Freedom of Religion

(1) Aglipay v. Ruiz, G.R. No. 45459, March 13, 1937)

(4) (Garces v. Estenzo, G.R. No. L-53487, May 25, 1981)
(8) (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957)
(14) (Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996)
(28) (Ebralinag v. Division of Superintendent of Schools of Cebu, G.R. Nos. 95770 & 95887, March 01, 1993)
(36) (Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006)
(54) (Estrada v. Escritor, A.M. No. P-02-1651, August 04, 2003)
(118) (Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007)
(120) (Imbong v. Ochoa, Jr., G.R. No. 204819, 204934, &, 204988, 205003, 205043, 205138, 205478, 205491,
205720, 206355, 207111, 207172, 207563, April 08, 2014)
man to his Creator is recognized. And, in so far as it
(Aglipay v. Ruiz, G.R. No. 45459, March 13, 1937) instills into the minds the purest principles of morality,
FIRST DIVISION its influence is deeply felt and highly appreciated.
5. ID.; ID.; POSTAGE STAMPS ISSUED UNDER ACT No.
[G.R. No. 45459. March 13, 1937.] 4052. The respondent Director of Posts issued the
GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, postage stamps in question under the provision of
respondent. Act No. 4052 of the Philippine Legislature which
Vicente Sotto for petitioner. appropriates the sum of sixty thousand pesos for the
Solicitor-General Tuason for respondent. cost of plates and printing of postage stamps with
new designs and other expenses incident thereto,
SYLLABUS and authorizes the Director of Posts, with the
1. PROHIBITION; ISSUANCE OF WRIT FOR ACTS approval of the Secretary of Public Works and
PERFORMED WITHOUT JURISDICTION. While, Communications, to dispose of the amount
generally, prohibition as an extraordinary legal writ appropriated in the manner indicated and "as
will not issue to restrain or control the performance often as may be deemed advantageous to the
of other than judicial or quasi-judicial function (50 Government."
C. J., 658), its issuance and enforcement are 6. ID.; ID.; ID. Act No. 4052 contemplates no
regulated by statute and in this jurisdiction may religious purpose in view. What it gives the Director
issue to ". . . inferior tribunals, corporations, boards, of Posts is the discretionary power to determine
or persons, whether exercising functions judicial or when the issuance of special postage stamps
ministerial, which are without or in excess of the would be "advantageous to the Government." Of
jurisdiction of such tribunal, corporation, board, or course, the phrase ""advantageous to the
person . . .." (Secs. 516 and 226, Code of Civil Government" does not authorize the violation of the
Procedure.) Constitution. It does not authorize the
2. ID.; ID.; DIRECTOR OF POSTS. The term "judicial" appropriation, use or application of public money
and "ministerial" used with reference to "functions" in or property for the use, benefit or support of a
the statute are undoubtedly comprehensive and particular sect or church. In the present case,
include the challenge act of the respondent however, the issuance of the postage stamps in
Director of Posts in the present case, which act question by the Director of Posts and the Secretary
because alleged to be violative of the Constitution of Public Works and Communications was not
is a fortiori "without or in excess of . . . jurisdiction." inspired by any sectarian feeling to favor a
3. ID.; ID.; WRIT NOT CONFINED EXCLUSIVELY TO particular church or religious denominations. The
COURTS OR TRIBUNALS. The statutory rule, stamps were not issued and sold for the benefit of
therefore, in this jurisdiction is that the writ of the Roman Catholic Church. Nor were money
prohibition is not confined exclusively to courts or derived from the sale of the stamps given to that
tribunals to keep them within the limits of their own church.
jurisdiction and to prevent them from encroaching 7. ID.; ID.; ID. The only purpose in issuing and
upon the jurisdiction of other tribunals, but will issue, selling the stamps was "to advertise the Philippines
in appropriate cases, to an officer or person whose and attract more tourists to this country." The
acts are without or in excess of his authority. Not officials concerned merely took advantage of an
infrequently, "the writ is granted, where it is event considered of international importance "to
necessary for the orderly administration of justice, or give publicity to the Philippines and its people." The
the prevent the use of the strong arm of the law in stamps as actually designed and printed (Exhibit 2),
an oppressive or vindictive manner, or a multiplicity instead of showing a Catholic Church chalice as
of actions." (Dimayuga and Fajardo vs. Fernandez originally planned, contains a map of the
[1922], 43 Phil., 304, 307.) Philippines and the location of the City of Manila,
4. CONSTITUTION OF THE PHILIPPINES; RELIGIOUS and an inscription as follows: "Seat XXXIII
FREEDOM. What is guaranteed by our International Eucharistic Congress, Feb. 3-7, 1937."
Constitution is religious liberty, not mere religious What is emphasized is not the Eucharistic Congress
toleration. Religious freedom, however, as a itself but Manila, the capital of the Philippines, as
constitutional mandate is not inhibition of profound the seat of that congress.
reverence for religion and is not a denial of its 8. ID.; ID.; ID. While the issuance and sale of the
influence in human affairs. Religion as a profession stamps in question may be said to be inseparably
of faith to an active power that binds and elevates linked with an event of a religious character, the
1|CONSTI2_Section 5_ Freedom of Religion
resulting propaganda, if any, received by the
Roman Catholic Church, was not the aim and
purpose of the Government. 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.)
DECISION
LAUREL, J p:
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 issuance
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 for printing as follows:
"In the center is a 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., 658), its issuance and enforcement are
regulated by statute and in this jurisdiction may
issue to ". . . inferior tribunals, corporations, boards,
or persons, whether exercising 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 fortiori "without
or in excess of . . . jurisdiction." The statutory rule,
therefore, in this jurisdiction is that the writ of
prohibition is not confined exclusively to courts or
2|CONSTI2_Section 5_ Freedom of Religion
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.)
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 13, 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, 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,
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
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.
The Malolos Constitution 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 to 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 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. 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. 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 (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, Ad. Code).
Thursday and Friday of Holy Week, Thanksgiving
Day, Christmas Day, and Sundays are made legal
holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conducive 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 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 cost of plates, and
printing of postage stamps with new designs, and
other expenses incident thereto.
"SECTION 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
3|CONSTI2_Section 5_ Freedom of Religion
as may be deemed advantageous to the
Government.
"SECTION 3. This amount or any portion thereof not
otherwise expended shall not revert to the Treasury.
"SECTION 4. This act shall take effect on its approval.
"Approved, February 21, 1933."
It will be seen that the Act appropriate the sum of
sixty thousand pesos for the cost 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 P1,618,179.10 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
feeling to favor a particular church or religious
denominations. The stamps were not issued 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 letter 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 tourists 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 in 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 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.)
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
persecution, 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 issue 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.
Avancea, C. J., Villa-Real, Abad Santos, Imperial
Diaz and Concepcion, JJ., concur.
(Garces v. Estenzo, G.R. No. L-53487, May 25, 1981)
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.
Francisco D. Abas and Narciso Marilao, Jr. for
petitioners.
4|CONSTI2_Section 5_ Freedom of Religion
Celso C . Veloso, Dominador T . Tabucanon and
Faustino C. Tumamak, Jr. for private respondents.
SYNOPSIS
A wooden image of San Vicente Ferrer was
acquired by the barangay council with funds raised
by means of solicitations and cash donations
pursuant to Resolution No. 5 of said council, duly
ratified by the barangay assembly in a plebiscite,
reviving the traditional socio-religious celebration of
the feast day of the saint. The image was brought
to the Catholic parish church during the saint's feast
day as per Resolution No. 6 which also designated
the hermano mayor as the custodian of the image.
After the fiesta, however, petitioner parish priest
refused to return custody of the image to the
council until after the latter, by resolution, filed a
replevin case against the priest and posted the
required bond. The parish priest and his co-
petitioners thereafter filed an action for annulment
of the council's resolutions relating to the subject
image contending that when they were adopted,
the barangay council was not duly constituted
because the chairman of the Kabataang Barangay
was not allowed to participate; and that they
contravened the constitutional provisions on
separation of church and state. freedom of religion
and the use of public money to favor any sect or
church. The lower court dismissed the complaint
and upheld the validity of the resolution.
On petition for review, the Supreme Court held, that
the absence of the Kabataang Barangay
chairman, despite due notice from the sessions of
the barangay council, did not render the resolutions
then adopted void since there was a quorum; and
that the questioned resolutions did not contravene
any constitutional provision since the image was
purchased with private funds, not with tax money,
and in connection with a socio-religious affair, the
celebration of which is an ingrained tradition in rural
communities.
Judgment of the lower court affirmed.
SYLLABUS
1. CONSTITUTIONAL LAW; DECLARATION OF
PRINCIPLES AND STATE POLICIES; LOCAL
AUTONOMY; BARANGAY; BARANGAY COUNCIL;
COMPOSITION THEREOF. The barrio council, now
barangay council, is composed of the barangay
captain and six councilmen (Sec. 7, Revised Barrio
Charter, R.A. No. 3590). Section 3 of Presidential
Decree No. 684, which took effect on April 15, 1975,
provides that "the barangay youth chairman shall
be ex-officio member of the barangay council",
having the same powers and functions as a
barangay councilman.
2. ID.; ID.; ID.; ID.; ID.; ABSENCE IN SESSION OF DULY
NOTIFIED MEMBER DOES NOT RENDER RESOLUTION
ADOPTED DURING SAID SESSION VOID IF THERE WAS
A QUORUM. In the case at bar, the absence of
the barangay youth chairman from the sessions of
the barangay council when the questioned
resolutions were adopted, did not render said
resolutions void, because there was a quorum and
he was duly notified of said sessions.
3. ID.; SEPARATION OF CHURCH AND STATE;
BARANGAY COUNCIL'S RESOLUTION PROVIDING
FOR PURCHASE OF SAINT'S IMAGE WITH PRIVATE
FUNDS IN CONNECTION WITH BARANGAY FIESTA,
CONSTITUTIONAL. Resolution No. 5 of the
barangay council of Valenzuela, Ormoc City,
"reviving the traditional socio-religious celebration"
every fifth day of April "of the feast day of Seor San
Vicente Ferrer, the patron saint of Valenzuela", and
providing for: (I) the acquisition of the image of San
Vicente Ferrer; and (2) the construction of a waiting
shed as the barangay's projects, funds for which
would be obtained through the "selling of tickets
and cash donations", does not directly or indirectly
establish any religion, nor abridge religious liberty,
nor appropriate money for the benefit of any sect,
priest or clergyman. The image was purchased with
private funds, not with tax money. The construction
of the waiting shed is entirely a secular matter. 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 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 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.
4. ID.; ID.; BARANGAY COUNCIL'S RESOLUTION
DESIGNATING CUSTODIAN OF SAINT'S IMAGE WHICH
WAS BOUGHT WITH COUNCIL'S PRIVATE FUNDS IN
CONNECTION WITH BARRIO FIESTA, VALID AND
CONSTITUTIONAL. Resolution No. 6 of the
Barangay Council of Valenzuela, Ormoc City,
adopted in connection with Resolution No. 5
(providing for the purchase of an image of San
Vicente Ferrer with funds from solicitations and cash
donations) and which specified that, in
accordance with the practice in Eastern Leyte, 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 fiesta, and that the image
would be made available to the Catholic parish
church during the celebration of the saint's feast
day, does not involve at all, even remotely or
indirectly, the momentous issues of separation of
church and state, freedom of religion and the use
of public money to favor any sect or church,
contrary to the contradictory positions of the
petitioners petitioner Garces swearing that the
said resolutions favored the Catholic Church, and
petitioners Dagar and Edullantes swearing that the
5|CONSTI2_Section 5_ Freedom of Religion
resolutions prejudiced the Catholics because they
could sec the image in the church only once a
year during the fiesta. There can be no question
that the image in question belongs to the barangay
council. Father Osmea's claim that it belongs to
the church is wrong. The barangay council, as
owner of the image, has the right to determine who
should have custody thereof. 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. If the council 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.
5. ID.; ID.; BARANGAY COUNCIL'S RESOLUTION
AUTHORIZING THE HIRING OF A LAWYER TO FILE
REPLEVIN CASE AND APPOINTING REPRESENTATIVE
IN SAID CASE; VALID. The barangay council of
Valencia has the right to take measures to recover
possession of the image of San Vicente Ferrer,
which is its private property, from the parish priest of
Valenzuela by enacting Resolution No. 10,
authorizing the hiring of a lawyer to file a replevin
case against Father Osmea for the recovery of the
image, as well as Resolution No. 12, appointing
Veloso as its representative in the replevin case.
6. ID.; ID.; NOT ALL GOVERNMENTAL ACTIVITY
HAVING RELIGIOUS TINT VIOLATIVE OF
CONSTITUTION. 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. (Sec Aglipay
vs. Ruiz, 64 Phil. 201)
DECISION
AQUINO, J p:
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. Cdpr
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. It 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 solicitations 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-1, 3 and 4).
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. cdphil
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
6|CONSTI2_Section 5_ Freedom of Religion
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). In 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. It 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 Isidoro M.
Maago, Jr., the chairman of the kabataang
barangay, was not allowed to participate in its
sessions. LibLex
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 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).
prcd
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
7|CONSTI2_Section 5_ Freedom of Religion
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 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 and the use
of public money to favor any sect or church are not
involved at all in this case even remotely or
indirectly. It is not a microcosmic test case on those
issues.
This case is a petty quarrel over the custody of a
saint's image. It 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's 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. cdrep
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 that 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. llcd
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.
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.
Fernando, C . J ., Barredo, Makasiar, Guerrero, De
Castro and Melencio-Herrera, JJ ., concur.
Teehankee, J ., concurs in the result.
Fernandez and Concepcion Jr., JJ ., are on official
leave.
(American Bible Society v. City of Manila, G.R. No.
L-9637, April 30, 1957)
SECOND DIVISION
[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.
8|CONSTI2_Section 5_ Freedom of Religion
SYLLABUS
1. STATUTES; SIMULTANEOUS REPEAL AND RE-
ENACTMENT; EFFECT OF REPEAL UPON RIGHTS AND
LIABILITIES WHICH ACCRUED UNDER THE ORIGINAL
STATUTE. Where the old statute is repealed in its
entirety and by the same enactment re-enacts all
or certain portions of the pre-existing law, the
majority view holds that the rights and 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). In the
case at bar, Ordinances Nos. 2529 and 3000 of the
City of Manila 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 13, 1949, by section 13, Subsection (o) of
Republic Act No. 409, known as the Revised Charter
of the City of Manila. The only essential difference
between these two provisions 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 authorities aforementioned, City ordinances Nos.
2529 and 3000 are still in force and effect.
2. MUNICIPAL TAX; RETAIL DEALERS IN GENERAL
MERCHANDISE; ORDINANCE PRESCRIBING TAX NEED
NOT BE APPROVED BY THE PRESIDENT TO BE
EFFECTIVE. 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 businesses referred to in subsection (ii) Section
18 of the same Act subject to the approval of the
President.
3. CONSTITUTIONAL LAW; RELIGIOUS FREEDOM;
DISSEMINATION OF RELIGIOUS INFORMATION, WHEN
MAY BE RESTRAINED; PAYMENT OF LICENSE FEE,
IMPAIRS FREE EXERCISE OF RELIGION. 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." (Taada and Fernando on the
Constitution of the Philippines, Vol. I, 4th ed., p. 297).
In the case at bar, plaintiff is engaged in the
distribution and sales of bibles and religious articles.
The City Treasurer of Manila informed the plaintiff
that it was conducting the business of general
merchandise without providing itself with the
necessary Mayor's permit and municipal license, in
violation of Ordinance No. 3000, as amended, and
Ordinance No. 2529, as amended, and required
plaintiff to secure the corresponding permit and
license. Plaintiff protested against this requirement
and claimed that it never made any profit from the
sale of its bibles. Held: It is true the price asked for
the religious articles was in some instances a little bit
higher than the actual cost of the same, but this
cannot mean that plaintiff was engaged in the
business or occupation of selling said "merchandise"
for profit. For this reasons, the provisions of City
Ordinance No. 2529, as amended, which requires
the payment of license fee for conducting the
business of general merchandise, cannot be
applied to plaintiff society, 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. Upon the other
hand, City Ordinance No. 3000, as amended,
which requires the obtention of the Mayor's permit
before any person can engage in any of the
businesses, trades or occupations enumerated
therein, does not impose any charge upon the
enjoyment of a right granted by the Constitution,
nor tax the exercise of religious practices. Hence, it
cannot be considered unconstitutional, even if
applied to plaintiff Society. But as Ordinance No.
2529 is not applicable to plaintiff and the City of
Manila is powerless to license or tax the business of
plaintiff society involved herein, for the reasons
above stated, Ordinance No. 3000 is also
inapplicable to said business, trade or occupation
of the plaintiff.
DECISION
FELIX, J p:
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
9|CONSTI2_Section 5_ Freedom of Religion
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 and 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:
"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
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
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 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).
10 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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. 2529 and 3000 were promulgated,
was not repealed by Section 18 of Republic Act No.
409;
3. In not holding that an ordinance providing for
percentage 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 preceding
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 whatsoever
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 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,
section 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 business 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
11 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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."
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 no
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 244 (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 preexisting 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 and 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 so 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
12 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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:
"(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 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". (Taada and
Fernando on the Constitution of the Philippines, Vol.
I, 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 those
activities. It is one thing to impose a tax on the
income or property of a preacher. It is quite
another thing 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. . . .
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 freedoms 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
13 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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. I, 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 of 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."
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 to 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.
Reyes, A., J., concurs in the result.
(Iglesia ni Cristo v. Court of Appeals, G.R. No.
119673, July 26, 1996)
BANC
[G.R. No. 119673. July 26, 1996.]
IGLESIA NI CRISTO (INC.), petitioner, vs. THE
HONORABLE COURT OF APPEALS, BOARD OF
REVIEW FOR MOVING PICTURES AND TELEVISION
and HONORABLE HENRIETTA S. MENDEZ,
respondents.
Cuevas De la Cuesta & De las Alas for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; ACCORDED A PREFERRED STATUS.
Freedom of religion has been accorded a
preferred status by the framers of our fundamental
laws, past and present. We have 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.
2. ID.; ID.; ID.; CAN BE REGULATED BY THE STATE.
We reject petitioner's postulate that its religious
14 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that
the exercise of religious freedom can be regulated
by the State when it 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. A laissez
faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels
the Court against its blind adoption as religion is
and continues to be a volatile area of concern in
our country today.
3. ID.; ID.; FREEDOM OF SPEECH; PRIOR RESTRAINTS,
ENJOINED. Deeply ensconced in our
fundamental law is its hostility against all prior
restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by
the presumption of invalidity and should be greeted
with furrowed brows. It is the burden of the
respondent Board to overthrow this presumption. If
it fails to discharge this burden, its act of censorship
will be struck down.
4. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR
MOVING PICTURES AND TELEVISION; T.V. SERIES
CONTAINING CRITICISM OF SOME OF DEEPLY HELD
DOGMAS AND TENETS OF OTHER RELIGION, NOT
INDECENT, CONTRARY TO LAW AND GOOD
CUSTOMS. The evidence shows that the
respondent Board x-rated petitioners TV series for
"attacking" other religions, especially the Catholic
church. An examination of the evidence, especially
Exhibits "A," "A-1," "B," "C," "D" will show that the so-
called "attacks" are mere criticisms of some of the
deeply held dogmas and tenets of other religions.
The videotapes were not viewed by the respondent
court as they were not presented as evidence. Yet
they were considered by the respondent court as
indecent, contrary to law and good customs,
hence, can be prohibited from public viewing
under sections 3(c) of PD 1986. This ruling clearly
suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion.
