Mayor's permit before any
person can engage in any of the businesses, trades or occupations enumerated therein, We do not find that it
imposes any charge upon the enjoyment of a right granted by the Constitution, nor tax the exercise of religious
practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427, this point was elucidated as follows:

An ordinance by the City of Griffin, declaring that the practice of distributing either by hand or otherwise,
circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered free, or
whether same are being sold within the city limits of the City of Griffin, without first obtaining written
permission from the city manager of the City of Griffin, shall be deemed a nuisance and punishable as an
offense against the City of Griffin, does not deprive defendant of his constitutional right of the free exercise
and enjoyment of religious profession and worship, even though it prohibits him from introducing and
carrying out a scheme or purpose which he sees fit to claim as a part of his religious system.
186
It seems clear, therefore, that Ordinance No. 3000 cannot be considered unconstitutional, even if applied to plaintiff
Society. But as Ordinance No. 2529 of the City of Manila, as amended, is not applicable to plaintiff-appellant and
defendant-appellee is powerless to license or tax the business of plaintiff Society involved herein for, as stated
before, it would impair plaintiff's right to the free exercise and enjoyment of its religious profession and worship, as
well as its rights of dissemination of religious beliefs, We find that Ordinance No. 3000, as amended is also
inapplicable to said business, trade or occupation of the plaintiff.

Wherefore, and on the strength of the foregoing considerations, We hereby reverse the decision appealed from,
sentencing defendant return to plaintiff the sum of P5,891.45 unduly collected from it. Without pronouncement as to
costs. It is so ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

187
PAMIL VS TELERON
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-34854 November 20, 1978

FORTUNATO R. PAMIL, petitioner-appellant,

vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and
REV. FR. MARGARITO R. GONZAGA, respondents-appellees.

Urbano H. Lagunay for petitioner.

Cristeto O. Cimagala for respondents.

FERNANDO, J.:

The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an elective
municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of
municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then
filed by petitioner, himself an aspirant for the office, for his disqualification 2 based on this Administrative Code
provision: "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active
service, persons receiving salaries or compensation from provincial or national funds, or contractors for public
works of the municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to
the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code
of 1971. The matter was then elevated to this Tribunal by petitioner. It is his contention that there was no such
implied repeal, that it is still in full force and effect. Thus was the specific question raised.

There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is divided on
the issue. Seven members of the Court are of the view that the judgment should be affirmed as the challenged
provision is no longer operative either because it was superseded by the 1935 Constitution or repealed. Outside of
the writer of this opinion, six other Justices are of this mind They are Justices Teehankee, Muoz Palma
Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding principle of the supremacy of the
Constitution or, at the very least, the repeal of such provision bars a reversal. 4 The remaining five members of this
Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold the position
that such a prohibition against an ecclesiastic running for elective office is not tainted with any constitutional
infirmity.

The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the remaining seven
does not suffice to render the challenged provision ineffective. Section 2175 of the Revised Administrative Code, as
far as ecclesiastics are concerned, must be accorded respect. The presumption of validity calls for its application.
Under the circumstances, certiorari lies. That is the conclusion arrived at by the writer of this opinion, joined by
Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice then but to vote for the reversal of
the lower court decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of municipal
188
mayor. With the aforesaid five other members, led by the Chief Justice, entertaining no doubt as to his lack of
eligibility, this petition for certiorari must be granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets forth the
reasons why there are constitutional objections to the continuing force and effectivity of Section 2175 as far as
ecclesiastics are concerned.

1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the present
Charter, it is explicitly declared: "No religious test shall be required for the exercise of civil or political rights." 5 The
principle of the paramount character of the fundamental law 6 thus comes into play. There are previous rulings to
that effect.6 The ban imposed by the Administrative Code cannot survive. So the writer of this opinion would hold.

2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine Islands shall continue in force
until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless
inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines,
and all references in such laws to the government or officials of the Philippines shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this Constitution." 7 It was first applied
in People v. Linsangan, 8 decided in December, 1935, barely a month after that Constitution took effect. This Court
held that Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who
remains delinquent in the payment of cedula tax, 9 was no longer in force. As stated by the then Justice, later Chief
Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt or non-payment of
poll tax: 10 "It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is
inconsistent with section 1, clause 12, of Article Ill of the Constitution in that, while the former authorizes
imprisonment for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of
the Government of the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative,
and no judgment of conviction can be based thereon." 11

De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code, could remove at
pleasure any of the appointive officials under the Charter of the City of Baguio. 13 Relying on such a provision, the
then President Quirino removed petitioner De los Santos, who was appointed City Engineer of Baguio on July 16,
1946, and chose in his place respondent Gil R. Mallare. Why such a power could not pass the test of validity under
the 1935 Constitution was pointed out by Justice Tuason thus: "So, unlike legislation that is passed in defiance of
the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code
does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is
non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before
the petitioner was appointed." 14

Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the 1935 Constitution,
as authoritatively construed, Article 145 of the Revised Penal Code was found to be inoperative. As therein
provided, the penalty of prision correccional is imposed on any public officer or employee who, while the Congress
was in regular or special session, would arrest or search a member thereof, except in case he had committed a
crime punishable by a penalty higher than prision mayor. This Court ruled that the Revised Penal Code extended
unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then was
contrary to and in defiance of the clear expression of the will of the Constitutional Convention of 1934 that such
immunity was never intended to exempt members of a legislative body from an arrest for a criminal offense, the
phrase treason, felony and breach of the peace being all-inclusive. Reference was likewise made to the prevailing
American doctrine to that effect as enunciated by Williamson v. United States. 17

3. It would be an unjustified departure from a settled principle of the applicable construction of the provision on what
laws remain operative after 1935 if the plea of petitioner in this case were to be heeded. The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive
189
office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is
to impose a religious test. Torcaso v. Watkins 18 an American Supreme Court decision, has persuasive weight. What
was there involved was the validity of a provision in the Maryland Constitution prescribing that "no religious test
ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of
belief in the existence of God ..." Such a constitutional requirement was assailed as contrary to the First
Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was
refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but
prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: "this Maryland religious test for public office unconstitutionally
invades the appellant's freedom of belief and religion and therefore cannot be enforced against him." 19

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being
an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an
incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional
mandate. It is not a valid argument against this conclusion to assert that under the Philippine Autonomy Act of
1916, there was such a prohibition against a religious test, and yet such a ban on holding a municipal position had
not been nullified. It suffices to answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided
under the 1935 Constitution, it was assumed that there was no conflict with the fundamental law.

4. This is the first case then where this Court has to face squarely such an issue. This excerpt from the opinion of
Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a force unimpaired by the
passage of time: "Relative to the theory that Act No. 1627 has stood so long and been silently acquiesced in for so
great a length of time that it should not be disturbed, it may be said that the fact that certain individuals have, by
ignorance or neglect, failed to claim their fundamental rights, furnishes no reason why another individual, alert to
his rights and their proper enforcement, should be prevented from asserting and sustaining those rights. The fact
that Smith and Jones have failed to demand their constitutional rights furnishes no basis for the refusal to consider
and uphold the constitutional rights of Richard Roe In the case of Sadler v. Langham (34 Ala. 311), this same
question was under consideration and the court in resolving it said: 'It may be urged, that these statutes have stood,
and been silently acquiesced in for so great a length of time, they should not now be disturbed. We are sensible of
the force of this argument. It will be observed, however, that in Tennessee, the decision which declared the private
road law unconstitutional was pronounced forty years after the enact. judgment of the statute; and in New York,
after seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional rights, the observance
of which had been silently neglected." 22 To support such a conclusion, no less than the great Chief Justice
Marshall, speaking for this Court in United States v. More, in disposing of a contention by one of the parties as to
appellate jurisdiction having been previously exercised and therefore beyond dispute was likewise relied upon.
Thus: "No question was made in that case as to the jurisdiction petition. It passed sub silentio, and the court does
not consider itself bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even
necessary to annul the challenged Administrative Code provision. It is merely declared inoperative by virtue of the
mandate of the 1935 Constitution, similarly found in the present Charter.

5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force. The attack
on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset, given full force and
application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside. Respondent
Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of Albuquerque, Bohol, there
being a failure to elect. No pronouncement as to costs.

190
VICTORIANO VS ELIZALDE ROPE WORKERS UNION
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-25246 September 12, 1974

BENJAMIN VICTORIANO, plaintiff-appellee,

vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE
WORKERS' UNION, defendant-appellant.

Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.

Cipriano Cid & Associates for defendant-appellant.

ZALDIVAR, J.:p

Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil
Case No. 58894.

The undisputed facts that spawned the instant case follow:

Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the "Iglesia ni
Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958.
As such employee, he was a member of the Elizalde Rope Workers' Union (hereinafter referred to as Union) which
had with the Company a collective bargaining agreement containing a closed shop provision which reads as
follows:

Membership in the Union shall be required as a condition of employment for all permanent
employees workers covered by this Agreement.

The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March 4, 1964.

Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No. 3350, the
employer was not precluded "from making an agreement with a labor organization to require as a condition of
employment membership therein, if such labor organization is the representative of the employees." On June 18,
1961, however, Republic Act No. 3350 was enacted, introducing an amendment to paragraph (4) subsection (a)
of section 4 of Republic Act No. 875, as follows: ... "but such agreement shall not cover members of any religious
sects which prohibit affiliation of their members in any such labor organization".

Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee
presented his resignation to appellant Union in 1962, and when no action was taken thereon, he reiterated his
resignation on September 3, 1974. Thereupon, the Union wrote a formal letter to the Company asking the latter to

191
separate Appellee from the service in view of the fact that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his counsel that unless the Appellee could achieve a
satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service. This
prompted Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First Instance of
Manila to enjoin the Company and the Union from dismissing Appellee. 1 In its answer, the Union invoked the "union
security clause" of the collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and
contended that the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d)
and (e). 2 Upon the facts agreed upon by the parties during the pre-trial conference, the Court a quo rendered its
decision on August 26, 1965, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope
Factory, Inc. from dismissing the plaintiff from his present employment and sentencing the
defendant Elizalde Rope Workers' Union to pay the plaintiff P500 for attorney's fees and the costs
of this action.3

From this decision, the Union appealed directly to this Court on purely questions of law, assigning the following
errors:

I. That the lower court erred when it did not rule that Republic Act No. 3350 is unconstitutional.

II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum of P500 as
attorney's fees and the cost thereof.

In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the Act
infringes on the fundamental right to form lawful associations; that "the very phraseology of said Republic Act 3350,
that membership in a labor organization is banned to all those belonging to such religious sect prohibiting affiliation
with any labor organization" 4 , "prohibits all the members of a given religious sect from joining any labor union if
such sect prohibits affiliations of their members thereto" 5 ; and, consequently, deprives said members of their
constitutional right to form or join lawful associations or organizations guaranteed by the Bill of Rights, and thus
becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6

Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation of
contracts in that, while the Union is obliged to comply with its collective bargaining agreement containing a "closed
shop provision," the Act relieves the employer from its reciprocal obligation of cooperating in the maintenance of
union membership as a condition of employment; and that said Act, furthermore, impairs the Union's rights as it
deprives the union of dues from members who, under the Act, are relieved from the obligation to continue as such
members. 7

Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects which ban their
members from joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and while said
Act unduly protects certain religious sects, it leaves no rights or protection to labor organizations. 8

Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious test shall
be required for the exercise of a civil right," in that the laborer's exercise of his civil right to join associations for
purposes not contrary to law has to be determined under the Act by his affiliation with a religious sect; that
conversely, if a worker has to sever his religious connection with a sect that prohibits membership in a labor
organization in order to be able to join a labor organization, said Act would violate religious freedom. 9

Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of the
Constitution, it being a discriminately legislation, inasmuch as by exempting from the operation of closed shop
agreement the members of the "Iglesia ni Cristo", it has granted said members undue advantages over their fellow
192
workers, for while the Act exempts them from union obligation and liability, it nevertheless entitles them at the same
time to the enjoyment of all concessions, benefits and other emoluments that the union might secure from the
employer. 10

Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the
promotion of social justice. 11

Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining agreement cannot
be considered violative of religious freedom, as to call for the amendment introduced by Republic Act No.
3350;12 and that unless Republic Act No. 3350 is declared unconstitutional, trade unionism in this country would be
wiped out as employers would prefer to hire or employ members of the Iglesia ni Cristo in order to do away with
labor organizations. 13

Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the right to form
lawful associations, for the right to join associations includes the right not to join or to resign from a labor
organization, if one's conscience does not allow his membership therein, and the Act has given substance to such
right by prohibiting the compulsion of workers to join labor organizations; 14 that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated into, the terms of the closed shop
agreement; 15that the Act does not violate the establishment of religion clause or separation of Church and State,
for Congress, in enacting said law, merely accommodated the religious needs of those workers whose religion
prohibits its members from joining labor unions, and balanced the collective rights of organized labor with the
constitutional right of an individual to freely exercise his chosen religion; that the constitutional right to the free
exercise of one's religion has primacy and preference over union security measures which are merely
contractual 16 ; that said Act does not violate the constitutional provision of equal protection, for the classification of
workers under the Act depending on their religious tenets is based on substantial distinction, is germane to the
purpose of the law, and applies to all the members of a given class; 17 that said Act, finally, does not violate the
social justice policy of the Constitution, for said Act was enacted precisely to equalize employment opportunities for
all citizens in the midst of the diversities of their religious beliefs." 18

I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are some
thoroughly established principles which must be followed in all cases where questions of constitutionality as obtains
in the instant case are involved. All presumptions are indulged in favor of constitutionality; one who attacks a
statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work
hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the
statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with
the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of
the constitutionality of legislation should be adopted. 19

1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such religious sects
that forbid affiliation of their members with labor unions from joining labor unions appears nowhere in the wording of
Republic Act No. 3350; neither can the same be deduced by necessary implication therefrom. It is not surprising,
therefore, that appellant, having thus misread the Act, committed the error of contending that said Act is obnoxious
to the constitutional provision on freedom of association.

Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article III of the
Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form
associations or societies for purposes not contrary to law shall not be abridged. Section 3 of Republic Act No. 875
provides that employees shall have the right to self-organization and to form, join of assist labor organizations of
their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act
recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories
193
propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely
said that whatever theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or
freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by
law; and second, power, whereby an employee may, as he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he should join or not an association; and should he
choose to join, he himself makes up his mind as to which association he would join; and even after he has joined,
he still retains the liberty and the power to leave and cancel his membership with said organization at any time. 20 It
is clear, therefore, that the right to join a union includes the right to abstain from joining any union. 21 Inasmuch as
what both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the
"right" to join associations of his choice, it would be absurd to say that the law also imposes, in the same breath,
upon the employee the duty to join associations. The law does not enjoin an employee to sign up with any
association.

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however,
limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a
labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only
member of the collective bargaining union, and the employees must continue to be members of the union for the
duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its
amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice for an employer
"to discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization" the employer is, however, not precluded "from making an
agreement with a labor organization to require as a condition of employment membership therein, if such labor
organization is the representative of the employees". By virtue, therefore, of a closed shop agreement, before the
enactment of Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or to
keep his employment, he must become a member of the collective bargaining union. Hence, the right of said
employee not to join the labor union is curtailed and withdrawn.

To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception,
when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not
cover members of any religious sects which prohibit affiliation of their members in any such labor organization".
Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement
the employees belonging to any religious sects which prohibit affiliation of their members with any labor
organization. What the exception provides, therefore, is that members of said religious sects cannot be compelled
or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in
spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed
from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear, therefore,
that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and
reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves
to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their
religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in
deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to
join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to
join. Republic Act No. 3350, therefore, does not violate the constitutional provision on freedom of association.

2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract,
specifically, the "union security clause" embodied in its Collective Bargaining Agreement with the Company, by
virtue of which "membership in the union was required as a condition for employment for all permanent employees
workers". This agreement was already in existence at the time Republic Act No. 3350 was enacted on June 18,
1961, and it cannot, therefore, be deemed to have been incorporated into the agreement. But by reason of this
amendment, Appellee, as well as others similarly situated, could no longer be dismissed from his job even if he
should cease to be a member, or disaffiliate from the Union, and the Company could continue employing him
194
notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a change into the express terms of
the union security clause; the Company was partly absolved by law from the contractual obligation it had with the
Union of employing only Union members in permanent positions, It cannot be denied, therefore, that there was
indeed an impairment of said union security clause.

According to Black, any statute which introduces a change into the express terms of the contract, or its legal
construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the contract. The extent of
the change is not material. It is not a question of degree or manner or cause, but of encroaching in any respect on
its obligation or dispensing with any part of its force. There is an impairment of the contract if either party is
absolved by law from its performance. 22 Impairment has also been predicated on laws which, without destroying
contracts, derogate from substantial contractual rights. 23

It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not absolute and
unqualified. The prohibition is general, affording a broad outline and requiring construction to fill in the details. The
prohibition is not to be read with literal exactness like a mathematical formula, for it prohibits unreasonable
impairment only. 24 In spite of the constitutional prohibition, the State continues to possess authority to safeguard
the vital interests of its people. Legislation appropriate to safeguarding said interests may modify or abrogate
contracts already in effect. 25 For not only are existing laws read into contracts in order to fix the obligations as
between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a
postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the
police power must be understood as made in reference to the possible exercise of that power. 26 Otherwise,
important and valuable reforms may be precluded by the simple device of entering into contracts for the purpose of
doing that which otherwise may be prohibited. The policy of protecting contracts against impairment presupposes
the maintenance of a government by virtue of which contractual relations are worthwhile a government which
retains adequate authority to secure the peace and good order of society. The contract clause of the Constitution
must, therefore, be not only in harmony with, but also in subordination to, in appropriate instances, the reserved
power of the state to safeguard the vital interests of the people. It follows that not all legislations, which have the
effect of impairing a contract, are obnoxious to the constitutional prohibition as to impairment, and a statute passed
in the legitimate exercise of police power, although it incidentally destroys existing contract rights, must be upheld
by the courts. This has special application to contracts regulating relations between capital and labor which are not
merely contractual, and said labor contracts, for being impressed with public interest, must yield to the common
good. 27

In several occasions this Court declared that the prohibition against impairing the obligations of contracts has no
application to statutes relating to public subjects within the domain of the general legislative powers of the state
involving public welfare. 28 Thus, this Court also held that the Blue Sunday Law was not an infringement of the
obligation of a contract that required the employer to furnish work on Sundays to his employees, the law having
been enacted to secure the well-being and happiness of the laboring class, and being, furthermore, a legitimate
exercise of the police power.29

In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging yardstick,
applicable at all times and under all circumstances, by which the validity of each statute may be measured or
determined, has been fashioned, but every case must be determined upon its own circumstances. Legislation
impairing the obligation of contracts can be sustained when it is enacted for the promotion of the general good of
the people, and when the means adopted to secure that end are reasonable. Both the end sought and the means
adopted must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with the
constitutional limitation of that power. 30

What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom of
belief and religion, and to promote the general welfare by preventing discrimination against those members of
religious sects which prohibit their members from joining labor unions, confirming thereby their natural, statutory
195
and constitutional right to work, the fruits of which work are usually the only means whereby they can maintain their
own life and the life of their dependents. It cannot be gainsaid that said purpose is legitimate.