The respondent Board may disagree with the
criticisms of other religions by petitioner but that
gives it no excuse to interdict such criticisms,
however, unclean they may be. Under our
constitutional scheme, it is not the task of the State
to favor any religion by protecting it against an
attack by another religion. Religious dogmas and
beliefs are often at war and to preserve peace
among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits
the State from leaning towards any religion. Vis-a-vis
religious differences, the State enjoys no banquet of
options. Neutrality alone is its fixed and immovable
stance. In fine, respondent board cannot squelch
the speech of petitioner Iglesia ni Cristo simply
because it attacks other religions, even if said
religion happens to be the most numerous church
in our country. In a State where there ought to be
no difference between the appearance and the
reality of freedom of religion, the remedy against
bad theology is better theology. The bedrock of
freedom of religion is freedom of thought and it is
best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should
be met by more speech for it is the spark of
opposite speech, the heat of colliding ideas that
can fan the embers of truth.
5. ID.; ID.; T.V. SERIES CONTAINING "ATTACKS
AGAINST ANOTHER RELIGION," NOT A GROUND
PROHIBITING BROADCAST." The respondents
cannot also rely on the ground "attacks against
another religion" in x-rating the religious program of
petitioner. Even a sideglance at section 3 of PD No.
1986 will reveal that it is not among the grounds to
justify an order prohibiting the broadcast of
petitioner's television program. The ground "attack
against another religion" was merely added by the
respondent Board in its Rules. This rule is void for it
runs smack against the hoary doctrine that
administrative rules and regulations cannot expand
the letter and spirit of the law they seek to enforce.
6. CRIMINAL LAW; IMMORAL DOCTRINES, OBSCENE
PUBLICATIONS AND EXHIBITIONS; SHOWS WHICH
OFFEND ANY RACE OR RELIGION; WORD "OFFEND"
NOT SYNONYMOUS WITH "ATTACK." It is opined
that the respondent board can still utilize "attack
against any religion" as a ground allegedly ". . .
because section 3(c) of PD No. 1986 prohibits the
showing of motion pictures, television programs and
publicity material which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code
punishes anyone who exhibits "shows which offend
any race or religion." We respectfully disagree for it
is plain that the word "attack" is not synonymous
with the word "offend."
7. ID.; ID.; ID.; CANNOT BE UTILIZED TO JUSTIFY PRIOR
CENSORSHIP OF SPEECH. Article 201 (2) (b) (3) of
the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which
offends any religion. It cannot be utilized to justify
prior censorship of speech. It must be emphasized
that E.O. 876, the law prior to PD 1986, included
"attack against any religion" as a ground for
censorship. The ground was not, however, carried
over by PD 1986. Its deletion is a decree to disuse it.
There can be no other intent.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; GROUND FOR RESTRAINTS. In
American Bible Society v. City of Manila, this Court
held: "The constitutional guaranty of free exercise
and enjoyment of religious profession and worship
carries with it the right to disseminate religious
information. Any restraint of such right can be
justified like other restraints on freedom of
expression on the ground that there is a clear and
present danger of any substantive evil which the
State has the right to prevent." In Victoriano vs.
Elizalde Rope Workers Union, we further ruled that ".
. . it is only where it is unavoidably necessary to
15 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
9. ID.; ID.; ID.; HYPOTHETICAL FEARS OF SUBSTANTIVE
AND IMMINENT EVIL, NOT VALID GROUND. 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.
10. ID.; ID.; ID.; CLEAR AND PRESENT DANGER; RULE
APPLY TO SPEECHES AND ATTACKS AGAINST OTHER
RELIGIONS. It is suggested we re-examine the
application of clear and present danger rule to the
case at bar. In the United States, it is true that the
clear and present danger test undergone
permutations. Presently in the United States, the
clear and present danger test is not applied to
protect low value speeches such as obscene
speech, commercial speech and defamation. Be
that as it may, 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. Hence, even following
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.
11. ID.; ID.; ID.; ID.; RULE APPLIES TO VIDEO TAPES
THAT ARE PRE-TAPED. It is also opined that it is
inappropriate to apply the clear and present
danger test to the case at bar because the issue
involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the
speech is first allowed, its impact cannot be
measured, and the causal connection between
the speech and the evil apprehended cannot be
established. The contention overlooks the fact that
the case at bar involves videotape that are pre-
taped and hence, their speech content is known
and not an X quantity. Given the specific content
of the speech, it is not unreasonable to assume that
the respondent Board, with its expertise, can
determine whether its sulphur will bring about the
substantive evil feared by the law.
12. ID.; CONGRESS; MAY GRANT ADMINISTRATIVE
BODIES QUASI-JUDICIAL POWER TO PREVIEW AND
CLASSIFY T.V. PROGRAMS. We are not ready to
hold that it is unconstitutional for Congress to grant
an administrative body quasi-judicial power to
preview and classify TV programs and enforce its
decision subject to review by our court.
PADILLA, J., concurring and dissenting opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
SPEECH AND OF RELIGION; THERE CAN BE NO PRIOR
RESTRAINTS IN THE EXERCISE THEREOF. In this
country there can be no prior restraints on the
exercise of free speech, expression or religion,
unless such exercises poses a clear and present
danger of a substantive evil which the State has the
right and even the duty to prevent. The ban against
such prior restraints will result, as it has resulted in the
past, in occasional abuses of free speech and
expression but it is immeasurably preferable to
experience such occasional abuses of speech and
expression than to arm a governmental
administrative agency with the authority to censor
speech and expression in accordance with
legislative standards which albeit apparently
laudable in their nature, can very well be bent or
stretched by such agency to convenient latitudes
as to frustrate and eviscerate the precious
freedoms of speech and expression.
MELO, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; DENOTES RIGHT TO DISSEMINATE
RELIGIOUS INFORMATION; PRIOR RESTRICTION ON
RIGHT TO DISSEMINATE INFORMATION, A government, under the guise of its regulatory
RESTRICTION ON RIGHT OF RELIGION. The
enjoyment of the freedom of religion is always
coupled with the freedom of expression. For the
profession of faith inevitably carries with it, as a
necessary appendage, the prerogative of
propagation. The constitutional guaranty of free
exercise and enjoyment of religious profession and
worship thus denotes the right to disseminate
religious information (American Bible Society vs. City
of Manila, 101 Phil. 386 [1957]). Any prior restriction
upon a religious expression would be a restriction
on the right of religion. We recognize the role and
the deep influence that religion plays in our
community. No less than the fundamental law of
the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to
build a just and humane society. Any restriction that
is to be placed upon this right must be applied with
greatest caution.
2. ID.; ID.; ID.; GROUND FOR PRIOR RESTRAINT.
Freedom of religion and expression is the rule and its
restriction, the exception. Any prior restriction on the
exercise of the freedom to profess religious faith
and the propagation thereof will unduly diminish
that religion's authority to spread what it believes to
be the sacred truth. The State can exercise no
power to restrict such right until the exercise thereof
traverses the point that will endanger the order of
civil society. Thus we have ruled in the case of
Ebralinag vs. The Division Superintendent of Schools
of Cebu (219 SCRA 270 [1993]): The sole justification
16 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
for a given restraint or limitation on the exercise of
religious freedom 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 the right and duty to
prevent. Correspondingly, the MTRCB has no
authority to use as standard, the dangerous
tendency rule, which we have long abandoned,
and for which reason, the dangerous tendency
standard under Subparagraph C, Section 3 of
Presidential Decree No. 1986 has no place in our
statute books.
KAPUNAN, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; FREEDOM OF RELIGION;
CANNOT BE SUBJECT TO PRIOR RESTRAINT BY THE
BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION (now MTRCB). While I concur in the
result of the majority's decision reversing that of the
Court of Appeals insofar as it set aside the action of
respondent MTRCB x-rating petitioner's TV Program
Series Nos. 115, 119 and 121 with due respect, I
cannot agree with its opinion that respondent
Board of Review for Motion Pictures and Television
(now MTRCB) has the power to review petitioner's
TV program "Ang Iglesia ni Cristo." The religious TV
program enjoys the Constitution's guarantee of
freedom of religion, and of speech and expression,
and cannot be subject to prior restraint by the
Board by virtue of its power and functions under
Section 3, P.D. 1986. It is my submission that the
powers in the censorship law (P.D. 1986 and its
corresponding implementing rules and regulations),
does not have the power to interfere with the
exercise of religious expression in film or television by
requiring the submission of the video tapes of
petitioner's religious program before their public
viewing, absent a showing of a compelling state
interest that overrides the constitutional protection
of the freedom of expression and worship. Even if
government can demonstrate a compelling state
interest, it would only burden such fundamental
right like the free exercise of religion by the least
intrusive means possible. There is no demonstration
here of any sufficient state interest to justify the
infringement.
2. ID.; ID.; RELIGIOUS SECT OR DENOMINATION
ALLOWED FREE CHOICE OF UTILIZING MEDIA IN
DISSEMINATING RELIGIOUS INFORMATION. The
freedom to disseminate religious information is a
right protected by the free exercise clause of the
Constitution. It encompasses a wide range of ideas
and takes many forms. In the process of
enlightening the adherents or convincing non-
believers of the truth of its beliefs, a religious sect or
denomination is allowed the free choice of utilizing
various media, including pulpit or podium, print,
television film, and the electronic mail.
3. ID.; ID.; ENTITLED TO THE HIGHEST PRIORITY AND
GENERALLY INSULATED FROM COURT ACTION. It is
settled that religious freedom is a fundamental right
entitled to the highest priority and amplest
protection among human rights. Because of its
exalted position in our hierarchy of civil rights, the
realm of religious belief is generally insulated from
state action, and state interference with such belief
is allowed only in extreme cases.
4. ID.; ID.; CLEAR AND PRESENT DANGER OF
SUBSTANTIVE EVIL, SOLE JUSTIFICATION FOR PRIOR
RESTRAINT OR LIMITATION. In American Bible
Society v. City of Manila, this Court held that any
restraint on the right to disseminate religious
information "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."
Affirming the use of this "clear and present danger"
standard in cases involving religious freedom and
worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior
restraint or limitation on the exercise of religious
freedom 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."
5. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR
MOTION PICTURES AND TELEVISION; POWER TO
PROHIBIT EXHIBITION OF TELEVISION BROADCASTS
AND TV PROGRAMS; PETITIONER'S RELIGIOUS
PROGRAM ON TV, NOT OBJECTIONABLE AND
THEREFORE NOT SUBJECT TO CENSORSHIP. Under
Section 3 of P.D. 1986 the MTRCB, while nominally a
classification board, is granted the power not only
to classify, but also to approve or
disapprove/prohibit exhibition of film or television
broadcasts of motion pictures and TV programs.
Petitioner's religious programs, which in their very
essence and characterization are the exercise of
religious freedom, cannot possibly come under the
category of the objectionable matters enumerated
in Section 3(c) of P.D. 1986 or analogous thereto. It
is not likely that propagation of religion which has
been spoken of as "a profession of faith that binds
and elevates man to his Creator" will involve
pornography, excessive violence or danger to
national security. Significantly, the enumeration in
Section 3(c) does not include the standard "attack
against any religion" as among those considered
objectionable and subject to censorship.
6. STATUTORY CONSTRUCTION AND INTERPRETATION;
SPECIFIC STANDARD FOLLOWING A GENERAL
ENUMERATION CANNOT GO BEYOND THE SCOPE OF
THE LATTER. While the law's enumeration is
concededly not exclusive, inclusion of other
standards should be made in the strict context of
the words "immoral, indecent, contrary to law
and/or good customs." Specific standards following
a general enumeration cannot go beyond the
scope of the latter.
7. ID.; CENSORSHIP LAW; WORD "INDECENT"
CONFINED TO OBSCENITY REGULATION. The word
"indecent" in censorship law has a narrow meaning,
17 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
confined to obscenity regulation. It cannot be
conveniently employed as a catch-all term
embracing all forms of expression considered
noxious by the Board.
8. ADMINISTRATIVE LAW; P.D. 1986; OMISSION OF
"ATTACK AGAINST ANY RELIGION," MANIFEST
INTENTION TO DO AWAY WITH THAT STANDARD. In
the light of what the Solicitor General describes as
the "transitional" nature of P.D. 1986, the better view
would be that the omission of "attack against any
religion" among the enumerated standards was
intentional and part of the evolving process of
fashioning a system of strict classification of films
and television programs as opposed to censorship.
As this phrase was ubiquitous in the old censorhip
law (particularly E.O. 868 and E.O. 876), its
elimination in P.D. 1986 expresses the manifest
intention of the law-making authority to do away
with the standard.
9. ID.; ID.; PHRASE "CONTRARY TO LAW" CANNOT
AND SHOULD NOT BE UNDERSTOOD TO REFER TO
ARTICLE 201 OF THE REVISED PENAL CODE. The
phrase "contrary to law" cannot and should not be
understood to refer to Article 201 of the Revised
Penal Code, as respondents mistakenly suggest.
Article 201 deals with the subject of subsequent
punishment; P.D. 1986 clearly treats with an
altogether different matter prior restraint and
censorship. The two laws stand at opposite poles in
the continuum of regulation and punishment.
10. REMEDIAL LAW; JURISDICTION; DETERMINATION
OF QUESTION AS TO WHETHER OR NOT
VILIFICATIONS, EXAGGERATION FALLS WITHIN OR LIES
OUTSIDE THE BOUNDARIES OF FREE SPEECH AND
EXPRESSION, A JUDICIAL FUNCTION. We are
faced with a case of censorship and restraint
which, I stated earlier, touches upon one of the
most private and sensitive of domains: the realm of
religious freedom, thought and expression. In this
domain, sharp differences may arise such that the
tenets of one individual may seem the "rankest
error" to his neighbor. In the process of persuading
others about the validity of his point of view, the
preacher sometimes resorts to exaggeration and
vilification. However, the determination of the
question as to whether or not such vilification,
exaggeration or fabrication falls within or lies
outside the boundaries of protected speech or
expression is a judicial function which cannot be
arrogated by an administrative body such as a
Board of Censors. Even if the exercise of the liberties
protected by the speech, expression and religion
clauses of our Constitution are regarded as neither
absolute nor unlimited, there are appropriate laws
which deal with such excesses. The least restrictive
alternative would be to impose subsequent
sanctions for proven violations of laws, rather than
inflict prior restraints on religious expression. Our
penal law punishes libel, or acts or speeches
offensive to other religions, and awards damages
whenever warranted. In our legal scheme, courts
essentially remains the arbiters of controversies
affecting the civil and political rights of persons. It is
our courts which determine whether or not certain
forms of speech and expression have exceeded
the bounds of correctness, propriety or decency as
to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech
and expression and free exercise clauses are so
essential to our society that they should be allowed
to flourish unobstructed and unmolested.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; ACTS OF PRIOR RESTRAINT, HOBBLED
BY PRESUMPTION OF INVALIDITY; FAILURE BY THE
BOARD OF REVIEW FOR MOTION PICTURE AND
TELEVISION TO OVERTHROW PRESUMPTION. The
majority opinion professes fealty to freedom of
religion which, it openly admits, has been
accorded a preferred status by the framers of our
fundamental laws, and affirms that "(D)eeply
ensconced in our fundamental law is its hostility
against all prior restraints on speech, including
speech." The majority then adds pointedly that
"acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted
with furrowed brows. It is the burden of the
respondent Board to overthrow this presumption. If
it fails to discharge this heavy burden, its acts of
censorship will be struck down. It failed in the case
at bar.
12. ID.; ID.; CANNOT BE DEROGATED PEREMPTORILY
BY AN ADMINISTRATIVE BODY OR OFFICE WHO
DETERMINES WHETHER OR NOT TO ALLOW THE
EXERCISE OF SUCH FREEDOM. The ruling in Sotto
vs. Ruiz cannot be invoked as authority to allow
MTRCB to review petitioner's TV programs. In that
case, the Court held that the Acting Director of the
Bureau of Posts is vested with authority to determine
what mail matter is obscene, lewd, filthy or libelous,
pursuant to Section 1954 of the old Administrative
Code which provides, among others, that no lewd,
lascivious, filthy, indecent or libelous character shall
be deposited in, or carried by, the mails of the
Philippine Island, or be delivered to its addressee by
any officer or employee of the Bureau of Posts.
Petitioner's programs which are televised in the
exercise of freedom of worship cannot be placed
in the category of the printed matter proscribed in
the old Administrative Code. Freedom of worship is
such a precious commodity in our hierarchy of civil
liberties that it cannot be derogated peremptorily
by an administrative body or officer who
determines, without judicial safeguards, whether or
not to allow the exercise of such freedom. The rights
of free expression and free exercise of religion
occupy a unique and special place in our
constellation of civil rights. The primacy our society
accords these freedoms determines the mode it
chooses to regulate their expression. But the idea
that an ordinary statute or decree could, by its
effect, nullify both the freedom of religion and the
freedom of expression puts an ominous gloss on
these liberties. Censorship law as a means of
regulation and as a form of prior restraint is
18 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
anathema to a society which places high
significance to these values.
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF SPEECH AND EXPRESSION; GROUNDS FOR
CENSORSHIP. Censorship may be allowed only in
a narrow class of cases involving pornography,
excessive violence, and danger to national
security.
2. ADMINISTRATIVE LAW; P.D. 1986; POWER OF THE
BOARD TO CENSOR MOTION PICTURES AND TV
PROGRAMS, NOT FINAL; AGGRIEVED PARTY MAY
RESORT TO COURTS. Even in these cases, only
courts can prohibit the showing of a film or the
broadcast of a program. In all other cases, the only
remedy against speech which creates a clear and
present danger to public interests is through
subsequent punishment. Considering the
potentiality for harm which motion pictures and TV
programs may have especially on the young, all
materials may validly be required to be submitted
for review before they may be shown or broadcast.
However, the final determination of character of
the materials cannot be left to an administrative
agency. That judicial review of administrative
action is available does not obviate the
constitutional objection to censorship. For these
reasons, I would hold Sec. 3(b) of P.D. No. 1986,
which gives to the Board limited time for review, to
be valid, while finding Sec. 3(c), under which the
Board acted in this case in censoring petitioner's
materials to be, on its face and as applied,
unconstitutional.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF SPEECH AND EXPRESSION, PREFERRED RIGHTS;
PRIOR RESTRAINT ON THEIR EXERCISE CARRIES WITH IT
A PRESUMPTION OF INVALIDITY. At the very least,
free speech and free press may be identified with
the liberty to discuss publicly and truthfully any
matter of public interest without censorship or
punishment. There is to be . . . no previous restraint
on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition,
or action for damages, or contempt proceedings,
unless there be a clear and present danger of
substantive evil that Congress has a right to
prevent. Because of the preferred character of the
constitutional rights of freedom of speech and
expression, a weighty presumption of invalidity
vitiates measures of prior restraint upon the exercise
of such freedoms.
4. ID.; ID.; ID.; TYPES OF PRIOR RESTRAINTS.
Authoritative interpretations of the free speech
clause consider as invalid two types of prior
restraints, namely, those which are imposed prior to
the dissemination of any matter and those imposed
prior to an adequate determination that the
expression is not constitutionally protected.
5. ADMINISTRATIVE LAW; P.D. No. 1986; SEC 3(b)
THEREOF REQUIRING THE SUBMISSION OF MOTION
PICTURES, TV PROGRAMS AND PUBLICITY MATERIALS
TO THE BOARD FOR REVIEW DOES NOT CONSTITUTE
PRIOR RESTRAINT ON FREEDOM OF SPEECH AND
EXPRESSION. P.D. No. 1986, Sec. 3(b) requires
motion pictures, television programs and publicity
materials to be submitted to the Board for review.
Does Sec. 3(b) impermissibly impose a prior restraint
because of its requirement that films and TV
programs must be submitted to the Board for
review before they can be shown or broadcast? In
my view it does not. The Burstyn case, in declaring
motion pictures to be protected under the free
expression clause, was careful to add: "It does not
follow that the Constitution requires absolute
freedom to exhibit every motion picture of every
kind at all times and all places. . . . Nor does it follow
that motion pictures are necessarily subject to the
precise rules governing any other particular method
of expression. Each method tends to present its own
peculiar problems." With reference to television, this
Court is on record that "a less liberal approach calls
for observance. This is so because unlike motion
pictures where patrons have to pay their way,
television reaches every home where there is a [TV]
set. Children then will likely be among the avid
viewers of programs therein shown . . . .[T]he State
as parens patriae is called upon to manifest an
attitude of caring for the welfare of the young." I
hold Sec. 3(b) to be a valid exercise of the State's
power to protect legitimate public interests. The
purpose of this restraint temporary in character
is to allow the Board time to screen materials and
to seek an injunction from the courts against those
which it believes to be harmful.