The questioned Act also provides protection to members of said religious sects against two aggregates of group
strength from which the individual needs protection. The individual employee, at various times in his working life, is
confronted by two aggregates of power collective labor, directed by a union, and collective capital, directed by
management. The union, an institution developed to organize labor into a collective force and thus protect the
individual employee from the power of collective capital, is, paradoxically, both the champion of employee rights,
and a new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third
aggregate of group strength from which the individual also needs protection the collective bargaining
relationship. 31

The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill No. 5859,
which later became Republic Act No. 3350, as follows:

It would be unthinkable indeed to refuse employing a person who, on account of his religious
beliefs and convictions, cannot accept membership in a labor organization although he possesses
all the qualifications for the job. This is tantamount to punishing such person for believing in a
doctrine he has a right under the law to believe in. The law would not allow discrimination to
flourish to the detriment of those whose religion discards membership in any labor organization.
Likewise, the law would not commend the deprivation of their right to work and pursue a modest
means of livelihood, without in any manner violating their religious faith and/or belief. 32

It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose exempting the
members of said religious sects from coverage of union security agreements is reasonable.

It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract
rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has
also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy
a preferred position in the constitutional system. 33 Religious freedom, although not unlimited, is a fundamental
personal right and liberty, 34 and has a preferred position in the hierarchy of values. Contractual rights, therefore,
must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger
to the security and welfare of the community that infringement of religious freedom may be justified, and only to the
smallest extent necessary to avoid the danger.

3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union averred that
said Act discriminates in favor of members of said religious sects in violation of Section 1 (7) of Article Ill of the 1935
Constitution, and which is now Section 8 of Article IV of the 1973 Constitution, which provides:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious profession and worship, without
discrimination and preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

The constitutional provision into only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form
of worship, 35 but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the common good. 36 Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is
196
invalid, even though the burden may be characterized as being only indirect. 37 But if the stage regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals,
the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. 38

In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be precluded from pursuing
valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It has
likewise been held that the statute, in order to withstand the strictures of constitutional prohibition, must have a
secular legislative purpose and a primary effect that neither advances nor inhibits religion. 40 Assessed by these
criteria, Republic Act No. 3350 cannot be said to violate the constitutional inhibition of the "no-establishment" (of
religion) clause of the Constitution.

The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal.
It was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work
and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its
citizens to find gainful employment whereby they can make a living to support themselves and their families is a
valid objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to labor, and
regulate the relations between labor and capital and industry. 41 More so now in the 1973 Constitution where it is
mandated that "the State shall afford protection to labor, promote full employment and equality in employment,
ensure equal work opportunities regardless of sex, race or creed and regulate the relation between workers and
employers. 42

The primary effects of the exemption from closed shop agreements in favor of members of religious sects that
prohibit their members from affiliating with a labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious
beliefs; and by eliminating to a certain extent economic insecurity due to unemployment, which is a serious menace
to the health, morals, and welfare of the people of the State, the Act also promotes the well-being of society. It is our
view that the exemption from the effects of closed shop agreement does not directly advance, or diminish, the
interests of any particular religion. Although the exemption may benefit those who are members of religious sects
that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and
indirect. The "establishment clause" (of religion) does not ban regulation on conduct whose reason or effect merely
happens to coincide or harmonize with the tenets of some or all religions. 43 The free exercise clause of the
Constitution has been interpreted to require that religious exercise be preferentially aided. 44

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional
provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union
security agreements. It was Congress itself that imposed that burden when it enacted the Industrial Peace Act
(Republic Act 875), and, certainly, Congress, if it so deems advisable, could take away the same burden. It is
certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict
with scrupples of conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes.45 In the instant case, We see no such compelling state interest to withhold exemption.

Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves no right to,
and is silent as to the protection of, labor organizations. The purpose of Republic Act No. 3350 was not to grant
rights to labor unions. The rights of labor unions are amply provided for in Republic Act No. 875 and the new Labor
Code. As to the lamented silence of the Act regarding the rights and protection of labor unions, suffice it to say, first,
that the validity of a statute is determined by its provisions, not by its silence 46 ; and, second, the fact that the law
may work hardship does not render it unconstitutional. 47

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It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union
to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has
seen it fit to exempt religious objectors lest their resistance spread to other workers, for religious objections have
contagious potentialities more than political and philosophic objections.

Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor union
assuming that such unity and loyalty can be attained through coercion is not a goal that is constitutionally
obtainable at the expense of religious liberty. 48 A desirable end cannot be promoted by prohibited means.

4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against requiring a
religious test for the exercise of a civil right or a political right, is not well taken. The Act does not require as a
qualification, or condition, for joining any lawful association membership in any particular religion or in any religious
sect; neither does the Act require affiliation with a religious sect that prohibits its members from joining a labor union
as a condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires
a positive act. Republic Act No. 3350 only exempts members with such religious affiliation from the coverage of
closed shop agreements. So, under this Act, a religious objector is not required to do a positive act to exercise
the right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. A
conscientious religious objector need not perform a positive act or exercise the right of resigning from the labor
union he is exempted from the coverage of any closed shop agreement that a labor union may have entered
into. How then can there be a religious test required for the exercise of a right when no right need be exercised?

We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its purpose
was legal and in consonance with the Constitution. It is never an illegal evasion of a constitutional provision or
prohibition to accomplish a desired result, which is lawful in itself, by discovering or following a legal way to do it. 49

5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch as it grants
to the members of certain religious sects undue advantages over other workers, thus violating Section 1 of Article III
of the 1935 Constitution which forbids the denial to any person of the equal protection of the laws. 50

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. 51 It does not prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid because of simple inequality. 52 The very idea of classification
is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. 53 All that is required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real differences; that it must be germane
to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to
each member of the class. 54 This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary. 55

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. 57 Neither is it necessary that
198
the classification be made with mathematical nicety. 58 Hence legislative classification may in many cases properly
rest on narrow distinctions, 59 for the equal protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may appear.

We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies employees
and workers, as to the effect and coverage of union shop security agreements, into those who by reason of their
religious beliefs and convictions cannot sign up with a labor union, and those whose religion does not prohibit
membership in labor unions. Tile classification rests on real or substantial, not merely imaginary or whimsical,
distinctions. There is such real distinction in the beliefs, feelings and sentiments of employees. Employees do not
believe in the same religious faith and different religions differ in their dogmas and cannons. Religious beliefs,
manifestations and practices, though they are found in all places, and in all times, take so many varied forms as to
be almost beyond imagination. There are many views that comprise the broad spectrum of religious beliefs among
the people. There are diverse manners in which beliefs, equally paramount in the lives of their possessors, may be
articulated. Today the country is far more heterogenous in religion than before, differences in religion do exist, and
these differences are important and should not be ignored.

Even from the phychological point of view, the classification is based on real and important differences. Religious
beliefs are not mere beliefs, mere ideas existing only in the mind, for they carry with them practical consequences
and are the motives of certain rules. of human conduct and the justification of certain acts. 60 Religious sentiment
makes a man view things and events in their relation to his God. It gives to human life its distinctive character, its
tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is
involved in a religious belief. To certain persons, no single factor of their experience is more important to them than
their religion, or their not having any religion. Because of differences in religious belief and sentiments, a very poor
person may consider himself better than the rich, and the man who even lacks the necessities of life may be more
cheerful than the one who has all possible luxuries. Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most painful and excruciating pains. Because of
differences in religious beliefs, the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war,
generated to a large extent by members of sects who were intolerant of other religious beliefs. The classification,
introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.

The classification introduced by said Act is also germane to its purpose. The purpose of the law is precisely to avoid
those who cannot, because of their religious belief, join labor unions, from being deprived of their right to work and
from being dismissed from their work because of union shop security agreements.

Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its
enactment. The law does not provide that it is to be effective for a certain period of time only. It is intended to apply
for all times as long as the conditions to which the law is applicable exist. As long as there are closed shop
agreements between an employer and a labor union, and there are employees who are prohibited by their religion
from affiliating with labor unions, their exemption from the coverage of said agreements continues.

Finally, the Act applies equally to all members of said religious sects; this is evident from its provision. The fact that
the law grants a privilege to members of said religious sects cannot by itself render the Act unconstitutional, for as
We have adverted to, the Act only restores to them their freedom of association which closed shop agreements
have taken away, and puts them in the same plane as the other workers who are not prohibited by their religion
from joining labor unions. The circumstance, that the other employees, because they are differently situated, are
not granted the same privilege, does not render the law unconstitutional, for every classification allowed by the
Constitution by its nature involves inequality.

The mere fact that the legislative classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law produces inequality in some degree, but
the law is not thereby rendered invalid. A classification otherwise reasonable does not offend the constitution simply
199
because in practice it results in some inequality. 61 Anent this matter, it has been said that whenever it is apparent
from the scope of the law that its object is for the benefit of the public and the means by which the benefit is to be
obtained are of public character, the law will be upheld even though incidental advantage may occur to individuals
beyond those enjoyed by the general public. 62

6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social justice is
also baseless. Social justice is intended to promote the welfare of all the people. 63 Republic Act No. 3350 promotes
that welfare insofar as it looks after the welfare of those who, because of their religious belief, cannot join labor
unions; the Act prevents their being deprived of work and of the means of livelihood. In determining whether any
particular measure is for public advantage, it is not necessary that the entire state be directly benefited it is
sufficient that a portion of the state be benefited thereby.