6. ID.; ID.; SEC 3(c) AUTHORIZING THE BOARD TO
PROHIBIT THE EXHIBITION OF MOTION PICTURES, TV
PROGRAMS AND PUBLICITY MATERIALS WHICH IN
THE BOARD'S OPINION ARE IMMORAL, INDECENT,
CONTRARY TO LAW AND/OR GOOD CUSTOMS,
INJURIOUS TO THE REPUBLIC OR ITS PEOPLE OR
WHICH HAVE A DANGEROUS TENDENCY TO
ENCOURAGE COMMISSION OF VIOLENCE, WRONG
OR A CRIME CONSTITUTES CENSORSHIP IN ITS
BOLDEST FORM. I reach a different conclusion,
however, with respect to Sec. 3(c). This provision
authorizes the Board to prohibit, among other
things, the exhibition or broadcast of motion
pictures, television programs and publicity materials
which, in its opinion, are "immoral, indecent,
contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines or its
people, or [which have] a dangerous tendency to
encourage the commission of violence or of a
wrong or crime." Under this authority, the Board can
determine what can be shown or broadcast and
what cannot. It is not true, as the Board claims, that
under P.D. No. 1986 its power is limited to the
classification of motion pictures and TV programs.
The power to classify includes the power to censor.
The Board can x-rate films and TV programs and
thus ban their public exhibition or broadcast. And
once it declares that a motion picture or television
program is, for example, indecent or contrary to
law, as in the case of the INC program in question,
its declaration becomes the law. Unless the
19 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
producer or exhibitor is willing to go to court,
shouldering not only the burden of showing that his
movie or television program is constitutionally
protected but also the cost of litigation, the ban
stays. This is censorship in its boldest form. This is
contrary to the fundamental tenet of our law that
until and unless speech is found by the courts to be
unprotected its expression must be allowed. By
authorizing the censorship of materials which in the
opinion of the Board are "contrary to law, Sec. 3(c)
makes what is only a ground for subsequent
punishment also a ground for prior restraint on
expression. It is Sec. 3(c) of P.D. No. 1986, and not
only the rules implementing it, which is
unconstitutional. To the extent therefore that P.D.
No. 1986, Sec. 3(c) vests in the Board the final
authority to determine whether expression by
motion picture or television is constitutionally
protected, I find it unconstitutional.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF SPEECH AND EXPRESSION; CLEAR AND PRESENT
DANGER RULE; DETERMINATION OF APPLICABILITY
OF RULE REQUIRES FACTUAL RECORD. The clear
and present danger test has been devised for use
in criminal prosecutions for violations of laws
punishing certain types of utterances. While the test
has been applied to the regulation of the use of
streets and parks surely a form of prior restraint
its use in such context can be justified on the
ground that the content of the speech is not the
issue. But when the regulation concerns not the
time, place or manner of speech but its content
(i.e., it is content based) the clear and present
danger test simply cannot be applied. This is
because a determination whether an utterance
has created a clear and present danger to public
interests requires a factual record.
PANGANIBAN, J., separate (concurring) opinion:
1. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB);
STATUTORY POWERS ARE LIMITED BY THE BILL OF
RIGHTS. The statutory powers of the MTRCB are
set forth in Sec. 3 of P.D. 1986. In implementing P.D.
1986, the MTRCB issued its own Rules and
Regulations. At issue in this case is Section 4 of such
Rules. On the other hand, these statutory powers
and internally generated regulations are limited by
the Bill of Rights, Art. III of the 1987 Constitution,
particularly the rights to free speech and religion.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; ABSOLUTE WHEN CONFINED WITHIN
THE REALM OF THOUGHT BUT SUBJECT TO
REGULATION WHEN TRANSFORMED INTO EXTERNAL
ACTS. "(F)reedom of religion has been accorded
a preferred status by the framers of our
fundamental laws, past and present." Religious
freedom is absolute when it is confined within the
realm of thought to a private, personal relationship
between a man's conscience and his God, but it is
subject to regulation when religious belief is
transformed into external acts that affect or afflict
others. The mere invocation of religious freedom will
not stalemate the State and ipso facto render it
incompetent in preserving the rights of others and in
protecting the general welfare.
3. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB);
BASIC POWERS. As an agency of the State
created to promote the general welfare, the
MTRCB under P.D. 1986 has the basic initiatory
authority and power, to "approve or disapprove,
delete objectionable portion from and/or prohibit
the importation, exportation, production, copying
distribution, sale, lease, exhibition and/or prohibit
the importation, exportation, production, copying
distribution, sale, lease, exhibition and/or television
broadcast" of pre-taped or canned (as contra-
distinguished from "live") video-audio/film/television
programs and publicity materials.
4. ID.; ID.; ID.; AUTHORITY EXTENDS TO BOTH NON-
RELIGIOUS AND RELIGIOUS VIDEO MATERIALS.
Petitioner INC contends that the MTRCB's authority
extends only to non-religious video materials but not
to religious programs, particularly those of INC,
which it claims are neither "immoral" nor "indecent."
This position presents more problems than solutions.
For who will determine whether a given canned
material is religions or not, and therefore whether it
can be publicly exhibited or not without its passing
through the Board? I would prefer that the State,
which is constitutionally mandated to be neutral,
continue to exercise the power to make such
determination, rather than leave it up to the
producer, maker, or exhibitor of such matter,
who/which, because of vested interests would, in
the normal course, be understandably biased in
his/its own favor. I feel less discomfort with the idea
of maintaining the censors' quasi-judicial authority
to review such film materials, subject to appeal to
the proper courts aggrieved parties, than with the
prospect and consequences of doing away with
such power altogether. I agree with Mr. Justice
Vitug in finding "it more prudent to have a
deferment of an exhibition that may be perceived
(by the Board) to be contrary to decency, morality,
good custom or the law until at least, the courts are
given an opportunity to pass upon the matter . . ." A
contrary ruling would most regrettably remove
meaningful and necessary safeguards against a
veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; POWER OF REVIEW AND PROHIBITION
THRU THE MTRCB, STATE'S EXERCISE OF ITS ROLE AS
PARENS PATRIAE. Gonzales vs. Kalaw Katigbak
and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,
this Court early on acknowledged the uniquely
pervasive presence of broadcast and electronic
media in the lives of everyone, and the easy
accessibility of television and radio to just about
anyone, especially children. Everyone is susceptible
to their influence, even "the indifferent or unwilling
who happen to be within reach of a blaring radio
or television set." And these audiences have less
opportunity to cogitate, analyze and reject the
20 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
utterances, compared to readers of printed
material. It is precisely because the State as parens
patriae is "called upon to manifest an attitude of
caring for the welfare of the young" that I vote for
the retention of the State's power of review and
prohibition via the MTRCB.
6. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB);
EXERCISE OF POWERS OF REVIEW AND PROHIBITION
SUBJECT TO CONSTITUTIONAL STANDARD. In
exercising its prerogatives, the MTRCB cannot act
absolutely or whimsically. It must act prudently. And
it can do so ONLY if it exercises its powers of review
and prohibition according to a standard and/or a
limit.
7. ID.; ID.; ID.; PHRASE "WITH A DANGEROUS
TENDENCY" IN SEC. 3-C, UNCONSTITUTIONAL. I
believe that the phrase "with a dangerous
tendency" in Sec. 3-c of P.D. 1986 should be struck
down as an unconstitutional standard. This is martial
law vintage and should be replaced with the more
libertarian "clear and present danger rule" which is
eloquently explained by JJ. Kapunan, Puno and
Mendoza (and which explanation I shall not repeat
here). On the other hand, when the question is
whether the material being reviewed "encourages
the commission of violence or of a wrong or crime"
per the enumeration contained in Sec. 3-c, the
"clear and present danger" principle should be
applied as the standard in place of the "dangerous
tendency" rule.
8. ID.; ID.; ID.; CONTEMPORARY PHILIPPINE CULTURAL
VALUES MORE APPROPRIATE STANDARD. There is
an even more appropriate standard in the
Philippine context proffered by the law itself, and
that is "contemporary Philippine cultural values." This
standard under the law, should be used in
determining whether a film or video program is "(a)
immoral, (b) indecent, (c) contrary to law and/or
good customs, and (d) injurious to the prestige of
the Republic of the Philippines or its people."
9. ID.; ID.; INTERNAL RULES AND REGULATIONS
SHOULD BE READ TOGETHER WITH OTHER EXISTING
LAWS. Anent the validity of Sec. 4 of the Board's
Rules and Regulation authorizing MTRCB to prohibit
the showing of materials "which clearly constitute
an attack against any race, creed or religion . . .," I
agree with Mr. Justice Vitug that the phrase
"contrary to law" in Sec. 3-c "should be read
together with other existing laws such as, for
instance, the provisions of the Revised Penal Code,
particularly Article 201, which prohibit the exhibition
of shows that 'offend another race or religion'." I
note, in this connection, the caveat raised by the
ponencia that the MTRCB Rule bans shows which
"attack" a religion, whereas Art. 201 merely
penalizes those who exhibit programs which
"offend" such religion. Subject to changing the word
"attack" with the more accurate "offend," I believe
Section 4 of the Rules can stand. In sum, I
respectfully submit (1) that P.D. 1986 is
constitutional, subject to the substitution (or
interpretation) of the words "dangerous tendency"
with the phrase (or as meaning) "clear and present
danger" in Sec. 3-c; and (2) that Sec. 4 of the
Board's Rules would be likewise valid, provided the
words "constitute an attack" are changed with
"offend."
10. REMEDIAL LAW; EVIDENCE; PRESUMPTION THAT
OFFICIAL DUTIES HAVE BEEN REGULARLY
PERFORMED; MUST YIELD TO FREEDOMS OF
EXPRESSION AND RELIGION. The tape in question
was never submitted to the Court for viewing.
Neither was there a detailed description of its
objectionable contents in the assailed Decision of
the Court of Appeals or Regional Trial Court. Nor is
there extant a detailed justification prepared by
respondent Board on why it banned the program
other than its bare conclusion that the material
constituted an attack against the Catholic and
Protestant religions. In no wise can the "remarks" in
the voting slips presented before the trial court be
considered sufficient justification for banning the
showing of any material. In the face of such
inadequacy of evidence and basis, I see no way
that this Court could authorize a suppression of a
species of the freedom of speech on the say-so of
anyone not even the MTRCB. Paraphrasing
People vs. Fernando, the disputable presumption
(which is of statutory origin) that official duties have
been regularly performed must yield to the
constitutionally enshrined freedoms of expression
and of religion. If courts are required to state the
factual and legal bases of their conclusions and
judicial dispositions, with more reason must quasi-
judicial officers such as censors, especially when
they curtail a fundamental right which is "entitled to
the highest priority and amplest protection."
VITUG, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; OCCUPIES AN EXALTED POSITION.
Religious freedom occupies an exalted position in
our hierarchy of rights and that the freedom to
disseminate religious information is a
constitutionally-sanctioned prerogative that allows
any legitimate religious denomination a free choice
of media in the propagation of its credo. Like any
other right, however, the exercise of religious belief
is not without inherent and statutory limitations.
2. ADMINISTRATIVE LAW; P.D. 1986 (BOARD OF
REVIEW FOR MOTION PICTURES AND TELEVISION);
POWER TO DELETE OBJECTIONABLE PORTIONS OF
T.V. PROGRAMS FOR BEING CONTRARY TO LAW;
PHRASE "CONTRARY TO LAW" SHOULD BE READ
TOGETHER WITH OTHER EXISTING LAWS. The Board
disapproved the exhibition of a series of television
programs of petitioner on the ground that they
tend to "offend and constitute an attack against
other religions." An opinion has been expressed that
the non-inclusion in Section 3 of P.D. 1986 of an
"attack against any religion," as a standard for
classification, and so the deletion of the phrase
"offensive to other religions" found in the old
21 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
censorship law (Executive Order No. 876), should be
clear enough to manifest a legislative intent "to do
away with the standard." A reading of Section 3 of
P.D. 1986 shows that the Board is empowered to
"screen, review and examine all . . . television
programs" and to "approve or disprove, delete
objectionable portion from and/or prohibit the . . .
television broadcast of . . . television programs . . .
which, in the judgment of the BOARD (so) applying
contemporary Filipino cultural values as standard,
are objectionable for being immoral indecent,
contrary to law and/or good customs . . ." I believe
that the phrase "contrary to law" should be read
together with other existing laws such as, for
instance, the provisions of the Revised Penal Code,
particularly Article 201, which prohibits the
exhibition of shows that "offend another race or
religion." I see in this provision a good and sound
standard. Recent events indicate recurrent violent
incidents between and among communities with
diverse religious beliefs and dogma. The danger is
past mere apprehension; it has become a virtual
reality and now prevalent in some parts of the
world.
3. ID.; ID.; ID.; RESTRICTION MUST BE FOR LEGITIMATE
AND VALID REASONS. In order not to infringe
constitutional principles, any restriction by the Board
must, of course, be for legitimate and valid reasons.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF RELIGION; PRIOR CENSORSHIP SHOULD NOT BE
REJECTED. I certainly do not think that prior
censorship should altogether be rejected just
because sanctions can later be imposed.
Regulating the exercise of a right is not necessarily
an anathema to it; in fact, it can safeguard and
secure that right.
DECISION
PUNO, J p:
This is a petition for review of the Decision dated
March 24, 1995 of the respondent Court of Appeals
affirming the action of the respondent Board for
Motion Pictures and Television which x-rated the TV
Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious
organization, has a television program entitled "Ang
Iglesia ni Cristo" aired on Channel 2 every Saturday
and on Channel 13 every Sunday. The program
presents and propagates petitioner's religious
beliefs, doctrines and practices often times in
comparative studies with other religions.
Sometime in the months of September, October
and November 1992, petitioner submitted to the
respondent Board of Review for Motion Pictures
and Television the VTR tapes of its TV program Series
Nos. 116, 119, 121 and 128. The Board classified the
series 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."
Petitioner pursued two (2) courses of action against
the respondent Board. On November 28, 1992, it
appealed to the Office of the President the
classification of its TV Series No. 128. It succeeded in
its appeal for on December 18, 1992, the Office of
the President reversed the decision of the
respondent Board. Forthwith, the Board allowed
Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against
the respondent Board Civil Case No. Q-92-14280,
with the RTC, NCR, Quezon City. 1 Petitioner alleged
that the respondent Board acted without
jurisdiction or with grave abuse of discretion in
requiring petitioner to submit the VTR tapes of its TV
program and in x-rating them. It cited its TV
Program Series Nos. 115, 119, 121 and 128. In their
Answer, respondent Board invoked its power under
PD No. 1986 in relation to Article 201 of the Revised
Penal Code.
On January 4, 1993, the trial court held a hearing on
petitioner's prayer for a writ of preliminary injunction.
The parties orally argued and then marked their
documentary evidence. Petitioner submitted the
following as its exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for
Television showing its September 9, 1992 action on
petitioner's Series No. 115 as follows: 2
REMARKS:
There are some inconsistencies in the particular
program as it is very surprising for this program to
show series of Catholic ceremonies and also some
religious sects and using it in their discussion about
the bible. There are remarks which are direct
criticism which affect other religions.
Need more opinions for this particular program.
Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for
Television showing its September 11, 1992
subsequent action on petitioner's Series No. 115 as
follows: 3
REMARKS:
This program is criticizing different religions, based
on their own interpretation of the Bible.
We suggest that the program should delve on
explaining their own faith and beliefs and avoid
attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for
Television showing its October 9, 1992 action on
petitioner's Series No. 119, as follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of
the bible and says that our (Catholic) veneration of
the Virgin Mary is not to be condoned because
nowhere it is found in the bible that we should do
so.
22 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
This is intolerance and robs off all sects of freedom
of choice, worship and decision.
(4) Exhibit "C," respondent Board's Voting Slip for
Television showing its October 20, 1992 action on
petitioner's Series No. 121 as follows: 5
REMARKS:
I refuse to approve the telecast of this episode for
reasons of the attacks, they do on, specifically, the
Catholic religion.
I refuse to admit that they can tell, dictate any
other religion that they are right and the rest are
wrong, which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for
Television showing its November 20, 1992 action on
petitioner's Series No. 128 as follows: 6
REMARKS:
The episode presented criticizes the religious beliefs
of the Catholic and Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract
with ABS-CBN Broadcasting Corporation dated
September 1, 1992. 7
(7) Exhibit "F," petitioner's Airtime Contract with
Island Broadcasting Corporation. 8
(8) Exhibit "G," letter dated December 18, 1992 of
former Executive Secretary Edelmiro A. Amante, Sr.,
addressed to Henrietta S. Mendez reversing the
decision of the respondent Board which x-rated the
showing of petitioner's Series No. 129. The letter
reads in part:
"xxx xxx xxx
The television episode in question is protected by
the constitutional guarantee of free speech and
expression under Article III, section 4 of the 1987
Constitution.
We have viewed a tape of the television episode in
question, as well as studied the passages found by
MTRCB to be objectionable and we find no
indication that the episode poses any clear and
present danger sufficient to limit the said
constitutional guarantee."
(9) Exhibits "H," "H-1," letter dated November 26,
1992 of Teofilo C. Ramos, Sr., addressed to President
Fidel V. Ramos appealing the action of the
respondent Board x-rating petitioner's Series No.
128.
On its part, respondent Board submitted the
following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television
Exhibition No. 15181 dated December 18, 1992
allowing the showing of Series No. 128 under
parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of
Henrietta S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni
Cristo" Series No. 119, please be informed that the
Board was constrained to deny your show a permit
to exhibit. The material involved constitute an
attack against another religion which is expressly
prohibited by law. Please be guided in the
submission of future shows.
After evaluating the evidence of the parties, the
trial court issued a writ of preliminary injunction on
petitioner's bond of P10,000.00.
The trial court set the pre-trial of the case and the
parties submitted their pre-trial briefs. 9 The pre-trial
briefs show that the parties' evidence is basically
the evidence they submitted in the hearing of the
issue of preliminary injunction. The trial of the case
was set and reset several times as the parties tried
to reach an amicable accord. Their efforts failed
and the records show that after submission of
memoranda, the trial court rendered a Judgment,
10 on December 15, 1993, the dispositive portion of
which reads:
"xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering
respondent Board of Review for Motion Pictures
and Television (BRMPT) to grant petitioner Iglesia ni
Cristo the necessary permit for all the series of 'Ang
Iglesia ni Cristo' program.
Petitioner Iglesia ni Cristo, however, is directed to
refrain from offending and attacking other existing
religions in showing 'Ang Iglesia ni Cristo' program.
SO ORDERED."
Petitioner moved for reconsideration 11 praying: (a)
for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the
Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its
program. The respondent Board opposed the
motion. 12 On March 7, 1993, the trial court granted
petitioner's Motion for Reconsideration. It ordered:
13
"xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is
granted. The second portion of the Court's Order
23 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
dated December 15, 1993, directing petitioner to
refrain from offending and attacking other existing
religions in showing 'Ang Iglesia ni Cristo' program is
hereby deleted and set aside. Respondents are
further prohibited from requiring petitioner Iglesia ni
Cristo to submit for review VTR tapes of its religious
program 'Ang Iglesia ni Cristo'."
Respondent Board appealed to the Court of
Appeals after its motion for reconsideration was
denied. 14
On March 5, 1995, the respondent Court of Appeals
15 reversed the trial court. It ruled that: (1) the
respondent board has jurisdiction and power to
review the TV program "Ang Iglesia ni Cristo," and
(2) the respondent Board did not act with grave
abuse of discretion when it denied permit for the
exhibition on TV of the three series of "Ang Iglesia ni
Cristo" on the ground that the materials constitute
an attack against another religion. It also found the
series "indecent, contrary to law and contrary to
good customs."
In this petition for review on certiorari under Rule 45,
petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN HOLDING THAT THE 'ANG IGLESIA
NI CRISTO' PROGRAM IS NOT CONSTITUTIONALLY
PROTECTED AS A FORM OF RELIGIOUS EXERCISE
AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT HOLDING THAT BEING AN
EXERCISE OF RELIGIOUS FREEDOM, THE 'ANG IGLESIA
NI CRISTO' PROGRAM IS SUBJECT TO THE POLICE
POWER OF THE STATE ONLY IN THE EXTREME CASE
THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN HOLDING THAT THE MTRCB IS
VESTED WITH THE POWER TO CENSOR RELIGIOUS
PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN HOLDING THAT THE 'ANG IGLESIA
NI CRISTO,' A PURELY RELIGIOUS PROGRAM IS
INDECENT AND CONTRARY TO LAW AND GOOD
CUSTOMS.
The basic issues can be reduced into two: (1) first,
whether the respondent Board has the power to
review petitioner's TV program "Ang Iglesia ni Cristo,"
and (2) second, assuming it has the power, whether
it gravely abused its discretion when it prohibited
the airing of petitioner's religious program, series
Nos. 115, 119 and 121, for the reason that they
constitute an attack against other religions and that
they are indecent, contrary to law and good
customs.
The first issue can be resolved by examining the
powers of the Board under PD No. 1986. Its section 3
pertinently provides:
"Sec. 3 Powers and Functions. The BOARD shall
have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion
pictures as herein defined, television programs,
including publicity materials such as
advertisements, trailers and stills, whether such
motion pictures and publicity materials be for
theatrical or non-theatrical distribution for television
broadcast or for general viewing, imported or
produced in the Philippines and in the latter case,
whether they be for local viewing or for export.
c) To approve, delete objectionable portion from
and/or prohibit the importation, exportation,
production, copying, distribution, sale, lease,
exhibition and/or television broadcast of the motion
pictures, television programs and publicity
materials, subject of the preceding paragraph,
which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines and
its people, or with a dangerous tendency to
encourage the commission of violence or of a
wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection,
rebellion or sedition against the State, or otherwise
threaten the economic and/or political stability of
the State;
ii) Those which tend to undermine the faith and
confidence of the people, their government and/or
duly constituted authorities.
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy
the market for violence or pornography;
v) Those which tend to abet the traffic in and use of
prohibited drugs;
vi) Those which are libelous or defamatory to the
good name and reputation of any person, whether
living or dead;
vii) Those which may constitute contempt of court
or of any quasi-judicial tribunal, or pertain to
matters which are sub-judice in nature (emphasis
ours).
The law gives the Board the power to screen,
review and examine all "television programs." By the
clear terms of the law, the Board has the power to
24 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
"approve, delete . . . and/or prohibit the . . .
exhibition and/or television broadcast of . . .
television programs . . ." The law also directs the
Board to apply "contemporary Filipino cultural
values as standard" to determine those which are
objectionable for being "immoral, indecent,
contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines and
its people, or with a dangerous tendency to
encourage the commission of violence or of a
wrong or crime."
Petitioner contends that the term "television
program" should not include religious programs like
its program "Ang Iglesia ni Cristo." A contrary
interpretation, it is urged, will contravene section 5,
Article III of the Constitution which guarantees that
"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."
We reject petitioner's submission which need not set
us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been
accorded a preferred status by the framers of our
fundamental laws, past and present. We have
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." 16
We have also laboriously defined in our
jurisprudence the intersecting umbras and
penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice
Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a
two-fold aspect, viz., freedom to believe and
freedom to act on one's beliefs. 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.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he
pleases concerning the hereafter. He may indulge
his own theories about life and death; worship any
god he chooses, or none at all; embrace or reject
any religion; acknowledge the divinity of God or of
any being that appeals to his reverence; recognize
or deny the immortality of his soul in fact, cherish
any religious conviction as he and he alone sees fit.
However absurd his beliefs may be to others, even if
they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not
be required to prove his beliefs. He may not be
punished for his inability to do so. Religion, after all,
is a matter of faith. 'Men may believe what they
cannot prove.' Every one has a right to his beliefs
and he may not be called to account because he
cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in
acts or omissions that affect the public, his freedom
to do so becomes subject to the authority of the
State. As great as this liberty may be, religious
freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper
regard for the rights of others. It is error to think that
the mere invocation of religious freedom will
stalemate the State and render it impotent in
protecting the general welfare. The inherent police
power can be exercised to prevent religious
practices inimical to society. And this is true even if
such practices are pursued out of sincere religious
conviction and not merely for the purpose of
evading the reasonable requirements or
prohibitions of the law.
Justice Frankfurter put it succinctly: 'The
constitutional provision on religious freedom
terminated 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.
Accordingly, while one has full freedom to believe
in Satan, he may not offer the object of his piety a
human sacrifice, as this would be murder. Those
who literally interpret the Biblical command to "go
forth and multiply" are nevertheless not allowed to
contract plural marriages in violation of the laws
against bigamy. A person cannot refuse to pay
taxes on the ground that it would be against his
religious tenets to recognize any authority except
that of God alone. An atheist cannot express his
disbelief in acts of derision that wound the feelings
of the faithful. The police power can be validly
asserted against the Indian practice of the suttee
born of deep religious conviction, that calls on the
widow to immolate herself at the funeral pile of her
husband.
We thus reject petitioner's postulate that its religious
program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that
the exercise of religious freedom can be regulated
by the State when it 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. A laissez
faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels
the Court against its blind adoption as religion is
and continues to be a volatile area of concern in
our country today. Across the sea and in our shore,
the bloodiest and bitterest wars fought by men
were caused by irreconcilable religious differences.
25 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
Our country is still not safe from the recurrence of
this stultifying strife considering our warring religious
beliefs and the fanaticism with which some of us
cling and claw to these beliefs. Even now, we have
yet to settle the near century old strife in Mindanao,
the roots of which have been nourished by the
mistrust and misunderstanding between our
Christian and Muslim brothers and sisters. The
bewildering rise of weird religious cults espousing
violence as an article of faith also proves the
wisdom of our rule rejecting a strict let alone policy
on the exercise of religion. For sure, we shall
continue to subject any act pinching the space for
the free exercise of religion to a heightened scrutiny
but we shall not leave its rational exercise to the
irrationality of man. For when religion divides and its
exercise destroys, the State should not stand still.
It is also petitioner's submission that the respondent
appellate court gravely erred when it affirmed the
ruling of the respondent Board x-rating its TV
Program Series Nos. 115, 119, 121 and 128. The
records show that the respondent Board disallowed
the program series for "attacking" other religions.
Thus, Exhibits "A," "A-1," (respondent Board's Voting
Slip for Television) reveal that its reviewing members
x-rated Series 115 for ". . . criticizing different
religions, based on their own interpretation of the
Bible." They suggested that the program should only
explain petitioner's ". . . own faith and beliefs and
avoid attacks on other faiths." Exhibit "B" shows that
Series No. 119 was x-rated because "the Iglesia ni
Cristo insists on the literal translation of the bible and
says that our Catholic veneration of the Virgin Mary
is not to be condoned because nowhere it is found
in the bible that we should do so. This is intolerance .
. ." Exhibit "C" shows that Series No. 121 was x-rated
". . . for reasons of the attacks, they do on,
specifically, the Catholic religion. . . . (T)hey can not
tell, dictate any other religion that they are right
and the rest are wrong . . ." Exhibit "D" also shows
that Series No. 128 was not favorably
recommended because it ". . . outrages Catholic
and Protestant's beliefs." On second review, it was x-
rated because of its "unbalanced interpretations of
some parts of the bible." 18 In sum, the respondent
Board x-rated petitioner's TV program series Nos.
115, 119, 121 and 128 because of petitioner's
controversial biblical interpretations and its "attacks"
against contrary religious beliefs. The respondent
appellate court agreed and even held that the
said "attacks" are indecent, contrary to law and
good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its
hostility against all prior restraints on speech,
including religious speech. Hence, any act that
restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed
brows. 19 It is the burden of the respondent Board
to overthrow this presumption. If it fails to discharge
this burden, its act of censorship will be struck down.
It failed in the case at bar.

Second. The evidence shows that the respondent
Board x-rated petitioner's TV series for "attacking"
other religions, especially the Catholic church. An
examination of the evidence, especially Exhibits "A,"
"A-1," "B, "C," and "D" will show that the so-called
"attacks" are mere criticisms of some of the deeply
held dogmas and tenets of other religions. The
videotapes were not viewed by the respondent
court as they were not presented as evidence. Yet
they were considered by the respondent court as
indecent, contrary to law and good customs,
hence, can be prohibited from public viewing
under section 3(c) of PD 1986. This ruling clearly
suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. It
misappreciates the essence of freedom to differ as
delineated in the benchmark case of Cantwell v.
Connecticut, 20 viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his
neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have
been, or are prominent in church or state or even
to false statements. But the people of this nation
have ordained in the light of history that inspite 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 the citizens of democracy.
The respondent Board may disagree with the
criticisms of other religions by petitioner but that
gives it no excuse to interdict such criticisms,
however, unclean they may be. Under our
constitutional scheme, it is not the task of the State
to favor any religion by protecting it against an
attack by another religion. Religious dogmas and
beliefs are often at war and to preserve peace
among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits
the State from leaning towards any religion. Vis-a-vis
religious differences, the State enjoys no banquet of
options. Neutrality alone is its fixed and immovable
stance. In fine, respondent board cannot squelch
the speech of petitioner Iglesia ni Cristo simply
because it attacks other religions, even if said
religion happens to be the most numerous church
in our country. In a State where there ought to be
no difference between the appearance and the
reality of freedom of religion, the remedy against
bad theology is better theology. The bedrock of
freedom of religion is freedom of thought and it is
best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should
be met by more speech for it is the spark of
opposite speech, the heat of colliding ideas that
can fan the embers of truth.
Third. The respondents cannot also rely on the
ground "attacks against another religion" in x-rating
26 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
the religious program of petitioner. Even a side-
glance at section 3 of PD No. 1986 will reveal that it
is not among the grounds to justify an order
prohibiting the broadcast of petitioner's television
program. The ground "attack against another
religion" was merely added by the respondent
Board in its Rules. 21 This rule is void for it runs smack
against the hoary doctrine that administrative rules
and regulations cannot expand the letter and spirit
of the law they seek to enforce.
It is opined that the respondent board can still utilize
"attack against any religion" as a ground allegedly
". . . because section 3 (c) of PD No. 1986 prohibits
the showing of motion pictures, television programs
and publicity materials which are contrary to law
and Article 201 (2) (b) (3) of the Revised Penal
Code punishes anyone who exhibits "shows which
offend any race or religion." We respectfully
disagree for it is plain that the word "attack" is not
synonymous with the word "offend." Moreover,
Article 201 (2) (b) (3) of the Revised Penal Code
should be invoked to justify the subsequent
punishment of a show which offends any religion. It
cannot be utilized to justify prior censorship of
speech. It must be emphasized that E.O. 876, the
law prior to PD 1986, included "attack against any
religion" as a ground for censorship. The ground was
not, however, carried over by PD 1986. Its deletion is
a decree to disuse it. There can be no other intent.
Indeed, even the Executive Department espouses
this view. Thus, in an Opinion dated November 28,
1985 then Minister of Justice, now President of the
Senate, Neptali Gonzales explained:
"xxx xxx xxx
"However, the question whether the BRMPT (now
MTRCB) may preview and censor the subject
television program of INC should be viewed in the
light of the provision of Section 3, paragraph (c) of
PD 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No.
876-A, which prescribes the standards of censorship,
to wit: 'immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the
Republic of the Philippines or its people or with
dangerous tendency to encourage the commission
of violence, or of a wrong' as determined by the
Board, 'applying contemporary Filipino cultural
values as standard.' As stated, the intention of the
Board to subject the INC's television program to
'previewing and censorship is prompted by the fact
that its religious program' makes mention of beliefs
and practices of other religion.' On the face of the
law itself, there can conceivably be no basis for
censorship of said program by the Board as much
as the alleged reason cited by the Board does not
appear to be within the contemplation of the
standards of censorship set by law." (Emphasis
supplied)
Fourth. In x-rating the TV program of the petitioner,
the respondents failed to apply the clear and
present danger rule. In American Bible Society v.
City of Manila, 22 this Court held: "The constitutional
guaranty of free exercise and enjoyment of
religious profession and worship carries with it the
right to disseminate religious information. Any
restraint of such right can be justified like other
restraints on freedom of expression on the ground
that there is a clear and present danger of any
substantive evil which the State has the right to
prevent." In Victoriano vs. Elizalde Rope Workers
Union, 23 we further ruled that ". . . it is only where it
is 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."
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.
It is suggested that we re-examine the application
of clear and present danger rule to the case at bar.
In the United States, it is true that the clear and
present danger test has undergone permutations. It
was Mr. Justice Holmes who formulated the test in
Schenck v. US, 24 as follows: ". . . the question in
every case is whether the words used are used in
such circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress has
a right to prevent." Admittedly, the test was
originally designed to determine the latitude which
should be given to speech that espouses anti-
government action. Bannered by Justices Holmes
and Brandeis, the test attained its full flowering in
the decade of the forties, when its umbrella was
used to protect speech other than subversive
speech. 25 Thus, for instance, the test was applied
to annul a total ban on labor picketing. 26 The use
of the test took a downswing in the 1950's when the
US Supreme Court decided Dennis v. United States
involving communist conspiracy. 27 In Dennis, the
components of the test were altered as the High
Court adopted Judge Learned Hand's formulation
that ". . . in each case [courts] must ask whether the
gravity of the 'evil,' discounted by its improbability,
justifies such invasion of free speech as is necessary
to avoid the danger." The imminence requirement
of the test was thus diminished and to that extent,
the protection of the rule was weakened. In 1969,
however, the strength of the test was reinstated in
Brandenburg v. Ohio, 28 when the High Court
restored in the test the imminence requirement,
and even added an intent requirement which
according to a noted commentator ensured that
only speech directed at inciting lawlessness could
be punished. 29 Presently in the United States, the
27 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
clear and present danger test is not applied to
protect low value speeches such as obscene
speech, commercial speech and defamation. Be
that as it may, 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. 30 Hence, even following
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.
It is also opined that it is inappropriate to apply the
clear and present danger test to the case at bar
because the issue involves the content of speech
and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its
impact cannot be measured, and the causal
connection between the speech and the evil
apprehended cannot be established. The
contention overlooks the fact that the case at bar
involves videotapes that are pre-taped and hence,
their speech content is known and not an X
quantity. Given the specific content of the speech,
it is not unreasonable to assume that the
respondent Board, with its expertise, can determine
whether its sulphur will bring about the substantive
evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that
. . . the determination of the question as to whether
or not such vilification, exaggeration or fabrication
falls within or lies outside the boundaries of
protected speech or expression is a judicial function
which cannot be arrogated by an administrative
body such as a Board of Censors." He submits that a
"system of prior restraint may only be validly
administered by judges and not left to
administrative agencies." The same submission is
made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant
another American rule in our jurisdiction. Its
seedbed was laid down by Mr. Justice Brennan in
his concurring opinion in the 1962 case of Manual
Enterprise v. Day. 31 By 1965, the US Supreme Court
in Freedman v. Maryland 32 was ready to hold that
"the teaching of cases is that, because only a
judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial
determination suffices to impose a valid final
restraint." 33
While the thesis has a lot to commend itself, we are
not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-
judicial power to preview and classify TV programs
and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up in
Sotto vs. Ruiz, 34 viz.:

"The use of the mails by private persons is in the
nature of a privilege which can be regulated in
order to avoid its abuse. Persons posses no absolute
right to put into the mail anything they please,
regardless of its character.
On the other hand, the exclusion of newspaper and
other publications from the mails, in the exercise of
executive power, is extremely delicate in nature
and can only be justified where the statute is
unequivocably applicable to the supposed
objectionable publication. In excluding any
publication for the mails, the object should be not
to interfere with the freedom of the press or with
any other fundamental right of the people. This is
the more true with reference to articles supposedly
libelous than to other particulars of the law, since
whether an article is or is not libelous, is
fundamentally a legal question. In order for there to
be due process of law, the action of the Director of
Posts must be subject to revision by the courts in
case he had abused his discretion or exceeded his
authority. (Ex parte Jackson [1878], 96 U.S., 727;
Public Clearing House vs. Coyne [1903], 194 U.S.,
497; Post Publishing Co. vs. Murray [1916], 23-Fed.,
773)
As has been said, the performance of the duty of
determining whether a publication contains printed
matter of a libelous character rests with the Director
of Posts and involves the exercise of his judgment
and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is
(and we go only to those cases coming from the
United States Supreme Court and pertaining to the
United States Postmaster-General), that the courts
will not interfere with the decision of the Director of
Posts unless clearly of opinion that it was wrong.
(Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106;
Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub.
Co. vs. Patten [1917], 246 Fed., 24. But see David vs.
Brown [1900], 103 Fed., 909, announcing a
somewhat different doctrine and relied upon by
the Attorney-General).
To be sure, legal scholars in the United States are still
debating the proposition whether or not courts
alone are competent to decide whether speech is
constitutionally protected. 35 The issue involves
highly arguable policy considerations and can be
better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent
Court of Appeals dated March 24, 1995 is affirmed
insofar as it sustained the jurisdiction of the
respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is
reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's
TV Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Francisco, and
Torres, JJ ., concur.
28 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
Narvasa, C .J ., concurs in the result.
Bellosillo, J ., is on leave.
(Ebralinag v. Division of Superintendent of Schools of
Cebu, G.R. Nos. 95770 & 95887, March 01, 1993)
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; JEMIL OYAO & 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. FAUSTO
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 OF 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; NESIA
ALSADO, REU ALSADO and LILIBETH ALSADO,
represented by their parents MR. & MRS. ROLANDO
 ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES and 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 and LEAH DEMOTOR,
represented by their parents MR. & MRS.
LEONARDO DEMOTOR; JURELL VILLA and 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; JONALYN ANTIOLA and JERWIN ANTIOLA,
represented by their parents FELIPE 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 OF SUPERINTENDENT OF SCHOOLS
OF CEBU and ANTONIO A. SANUTAN, respondents.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP;
FUNDAMENTAL RIGHT ENTITLED TO HIGHEST PRIORITY
AND AMPLEST PROTECTION: TWO-FOLD ASPECT
THEREOF. 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).
2. ID.; ID.; ID.; ID.; SOLE JUSTIFICATION FOR PRIOR
RESTRAINT OR LIMITATION ON EXERCISE OF
RELIGIOUS FREEDOM; CASE AT BAR. "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. . . . After
all, what the petitioners seek only is exemption from
29 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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, science, 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
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 duly constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs.
Barneta, 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 and cannot
be promoted by prohibited means." (Meyer vs.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.).
3. ID.; ID.; ID.; ID.; EMPLOYEES' EXEMPTION FROM
COVERAGE OF CLOSED SHOP AGREEMENT ON
ACCOUNT OF RELIGIOUS BELIEFS VALID SIMILAR
EXEMPTION ACCORDED JEHOVAH'S WITNESSES WITH
REGARD TO OBSERVANCE OF FLAG CEREMONY
VALID. 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. Ct. 1790.)
We hold that a similar exemptions 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. Dames II, 185 SCRA 523, 535, while
the highest regard must be afforded their right to
the 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).
4. ID.; RIGHT TO FREE PUBLIC EDUCATION; EXPULSION
OF JEHOVAH'S WITNESSES FROM SCHOOL FOR NON-
OBSERVANCE OF FLAG CEREMONY A VIOLATION
THEREOF. 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).
CRUZ, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP; FREEDOM TO
BELIEVE; ABSOLUTE AS LONG AS BELIEFS NOT
EXTERNALIZED IN ACTS THAT OFFEND PUBLIC
INTEREST. It seems to me that every individual is
entitled to choose for himself whom or what to
worship or whether to worship at all. This is a
personal decision he alone can make. The
individual may worship a spirit or a person or a
beast or a tree (or a flag), and the State cannot
prevent him from doing so. For that matter, neither
can it compel him to do so. As long as his beliefs
are not externalized in acts that offend the public
interest, he cannot be prohibited from harboring
them or punished for doing so.