Social justice also means the adoption by the Government of measures calculated to insure economic stability of all
component elements of society, through the maintenance of a proper economic and social equilibrium in the inter-
relations of the members of the community. 64 Republic Act No. 3350 insures economic stability to the members of a
religious sect, like the Iglesia ni Cristo, who are also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union having a closed shop agreement with the employer.
The Act also advances the proper economic and social equilibrium between labor unions and employees who
cannot join labor unions, for it exempts the latter from the compelling necessity of joining labor unions that have
closed shop agreements and equalizes, in so far as opportunity to work is concerned, those whose religion
prohibits membership in labor unions with those whose religion does not prohibit said membership. Social justice
does not imply social equality, because social inequality will always exist as long as social relations depend on
personal or subjective proclivities. Social justice does not require legal equality because legal equality, being a
relative term, is necessarily premised on differentiations based on personal or natural conditions. 65 Social justice
guarantees equality of opportunity 66 , and this is precisely what Republic Act No. 3350 proposes to accomplish it
gives laborers, irrespective of their religious scrupples, equal opportunity for work.

7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not called for
in other words, the Act is not proper, necessary or desirable. Anent this matter, it has been held that a statute
which is not necessary is not, for that reason, unconstitutional; that in determining the constitutional validity of
legislation, the courts are unconcerned with issues as to the necessity for the enactment of the legislation in
question. 67 Courts do inquire into the wisdom of laws. 68 Moreover, legislatures, being chosen by the people, are
presumed to understand and correctly appreciate the needs of the people, and it may change the laws
accordingly. 69 The fear is entertained by appellant that unless the Act is declared unconstitutional, employers will
prefer employing members of religious sects that prohibit their members from joining labor unions, and thus be a
fatal blow to unionism. We do not agree. The threat to unionism will depend on the number of employees who are
members of the religious sects that control the demands of the labor market. But there is really no occasion now to
go further and anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a
statute is to be determined from its general purpose and its efficacy to accomplish the end desired, not from its
effects on a particular case. 70 The essential basis for the exercise of power, and not a mere incidental result arising
from its exertion, is the criterion by which the validity of a statute is to be measured. 71

II. We now pass on the second assignment of error, in support of which the Union argued that the decision of the
trial court ordering the Union to pay P500 for attorney's fees directly contravenes Section 24 of Republic Act No.
875, for the instant action involves an industrial dispute wherein the Union was a party, and said Union merely
acted in the exercise of its rights under the union shop provision of its existing collective bargaining contract with
the Company; that said order also contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never
actually dismissed by the defendant Company and did not therefore suffer any damage at all . 72

In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no industrial
dispute involved in the attempt to compel Appellee to maintain its membership in the union under pain of dismissal,
200
and that the Union, by its act, inflicted intentional harm on Appellee; that since Appellee was compelled to institute
an action to protect his right to work, appellant could legally be ordered to pay attorney's fees under Articles 1704
and 2208 of the Civil Code. 73

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides that:

No suit, action or other proceedings shall be maintainable in any court against a labor organization
or any officer or member thereof for any act done by or on behalf of such organization in
furtherance of an industrial dispute to which it is a party, on the ground only that such act induces
some other person to break a contract of employment or that it is in restraint of trade or interferes
with the trade, business or employment of some other person or with the right of some other
person to dispose of his capital or labor. (Emphasis supplied)

That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge of
respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question
involving tenure of employment is included in the term "labor dispute". 74 The discharge or the act of seeking it is the
labor dispute itself. It being the labor dispute itself, that very same act of the Union in asking the employer to
dismiss Appellee cannot be "an act done ... in furtherance of an industrial dispute". The mere fact that appellant is a
labor union does not necessarily mean that all its acts are in furtherance of an industrial dispute. 75 Appellant Union,
therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined with any unfair
labor practice case existing at the time when Appellee filed his complaint before the lower court.

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides that
attorney's fees and expenses of litigation may be awarded "when the defendant's act or omission has compelled
the plaintiff ... to incur expenses to protect his interest"; and "in any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation should be recovered". In the instant case, it cannot be
gainsaid that appellant Union's act in demanding Appellee's dismissal caused Appellee to incur expenses to prevent
his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be allowed as
a matter of course to the prevailing party.

WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of First
Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs against appellant Union. It is
so ordered.

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GERMAN VS BARANGAN
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-68828 March 27, 1985

RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA MALINIS, RICARDO
LAVIA, CESAR CORTES, DANILO REYES, JOSE REYES, JOSEFINA MATE, LOURDES CALMA, MILDRED
JUAN, OLIVE GUANZON, FERNANDO COCHICO, SHERMAN CID, NAZARENO BENTULAN, ROSLINA
DONAIRE, MARIO MARTINEZ, BEATRIZ TEYLAN, ANGELINA LAPID, ROSEMARIE FLORES, DANIEL VAN
SOTO, EDGARDO MERCADER, NELLY AGUSTIN, MARILY MAGCALAS, DAVID CHAN, ARSENIO
SALANSANG, NELSON DE GUZMAN, MARCIANO ARANETA, CESAR MENESES, DIONISIO RELLOSA,
MARIO SANTIAGO, SEVERINO SANTOS, LEONORA SANTOS, NIMFA DORONILLA, FLORENCE GUINTO,
ROSALINA MANANSALA, PERCIVAL OSTONAL, TOMMY MACARANAS, ROGER NICANDRO, petitioners,
vs.
GEN. SANTIAGO BARANGAN and MA. JOR ISABELO LARIOSA, respondents.

ESCOLIN, * J.:

Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the issuance of [1] a writ
of mandamus to compel respondents to allow them to enter and pray inside St. Jude Chapel located at J.P. Laurel
Street, Manila; and [2] a writ of injunction to enjoin respondents from preventing them from getting into and praying
in said church.

The facts to be considered are the following:

At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of about 50 businessmen, students and
office employees converged at J.P. Laurel Street, Manila, for the ostensible purpose of hearing Mass at the St. Jude
Chapel which adjoins the Malacaang grounds located in the same street. Wearing the now familiar inscribed
yellow T-shirts, they started to march down said street with raised clenched fists 1 and shouts of anti-government
invectives. Along the way, however, they were barred by respondent Major lsabelo Lariosa, upon orders of his
superior and co-respondent Gen. Santiago Barangan, from proceeding any further, on the ground that St. Jude
Chapel was located within the Malacaang security area. When petitioners' protestations and pleas to allow them to
get inside the church proved unavailing, they decided to leave. However, because of the alleged warning given
them by respondent Major Lariosa that any similar attempt by petitioners to enter the church in the future would
likewise be prevented, petitioners took this present recourse.

Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St. Jude church. At
the hearing of this petition, respondents assured petitioners and the Court that they have never restricted, and will
never restrict, any person or persons from entering and worshipping at said church. They maintain, however, that
petitioners' intention was not really to perform an act of religious worship, but to conduct an anti-government
demonstration at a place close to the very residence and offices of the President of the Republic. Respondents
further lament petitioners' attempt to disguise their true motive with a ritual as sacred and solemn as the Holy
Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the marchers, their raised clenched fists,
202
and chants of anti-government slogans strongly tend to substantiate respondents allegation. Thus, J.P. Fenix,
commenting on the motive of petitioners' mass action of October 2, 1984, wrote the following in his article entitled
"Mission Impossible", published in the October 12-18, 1984 issue of the "Mr. & Mrs." magazine:

They couldn't go through Mendiola Bridge, and so they dared to get even closer to the heart of the
matter. But as in Mendiola , the barbed wire barricades and the array of sheet metal shields got in
the way of the members of the August Twenty-One Movement (ATOM) as they tried last October 2
to get to the pearly gates of power via the St. Jude Chapel on Laurel St. St. Jude happens to be a
neighbor of President Marcos, his (sic) chapel being adjacent to Malacaang. ...

The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in invoking the
constitutional guarantee of freedom of religious worship and of locomotion. While it is beyond debate that every
citizen has the undeniable and inviolable right to religious freedom, the exercise thereof, and of all fundamental
rights for that matter, must be done in good faith. As Article 19 of the Civil Code admonishes: "Every person must in
the exercise of his rights and in the performance of his duties ... observe honesty and good faith."

Even assuming that petitioners' claim to the free exercise of religion is genuine and valid, still respondents reaction
to the October 2, 1984 mass action may not be characterized as violative of the freedom of religious worship. Since
1972, when mobs of demonstrators crashed through the Malacaang gates and scaled its perimeter fence, the use
by the public of J.P. Laurel Street and the streets approaching it have been restricted. While travel to and from the
affected thoroughfares has not been absolutely prohibited, passers-by have been subjected to courteous,
unobtrusive security checks. The reasonableness of this restriction is readily perceived and appreciated if it is
considered that the same is designed to protect the lives of the President and his family, as well as other
government officials, diplomats and foreign guests transacting business with Malacaang. The need to secure the
safety of heads of state and other government officials cannot be overemphasized. The threat to their lives and
safety is constant, real and felt throughout the world. Vivid illustrations of this grave and serious problem are the
gruesome assassinations, kidnappings and other acts of violence and terrorism that have been perpetrated against
heads of state and other public officers of foreign nations.

Said restriction is moreover intended to secure the several executive offices within the Malacaang grounds from
possible external attacks and disturbances. These offices include communications facilities that link the central
government to all places in the land. Unquestionably, the restriction imposed is necessary to maintain the smooth
functioning of the executive branch of the government, which petitioners' mass action would certainly disrupt.

Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution, thus:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in Cantwell v.
Connecticut 2said:

The constitutional inhibition on legislation on the subject of religion has a double aspect. On the
one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form
of worship. Freedom of conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion. Thus the amendment embraces two concepts-
freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second
cannot be.
203
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but
only in the manner by which they had attempted to translate the same into action. This curtailment is in accord with
the pronouncement of this Court in Gerona v. Secretary of Education, 3 thus:

The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds. One
may believe in most anything, however strange, bizarre and unreasonable the same may appear to
others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law,
then the former must yield and give way to the latter. The government steps in and either restrains
said exercise or even prosecutes the one exercising it. (Emphasis supplied)

Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the Constitution, which
provides:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health.

Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and reasonableness of
which have already been discussed, is allowed under the fundamental law, the same having been established in
the interest of national security.

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

204
GERONA VS SECRETARY OF EDUCATION

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13954 August 12, 1959

GENARO GERONA, ET AL., petitioners-appellants,

vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.

K.V. Felon and Hayed C. Cavington for appellant.

Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.

MONTEMAYOR, J.:

Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their complaint. Acting
upon the "Urgent Motion for Writ of Preliminary Injunction" filed on behalf of petitioners of December 12, 1958, and
without objection on the part of the Solicitor General, by resolution of this Court of December 16, we issued the
corresponding writ of preliminary injunction restraining respondents from excluding or banning petitioners-
appellants, their children and all other of Jehovah's Witnesses for whom this action has been brought, from
admission to public schools, particularly the Buenavista Community School, solely on account of their refusal to
salute the flag or preventing their return to school should they have already been banned, until further orders from
this Court.

The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and went into effect.
Acting upon section 2 of said Act authorizing and directing the Secretary of Education to issue or cause to be
issued rules and regulations for the proper conduct of the flag ceremony, said Secretary issued Department Order
No. 8, series of 1955 on July 21, 1955 which Department Order quoting Republic Act No. 1265 in its entirety, we
reproduce below for purpose of reference:

"Republic of the Philippines

Department of Education
Office of the Secretary
Manila

Department Order
No. 8, s. 1955

July 21, 1955

COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS

To the Director of Public Schools and the Director of Private Schools:

1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony Compulsory in all
Educational Institutions," which is self-explanatory.
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 SECTION 1. All educational institutions henceforth observe daily flag ceremony, which shall be
simple and dignified and shall include the playing or singing of the Philippine National Anthem.

SECTION 2. The Secretary of Education is hereby authorized and directed to issue or cause to be
issued rules and regulations for the proper conduct of the flag ceremony herein provided.

SECTION 3. Failure of refusal to observe the flag ceremony provided by this Act and in accordance
with rules and regulations issued by the Secretary of Education, after proper notice and hearing,
shall subject the educational institution concerned and its head to public censure as an
administrative punishment which shall be published at least once in a newspaper of general
circulation.

In case of failure to observe for the second time the flag ceremony provided by this Act, the Secretary of
Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of the
private educational institution responsible for such failure.

SECTION 4. This Act shall take effect upon its approval.

Approved, June 11, 1955.

2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct of the
required flag ceremony, given in the in closure to this Order, are hereby promulgated. These rules and
regulations should be made known to all teachers and school officials, public and private. The patriotic
objective or significance of the Act should be explained to all pupils and students in the schools and to all
communities through the purok organizations and community assemblies.

(Sgd.) G. HERNANDEZ, JR.

Secretary of Education

Incl.:
As stated

(Inclosure of Department order No. 8, s. 1955)

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day
throughout the year. It shall be raised at sunrise and lowered at sunset. The flag staff must be straight,
slightly and gently tapering at the end, and of such height as would give the Flag a commanding position in
front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning except
when it is raining, in which event the ceremony may be conducted indoors in the best way possible. A
retreat shall be held in the afternoon of the same day.

The flag-raising ceremony in the morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises shall assemble
in formation facing the flag. At command, books shall be put away or held in the left hand and everybody
shall come to attention. Those with hats shall uncover. No one shall enter or leave the school grounds
during the ceremony.

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 b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by the school band alone. At the first note of
the Anthem, the flag shall be raised briskly. While the flag is being raised, all persons present shall stand at
attention and execute a salute. Boys and men with hats shall salute by placing that hat over the heart.
Those without hats may stand with their arms and hands downed and straight at the sides. Those in military
or Boy Scout uniform shall give the salute prescribed by their regulations. The salute shall be started as the
Flag rises, and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in unison of following patriotic
pledge (English or vernacular version 0, which may bring the ceremony to a close. This is required of all
public schools and of private schools which are intended for Filipino students or whose population is
predominantly Filipino.

ENGLISH VERSION

I Love the Philippines.

It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

3. The retreat shall be observed as follows:

a. Teachers and pupils or faculty members and students whose classes and after the last school period in
the afternoon before sun down shall assemble facing the flag. At command, the Philippine National Anthem
shall be sung with accompaniment of the school band. If the school has no band, the assembly will only
sing the Anthem. Boys who have been taking part in preparatory military training or Boy Scout activities
shall attend the retreat in formation and execute the salute prescribed for them. Others shall execute the
same salute and observe the same deportment as required of them in the flag-raising ceremony. The flag
should be lowered slowly so that it will be in the hands of the color detail at the sound of the last note of the
Anthem.

b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the singing of the
National Anthem, for the retreat. At the sound of the first note, the assembly shall stand at attention facing
the flag and observe the same deportment as required in the flag-raising ceremony. Or, it may have its
bugle corp play "To the Colors" and at the sound of the first note everybody within hearing distance shall
stand at attention, face the flag, and observe the same deportment as required in the flag-raising ceremony.

4. The flag should be handled reverently in raising or lowering it and not allowed to touch the ground. This
can be insured by having one pupil hold the flag while another pupil fastening it to or unfasten it from the
halyard.

5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast, allowing it to fly
there for a moment, and then brought down to half-mast. To lower the flag, it must again be hoisted to full-
mast before bringing it down."

In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955 addressed to
Division Superintendents of Schools, enclosing a copy of Department Order No. 8, series of 1955 and enjoining
strict compliance therewith.

It would appear that pursuant to the Department Order in question, the flag ceremony contemplated therein was
held daily in every school, public and private. Petitioners' children attending the Buenavista Community School,

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Uson, Masbate, refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to the
requirement of Department Order No. 8; as a result they were expelled from school sometime in September, 1955.
It is said that other children similarly situated who refused or failed to comply with the requirement about saluting
the flag are under threats of being also expelled from all public schools in the Philippines.

Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of this flag
ceremony, they and their children attending school be allowed to remain silent and stand at attention with their arms
and hands down and straight at the sides and that they be exempted from executing the formal salute, singing of
the National Anthem and the reciting of the patriotic pledge, giving their reason for the same. On December 16,
1955 the Secretary of Education wrote to counsel for petitioner denying the petition, making it clear that the denial
was the final and absolute stand of the Department of Education on the matter and that counsel may thereafter feel
free to seek a judicial determination of the constitutionality or interpretation of Republic Act No. 1265 as construed
and applied to Jehovah's Witnesses. The letter also informed petitioners' counsel that with reference to his letter of
December 1, 1955 relative to the request for reinstatement of petitioners' children who had been expelled from
school for non-compliance with Department Order No. 8, no favorable action could be taken thereon. So, on March
27, 1957 petitioners commenced the present action asking that a writ of preliminary injunction issue to restrain the
Secretary of Education and the Director of Public Schools from enforcing Department Order No. 8 "as applied to
petitioners and all others of Jehovah's Witnesses for whom this action is brought and to restrain them from
excluding from the public schools the children of the petitioners on account of their refusal to execute a formal
salute to the flag, sing the national anthem and recite the patriotic pledge, and that after hearing, the trial court
declare Department Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary injunction prayed
for be made permanent.

Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body teaching that
the obligation imposed by law of God is superior to that of laws enacted by the State. Their religious beliefs include
a literal version of Exodus, Chapter 20, verses 4 and 5, which say: "Thou shalt not make unto thee any graven
image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water
under the earth; thou shalt not bow down thyself to them, nor serve them." They consider that the flag is an "image
within this command. For this reason they refuse to salute it.

To further make clear the stand of petitioners as to the relative position and priority of religious teaching on the one
hand and laws promulgated by the State on the other, we quote from appellant's brief on page 50 thereof:

In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United States Supreme
Court held that the flag `is an emblem of National sovereignty,

To many persons the saluting of a national flag means nothing. To a sincere person who believed in God
and the Bible as his Word, and who is in a covenant with Almighty God to do his will exclusively, it means
much. To such person "sovereignty" means the supreme authority or power. Many believe that "the higher
powers," mentioned in the Bible at Romans 13:1, means the "sovereign state"; but to the Christian this
means Jehovah God and his son, Christ Jesus, Jehovah's anointed King. They, Father and Son are the
higher powers, to whom all must be subject and joyfully obey. (Emphasis supplied)

The question involved in this appeal is a highly important one. We are called upon to determine the right of a citizen
as guaranteed by the Constitution about freedom of religious belief and the right to practice it as against the power
and authority of the State to limit or restrain the same. Our task is lessened by the fact that petitioners do not
challenge the legality or constitutionality of Republic Act 1265. All that they question is the legality or
constitutionality of Department Order No. 8, series of 1955 of the Department of Education implementing said
Republic Act.

The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the latter. The Government steps in and either
restrains said exercise or even prosecutes the one exercising it.
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One may believe in polygamy because it is permitted by his religious, but the moment he translates said religious
belief into an overt act, such as engaging or practising plural marriages, he may be prosecuted for bigamy and he
may not plead or involve his religious belief as a defense or as matter of exemption from the operation of the law.

In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law prohibiting and
punishing polygamy even as against the claim of religious belief of the Mormons. Said the Court:

So here, as a law of the organization of society under the exclusive dominion of the United States, it is
provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become a law unto himself .
Government could exist only in name under such circumstance. (emphasis supplied)

Again, one may not believe in the payment of taxes because he may claim that according to his religious belief, the
payment of taxes means service to one other than God. As long as he confines himself to mere belief, well and
good. But when he puts said belief into practice and he actually refuses to pay taxes on his property or on his
business, then the States steps in, compels payment, and enforces it either by court action or levy and distraint.

One of the important questions to determine here is the true meaning and significance of the Filipino flag.
Petitioners believe and maintain that it is an image and therefore to salute the same is to go against their religious
belief. "Thou shalt not make unto thee any graven . . . thou shalt not bow down thyself to them or serve them." They
also claim that the flag salute is a religious ceremony, participation in which is forbidden by their religious belief. We
disagree. Appellants themselves (page 51 of their brief) concede that the flag is a symbol of the State. They give
the meaning of the word "image" on page 51 of their brief as follows:

Under the word "image" this comment is given by Webster: "Image, in modern usage, commonly
suggestsreligious veneration." (Emphasis supplied)

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect.
Considering the complete separation of church and state in our system of governments, the flag is utterly devoid of
any religious significance. Saluting the flag consequently does not involve any religious ceremony. The flag salute,
particularly the recital of the pledge of loyalty is no more a religious ceremony than the taking of an oath of office by
a public official or by a candidate for admission to the bar. In said oath, taken while his right hand is raised, he
swears allegiance to the Republic of the Philippines, promise to defend the Constitution and even invokes the help
of God; and it is to be doubted whether a member of Jehovah's Witness who is a candidate for admission to the
Philippine Bar would object to taking the oath on the ground that is religious ceremony.

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It
cannot be left to a a religious group or sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or ceremony.

We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at attention with
their arms and hands down straight at the sides, and they agree that boys, members of Jehovah's Witness who
have been taking part in military training or Boy Scout activities, and are in uniform, may execute the salute to the
flag prescribed by the Circular for them. So, the requirement contained in Department Order No. 8 that during the
flag ceremony those without hats may stand with their arms and hands down and straight at the sides, including the
formal salute by boys in military and boy Scout uniform, meets with the conformity of petitioners. Of course, there is
the other requirement that boys and men with hats shall salute the flag by placing their hats over the heart, but
petitioners and other members of the Jehovah's Witness could well solve this requirements or avoid it by putting
away their hats just as pupils books, may put them away, at command (Rules and Regulations, Sec. 2, par. [a]).
Consequently, the opposition of petitioners to the flag salute may be reduced to their objection to singing the
National Anthem and reciting the patriotic pledge.

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After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning of this
decision, frankly we find nothing, absolutely nothing, objectionable, even from the point of view of religious belief.
The school child or student is simply made to say that he loves the Philippines because it is the land of his birth and
the home of his people; that because it protects him, in return he will heed the counsel of his parents, obey the
rules and regulations of his school, perform the duties of a patriotic and law-abiding citizen; and serve his country
unselfishly and faithly, and that he would be a true Filipino in thought, in word, and in deed. He is not even made to
pledge allegiance to the flag or to the Republic for which it stands. So that even if we assume for a moment that the
flag were an image, connoting religious and veneration instead of a mere symbol of the State and of national unity,
the religious scruples of appellants against bowing to and venerating an image are not interfered with or otherwise
jeopardized.

And as to the singing of the National Anthem, which we reproduce below:

Land of the morning,

Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
Onever shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
Olandoflight,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.

the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of suffering and
dying for it. It does not even speak of resorting to force and engaging in military service or duty to defend the
country, which service might meet with objection on the part of conscientious objectors. Surely, petitioners do not
disclaim or disavow these noble and sacred feelings of patriotism, respect, even veneration for the flag and love of
coutnry for which the flag stands.

Men may differ and do differ on religous beliefs and creeds, government policies, the wisdom and legality of laws,
even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag,
national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and
viatlly interested, for to them, they mean national existence and survival as a nation or national extinction.

In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their failure or
refusal to obey school regulations about the flag salute they were not being persecuted. Neither were they being
criminally prosecuted under threat of penal sacntion. If they chose not to obey the flag salute regulation, they
merely lost the benefits of public education being maintained at the expense of their fellow citizens, nothing more.
According to a popular expression, they could take it or leave it. Having elected not to comply with the regulations
about the flag salute, they forfeited their right to attend public schools.

In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the present case,
appellants therein were taxpayers and citizens of the United States and of California. The University of California
received endowment and support from the State legislature under certain conditions such as that any resident of
California of the age of 14 years or upward of approved moral character shall have the right to enter the University

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as a student and receive instructions therein. The University as part of its cirriculum and instruction required military
science and tactics in the Reserve Officers Training Corps. Appellants conformed to all requirements of the
University except taking the course in military science and tactics and for this the regents of the University
suspended them. Appellants were members of the Methodist Espiscopal Church and of the Epworth League. For
many years their fathers have been ordained ministers of that church. They believed that war and preparation for
war is a violation of their religious belief. In other words, they were conscientious objectors to war. They believed
that war, training for war, and military training were immoral, wrong and contrary to the letter and spirit of the
teaching of God and precepts of the Christian religion. They petitioned for exemption from the military science and
tactics course but the regents refused to make military training optional or to exempt them and they were
suspended. So they initiated court action with a California Supreme Court to compel the regents of the University to
admit them. In that action they assailed the validity of the State law providing for military training in the University.
The petition was denied by the State Supreme Court. In affirming the decision of the State Supreme Court, the
Supreme Court of the United States held that:

. . . California has not drafted or called them to attend the University. They are seeking education offered by
the State and at the same time insisting that they be excluded from the prescribed course solely upon
grounds of their religious beliefs and consicientious objections to war, preparation for war and military
education. Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no more
than an assertion that the due process clause of the Fourtheenth Amendment as a safeguard of liberty'
confers the right to be students in the state university free from obligation to take military training as one of
the conditions of attendance.

Viewed in the light of our decisions that proposition must at once be put aside as untenable . . .

In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later naturalization case, the
applicant was unwilling, because of conscientious objections, to take unqualifiedly the statutory oath of
allegiance which contains this statement: "That he will support and defend the constitution and laws of the
United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same."
U.S.C. title 8, Sec. 381. His petition stated that he was willing if necessary to take up arms in defense of
this country, "but I should want to be free to judge of the necessity." In amplification he said: "I do not
undertake to support "my country, right or wrong" in any dispute which may arise, and I am not willing to
poromise beforehand, and without knowing the cause for which my country may go to war, either that I will
or that I will not "take up arms in defense of this country," however "necessary" the war may seem to be to
the government of the day." The opinion of this court quotes from petitioner's brief a statement to the effect
that it is a fixed principle of our Constitution, zealously guarded by our laws, that a citizen cannot be forced
and need not bear arms in a war if he has conscientious religious scruples against doing so." And, referring
to that part of the argument in behalf of the applicant this court said (p. 623): "This, if it means what it
seems to say, is an astonishing statement. Of course, there is no such principle of the Constitution, fixed or
otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no
constitutional provision, express or implied; but because, and only because, it has accorded with the policy
of Congress thus to relieve him . . . The previlege of the native-born conscientious objector to avoid bearing
arms comes not from the Constitution but from the acts of Congress. That body may grant or withhold the
exemption as in its wisdom it sees fit; and if it be withheld, the native-born conscientious objector cannot
successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the
war power as above illustrated, which include by necessary implication, the power, inthe last extremity, to
compel armed serviced of any citizen in the land, without regard to his objections or his views in respect of
the justice or morality of the particular war or of war in general. In Jacobson v. Massachusetts, 197 U.S. 11,
29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann. Cas, 765, this Court (upholding a state compulsory vaccination
law) speaking of the liberties guaranteed to the individual by the Fourteenth Amendment, said: "... and yet
he may be compelled, by force if need be, against his will and without regard to his personal wishes or his
pecuniary intersts, or even his religious or political convictions, to take his place in the ranks of the army of
his country and risk the chance of being shot down in its defense.

And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now before us,
decided against the contention of a student in the University of Maryland who on conscientious grounds
objected to military training there required. His appeal to this Court was dismissed for the want of a
substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54 S. Ct. 131.

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 Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students
under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in military
science and tactics, transgresses any constitutional right asserted by these appellants.

Mr. Justice Cardozo in his concurring opinion said:

I assume for present purposes that religious liberty protected by the First Amendment against invasion by
the nation is protected by the Fourteenth Amendment against invasion by the states.

Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the free
exercise" of religion as the phrase was understood by the foundrs of hte nation, and by the generations that
have followed. Davis vs. Beasin, 133 U.S. 333, 342, 33 L. ed. 637, 10 s.Ct. 299.

There is no occasion at this time to mark the limits of governmental power in the exaction of military service
when the nation is at peace. The petitioners have not been required to bear arms for any hostile purpose,
offensive or defensive, either now or in the future. They have not even been required in any absolute or
peremptory way to join courses of instruction that will fit them to bear arms. If they elect to resort to an
institution for higher education maintained with the state's moneys, then they are comanded to follow
courses of instruction believed by the state to be vital to its welfare. This may be condemned by some
unwise or illiberal or unfair when there is violence to conscientious scruples, either religious or merely
ethical. More must be shown to set the ordinance at naught. In controversies of this order courts do not
concern themselves with matters of legislative policy, unrelated to privileges or liberties secured by the
organic law. The first Amendment, if it be read into the Fourteenth, makes invalid any state law `respecting
an establishment of religion or prohibiting the free exercise thereof.' Instruction in military science is not
instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a
state religion when it insists upon such training. Instruction in military science, unaccompanied here by any
pledge of military service, is not an interference by the state with the free exercise of religion when the
liberties of the constitution are read in the light of a century and a half of history during days of peace and
war . . .