In requiring the herein petitioners to participate in
the flag ceremony, the State has declared ex
cathedra that they are not violating the Bible by
saluting the flag. This is to me an unwarranted
intrusion into their religious beliefs, which tell them
the opposite. The State cannot interpret the Bible
for them; only they can read it as they see fit. Right
or wrong, the meaning they derive from it cannot
be revised or reversed except perhaps by their own
acknowledged superiors. But certainly not the
State. It has no competence in this matter. Religion
is forbidden territory that the State, for all its power
and authority, cannot invade.
I am not unaware of Justice Frankfurter's
admonition that "the constitutional protection of
religious freedom terminated disabilities, it did not
create new privileges. It gave religious equality, not
civil immunity. Its essence is freedom from
30 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
conformity to religious dogma, not freedom from
conformity to law because of religious dogma."
2. ID.; ID.; FREEDOM OF SPEECH; INCLUDES RIGHT TO
BE SILENT; SALUTE AS FORM OF EXPRESSION CANNOT
BE COMPELLED OR PROHIBITED IN FACE OF VALID
RELIGIOUS OBJECTIONS. Freedom of speech
includes the right to be silent. Aptly has it been said
that the Bill of Rights that guarantees to the
individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not
in his mind. The salutes is a symbolic manner of
communication that conveys its message as clearly
as the written or spoken word. As a valid form of
expression, it cannot be compelled any more than
it can be prohibited in the face of valid religious
objections like those raised in this petition. To
impose it on the petitioners is to deny them the right
not to speak when their religion bids them to be
silent. This coercion of conscience has no place in
the free society.
The democratic system provides for the
accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric.
The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by
rote of its opinions or prescribing the assertion of
unorthodox or unpopular views as in this case. The
conscientious objections of the petitioners, no less
than the impatience of those who disagree with
them, are protected by the Constitution. The State
cannot make the individual speak when the soul
within rebels.
PADILLA, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP;
HARMONIZED WITH VALID EXERCISE OF THE STATE'S
FUNDAMENTAL AND LEGITIMATE AUTHORITY TO
REQUIRE HOMAGE AND HONOR TO THE FLAG. In
fine, the flag ceremony is a legitimate means to
achieve legitimate (and noble) ends. For a select
few to be exempt from the flag ceremony and all
that it represents even if the exemption is
predicated on respect for religious scruples, could
be divisive in its impact on the school population or
community. I would therefore submit that,
henceforth, teachers and students who because of
religious scruples or beliefs cannot actively
participate in the flag ceremony conducted in the
school premises should be excluded beforehand
from such ceremony. Instead of allowing the
religious objector to attend the flag ceremony and
display therein his inability to salute the flag, sing the
national anthem and recite the pledge of loyalty to
the Republic, he or she should remain in the
classroom while honors to the flag are conducted
and manifested in the "quadrangle" or equivalent
place within school premises; or if the flag
ceremony must be held in a hall, the religious
objector must take his or her place at the rear of (or
outside) the hall while those who actively
participate in the ceremony must take the front
places. This arrangement can, in my view, achieve
an accommodation and, to a certain extent,
harmonization of a citizen's constitutional right to
freedom of religion and a valid exercise of the
State's fundamental and legitimate authority to
require homage and honor to the flag as the
symbol of the Nation.
DECISION
GRIO-AQUINO, J p:
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 of 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, "Rose 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:
"SECTION 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.
"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 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
31 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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."
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 VFand private, every
school day throughout the year. It shall be raised at
sunrise and lowered at sunset. The flagstaff 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;
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 protects
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
32 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 requirements still
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, 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. 83, 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. 1255 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., 105 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.).
"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
33 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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's 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.
"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 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
34 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
"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 readmit 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.
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
incorporation in the Administrative Code of 1987,
the present Court believes that the time has come
to reexamine 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. 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:
"[T]he flag ceremony will become a thing of the
past or perhaps conducted with very few
participants, and the time will come when we
35 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 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, science,
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 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 duly constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs.
Barneta, 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 and 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).
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. Ct. 1790.)
We hold that a similar exemptions 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. Dames II, 185 SCRA 523, 535, while
the highest regard must be afforded their right to
the 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 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
36 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
Narvasa, C .J ., Feliciano, Bidin, Regalado, Davide,
Jr., Romero, Nocon, Bellosillo, Melo and Campos,
Jr., JJ ., concur.
Gutierrez, Jr., J ., On leave.
Quiason, J ., No part.
(Estrada v. Escritor, A.M. No. P-02-1651, June 22,
2006)
EN BANC
[A.M. No. P-02-1651. June 22, 2006.]
(formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.
ESCRITOR, respondent.
RESOLUTION
PUNO, J p:
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 Jehovah's 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 on July 28, 1991, a "Declaration of
Pledging Faithfulness." 7
For Jehovah's 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 within the congregation
all over the world except in countries where divorce
is allowed. As laid out by the tenets of their faith, the
Jehovah's 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 Quilapio's declarations were executed in the
usual and approved form prescribed by the
Jehovah's 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 Jehovah's 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 Escritor's
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:
37 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 respondent's plea
of 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
respondent's claimed religious belief and practice;
(b) present evidence on the state's "compelling
interest" to override respondent's religious belief and
practice; and
(c) show that the means the state adopts in
pursuing its interest is the least restrictive to
respondent's 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 Carpio's 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 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
Carpio's 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
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 religion's 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
38 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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
The Establishment and Free Exercise Clauses, it
should be noted, 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. 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. DICSaH
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, the
second 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.
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 state's 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
Amendment's 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 Jefferson's "wall of separation"
encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict
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
39 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 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 Island colony. 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 in Zorach 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
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, 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 Court's 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
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. 44
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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 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 government's 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 person's or institution's
religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to
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 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, appellee's 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
appellant's 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
appellant's religion may be justified by a
"compelling state interest in the regulation of a
subject within the State's 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 Sherbert's
religious liberty. It added that even if the state
could show that Sherbert's 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 Sherbert's benefits would
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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.
ESTCDA
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 state's
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 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., 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 protected
conduct beyond speech, press, or worship was
included in the shelter of freedom of religion.
Neither Sherbert's 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
42 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
government's 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 government's 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 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 state's 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 individual's
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 Scalia's opinion then reviewed the cases
where free exercise challenges had been upheld
such as Cantwell, Murdock, Follet, Pierce, and
Yoder and 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 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 O'Connor 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 Amendment's
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
43 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
First Amendment's mandate of preserving religious
liberty to the fullest extent possible in a pluralistic
society." 79
Justice O'Connor also disagreed with the majority's
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 O'Connor
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 Smith's
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
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 Court's ultimate concern in Smith
appeared to be two-fold: (1) the difficulty in
defining and limiting the term "religion" in today's
pluralistic society, and (2) the belief that courts
have no business determining the significance of an
individual's 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
Court's characterization of its choices have been
soundly rejected as false, viz:
If one accepts the Court's 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.
IcHSCT
Nor does the Constitution give the Court the option
of simply ignoring constitutional mandates. A large
area of middle ground exists between the Court's
two opposing alternatives for free exercise
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."
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
44 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
significance rather than acquiesce to the Court's
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 legislature's 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, Smith's characterization that the
U.S. Court has "never held that an individual's
religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that the
state is free to regulate" an assertion which Mr.
Justice Carpio adopted unequivocally in his dissent
has 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 combined the right of
parents to direct the education of their children
and the right of free exercise of religion. Under the
Court's 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 Court's 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 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 Court's 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
45 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
benevolent neutrality or accommodation
approach. Moreover, if we 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 claimant's 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 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 state's 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. The
Sherbert 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 one's 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
someone's 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 Amendment's 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 claimant's beliefs must be 'sincere',
but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with
those of the claimant's 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 adopted lock, stock and
barrel the religion clauses as embodied in the
First Amendment, and therefore, the U.S. Court's
interpretation of the same. Unlike in 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 accommodations under 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 decades
before 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 a mandatory accommodation.
HcDSaT
There is no ambiguity with regard to the Philippine
Constitution's 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 As stated
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 . . . 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
separationist approach, 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
47 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 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 Carpio's total
adherence to the U.S. Court's 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
individual's 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 mayor's
permit and a municipal license as ordinarily
required of those engaged in the business of
general merchandise under the city's 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 Jehovah's 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 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 Carpio's 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 agreement mandated in another
law based 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:
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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 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 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. 137
(citations omitted)
At this point, we take note of Mr. Justice Carpio's
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 not require accommodations 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. ACTISE
Mr. Justice Carpio's assertion misses the point.
Precisely because the doctrine in Smith is that only
49 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 Carpio's
advocacy of the Smith doctrine would effectively
render the Free Exercise protection a
fundamental right under our Constitution
nugatory 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 claimant's belief is
ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. . . .
xxx xxx xxx
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
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 . . . . 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 the establishment concerns prevail
over potential accommodation interests, then it
must rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio's
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 Carpio's 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.
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
married . . . under 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 Shari'a law allows a
Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice
Carpio's "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
50 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 criminal law. 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
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 O'Connor 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.
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. ETHSAI
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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 test to 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:
. . . 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
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
Officer's 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 respondent's 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 respondent's 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 respondent's 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 respondent's
claimed religious belief and practice.
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 respondent's 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
Jehovah's 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 respondent's 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
52 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 respondent's
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 state's 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 respondent's 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
State's 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 state's interest is
important, because our Constitution itself holds the
right to religious freedom sacred. The 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 State's broad interest in "protecting
the institutions of marriage and the family," or even
"in the sound administration of justice" that must be
weighed against respondent's claim, but the State's
narrow interest in refusing to make an exception for
the cohabitation which respondent's 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 Blackmun's application of
the compelling interest test, the State's 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 State's 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. ETHIDa
The Solicitor General also argued against
respondent's 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
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-Santiago's
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
53 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
(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
(e) While there is no dispute that under settled
jurisprudence, respondent's 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 Jehovah's
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 Carpio's 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 Jehovah's Witnesses, the
Catholic faith considers cohabitation without
marriage as immoral. Second, but more important,
the Jehovah's 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,
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 government's 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 equality a 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 others makes 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
54 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 respondent's religious
belief and the fact that the agreement was an
internal arrangement within respondent's
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
respondent's religious freedom.
Thus, we find that in this particular case and under
these distinct circumstances, respondent Escritor's
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.
Quisumbing, Sandoval-Gutierrez, Austria-Martinez,
Corona, Azcuna, Tinga, Chico-Nazario and Garcia,
JJ., concur.
Panganiban, C.J., joins J. Carpio dissent.
Ynares-Santiago and Carpio, JJ., see dissenting
opinion.
Carpio-Morales, J., I maintain my vote articulated in
the dissenting opinion of J. Carpio in the Aug. 4,
2003 decision. I thus concur with his present dissent.
Callejo, J., concurs to the dissent made by Justice
Carpio.
Velasco, Jr., J., took no part due to prior action of
OCA.
(Estrada v. Escritor, A.M. No. P-02-1651, August 04,
2003)
EN BANC
[A.M. No. P-02-1651. August 4, 2003.]
(formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.
ESCRITOR, respondent.
Antonio B. Manzano for complainant.
Teodorico N. Diesmos for respondent.
SYNOPSIS
This case involved a court interpreter, Soledad S.
Escritor, who admittedly, while still married to
another, cohabited since 1980 to Luciano Quilapio,
Jr., who was himself married to another. Escritor and
Quilapio had a nineteen-year old son. The private
complainant herein was not personally related to
Escritor nor did he personally know her. However, he
wanted the Court to declare as immoral the
relationship of Escritor with Quilapio in consonance
with the pertinent provision of the Administrative
Code. In her defense, Escritor contended that
under the rules of the Jehovah's Witnesses, a
religious sect of which she is a member, the act of
signing a Declaration Pledging Faithfulness, is
sufficient to legitimize a union which would
otherwise be classified as adulterous and
bigamous. Escritor alleged that in compliance with
the foregoing rules, she and her partner signed the
Declaration Pledging Faithfulness in 1991, and by
virtue of such act, they are for all purposes,
regarded as husband and wife by the religious
denomination of which they are devout adherents.
The majority opinion resolved the case based on
the issue of whether or not respondent's right to
religious freedom should be carved out as an
exception from the prevailing jurisprudence on illicit
relations for which government employees are held
administratively liable.
The Supreme Court resolved to remand this case to
the Office of the Court Administrator. The Solicitor
General was ordered to intervene in the case
where it will be given the opportunity (a) to
examine the sincerity and centrality of respondent's
claim of religious belief and practice; (b) to present
evidence on the state's "compelling interest" to
override respondent's religious belief and practice:
and (c) to show that the means the state adopts in
pursuing its interest is the least restrictive to
respondent's religious freedom. The Court also
ordered the setting of the rehearing of the case.
SYLLABUS
1.POLITICAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; FREE EXERCISE CLAUSE; PROHIBITS ANY
DECREE OF COMPULSION OR BURDEN IN THE
PRACTICE OF ONE'S RELIGION. 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. 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. In interpreting the Free
Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of
Education is instructive on the matter, viz: 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
55 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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. The
difficulty in interpretation sets in when belief is
externalized into speech and action. EaCSHI
2.ID.; ID.; ID.; ID.; ANY RESTRAINT OF FREEDOM
THEREOF COULD ONLY BE JUSTIFIED ON THE
GROUND THAT THERE IS A CLEAR AND PRESENT
DANGER OF ANY SUBSTANTIVE EVIL WHICH THE STATE
HAS THE RIGHT TO PREVENT. 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, nonprofit, 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 mayor's permit and a municipal license as
ordinarily required of those engaged in the business
of general merchandise under the city's
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
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. (Tanada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297)
This was the Court's maiden unequivocal affirmation
of the "clear and present danger" rule in the
religious freedom area, and in Philippine
jurisprudence, for that matter. 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,
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, in American Bible Society, the
"clear and present danger" rule was laid down but it
was not clearly applied.
3.ID.; ID.; ID.; ID.; RELIGIOUS FREEDOM WILL NOT BE
UPHELD IF IT CLASHES WITH THE ESTABLISHED
INSTITUTIONS OF SOCIETY. Two years after
American Bible Society came the 1959 case of
Gerona v. Secretary of Education, this time
involving conduct expressive of religious belief
colliding with a rule prescribed in accordance with
law. 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. 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 one's religion, one's right to religious
freedom cannot justify exemption from compliance
with the law. The Gerona ruling was reiterated in
Balbuna, et al. v. Secretary of Education, et al.
4.ID.; ID.; ID.; ID.; TESTS WHEN RELIGIOUS FREEDOM
MAY BE VALIDLY LIMITED. 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 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 the
state's 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.
5.ID.; ID.; ID.; ID.; FREEDOM TO BELIEVE AND
FREEDOM TO ACT ON MATTERS OF RELIGION;
DISTINGUISHED. 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. 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
56 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise said religious
belief clashes with the established institutions
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. 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" and denied the
petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the
Gerona rule that religious freedom will not be
upheld if it clashes with the established institutions
society and the law.
6.ID.; ID.; ID.; ID.; ABSENCE OF "GRAVE AND PRESENT
DANGER TEST" AND "COMPELLING INTEREST TEST"
DOES NOT JUSTIFY RESTRAINT IN RELIGION FREEDOM;
APPLICATION THEREOF. In 1993, the issue on the
Jehovah's Witnesses' participation in the flag
ceremony again came before the Court in
Ebralinag v. The Division Superintendent of Schools.
A unanimous Court overturned the Gerona ruling
after three decades. Similar to Gerona, this case
involved several Jehovah's 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 Teehankee's 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. The Court
added, viz: 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 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 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.
Barnette also found its way to the opinion, viz:
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).
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 Jehovah's 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: '. . . 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
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. The Court annulled the orders
expelling petitioners from school.
7.ID.; ID.; ID.; ID.; PRIOR RESTRAINT TO RELIGIOUS
SPEECH IS EQUIVALENT TO INTERFERENCE WITH THE
RIGHT TO FREE EXERCISE OF RELIGION. 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 petitioner's
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 findingsof
facts to justify the conclusion that the subject video
57 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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"
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. 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 one's 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. ADCSEa
8.ID.; ID.; ID.; ESTABLISHMENT CLAUSE; PROTECTS
VOLUNTARISM AND INSULATION OF THE POLITICAL
PROCESS FROM INTERFAITH DISSENSION;
CONSTRUED. 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. 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." Non establishment thus
calls far government neutrality in religious matters to
uphold voluntarism and avoid breeding interfaith
dissension. TaCEHA
9.ID.; ID.; ID.; ID.; WHEN NOT OFFENDED EVEN IF A
LAW OR GOVERNMENT ACTION INCIDENTALLY AIDS
A PARTICULAR RELIGION; APPLICATION THEREOF.
The neutrality principle was applied in the first
significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz, 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 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
58 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 . . . . . . 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) 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.
10.ID.; ID.; ID.; FREE EXERCISE CLAUSE AND
ESTABLISHMENT CLAUSE, COMPARED. 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. 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 citizen's 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. 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." 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, as been
the approach followed by the Philippine Court.
11.ID.; ID.; ID.; BENEVOLENT NEUTRALITY; THE
APPROACH INTENDED BY THE FRAMER'S OF THE
CONSTITUTION TO BE ADOPTED IN THE
INTERPRETATION OF RELIGIOUS CLAUSES. 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 he ascertained that the intent of
the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the
Philippine constitutions and the enforcement of this
intent is the goal of construing the constitution.
12.ID.; ID.;. ID.; ID.; CONSTRUED; APPLICATION
THEREOF. 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
59 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
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 Jehovah's
Witnesses were exempt from 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. While the religion clauses
are a unique American experiment which
understandably came about as a result of
America's 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." aEHAIS
13.ID.; ID.; ID.; COMPELLING STATE INTEREST TEST;
SERVES THE PURPOSE OF REVERING RELIGIOUS
LIBERTY WHILE AT THE. SAME TIME AFFORDING
PROTECTION TO THE PARAMOUNT INTEREST OF THE
STATE. 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. SEIaHT
14.WORDS AND PHRASES; LAW AND PUBLIC
MORALITY; RELATIONSHIP BETWEEN LAW AND PUBLIC
MORALITY, CONSTRUED. 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." "In a liberal democracy, the law
reflects social morality over a period of time."
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. Law has also been defined as "something
men create in their best moments to protect
60 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
themselves in their worst moments." 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. Law also serves as "a helpful starting point
for thinking about a proper or ideal public morality
for a society" in pursuit of moral progress. In Magno
v. Court of Appeals, et al., 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 . . . 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. . . . 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." 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. 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.
15.CIVIL LAW; HUMAN RELATIONS; PROVIDES FOR
THE RECOGNITION OF THE WRONG AND THE
CONCOMITANT PUNISHMENT IN THE FORM OF
DAMAGES. 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.
16.POLITICAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; THE JURISDICTION OF THE COURT EXTENDS
ONLY TO PUBLIC AND SECULAR MORALITY; JUSTIFIED.
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 respondent's 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 respondent's 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, in Fonacier, this Court
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." 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
state's 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. SECIcT
17.ID.; ID.; ID.; COMPELLING STATE INTEREST TEST;
APPLICATION THEREOF REQUIRES FURTHER
PRESENTATION OF EVIDENCE. In any event, even
if the Court deems sufficient respondent's 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 Court's use of the
"compelling state interest" test. We note that the
OCA found respondent's defense of religious
freedom unavailing in the face of the Court's ruling
in Dicdican v. Fernan, et al., viz: It bears emphasis
that the image of a court of justice is mirrored in the
61 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 OCA's 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 OCA's memorandum to the
Court that demonstrates how this interest is so
compelling that it should override respondent's plea
of religious freedom nor is it shown that the means
employed by the government in pursuing its interest
is the least restrictive to respondent's 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
respondent's 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 Court's
action would be an unconstitutional encroachment
of her right to religious freedom. We cannot
therefore simply take a passing look at respondent's
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 state's compelling interest which
can override respondent's 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.