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The
conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in
furtherance of a war, whether for attack or for defense, or in furtherance of any other end, condemned by
his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above
the powers and the compulsion of the agencies of government. One who is a martyr to a principlewhich
may turn out in the end to be a delusion or an errordoes not prove by his martyrdom that he has kept
within the law."

We are not unmindful of the decision of the United States Federal Supreme Court on similar set of facts. In the case
of Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah Witnesses children were
expelled from the public school of Minersville for refusing to salute the national flag in accordance with the
regulations poromulgated by the school board for the daily flag ceremony. Their father Gobitsi on behalf of his two
children and in his own behalf brought suit to enjoin the school authorities from continuing to exact the execution of
the flag ceremony as a condition of his children's admittance in school. After trial, the District Court gave him relief
and this decree was affirmed by the Circuit Court of Appeals. On appeal to the Federal Supreme Court, the decrees
of both the District Court and the Circuit Court of Appeals were reversed with the lone dissent of Chief Justice
Stone, on the ground that the requirement of participation of all pupils in the public schools in the flag ceremony did
not infringe the due process law and liberty guaranteed by the Constitution, particularly the one referring to religious
freedom and belief. Three years later, that is, on June 14, 1943, the ruling laid down in the Minersville School
District vs. Gobitis case, was in the case of West Virginia State Board of Education vs. Bernette, 319 U.S. 624-671
reversed by a sharply divided court, the majority opinion being penned by Mr. Justice Jackson in which Justice
Black, Douglas and Murphy concurred; while Mr. Justice Frankfurter who wrote the opinion in the Gobitis case, filed
a long dissenting opinion, and Justices Roberts and Reed adhered to the views expressed in the Gobitis case.

Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to criticize the
doctrine of the West Virginia vs. Barnette case, frankly, we are more inclined to favor the former as more in keeping

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with the spirit of our Constitution and the government policy as laid down in Republic Act No. 1265 entitles "An Act
Making Flag Ceremony Compulsory In All Educational Institutions".

We cannot help thinking that one reason that may have possibly influenced the decision in the West Virginia State
Board of Education vs. Barnette case, was that the children involved in said case and their parents found
themselves in a serious dilemma for refusing to salute the flag as required by the regulations of the School Board.
They were expelled by the School Board and their absence was considered unlawful and because of the law of
compulsory school atendance of all children of school age, they were considered as truants and the school officials
threatened to send them to reformatories maintained for criminially inclinded juveniles. Parents of such children
have been prosecuted or were threatened with prosecution for cause such as alleged delinquency and if convicted,
were subject to fine not exceeding $50.00 and a jail term not exceeding 30 days. That is why in the majority opinion
it was stated:

. . . The sole conflict is between authority and rights of the individual. The state asserts power to conditions
access to public education on making a prescribed sign and profession and at the same time to coerce
attendance by punishing both parent and child . . .

Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have a law
(Republic Act 896) requiring compulsory enrollment of children of shcool age, but said law contains so many
exceptions and exemptions that it can be said that a child of school age is very seldom compelled to attend school,
let alone the fact that almost invariably, there is school crisis every year wherein the pupils applying for admission in
public schools could not be accommodated, and what is equally important is that there is no punishment or penal
sanction either for the pupil who fail to attend school or is expelled for failure to comply with school regulations such
as the compulsory flag salute ceremony, or his parents.

In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the decision in the
case of West Virginia, the Supreme Court of the United States affirmed a decision of the Illinois Supreme Court
refusing admission of petitioner Clyde Wilson Summers to the Illinois Bar. Summers had complied with tall the
prerequisites to admission to the Bar of that state, but he was a conscientious objector who did not believe in the
use of force or war because of his religious belief. He described this attitude of his as follows:

The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament
too seriously. Instead of merely reading or preaching the Sermon on the Mount, he tries to practice it. The
only fault of the petitioner consists in his attempt to act as a good Christian in accordance with his
interpreation of the Bible, and according to the dictates of his conscience. We respectfully submit that the
profession of law does nt shut its gates to persons who have qualified in all other respects even when they
follow in the footsteps of that Great Teacher of mankind who delivered the Sermon on the Mount. We
respectfully submit that under our Constitutional guarantees even good Christians who have met all the
requirements for the admission to the bar may be admitted to practice law

The Constitution of Illinois required service in the militia in time of war of men of petitioner's age group. The Federal
Supreme Court defined the position of Summers as a conscientious objector in the following words:

. . . without detailing petitioner's testimony before the Committee or his subsequent statments in the record,
his position may be compendiously stated as one of non-violence. Petitioner will not serve in the armed
forces. While he recognizes a difference between the military and police forces, he would not act in the
latter to coerce threatened violations. Petitioner would not use force to meet aggression against himself or
his family, no matter how aggravated or whether or not carrying a danger of bodily harm to himself or
others. He is a believer in passive resistance. We need to consider only his attitude toward service in the
armed forces.

It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious belief. In
affirming the decision of the Illinois Supreme Court excluding Summers from the practice of law in that state, the
Federal Supreme Court held that the action of the State Supreme Court did not violate the principle of religious
freedom contained in the Constitution.

213
If a man lived, say on an island, alone and all by himself without neighbors, he would normally have complete and
absolute rights as to the way he lives, his religion, incuding the manners he practices his religious beliefs. There
would be no laws to obey, no rules and regulations to follow. He would be subject only to Nature's physical laws.
But man iis gregarious by nature and instinct and he gravitates toward community life, to receive and enjoy the
benefits of society and of social and political organization. The moment he does this and he becomes a member of
a community or nation, he has to give rights for the benefit of his fellow citizens and for the general welfare, just as
his fellow men and companions also agree to a limitation of their rights in his favor. So, with his religion. He may
retain retain his freedom or religious belief, but as to practising the same, he would have to give up some of those
practices repugnant to the general welfare and subordinate them to the laws and sovereignty of the State. In order
words, the practice of religion or religious belief is subject to reasonable and non-discrminatory laws and
regulations by the state.

In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme Court
affirmed a decision convicting Sarah Prince of a violation of the Child Labor Law of Massachusetts. Mr. Justice
Rutledge who wrote the opinion tersely described the case thus:

The case brings for review another episode in the conflict between Jehovah's Witneses and state authority.
This time Sarah Prince appeals from convictions for violating Massachusetts' child labor laws, by acts said
to be a rightful exercise of her religious convictions.

When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a girl nine
years of age. . . . (Emphasis supplied)

The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to distribute
religious pamphlets intended to propagate the religion of Johovah Wiitness. The question involved was whether or
not the law in question contravened the Fourtheenth Amendment by denying appellant freedom of religion and
denying to her the equal protection of the law. Defendant claimed that the child was exercising her God given right
and her constitutional right to preach the gospel and that no preacher of God's commands shold be interfered with.
She rested her case squarely on freedom of religion. In affirming the judgment of conviction and upholding the law
as agains the claiim of relgion and the exercise of religious belief, the court said:

. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to guard the general
interest in youth's well-being, the state as parens patriae may restrict the parent's control by requiring
shcool attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not
nullified merely because the parent grounds his claim to control the child's course of conduct on religion or
conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself
on relgious grounds. The right to practice religion freely does not include liberty to expose the community or
the child to communicable disease or the latter to ill health or death. . . . It is too late now to doubt that
legislation appropriately designed to reach such evils is withinthe state's police power, whether against the
parent's claim to control of the child or one that religious scruples dictate contrary action.

Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not
imposing a religion or religious belief or a religious test on said students. It was merely enforcing a non-
discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness.
The State was merely carrying out the duty imposed upon it by the Constitution which charges it with supervision
over and regulation of all educational institutions, to establish and maintain a complete and adequate system of
public education, and see to it that all schools aim to develop among other things, civic conscience and teach the
duties of citizenship. (Art. XIV, section 5 of the Constitution). It does nothing more than try to inculcate in the minds
of the school population during the formative period of their life, love of country and love of the flag, all of which
make for united and patriotic citizenry, so that later in after years they may be ready and willing to serve, fight, even
die for it. It is well known that whatever is taught to the youth during this period, such as love of God, of parents,
respect for elders, love of the truth, loyalty, honoring one's word and respecting the rights of other, becomes a habit
or second nature that will remain with them always. School children of kingdoms and empires are taught early to
respect and love the king or the emperor for these rulers and sovereigns symbolize the nation, and the children as
future citizens or subjects will come to love their country.
214
Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly but they do
"question the attempt to compel conscientious objectors guided by the word of God to salute the flag or participate
in the ceremony to specific commandment of Jehovah God. It is perfectly proper and lawful for one nt bound by a
covenant with Jehovah to salute the flag when that person desires to salute it. It is entirely wrong to interfere with
that right or prevent such one from saluting the flag. Conversely, it is also true that it is wrong and illegal to compel
one who, for concience' sake, cannot participate in the ceremony." (p. 85, Appellant's Brief)

The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they have no
valid right to such exemption is that the latter would disrupt shcool discipline and demoralize the rest of the school
population which by far constitutes the great majority. If the children of Jehovah Witnesses are exempted, then the
other pupils, especially the young ones seeing no reason for such exemption, would naturlly ask for the same
privilege because they might want to do something else such as play or study, instead of standing at attention
saluting the flag and singing the national anthem and reciting the patriotic pledge, all of which consume
considerable time; and if to avoid odions discrimination this exemption is extended to others, then the flag
ceremony would soon be a thing of the past or perhaps conducted with very few participants, and the time will
come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism a pathetic, even tragic situation, and all because a
small portion of the shcool population imposed its will, demanded and was granted an exemption. In a way that
might be regarded as tyranny of the minority, and a small minority at that.