BELLOSILLO, J., separate opinion:
1.POLITICAL LAW; ADMINISTRATIVE LAW; COURT
PERSONNEL; DISGRACEFUL AND IMMORAL
CONDUCT; DETERMINATION THEREOF DEPENDS
UPON THE NATURE OF THE ACTS, THE
CIRCUMSPECTION OR NOTORIETY WITH WHICH THEY
ARE PERFORMED AND THE ATMOSPHERE OF THE
COMMUNITY; APPLICATION IN CASE AT BAR.
Disgraceful and immoral conduct" is never
considered in the abstract but always in the
context of conduct that is hostile to the welfare of a
particular profession or the specific governmental
position to which the alleged disgraceful and
immoral employee belongs. To some degree the
determination of disgracefulness and immorality
must depend upon the nature of the acts, the
circumspection or notoriety with which they are
performed and the atmosphere of the community,
i.e., the standards of the general public and not
some higher standard, in which they take place. As
explained in Morrison v. State Board of Education
By interpreting these broad terms to apply to the
employee's performance on the job, the decisions .
. . give content to language which otherwise would
be too sweeping to be meaningful. Terms such as
"immoral or unprofessional conduct" or "moral
turpitude" stretch over so wide a range that they
embrace an unlimited area of conduct. In using
them the Legislature surely did not mean to endow
the employing agency with the power to dismiss
any employee whose personal, private conduct
incurred its disapproval. Hence the courts have
consistently related the terms to the issue of
whether, when applied to the performance of the
employee on the job, the employee has
disqualified himself. This understanding is crucial
because our jurisprudence defines disgraceful and
immoral conduct as "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," none of which is true in this
case, and the Constitution recognizes our multi-
cultural experience and decrees a principle of unity
in diversity. As the definition poignantly suggests, a
charge of disgraceful and immoral conduct does
not depend solely upon the character of the
protested act or series of acts but must include a
holistic evaluation of the circumstances obtaining in
each case. Even this Court's oft-repeated
justification for penalizing disgraceful and immoral
conduct does not treat the questioned action in
isolation nor chastises it for its own sake, but instead-
refers to the tendency of the allegedly disgraceful
and immoral conduct to discredit either the
employee himself or the service. Verily, in
appropriate cases, private morality can be isolated
from the circumscription of the public sphere where
respondent's moral lapses do not prove prejudicial
to the service.
2.ID.; ID.; ID.; ID.; THE PIVOTAL QUESTION IN
DETERMINING ADMINISTRATIVE CULPABILITY IS
WHETHER THE CHALLENGED CONDUCT ULTIMATELY
PREJUDICED PUBLIC SERVICE; EXEMPLIFIED. The
human side of this case should not be totally
ignored because respondent's present position is
not one which has caused scandal to anyone truly
concerned with public morality. The instant case
may therefore be viewed and appreciated with
human understanding as indeed it is more attuned
to the interest of society and public service that she
be able to fulfill her obligation of maternal support
and care for her son and true family than for us to
tear apart an otherwise ideal union of two loving
and respectable individuals. While this Court is
aware of the not-so-easy and clear-cut task of
determining whether certain improper conduct
would constitute disgraceful immorality and
warrant administrative discipline, to be sure, in this
particular case we are wholly convinced that
62 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
respondent in living with her present partner to
foster a wholesome family was impelled by only the
honest and decent intention to overcome her
previous marital misfortune and to take anew her
natural place in a pleasant and wholesome
community. Without fear of contradiction, it would
be violating godly laws of charity and love and, to
say the least, embracing cruelty and hypocrisy, if
we should require respondent to abandon her
faithful spouse and loving son, or penalize her for
treasuring the unity of her family as she would keep
her work, for the punctilious satisfaction of a blind
world. More enlightened jurisdictions would treat
adverse personnel actions, i. e., dismissal,
suspension, fine or other penalties, arising from a
charge of immoral conduct with due consideration
of the constitutional rights of due process and
privacy. We may also apply the same standard in
the instant case if only to accord ample recognition
to the principle that a civil servant does not
surrender his constitutional rights once he assumes
public service, hence, he may not be dismissed
from his job for a constitutionally impermissible
reason. Mindel v. Civil Service Commission, for
example, involves a post office clerk who was
removed from the service for "immoral conduct"
because he had lived with a young lady without
the benefit of marriage. The federal court ordered
his reinstatement since "Mindel's termination was
arbitrary and capricious, and therefore violated
due process . . . and his right to privacy." It was
observed that Mindel was employed in a most
insensitive position as postal clerk and his alleged
conduct was discreet, not notorious, much less
scandalous. The federal court held finally that even
if Mindel's conduct can be characterized as
"immoral," he cannot constitutionally be penalized
on this ground absent "a rational nexus, between his
conduct and his duties as a postal clerk. A
reviewing court must at least be able to discern
some reasonably foreseeable specific connection
between an, employee's potentially embarrassing
conduct and the efficiency of the service." Clearly,
"immorality" as a category of offense for the
dismissal of a public servant or a judicial employee
should not be construed as any violation of moral
prescriptions. Otherwise, this tack would only
embroil this Court in the eternal debate on
divergent moral theories and-systems. For a public
servant, the pivotal question in determining
administrative culpability ought to be whether the
challenged conduct was ultimately prejudicial to
public service. We cannot snoop into bedrooms
and peer under bed covers without running afoul of
every person's constitutionally protected
individuality. Quite interestingly, in American
jurisprudence, conduct affecting one's personal
character has been excluded from the ambit of
actionable behavior. It' stressed: "But conduct
amounting to mere irregularity or merely affecting
one's character as a private individual is not usually
covered by the term 'malconduct."' ESTcIA
3.ID.; ID.; ID.; ID.; DETERMINATION THEREOF UNDER A
FAIRLY OBJECTIVE STANDARD IS WHEN THERE IS A
REASONABLY FORESEEABLE SPECIFIC CONNECTION
BETWEEN AN EMPLOYEE'S POTENTIALLY
EMBARRASSING CONDUCT AND THE EFFICIENCY OF
THE SERVICE; RELEVANCE THEREOF IN. CASE AT BAR.
We also cannot deduce immorality from the
"unusual" set-up in the family of Escritor. This I say
because of Sec. 3, Art. XV, of the Constitution which
provides, "The State shall defend . . . [t]he right of
spouses to found a family in accordance with their
religious convictions and the demands of
responsible parenthood . . . ." This rule is broad
enough to include de facto family relations since it
would be absurd to deny the free exercise of
religious convictions by virtue of the existence or
non-existence of marriage. Besides, such "atypical"
family organization is not immoral per se
considering the leeway granted to Moros in Sulu
Islamic Association of Masjid Lambayong v. Malik,
and in PD 1083, for surely if the arrangement is itself
heinous no law could be validly enacted to
endorse it. More than religious freedom, I look with
partiality to the rights of due process and privacy.
Law in general reflects a particular morality or
ideology, and so I would rather not foist upon the
populace such criteria as "compelling state
interest," but more, the reasonably foreseeable
specific connection between an employee's
potentially embarrassing conduct and the
efficiency of the service. This is a fairly objective
standard than the compelling interest standard
involved in religious freedom. Verily, if we are to
remand the instant case to the Office of the Court
Administrator, we must also configure the rights of
due process and privacy into the equation. By
doing so, we can make a difference not only for
those who object out of religious scruples but also
for those who choose to live a meaningful life even
if it means sometimes breaking "oppressive" and
"antiquated" application of laws but are otherwise
efficient and effective workers. As is often said,
when we have learned to reverence each
individual's liberty as we do our tangible wealth, we
then shall have our renaissance. We may admit
that there is Conduct Prejudicial to the Best Interest
of the Service where the efficiency, integrity, and
credibility of the civil service or of the administration
of justice are adversely affected. I however do not
discern any evidence of these harmful
consequences. Verily, the opposite is again true:
Complainant admitted that respondent Escritor is a
decent woman and has not caused
embarrassment to the judiciary. On the other hand,
if we penalize respondent, force her family to break
up and remove her from her job, it is then that we
will prejudice government service. Certainly, we are
not jeopardizing the ability of government to
execute the laws faithfully and credibly by allowing
respondent to continue with her present family
relations. In the first place, she cannot be said to be
breaking the proscriptions of the Revised Penal
Code since there is no conviction by final judgment
against her for concubinage; as it is, she is entitled
to the presumption of innocence. Furthermore, Art.
344 of the Revised Penal Code itself offers the
justification for the government not to prosecute
and persecute Escritor as this law requires a
complaint from the offended spouses for any
63 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
action thereon to prosper. In the absence of such
complaint as in the case at bar, we cannot
conclude that the government is being partial to
respondent for not enforcing the pertinent penal
provisions against her. It is more than a matter of
sympathy; it is a clear dose of justice indeed to
conclude that respondent did not fail to live up to
her ethical obligations; in conscience and in law,
this Court should be the last, and never, to cast the
stone and stamp the badge of infamy upon her
legitimate desire for personal security and safety
that in reality has bothered no one, least of all, our
own judicial institution.
VITUG, J., separate opinion:
1.POLITICAL LAW; ADMINISTRATIVE LAW; USE OF
MORAL LAWS ARE JUSTIFIED ONLY TO THE EXTENT
THAT THEY DIRECTLY OR INDIRECTLY SERVE TO
PROTECT THE INTERESTS OF THE LARGER SOCIETY.
It might then be deduced that moral laws are
justified when they (1) seek to preserve the moral
value upheld by society and (2) when the morality
enforced in a certain case, is true and correct. It is
within these standards that the provision against
"immorality" in the Administrative Code must be
examined to the extent that such standards can
apply to the facts and circumstances in the instant
case before the Court. As a rule then, 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.
2.CIVIL LAW; FAMILY CODE; MARRIAGE; RETAINED
ITS STATUS AS A LEGALLY PROTECTED VINCULUM
DESPITE THE SEPARATION OF CHURCH AND STATE
BECAUSE IT IS IMBUED WITH SOCIETAL INTEREST AS A
FOUNDATION OF THE FAMILY AND THE BASIC UNIT
OF SOCIETY. Society having a deep interest in the
preservation of marriage, adultery is a matter of
public, not merely private, concern, that cannot
readily be ignored. This deep seated interest is
apparent in our Civil Code so replete with rules as in
defining the parties' legal capacity to marry, in
laying down the essential requisites of the union, in
regulating the rights and duties of the spouses, even
their property relations, and in protecting the rights
of children. Marriage has acquired a legal definition
as early as the 12th century that has since grown
towards a cherished institution with Gregorian
Reform of the 11th and 12th centuries. With the
separation of the Church and State, marriage has
retained its status as a legally protected viculum
because it is perceived to be imbued with societal
interest as a foundation of the family and the basic
unit of society. While Islamic states recognize
polygamous marriages and, in Western countries,
divorce is acceptable, in the Philippines, however,
absolute monogamy is still the order of the day.
Societal interest in monogamous unions is grounded
on the belief that the cohesiveness of the. family is
better protected, and children, prized for their role
in the perpetuation of the future of the community,
are better reared when spouses remain together.
These societal interests are embodied in moral laws
geared towards protecting the monogamous
nature of Philippine marriages. But I do not
endeavor to examine whether Philippine society is
correct in viewing monogamy-as the better means
for the protection of societal interest on the family
but I do would focus myself on, given the facts of
the case, whether or not societal interest is rightly
served.
YNARES- SANTIAGO, J., dissenting opinion:
1.POLITICAL LAW; ADMINISTRATIVE LAW; COURT
PERSONNEL; THE DEGREE OF MORALITY REQUIRED
HAS BEEN CONSTANTLY HIGH. The degree of
morality required of every employee or official in
the public service has been consistently high. The
rules are particularly strict when the respondent is a
Judge or a court employee. Even where the Court
has viewed certain cases with human
understanding and compassion, it has insisted that
no untoward conduct involving public officers
should be left without proper and commensurate
sanction. The compassion is shown through
relatively light penalties. Never, however, has this
Court justified, condoned, or blessed the
continuation of an adulterous or illicit relationship
such as the one in this case, after the same has
been brought to its attention. Is it time to adopt a
more liberal approach, a more "modern" view and
a more permissive pragmatism which allow
adulterous or illicit relations to continue provided
the job performance of the court employee
concerned is not affected and the place and order
in the workplace are not compromised? When
does private morality involving a court employee
become a matter of public concern?
2.ID.; ID.; ID.; ID.; THE ASCERTAINMENT OF WHAT IS
MORAL OR IMMORAL CALLS FOR THE DISCOVERY
OF CONTEMPORARY COMMUNITY STANDARDS.
The Civil Service Law punishes public officers and
employees for disgraceful and immoral conduct.
Whether an act is immoral within the meaning of
the statute is not to be determined by respondent's
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 ascertainment of what is moral or
immoral calls for the discovery of contemporary
community standards. For those in the service of the
Government, provisions of law and court
precedents also have to be considered. The task is
elusive. The layman's definition of what is "moral"
pertains to excellence of character or disposition. It
relates to the distinction between right and wrong;
virtue and vice; ethical praise or blame. Moral law
refers to the body of requirements in. conformity to
which virtuous action consists. Applied to persons, it
is conformity to the rules of morality, being virtuous
with regards to moral conduct. That which is not
consistent with or not conforming to moral law,
opposed to or violating morality, and now, more
64 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
often, morally evil or impure, is immoral. Immoral is
the state of not being virtuous with regard to sexual
conduct. The term begs the definition. Hence,
anything contrary to the standards of moral
conduct is immoral. A grossly immoral act must be
so corrupt and false as to constitute a criminal act
or so unprincipled as to be reprehensible to a high
degree.
3.ID.; ID.; ID.; ID.; AN ACT SO CORRUPT OR FALSE AS
TO CONSTITUTE A CRIMINAL ACT IS "GROSSLY
IMMORAL" UNDER OUR EXISTING RULE. A married
woman who has sexual intercourse with a man not
her husband, and the man who has carnal
knowledge of her knowing her to be married
commit the crime of adultery. Abandonment by
the legal husband without justification does not
exculpate the offender; it merely mitigates the
penalty. The concubine with whom a married man
cohabits suffers the penalty of destierro. It is true
that criminal proceedings cannot be instituted
against persons charged with adultery or
concubinage except upon complaint of the
offended party. This does not mean that no
actionable offense has been committed if the
offended party does not press charges. It simply
cannot be prosecuted. The conduct is not thereby
approved, endorsed or commended. It is merely
tolerated. The inescapable fact in this case is that
acts defined as criminal under penal law have
been committed. There are experts in Criminal Law
who believe that the codal provisions on adultery
and concubinage are terribly outmoded and
should be drastically revised. However, the task of
amendment or revision belongs to Congress, and
not to the Supreme Court. Our existing rule is that
an act so corrupt or false as to constitute a criminal
act is "grossly immoral." It is not merely "immoral."
Respondent now asks the Court to go all the way to
the opposite extreme and condone her illicit
relations with not even an admonition or a slight tap
on the wrist. I do not think the Court is ready to
render a precedent setting decision to the effect
that, under exceptional circumstances, employees
of the judiciary may live in a relationship of adultery
or concubinage with no fear of any penalty or
sanction and that after being discovered and
charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision
in this case is not limited to court interpreter
Soledad Escritor. It is not a pro hac vice ruling. It
applies to court employees all over the country and
to everybody in the civil service. It is not a private
ruling but one which is public and far-reaching in its
consequences. Times are changing. Illicit sex is now
looked upon more kindly. However, we should not
completely disregard or overlook a relationship of
adultery or concubinage involving a court
employee and not order it to be terminated. It
should not ignore what people will say about our
moral standards and how a permissive approach
will be used by other court employees to freely
engage in similarly illicit relationship with no fear of
disciplinary punishment.
4.ID.; ID.; ID.; ID.; THE COURT IS MANDATED TO
SUPERVISE THE CONDUCT OF AN EMPLOYEE OF THE
JUDICIARY AND IT MUST DO SO WITH AN EVEN HAND
REGARDLESS OF RELIGIOUS AFFILIATION;
APPLICATION IN CASE AT BAR. The peculiar
religious standards alleged to be those of the sect
to which respondent belongs can not shield her
from the effects of the law. Neither can her illicit
relationship be condoned on the basis of a written
agreement approved by their religious community.
To condone what is inherently wrong in the face of
the standards set by law is to render nugatory the
safeguards set to protect the civil service and, in
this case, the judiciary. The Court cannot be the
instrument by which one group of people is
exempted from the effects of these laws just
because they belong to a particular religion.
Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the
judiciary, and it must do so with an even hand
regardless of her religious affiliation.
5.ID.; ID.; ID.; ID.; ANY ATTEMPT TO INJECT FREEDOM
OF RELIGION IN AN EFFORT TO EXEMPT ONESELF
FROM THE CIVIL SERVICE RULES RELATING TO THE
SANCTITY OF MARRIAGE TIE MUST FAIL; RATIONALE.
The argument that a marital relationship is the
concern of religious authorities and not the State
has no basis. In Reynolds v. United States, the U.S.
Supreme Court stated: It is impossible to believe
that the constitutional guaranty of religious freedom
was intended to prohibit legislation in respect to this
most important feature of social life. Marriage, while
from its very nature a sacred obligation, is,
nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it
society may be said to be built, and out of its fruits
spring social relations and social obligations and
duties, with which government is necessarily
required to deal. The strengthening of marriage ties
and the concomitant hostility to adulterous or illicit
marital relations is a primary governmental
concern. It has nothing to do with the particular
religious affiliations of those affected by legislation
in this field. The relations, duties, obligations and
consequences of marriage are important to the
morals and civilization of a people and to the
peace and welfare of society. Any attempt to
inject freedom of religion in an effort to exempt
oneself from the Civil Service rules relating to the
sanctity of the marriage tie must fail. We must not
exempt illegal conduct or adulterous relations from
governmental regulation simply because their
practitioners claim it is part of their free exercise of
religious profession and worship. Indeed, the Court
distinguishes between religious practices, including
the seemingly bizarre, which may not be regulated,
and unacceptable religious conduct which should
be prevented despite claims that it forms part of
religious freedom. The exemption from participation
in flag ceremonies cannot be applied to the
tolerance of adulterous relationships by court
personnel in the name of religious freedom. 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
65 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
enjoyment of religious profession. 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. TCcDaE
6.ID.; ID.; ID.; ID.; ALL THOSE WHO WORK IN THE
JUDICIARY ARE BOUND BY THE MOST EXACTING
STANDARDS OF ETHICS AND MORALITY TO MAINTAIN
THE PEOPLE'S FAITH IN THE COURTS AS DISPENSERS
OF JUSTICE. Jurisprudence on immoral conduct
of employees in the civil service has been
consistent. There is nothing in this case that warrants
a departure from precedents. We must not
sanction or encourage illicit or adulterous relations
among government employees. Soledad S. Escritor
and Luciano D. Quilapio are devoted members of
Jehovah's Witness. Exemptions granted under our
Muslim Laws to legitimate followers of Islam do not
apply to them. The Court has no legislative power
to place Jehovah's Witness in the same legal
category as Muslims. In Bucatcat v. Bucatcat, it was
held that conduct such as that demonstrated by
the respondent is immoral and deserving of
punishment. For such conduct, the respondent,
another court interpreter, was dismissed from the
service. It was held: Every employee of the judiciary
should be an example of integrity, uprightness and
honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in
the performance of his official duties but in his
personal and private dealings with other people, to
preserve the court's good name and standing. It
cannot be overstressed 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
employees 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 courts of
justice. All those who work in the judiciary are
bound by the most exacting standards of ethics
and morality to maintain the people's faith in the
courts as dispensers of justice. In Liguid v. Camano,
it was ruled: Surely, respondent's behavior of living
openly and scandalously for over two (2) decades
with a woman not his wife. and siring a child by her
is representative of the gross and serious
misconduct penalized by the ultimate penalty of
dismissal under Section 22 (c), Rule XIV of the
Omnibus Rules Implementing Book IV of Executive
Order No. 292 otherwise known as the Revised
Administrative Code of 1987. As defined,
misconduct is a transgression of some established or
definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer.
Respondent's conduct is an example of the kind of
gross and flaunting misconduct that so quickly and
surely corrodes the respect for the courts without
which government cannot continue and that tears
apart the bonds of our polity.
7.ID.; ID.; ID.; ID.; ID.; PENALTY. The high degree of
moral uprightness that is demanded of employees
of the government entails many sacrifices that are
peculiar to the civil service. By aspiring to these
positions, government employees are deemed to
have submitted themselves to greater scrutiny of
their conduct; all in the pursuit of a professional civil
service. The Court has repeatedly applied these
principles in analogous cases. Immorality is
punishable by suspension of six (6) months and one
day to one (1) year for the first offense and dismissal
for the second offense. Considering that
respondent's misconduct is in the nature of a
continuing offense, it must be treated as a first
offense, and her continued cohabitation with
Luciano E. Quilapio, Jr. must be deemed a second
offense, which will warrant the penalty of dismissal.
CARPIO, J., dissenting opinion:
1.POLITICAL LAW; ADMINISTRATIVE LAW; COURT
PERSONNEL; MAY BE SUBJECTED TO ADMINISTRATIVE
SANCTION FOR CONDUCT PREJUDICIAL TO THE BEST
INTEREST OF THE SERVICE WHEN FOUND GUILTY OF
CONCUBINAGE. Escritor expressly admits that she
is cohabiting with Luciano D. Quilapio, Jr. who is
married to another woman. Escritor's conduct is
that of a concubine under Article 334 of the
Revised Penal Code outlawing concubinage.
Escritor may now be subjected to disciplinary
sanction for. conduct prejudicial to the best interest
of the service. Escritor's religious belief, no matter
how sincere, cannot exempt her from Article 334 of
the Revised Penal Code declaring concubinage a
criminal act. Sincerity or insincerity in religious beliefs
is not a test in allowing or disallowing exemption
from a harmful conduct that the State has a right to
suppress. A remand of this case for further
proceedings is clearly unnecessary. Escritor's
unlawful cohabitation with Quilapio is an admitted
fact regardless of the outcome of the remand of
this case. Escritor's cohabitation with Quilapio
constitutes concubinage which is a crime under our
laws. In concubinage, the concubine is a necessary
co accused of the offending spouse. The
concubine is punished with destierro. While no one
can criminally prosecute Quilapio and Escritor
without the complaint of Quilapio's legal wife, still
this Court cannot countenance such unlawful
conduct by a court employee. In conduct
prejudicial to the best interest of the service, the
immorality of the conduct is not in issue. What is in
issue is the adverse effect of the conduct on the
efficiency, integrity and credibility of the civil
service, and in the case of the judiciary, its impact
on the administration of justice. The Court cannot
simply turn a blind eye to conduct of a court
employee that, by the employee's own admission,
violates our criminal statutes. Such conduct is
prejudicial to the best interest of the administration
of justice. Court employees, from the highest
magistrate to the lowliest clerk, are expected to
abide scrupulously with the law. They are held to a
higher standard since they are part of the judicial
machinery that dispenses justice. The courts of
justice cannot harbor those who openly and
knowingly commit a crime. Courts of justice would
lose, their moral authority and credibility if they
66 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
condone violators of the law. They would be remiss
in their solemn duty of upholding the law if they
continue to employ those who admit running afoul
with our criminal statutes. Thus, there exists a
compelling state interest to hold Escritor to the
same standards required of every court employee.
If unsanctioned, Escritor's unlawful conduct would
certainly impair the integrity and credibility of the
judiciary.
2.ID.; ID.; ID.; WHEN CHARGED WITH IMMORALITY;
DISGRACEFUL AND IMMORAL CONDUCT;
CONSTRUED; APPLICATION THEREOF. In De Dios v.
Alejo, the Court quoted with approval a decision of
the Board of Civil Service dismissing an immorality
charge against a clerk who, in the words of the
Board, "does not exercise a moral influence in the
community" and whose conduct "has not
jeopardized the honor of any third person." The
Board explained that those most concerned with
the relationship the unfaithful legal wife who no
longer lived with respondent, the woman living with
respondent and the four children, have not "voiced
an objection to the situation as it existed for ten (10)
years." The Board added that technically, the clerk
was "guilty of immorality, but actually this can
hardly be considered as notoriously disgraceful
immoral conduct." The term "disgraceful and
immoral conduct" is not necessarily a single,
ironclad universal code applicable to all situations,
ethnic groups and religions. This Court has
recognized a "Muslim standards" on disgraceful and
immoral conduct with respect to multiple marriages
by Muslims. We cannot reject a "Jehovah's
Witnesses standards" on the same matter without
violating the equal protection clause, the free
exercise of religion, and the separation of Church
and State provision of the Constitution. In
disgraceful and immoral conduct, the conduct
must not only be immoral, it must also be
disgraceful. Immoral conduct means conduct that
is willful, flagrant or shameless, and which shows a
moral indifference to the opinion of the good and
respectable members of the community.
Disgraceful conduct means conduct that is
ignominious, shameful, and dishonorable.
3.ID.; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREE
EXERCISE OF RELIGION; PROTECTS PRACTICES BASED
ON RELIGIOUS GROUNDS PROVIDED SUCH
PRACTICES DO NOT VIOLATE EXISTING LAWS. The
power of the legislature to declare concubinage a
crime against the State is certainly beyond dispute.
In effect, the legislature pronounces a socially
reprehensible act, which may or may not constitute
an immoral act by certain religious standards, a
crime that the State has a right to suppress to
protect public order and the general welfare. The
wall of separation between Church and State is no
defense against the State's police power over
conduct constituting concubinage, bigamy or
polygamy. While Escritor's cohabitation with
Quilapio conforms to the religious beliefs of the
Jehovah's Witnesses, the cohabitation violates
Article 334 of the Revised Penal Code. The State
cannot interfere with the religious beliefs of the
Jehovah's Witnesses, in the same way that the
Jehovah's Witnesses cannot interfere with the
State's prohibition on concubinage. The free
exercise of religion protects practices based on
religious grounds provided such practices do not
violate existing laws enacted in the reasonable
exercise of the State's police power. As early as in
1933 in People v. Bitdu, this Court has ruled that
religious practices cannot override laws relating to
public policy.
4.ID.; ID.; ID.; FREEDOM TO ACT BASED ON
RELIGIOUS BELIEF IS SUBJECT TO POLICE POWER. OF
THE STATE. In the landmark case of Reynolds v.
United States, the U.S. Supreme Court stated that
Jefferson's explanation is "almost an authoritative
declaration of the scope and effect" of the two
constitutional clauses. The legislature has no power
to regulate mere religious belief or opinion. The
legislature, however, may regulate actions or
conduct, even though religiously motivated, that
violate the public order. The legislature's power to
outlaw concubinage, bigamy, polygamy and other
conduct harmful to public order, despite religious
practices allowing such conduct, is well-settled in
American jurisprudence. The free exercise of
religious belief is absolutely protected, but the
freedom to act according to such religious belief is
subject to the police power of the State. As held in
Reynolds v. United States which involved the
practice of polygamy. Article 334 of the Revised
Penal Code seeks to protect marriage as the
foundation of the family. The Constitution mandates
that "[M]arriage, as an inviolable social institution, is
the foundation of the family and shall be protected
by the State." Article 334 of the Revised Penal Code
is a reasonable exercise of the State's police power
to protect a social institution that the Constitution
declares as "inviolable." The religious teachings of
the Jehovah's Witnesses cannot amend or repeal
Article 334 of the Revised Penal Code on
concubinage. Escritor clearly recognized this when
she promised "to legalize" in the. future her union
with Quilapio. Under the Revised Administrative
Code of 1987, one of the grounds for disciplinary
action is "conduct prejudicial to the best interest of
the service." The penalty for a first offense is
suspension of six months and one day to one year.
A second offense is punishable with dismissal from
the service.
DECISION
PUNO, J p:
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 state's interest and the
respondent's 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
67 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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). Escritor's 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 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 Escritor's 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 Jehovah's 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
God's 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
Escritor's 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
congregation's approval of her conjugal
arrangement with Quilapio, viz:
68 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 God's 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
Maceda's 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
congregation's belief and practice regarding her
conjugal 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 (Escritor's) husband. 14
Gregorio Salazar, a member of the Jehovah's
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 Salazar's
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
69 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
Escritor and Quilapio's 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 Jehovah's Witnesses congregation and is
binding within the congregation all over the world
except in countries where divorce is allowed. The
Jehovah's 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 couple's 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 Escritor's and
Quilapio's declarations were approved are shown
by the signatures of three witnesses, the elders in
the Atimonan Congregation. Salazar confirmed
from the congregation's 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 Jehovah's
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 Jehovah's 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
Jehovah's Witnesses. Complainant Estrada adds
however, that the effect of the relationship to
Escritor's 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 Jehovah's 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 Jehovah's 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. Jehovah's 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
Caesar's 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 God's Son, can be
guided by basic Scriptural principles that hold true
in all cases.
70 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
God's view is of first concern. So, first of all the
person must consider whether that one's present
relationship, or the relationship into which he or she
contemplates entering, is one that could meet with
God's approval, or whether in itself, it violates the
standards of God's Word. Take, for example, the
situation where a man lives with a wife but 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 one's
immediate family, or a homosexual relationship or
other such situation condemned by God's 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 God's eyes.
If the relationship is such that it can have God's
approval, then, a second principle to consider is
that one should do all one can to establish the
honorableness of one's 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 God's 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 God's view of the
union. Along with this, every effort should be made
to set a fine example of faithfulness and devotion to
one's mate, thus, keeping the marriage "honorable
among all." Such course will bring God's 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 complainant's
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 Escritor's 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 'Jehovah's 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. Fernando's 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 Escritor's
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
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
respondent's right to religious freedom should carve
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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; . . ..
Not represented by counsel, respondent, in
layman's terms, invokes the religious beliefs and
practices and moral standards of her religion, the
Jehovah's 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: IHCacT
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 man's 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 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 man's
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
Hammurabi's 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
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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 God's 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 state's 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
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 emperor's command, great Christian edifices
were erected, the clergy were freed from public
burdens others had to bear, and private heathen
sacrifices were forbidden.
73 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 state's 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 Leo's
crowning of Charlemagne, became the church's
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 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 17th
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 Luther's 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 Calvin's 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
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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
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 of 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 religion's
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
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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. England's 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 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 one's religion, which
impels persecution for the sake of one's 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 planes 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-18th 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
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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 America's Declaration
of Independence. With the doctrine of natural
rights and equality set forth in 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
one's 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 magistrate's 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
Caesar's"; "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 Paine's 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 Crown's
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 steptowards separation in Virginia
was the adoption of the following provision in the
Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our
Creator, and the manner of discharging it, can be
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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 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
malting permanent the establishment's 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 cleric 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 same 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 government's 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
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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, 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 to the spirit of the
Gospel. 103 Thus, separation was necessary. 104
Jefferson's 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
hive 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 daycare 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 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
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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 Court
first had occasion to define religion, viz.:
The term 'religion' has reference to one's 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.
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 believer's 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
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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' conviction, using what in
jurisprudence would be called the belief-action test
which allows absolute protection to belief but not
to action. It cited Jefferson's 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
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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 legislature's
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
legislature's 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 person's 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 person's religious beliefs. As held
in United States v. Ballard, 153 "(h)eresy 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 Jehovah's 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 Jehovah's Witnesses from
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peaceably and orderly proselytizing on Sundays
merely because other citizens complained. In
another case likewise involving the Jehovah's
Witnesses, Niemotko v. Maryland, 158 the Court
unanimously held unconstitutional a city council's
denial of a permit to the Jehovah's Witnesses to use
the city park for a public meeting. The city council's
refusal was because of the "unsatisfactory" answers
of the Jehovah's 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 as to the exercise
of religion and no matter how insignificant was the
government's 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 government's
inadvertent interference with religion in pursuing
some secular objective. 162 In the 1940 case of
Minersville 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 Jehovah's 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 "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 state's 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 Jehovah's
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 one's
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 in Braunfeld 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 state's
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
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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 tranquillity and there was no
alternative means of pursuing this interest but to
require Sunday as a uniform rest day. cSHATC
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, appellee's 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
appellant's 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
appellant's religion may be justified by a
'compelling state interest in the regulation of a
subject within the State's 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 Sherbert's religious liberty. It added that
even if the state could show that Sherbert's
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 Sherbert's 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 government's 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 stem 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 government's
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 government's war-related activities, for
example.
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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 state's 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 acknowledgment 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. . . 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 state's interest in prohibiting the use
of illicit drugs. Oregon's 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 Oregon's drug prohibition law with the
anti-polygamy statute in Reynolds. 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 government's 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 objector's spiritual development." . . . To
make an individual's obligation to obey such a law
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contingent upon ''the law's coincidence with his
religious beliefs except where the State's interest is
"compelling" permitting him, by virtue of his
beliefs, "to become a law unto himself," . . .
contradicts both constitutional tradition and
common sense.
Justice O'Connor wrote a concurring opinion
pointing out that the majority's 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 Nation's fundamental
commitment to religious liberty." This portion of her
concurring opinion was supported by Justices
Brennan, Marshall and Blackmun who dissented
from the Court's decision. Justice O'Connor asserted
that "(t)he compelling state interest test effectuates
the First Amendment's 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 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 "Oregon's 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 Court's 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 minority's religious freedom. If the regulation
had instead restricted the majority's religious
practice, the majoritarian legislative process would
in all probability have modified or rejected the
regulation. Thus, the imposition of the political
majority's non-religious objectives at the expense of
the minority's religious interests implements the
majority's religious viewpoint at the expense of the
minority's. 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 person's 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
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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
The Court's 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 Jefferson's
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 Jefferson's
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 In Everson 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 state's 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 Court's Establishment Clause jurisprudence
that evolved in the 1950s and 1960s and laid down
a three-pronged test in Lemon 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
87 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 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
Lord's 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 Court's
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 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
88 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 Nebraska's 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
acknowledgment 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
Commission's 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 Court's 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
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
89 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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) and benevolent
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 Jefferson's 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 Amendment's
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 19th
century and that America was less specifically
Christian during those years than at any other time
before or since, 232 accommodationists claim that
American citizens at the time "of the Constitution's
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
separationist 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 state's 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
90 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 Court's tendency to press
relentlessly towards a more secular society. 241 It
finds basis in the Everson case where the Court
declared that Jefferson's "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 and Schempp. 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 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 Howe's
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
91 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 err 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
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) DcTAIH
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 religion . . . Religion 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 Court's 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
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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 government's 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 person's or
institution's religion. As Justice Brennan explained,
the "government [may] take religion into account . .
. to 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 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)
majority's favored brand of religion and
government action that impedes religious practices
not favored by the majority. The substantive 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 one's 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
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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 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 involve 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 state's 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
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examples are the Zorach case allowing released
time in public schools and Marsh 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 claimant's beliefs must be 'sincere',
but they need not necessarily be consistent,
coherent, clearly articulated; or congruent with
those of the claimant's 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 state's 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 claimant's 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 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 people's 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 claimant's 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
individual's 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 state's 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
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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
tranquillity 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 the Spanish
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 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
theretofore 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
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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 McKinley's Instructions to the Second
Philippine Commission reasserted this right which
later was incorporated into the Philippine Bill of 1902
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 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." The Beason definition,
however, has been expanded in U.S. Jurisprudence
to include non-theistic beliefs.
1. Free Exercise Clause
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. 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 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
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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 mayor's permit and a municipal
license as ordinarily required of those engaged in
the business of general merchandise under the
city's 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
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. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)
This was the Court's 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, in American 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 which
American 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 Court's resolution
of the motion for reconsideration of the Tolentino
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.
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 Jehovah's 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, petitioner's 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
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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 petitioner's 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
Frankfurter's dissent in the Barnette case, viz:
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. 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 one's
religion, one's right to religious freedom cannot
justify exemption from compliance with the law. The
Gerona ruling was reiterated in Balbuna, 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 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. 3350
took effect. The union notified the company of
Victoriano's 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 01 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. (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 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 L ed. 2d.
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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 justify
limitation of religious freedom. Second, religious
exercise may be indirectly burdened by a general
law which has for its purpose acid effect the
advancement of the state's 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 Sherbert's claim of
religious freedom. The U.S. Supreme Court,
considering Sherbert's and the Commission's
arguments, found that the state interest was not
sufficiently compelling to prevail over Sherbert's 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 Victoriano's 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 exercise 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
Malacaang security area to pray for "an end to
violence" when they were barred by the police.
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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. (emphasis 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
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 one's 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 Teehankee's 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 Jehovah's 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
Jehovah's 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 Teehankee's
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
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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
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 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 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, . . . 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 Jehovah's 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:
'. . . 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 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. 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 that Ebralinag 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
General's consolidated comment, one of the
grounds cited to defend the expulsion orders issued
by the public respondents was that "(t)he State's
compelling interests being pursued by the DEC's
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." 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 Cristo's
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." Involving 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
Board's 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
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that freedom to believe is absolute but freedom to
act on one's belief, where it affects the public, is
subject to the authority of the state. The
commentary quoted Justice Frankfurter's dissent in
Barnette which was quoted in Gerona, viz: "(t)he
constitutional provision on religious freedom
terminated 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 petitioner's
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 one's' 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
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
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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 bath 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, any 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 saint's 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 the barrio 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, 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, the ponente,
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:
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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 appellant's
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 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-a-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. In Pamil, 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 justifies 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
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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 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 citizen's 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, as 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
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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
separationist approach, 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 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. EHTADa
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
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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
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 the
McCollum 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 Constitution's
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 Constitution's 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
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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 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-committee's 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, because, in the end, if we
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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 Jehovah's
Witnesses were exempt from 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
110 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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
America's 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 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 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. 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
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
state's 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
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"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
majority's 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 involves religious freedom since her
religion, the Jehovah's Witnesses, has, after
thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church's
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
society's members should behave and govern their
lives would disintegrate society. Thus, society is
justified in 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. Hart's argument propounded in
Mr. Justice Vitug's separate opinion that, "Devlin's
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 Devlin's proposition in
a democracy. Without fundamental agreement on
political and moral ideas, society will fall into
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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. cEDIAa
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 . . . 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. . . . 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 constitute impingement
on one's freedom of belief. Discussion on private
morality, however, is not material to the case at bar
for whether respondent's 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 legislature's
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
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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 Commission's
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
person'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," in
accordance with this Court's definition of religion in
American Bible Society citing Davis. Religion also
dictates "how we ought to live" for the nature of
religion is not just to know, but often, to act in
accordance with man's "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
114 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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
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 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 Vitug's 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 a benevolent 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 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 respondent's 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
respondent's 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,
in Fonacier, this Court declared that matters
dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a
church . . . are unquestionably ecclesiastical
matters which bare 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
115 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 state's 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 respondent's 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, respondent's conduct
constitutes "disgraceful and immoral conduct."
However, the cases cited by the dissent do 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-Santiago's 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 respondent's 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 Jehovah's 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
116 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiago's dissent
nevertheless discussed respondent's 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 Carpio's 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
respondent's plea of religious freedom cannot
prevail without so much as employing a test that
would balance respondent's religious freedom and
the state's 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 respondent's 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 Carpio's 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 Personal Laws of the Philippines, provides
that the penal laws relative to the crime of bigamy
'shall not apply to a person married . . . 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 respondent's 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 respondent's claim of religious
freedom to the "compelling state interest" test from
a benevolent neutrality stance i.e. entertaining
the possibility that respondent's 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
respondent's 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 Sherbert's 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
117 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
also her family which, by the Declaration Pledging
Faithfulness, stands "honorable before God and
men."