In a few cases, such exemptions in a limited way have been afforded members of a religious group. Conscientious
objectors in the United States who because of their religion were unwilling to serve in the war particularly as
regards actual fighting or field duty, were allowed to do some work in relation to the war, but not involving combat
duty or the use of force. But that was by special legislation. If that is possible here as regards exemption from
participation in the flag ceremony, then petitioners would have to look to the Legislature, not the courts for relief.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption form or non-
compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority. As was said by Mr. Justice Frankfurter in h is dissent in West Virginia vs. Barnette, supra:

The constitutional protection of religious freedom ... gave religious equality, not civil immunity. Its essence
is freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma. Religious loyalties may be exercised without hindrance from the State, not the State may not
exercise that which except by leave of religious loyalties is within the domain of temporal power. Otherwise,
each individual could set up his own censor against obedience to laws conscientiously deemed for the
public good by those whose business it is to make laws. (West Virginia State Board vs. Barnette, supra, at
p. 653; emphasis supplied)

In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration; rather it is
symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the
flag salute is nt a religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for; that by authority of the legislature, the Secretary of Education was duly
authorized to promulgate Department Order No. 8, series of 1955; that the requirement of observance of the flag
ceremony or salute provided for in said Department Order No. 8, does not violate the Constitutional provision about
freedom of religion and exercise of religion; that compliance with the non-discriminatory and reasonable rules and
regulations and school disicipline, including observance of the flag ceremony is a prerequisite to attendance in
public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were properly excluded
and dismissed from the public shcool they were attending.

In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction heretofore issued is
ordered dissolved. No costs.

215
EBRALINAG VS DIVISION SUPERINTENDENT OF CEBU
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO
EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO,
represented by their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS,
represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA,
represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented
by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. &
MRS. MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO;
MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR;
FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO
ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO
VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN
GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE
LAUDE; LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES;
MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO
TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA,
represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his
parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON,
represented by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO,
represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH,
represented by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented by
their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT
ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA
ALSADO, REU ALSADO & LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO
ALSADO; SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES;
JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN
MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR,
represented by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA,
represented by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY;
216
JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE ANTIOLA and ANECITA
ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA
TURNO; SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented by
their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise
essentially the same issue: whether school children who are members or a religious sect known as Jehovah's
Witnesses may be expelled from school (both public and private), for refusing, on account of their religious beliefs,
to take part in the flag ceremony which includes playing (by a band) or singing the Philippine national anthem,
saluting the Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog,
Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan
Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents who
belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in
the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan,"
the petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose
parents are Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No.
1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture
and Sports (DECS) making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265
provides:

Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be
simple and dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be
issued rules and regulations for the proper conduct of the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with
rules and regulations issued by the Secretary of Education, after proper notice and hearing, shall
subject the educational institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of general circulation.

217
 In case of failure to observe for the second time the flag-ceremony provided by this Act, the
Secretary of Education, after proper notice and hearing, shall cause the cancellation of the
recognition or permit of the private educational institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL

EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every
school day throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-staff
must be straight, slightly and gently tapering at the end, and of such height as would give the Flag
a commanding position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning
except when it is raining, in which event the ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its
premises shall assemble in formation facing the flag. At command, books shall be
put away or held in the left hand and everybody shall come to attention. Those with
hats shall uncover. No one shall enter or leave the school grounds during the
ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the
school band or without the accompaniment if it has none; or the anthem may be
played by the school band alone. At the first note of the Anthem, the flag shall be
raised briskly. While the flag is being raised, all persons present shall stand at
attention and execute a salute. Boys and men with hats shall salute by placing the
hat over the heart. Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform shall give the
salute prescribed by their regulations. The salute shall be started as the Flag rises,
and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in
unison the following patriotic pledge (English or vernacular version), which may
bring the ceremony to a close. This is required of all public schools and of private
schools which are intended for Filipino students or whose population is
predominantly Filipino.

English Version

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;

218
 I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the
patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10,Rollo) which they
"cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's
command to "guard ourselves from
idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo).
They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect
against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from
school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this
Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959)
and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the
expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Under a system of complete separation of church and state in the
government, the flag is utterly devoid of any religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of
an oath of office by a public official or by a candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education
is not imposing a religion or religious belief or a religious test on said students. It is merely
enforcing a
non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or
Jehovah's Witness. The State is merely carrying out the duty imposed upon it by the Constitution
which charges it with supervision over and regulation of all educational institutions, to establish and
maintain a complete and adequate system of public education, and see to it that all schools aim to
develop, among other things, civic conscience and teach the duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony.
They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt
school discipline and demoralize the rest of the school population which by far constitutes the great
majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean
exemption from or non-compliance with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to
promulgate said Department Order, and its provisions requiring the observance of the flag salute,
219
 not being a religious ceremony but an act and profession of love and allegiance and pledge of
loyalty to the fatherland which the flag stands for, does not violate the constitutional provision on
freedom of religion. (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives
legislative cachet to the ruling in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be
dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new
Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the
DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the
Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine national
anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools, Susana B.
Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent,
recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated November 17, 1989 (pp.
147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals and Heads of Private
Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and
school employees in public schools who refuse to salute the Philippine flag or participate in the
daily flag ceremony because of some religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No.
8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the heart of the DECS
sustained effort to inculcate patriotism and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is not in any manner
whatever a justification for not saluting the Philippine flag or not participating in flag ceremony.
Thus, the Supreme Court of the Philippine says:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and freedom and
liberty which it and the Constitution guarantee and protect. (Gerona, et al. vs. Sec.
of Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may advance, the Supreme
Court asserts:

But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)

220
 5. Accordingly, teachers and school employees who choose not to participate in the daily flag
ceremony or to obey the flag salute regulation spelled out in Department Order No. 8, Series of
1955, shall be considered removed from the service after due process.

6. In strong language about pupils and students who do the same the Supreme Court has this to
say:

If they choose not to obey the flag salute regulation, they merely lost the benefits
of public education being maintained at the expense of their fellow Citizens,
nothing more. According to a popular expression, they could take it or leave it!
Having elected not to comply with the regulation about the flag salute they forfeited
their right to attend public schools. (Gerona, et al. vs. Sec. of Education, et al., 106
Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those who choose not to
participate in flag ceremony or salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770;
Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the
memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in
the Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of the
song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's
Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2,
1990 and yesterday due to their firm stand not to salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as mandated by law specifically Republic Act No.
1265, this Office hereby orders the dropping from the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17, 1989
by virtue of Department Order No. 8 s. 1955 dated July 21, 1955 in accordance with Republic Act
No. 1265 and Supreme Court Decision of a case "Genaro Gerona, et al., Petitioners and Appellants
vs. The Honorable Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls" of
students who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that "they
forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

221
 Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School with
the information that this office is sad to order the dropping of Jeremias Diamos and Jeaneth
Diamos, Grades III and IV pupils respectively from the roll since they opted to follow their religious
belief which is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955,
having elected not to comply with the regulation about the flag salute they forfeited their right to
attend public schools (Gerona, et al. vs. Sec. of Education, et al., 106 Philippines 15). However,
should they change their mind to respect and follow the Flag Salute Law they may be re-accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School,
Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School, Tabuelan
Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San Juan
Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting
Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary
of Education Isidro Cario but the latter did not answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina,
who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of
his predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions for Mandamus,Certiorari and
Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave abuse
of discretion (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their right to
due process, their right to free public education, and their right to freedom of speech, religion and worship (p.
23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the rolls of herein
petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring the petitioners from
their classes or otherwise implementing the expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to admit and order the
re-admission of petitioners to their respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining
the respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory
injunction commanding the respondents to immediately re-admit the petitioners to their respective classes until
further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be
impleaded as respondents in these cases.

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On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the
expulsion orders issued by the public respondents on the grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school
children and consequently disloyal and mutant Filipino citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the
DECS' rules and regulations on the flag salute ceremonies are violative of their freedom of religion
and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of
country, for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful regulations in question do
not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and jurisprudence.

6. State's power to regulate repressive and unlawful religious practices justified, besides having
scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No.
292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law
and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that one
may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag
ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of
the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV,
Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and
freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is translated into external acts that
affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in
"external acts" or behavior that would offend their countrymen who believe in expressing their love of country
through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show their
respect for the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No.

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95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no
warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to
public safety, the expulsion of the petitioners from the schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with very few participants,
and the time will come when we would have citizens untaught and uninculcated in and not imbued
with reverence for the flag and love of country, admiration for national heroes, and patriotism a
pathetic, even tragic situation, and all because a small portion of the school population imposed its
will, demanded and was granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a
"small portion of the school population" will shake up our part of the globe and suddenly produce a nation "untaught
and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national
heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from
the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic
way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also
receive training for a vocation of profession and be taught the virtues of "patriotism, respect for human rights,
appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art.
XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will
bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of
country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous
instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions
to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal
with here, the price is not too great. But freedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . assuming that
such unity and loyalty can be attained through coercion is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State
to "protect and promote the right of all citizens to quality education . . . and to make such education accessible to all
(Sec. 1, Art. XIV).

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In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the
Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any labor group:

. . . It is certain that not every conscience can be accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be granted unless
some "compelling state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965,
970, 83 S. Ct. 1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. DamesII, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their religion, "this should not be taken to mean that
school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that
offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag
ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic
pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave and present danger of a
serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a
right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 when
every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed
before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would
not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own flag was proudly
hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride and joy over the newly-
regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the
Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our
country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public
respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order
which was issued by this Court is hereby made permanent.

SO ORDERED.

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