The second step is to ascertain respondent's
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 Jehovah's 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 respondent's 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 OCA's 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 respondent's request
for exemption from the flag ceremony on the
ground of the Jehovah's Witnesses' contrary belief
and practice. Respondent's request for exemption
from the flag ceremony shows her sincerity in
practicing the Jehovah's Witnesses' beliefs and not
using them merely to escape punishment. She is a
practicing member of the Jehovah's 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 respondent's 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
respondent's 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 Court's use of the "compelling state
interest" test. We note that the OCA found
respondent's defense of religious freedom
unavailing in the face of the Court's 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 OCA's 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 OCA's memorandum to the Court that
demonstrates how this interest is so compelling that
it should override respondent's plea of religious
freedom nor is it shown that the means employed
by the government in pursuing its interest is the least
restrictive to respondent's 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
respondent's 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 Court's
action would be an unconstitutional encroachment
of her right to religious freedom. 454 We cannot
therefore simply take a passing look at respondent's
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 state's compelling interest which
can override respondent's 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 respondent's claimed
religious belief and practice; (b) to present
evidence on the state's "compelling interest" to
override respondent's religious belief and practice;
and (c) to show that the means the state adopts in
118 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
pursuing its interest is the least restrictive to
respondent's religious freedom. The rehearing
should be concluded thirty (30) days from the
Office of the Court Administrator's receipt of this
Decision.
SO ORDERED.
Davide, Jr., C .J ., Austria-Martinez, Corona, Azcuna
and Tinga, JJ ., concur.
Quisumbing and Sandoval-Gutierrez, JJ ., on official
leave.
(Anonymous v. Radam, A.M. No. P-07-2333,
December 19, 2007)
FIRST DIVISION
[A.M. No. P-07-2333. December 19, 2007.]
(formerly OCA IPI No. 07-2510-P)
ANONYMOUS, complainant, vs. MA. VICTORIA P.
RADAM, Utility Worker, Office of the Clerk of Court,
Regional Trial Court of Alaminos City, Pangasinan,
respondent.
RESOLUTION
CORONA, J p:
In an anonymous letter-complaint dated
September 30, 2005, 1 respondent Ma. Victoria
Radam, utility worker in the Office of the Clerk of
Court of the Regional Trial Court of Alaminos City in
Pangasinan, was charged with immorality. The
unnamed complainant alleged that respondent
was unmarried but got pregnant and gave birth
sometime in October 2005. 2 The complainant
claimed that respondent's behavior tainted the
image of the judiciary.
In connection with the complaint, Judge Elpidio N.
Abella 3 conducted a discreet investigation to
verify the allegations against respondent.
In his report dated March 8, 2006, 4 Judge Abella
made the following findings:
On March 1, 2006, respondent submitted a letter
addressed to the Honorable Court Administrator,
thru the undersigned, duly subscribed and sworn to
before the Clerk of Court VI of the Court, alleging
among others, the following:
1) She admitted that she is single/unmarried, and
indeed she was pregnant and actually gave birth
to a baby boy named Christian Jeon Radam on 03
November 2005 at the Western Pangasinan District
Hospital, Alaminos City;
2) The reason why she did not yet marry the father
of her child Christian Jeon was that she and the
child's father have pending application[s] [to
migrate to Canada] as in fact they have [a] mutual
plan to remain unmarried [and]
3) Nevertheless, she expressed her remorse and
promised not to commit the same mistake and
indiscretion in the future.
Further investigation reveal[ed] the following:
1) That respondent was appointed as Utility Worker
on September 4, 2000;
2) The father of Christian Jeon Radam is unknown,
as shown by the child's Certificate of Live Birth,
hereto attached; 5
3) It was verbally admitted by the respondent that
she had given birth to two (2) other children before
Christian Jeon, but they were conceived and born
while respondent was working abroad and before
she was employed in the [Office of the Clerk of
Court of the Regional Trial Court of] Alaminos City. 6
In this connection, Judge Abella made the
following recommendation:
Since respondent admitted that she is single and
that she got pregnant and gave birth to a baby
boy without being married to the father of the child,
albeit she advanced the reason for her remaining
unmarried, it being that she and her boyfriend had
a mutual plan to migrate to Canada, this
Investigating Judge considers that such conduct of
the respondent fell short of the strict standards of
Court personnel and contrary to the Code of
Judicial Ethics and the Civil Service Rules. A place in
the judiciary demands upright men and women
who must carry on with dignity, hence respondent is
guilty of disgraceful and immoral conduct which
cannot be countenanced by the Court. Certainly,
the image of the Judiciary has been affected by
such conduct of the respondent.
Premises considered, it is hereby respectfully
recommended that respondent MA. VICTORIA
RADAM be accordingly found GUILTY of IMMORAL
CONDUCT or ACT UNBECOMING A COURT
EMPLOYEE. A suspension of one (1) month or a fine
of Php5,000.00 is respectfully recommended, with
warning that a repetition of the same or similar act
in the future will be dealt with more severely. 7
After reviewing the findings and recommendation
of Judge Abella, the Office of the Court
Administrator (OCA) recommended that, in
accordance with Villanueva v. Milan, 8 respondent
be absolved of the charge of immorality because
her alleged misconduct (that is, giving birth out of
wedlock) did not affect the character and nature
of her position as a utility worker. 9 It observed:
[T]here is no indication that the relationship of
respondent to her alleged boyfriend has caused
prejudice to any person or has adversely affected
the performance of her function as utility worker to
the detriment of the public service.
However, it proposed that she be held liable for
conduct unbecoming a court employee and
imposed a fine of P5,000 for stating in the birth
certificate of her child Christian Jeon that the father
was "unknown" to her. 10
The OCA correctly exonerated respondent from the
charge of immorality. However, its
recommendation to hold her liable for a charge of
which she was not previously informed was wrong.
For purposes of determining administrative
responsibility, giving birth out of wedlock is not per
se immoral under civil service laws. For such
conduct to warrant disciplinary action, the same
must be "grossly immoral," that is, it must be so
corrupt and false as to constitute a criminal act or
119 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
so unprincipled as to be reprehensible to a high
degree. 11
In Estrada v. Escritor, 12 we emphasized that in
determining whether the acts complained of
constitute "disgraceful and immoral behavior"
under civil service laws, the distinction between
public and secular morality on the one hand, and
religious morality, on the other should be kept in
mind. 13 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. 14 Thus, government
action, including its proscription of immorality as
expressed in criminal law like adultery or
concubinage, must have a secular purpose. 15
For a particular conduct to constitute "disgraceful
and immoral" behavior under civil service laws, it
must be regulated on account of the concerns of
public and secular morality. It cannot be judged
based on personal bias, specifically those colored
by particular mores. Nor should it be grounded on
"cultural" values not convincingly demonstrated to
have been recognized in the realm of public policy
expressed in the Constitution and the laws. 16 At
the same time, the constitutionally guaranteed
rights (such as the right to privacy) should be
observed to the extent that they protect behavior
that may be frowned upon by the majority. 17
Under these tests, two things may be concluded
from the fact that an unmarried woman gives birth
out of wedlock:
(1) if the father of the child is himself unmarried, the
woman is not ordinarily administratively liable for
disgraceful and immoral conduct. 18 It may be a
not-so-ideal situation and may cause complications
for both mother and child but it does not give
cause for administrative sanction. There is no law
which penalizes an unmarried mother under those
circumstances by reason of her sexual conduct or
proscribes the consensual sexual activity between
two unmarried persons. Neither does the situation
contravene any fundamental state policy as
expressed in the Constitution, a document that
accommodates various belief systems irrespective
of dogmatic origins. 19
(2) if the father of the child born out of wedlock is
himself married to a woman other than the mother,
then there is a cause for administrative sanction
against either the father or the mother. 20 In such a
case, the "disgraceful and immoral conduct"
consists of having extramarital relations with a
married person. 21 The sanctity of marriage is
constitutionally recognized 22 and likewise affirmed
by our statutes as a special contract of permanent
union. 23 Accordingly, judicial employees have
been sanctioned for their dalliances with married
persons or for their own betrayals of the marital vow
of fidelity.
In this case, it was not disputed that, like
respondent, the father of her child was unmarried.
Therefore, respondent cannot be held liable for
disgraceful and immoral conduct simply because
she gave birth to the child Christian Jeon out of
wedlock.
Respondent was indicted only for alleged
immorality for giving birth out of wedlock. It was the
only charge of which she was informed. Judge
Abella's investigation focused solely on that matter.
Thus, the recommendation of the OCA that she be
held administratively liable in connection with an
entry in the birth certificate of Christian Jeon came
like a thief in the night. It was unwarranted.
Respondent was neither confronted with it nor
given the chance to explain it. To hold her liable for
a totally different charge of which she was totally
unaware will violate her right to due process.
The essence of due process in an administrative
proceeding is the opportunity to explain one's side,
whether written or verbal. 24 This presupposes that
one has been previously apprised of the accusation
against him or her. Here, respondent was deprived
of both with regard to her alleged unbecoming
conduct in relation to a certain statement in the
birth certificate of her child.
An employee must be informed of the charges
proferred against him, and . . . the normal way by
which the employee is so informed is by furnishing
him with a copy of the charges against him. This is a
basic procedural requirement that . . . cannot [be]
dispense[d] with and still remain consistent with the
constitutional provision on due process. The second
minimum requirement is that the employee
charged with some misfeasance or malfeasance
must have a reasonable opportunity to present his
side of the matter, that is to say, his defenses
against the charges levelled against him and to
present evidence in support of his defense(s). 25
One's employment is not merely a specie of
property rights. It is also the means by which he and
those who depend on him live. 26 It is therefore
protected by the guarantee of security of tenure.
And in the civil service, this means that no
government employee may be removed,
suspended or disciplined unless for cause provided
by law 27 and after due process. Unless the
constitutional guarantee of due process is a mere
platitude, it is the Court's duty to insist on its
observance in all cases involving a deprivation,
denigration or dilution of one's right to life, liberty
and property.
WHEREFORE, the administrative complaint against
respondent Ma. Victoria P. Radam is hereby
DISMISSED. She is, however, strongly advised to be
more circumspect in her personal and official
actuations in the future.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Azcuna and
Leonardo-de Castro, JJ., concur.
120 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
(Imbong v. Ochoa, Jr., G.R. No. 204819, 204934, &,
204988, 205003, 205043, 205138, 205478, 205491,
205720, 206355, 207111, 207172, 207563, April 08,
2014)
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. MANUEL A. ROXAS II, Secretary,
Department of Interior and Local Government,
respondents.
[G.R. No. 204934. April 8, 2014.]
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, Fernand
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 Fernando 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. MANUEL A. 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 Ignacio-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.
[G.R. No. 204957. April 8, 2014.]
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.
MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, respondents.
[G.R. No. 204988. April 8, 2014.]
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, LOVENIA P. 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.
MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, respondents.
[G.R. No. 205003. April 8, 2014.]
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.
[G.R. No. 205043. April 8, 2014.]
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 MANUEL A.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO,
respondents.
[G.R. No. 205138. April 8, 2014.]
121 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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. MANUEL
A. 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
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.
[G.R. No. 205478. April 8, 2014.]
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. MANUEL A. ROXAS II,
Secretary of the Department of Interior and Local
Government, respondents.
[G.R. No. 205491. April 8, 2014.]
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY
C. TATAD & ALA F. PAGUIA, fox themselves, their
Posterity, and the rest of Filipino posterity,
petitioners, vs. OFFICE OF THE PRESIDENT of the
Republic of the Philippines, respondent.
[G.R. No. 205720. April 8, 2014.]
PRO-LIFE PHILIPPINES FOUNDATION, Inc.,
represented by Lorna 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.
[G.R. No. 206355. April 8, 2014.]
MILLENNIUM SAINT FOUNDATION, INC., ATTY.
RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLA ACEDERA, ATTY. BERTENI CATALUA
CAUSING, petitioners, vs. OFFICE OF THE PRESIDENT,
OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT
OF HEALTH, DEPARTMENT OF EDUCATION,
respondents.
[G.R. No. 207111. April 8, 2014.]
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.
[G.R. No. 207172. April 8, 2014.]
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. MANUEL A. ROXAS II, Secretary,
Department of Interior and Local Government,
respondents.
[G.R. No. 207563. April 8, 2014.]
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 p:
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
122 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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--vis the most vital and
enduring principle that holds Philippine society
together the supremacy of the Philippine
Constitution. AECDHS
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
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 Learning Center,
Inc., a domestic, privately-owned educational
institution (Imbong);
(2)Petition for Prohibition, 6 filed by the Alliance for
the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche 7 and
several others 8 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 others 19 in their capacities as citizens and
taxpayers (PAX); AHcaDC
(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
Catalua 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);
123 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
(14)Petition for Prohibition 32 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 (BUHAY), an accredited
political party. acHETI
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 CHATEa
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 he accredited
under the PhilHealth program, they are compelled
to provide forty-eight (48) hours of pro bono
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 ESIcaC
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 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
124 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 cCSDTI
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
HcDATC
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. Alberta G. Romualdez,
57 the Filipino Catholic Voices for Reproductive
Health (C4RH), 58 Ana Theresa "Risa" Hontiveros, 59
and Atty. Joan de Venecia 60 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] same 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.
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 IaESCH
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 Regulate 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 aTEHIC
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
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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 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 modern 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 modern 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. ScCIaA
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:
. . . . 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: IHCSTE
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
unconstitutional:
1]Right to Life
2]Right to Health
3]Freedom of Religion and the Right to Free Speech
4]The Family
5]Freedom of Expression and Academic Freedom
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6]Due Process
7]Equal Protection
8]Involuntary Servitude
9]Delegation of Authority to the FDA
10]Autonomy of Local Governments/ARMM SETaHC
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 TADCSE
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
is 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
CITaSA
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, 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] AEDCHc
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As far back as Taada 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, 93 Magallona
v. Ermita, 94 and countless others. In Taada, 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 IcDHaT
Actual Case or Controversy
Proponents of the RH Law submit that the subject
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 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 an 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
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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.
STaAcC
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 statutes, 108 it has
expanded its scope to cover statutes not only
regulating free speech, but also those involving
religious 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. DICcTa
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
STaIHc
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
129 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
liberally on the locus standi 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 ACIDTE
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 binder 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. aSTAIH
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, 124 and that the concepts of "responsible
parenthood" and "reproductive health" are both
interrelated as they are inseparable. 125 THCSAE
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 modern family
planning products and methods. These family
planning methods, natural or modern, 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.
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 TcDHSI
Be that as it may, the RH Law does not violate the
one subject/one bill rule. In Benjamin E. Cawaling,
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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. cEDaTS
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 HcDSaT
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 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
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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. cDHAaT
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, 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.
CASIEa
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' tre 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
132 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
TCEaDI
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
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. Montao, 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 xxx 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. . . . . 150
xxx xxx xxx
As to why conception is reckoned from fertilization
and, as such, the beginning of human life, it was
explained: aTHCSE
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:
Mr. Tingson: . . . 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." EHTADa
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
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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 ESDcIA
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.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: . . . . 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. CHIScD
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
ESCTIA
Atty. Noche:
Before the union of the eggs, egg and the sperm,
there is no life yet.
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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?
Atty. Noche:
Not under Section 12, Article II. EaCDAT
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. TDCaSE
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 & Teratology 163
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 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 DTAcIa
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.
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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. CSTEHI
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
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: HEDCAS
1]. . . .
Section 4.Definition of Terms. For the purpose of
this Act, the following terms shall be defined as
follows:
xxx xxx 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 xxx xxx.
(3)Proscription of abortion and management of
abortion complications; cTACIa
xxx xxx xxx.
2]. . . .
Section 4.. . . .
(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]. . . .
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. . . .
(a)Abortifacient refers to any drug or device that
induces abortion or the destruction of a fetus inside
136 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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.
SEHTAC
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
(b)Induces the destruction of a fetus inside the
mother's womb; or aTADcH
(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. DTAHEC
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.
ECcaDT
Section 3.01 (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]
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Again in Section 3.01 (j) 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
3.01 (a) and (j) of the RH-IRR 173 must be struck
down for being ultra vires.
Evidently, with the addition of the word "primarily,"
in Section 3.01 (a) and (j) 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. aEcHCD
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 3.01 (a) and (j) of the RH-IRR
should be declared void. To uphold the validity of
Section 3.01 (a) and (j) 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 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 CaSHAc
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.:
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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: CTIEac
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:
. . . 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)
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 ETCcSa
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
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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.
HATICc
"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."
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: CacEID
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. SICaDA
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:
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
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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 CacEID
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) (1) 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 recognized. 191 aTEHIC
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 17 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 ISCHET
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, 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 AHacIS
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
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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 CAETcH
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. HEcTAI
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
democracy under the rule of law and a regime of
truth, justice, freedom, love, equality, and peace,
do ordain and promulgate this Constitution. TSEcAD
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. 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. cADTSH
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
142 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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 xxx 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. ASaTHc
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 Union 209 wrote:
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 L ed. 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 SacTCA
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
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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
EcSaHA
In ascertaining the limits of the exercise of religious
freedom, the compelling state interest test is proper.
218 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. 219 In Escritor, it was written:
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 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 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 an 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 modern 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. CcAITa
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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:
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] THDIaC
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 3(f)]
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. cHESAD
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 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
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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.
CHEDAc
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 modern
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 refuses to refer a patient to another, or who
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 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) (1) 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
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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
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. HTSAEa
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. ISHaCD
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: EHITaS
Justice De Castro:
147 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
Let's go back to the duty of the conscientious
objector to refer. . .
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
. . . 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 HDIATS
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. 4729 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 responsible
parenthood, and the right of women to protection
from hazardous drugs, devices, interventions, and
substances. DcaCSE
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;
(a)Promotion of breastfeeding;
(3)Responsible, ethical, legal, safe, and effective
methods of family planning;
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(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. ICaDHT
(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, . . . ." 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.
aSTAcH
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
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more than justified considering the life he would be
able to save. EScAHT
Family Planning Seminars
Anent the requirement imposed under Section 15
239 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.
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; DcTaEH
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 associations 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: CTEaDc
(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
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
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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 TaCDcE
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 Morfe 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 Morfe 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 Griswold 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. aEHASI
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. . . . .
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. HIaAED
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.
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.
151 | C O N S T I 2 _ S e c t i o n 5 _ F r e e d o m o f R e l i g i o n
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. SAHITC
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 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
ScCEIA
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 he 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
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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 aDSHCc
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) (1) 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) (1), 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. AHCTEa
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 midwife; (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). ACIDTE
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 modern
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 modern 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:
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(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; STaCcA
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) (1),
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-Equal Protection
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 terms 260 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. ScTIAH
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
on 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 institutions 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
statute 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.
DHCSTa
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."
IECAaD
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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 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
(l) 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. EIcSTD
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. 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
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furtherance of a perceived legitimate state interest.
EAICTS
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 bono 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. 3720, 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: TcaAID
"(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;
"xxx xxx xxx
"(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;
TDEASC
"(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;
"(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;
xxx xxx xxx.
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
Echegaray v. Secretary of Justice, 267 as follows:
cDEICH
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
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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. HcSCED
(b)Such basic services and facilities include, but are
not limited to, . . . .
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. 268 Thus:
(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]
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
LGUs 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. EHSTDA
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
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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 aCHcIE
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, 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 modern 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. cACTaI
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. SDHITE
. . . . 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: SCEDAI
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 modern methods of family planning
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without written consent from their parents or
guardian/s;
2]Section 23 (a) (1) 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; SDAaTC
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 provision in the
RH-IRR regarding the rendering of pro bono
reproductive health service in so far as they affect
the conscientious objector in securing PhilHealth
accreditation; and
8]Section 3.01 (a) and Section 3.01 (j) 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.
Velasco, Jr., Peralta, Bersamin, Villarama, Jr. and Perez, JJ.,
concur.
Sereno, C.J., tingnan ang aking opinyong sumasang-ayon at
sumasalungat.
Carpio and Abad, JJ., see concurring opinion.
Leonardo-de Castro, J., with separate concurring opinion.
Brion, J., see: separate concurring opinion.
Del Castillo, Reyes and Perlas-Bernabe, JJ., see concurring and
dissenting opinion.
Leonen, J., see separate dissent.