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In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred the letter to Executive Judge

EN BANC Teodoro A. Bay (Judge Bay) of the RTC and to Executive Judge Luis Zenon Q. Maceren (Judge Maceren) of the
Metropolitan Trial Court (MeTC) for their respective comments.
March 7, 2017
A.M. No. 10-4-19-SC In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified that the basement of the QC Hall
of Justice was known as the prayer corner. He opined that the use of the said area for holding masses did not
violate the constitutional prohibition against the use of public property for religious purposes because the
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE HALL OF JUSTICE BUILDING IN religious character of such use was merely incidental to a temporary use.
QUEZON CITY
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was due to compulsorily retire on
RESOLUTION April 29, 2009, and he was taking a leave of absence prior to such date to concentrate in resolving cases
submitted for decision before his sala and requested that then Vice-Executive Judge Jaime N. Salazar (Judge
MENDOZA, J.: Salazar) be assigned to further investigate, study, and make recommendations on the matter raised by
Valenciana.
One of our fundamental differences lies in our chosen religion. Some put their faith in a god different from ours,
while some may not believe in a god at all. Nevertheless, despite the inconveniences this difference may cause us, In the meantime, Judge Bay recommended that, pending the final resolution of the case, daily masses be
we must accept it unconditionally for only upon acceptance of the fact that we are different from each other will permitted to continue, provided that: (1) the mass be limited to thirty (30) minutes; (2) no loud singing be
we learn to respect one another. allowed so as not to disturb others; and (3) the inconveniences caused by the mass be addressed.

This controversy originated from a series of letters, written by Tony Q. Valenciano (Valenciano) and addressed to In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred another letter of Valenciano, dated May
then Chief Justice Reynato S. 13, 2009, to DCA Dujua for appropriate action, as he complained that masses continued to be held at the
basement of the QC Hall of Justice.
Puno (Chief Justice Puno).
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be promulgated by the Court to put a
In his first Letter,1 dated January 6, 2009, Valenciano reported that the basement of the Hall of Justice of Quezon stop to the holding of Catholic masses, or any other religious rituals, at the QC Hall of Justice and in all other halls
City (QC) had been converted into a Roman Catholic Chapel, complete with offertory table, images of Catholic of justice in the country.
religious icons, a canopy, an electric organ, and a projector. He believed that such practice violated the
constitutional provision on the separation of Church and State and the constitutional prohibition against the In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of Valenciano and referred the
appropriation of public money or property for the benefit of a sect, church, denomination, or any other system matter to the Office of the Court Administrator (OCA) for evaluation, report and recommendation.
of religion.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then Assistant Court
Valenciano further averred that the holding of masses at the basement of the QC Hall of Justice showed that it Administrator (ACA) Jenny Lind R. AldecoaDelorino (now Deputy Court Administrator), referred the letters of
tended to favor Catholic litigants; that the rehearsals of the choir caused great disturbance to other employees; Valenciano to the incumbent RTC Executive Judge Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC
that the public could no longer use the basement as resting place; that the employees and litigants of the Public Executive Judge Caridad M. WalseLutero (Judge Lutero).
Attorney's Office (PAO), Branches 82 and 83 of the Regional Trial Court (RTC), Legal Library, Philippine Mediation
Center, and Records Section of the Office of the Clerk of Court (OCC) could not attend to their personal In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed the Court that his office had
necessities such as going to the lavatories because they could not traverse the basement between 12:00 o'clock already implemented measures to address Valenciano's complaints. He reported that masses were shortened to
noontime and 1: 15 o'clock in the afternoon; that the court employees became hostile toward each other as they a little over thirty (30) minutes; that it was only during special holy days of obligation when the celebration of
vied for the right to read the epistle; and that the water supply in the entire building was cut off during the mass mass went beyond one (1) o'clock in the afternoon; that the pathways leading to the lavatories were open and
because the generator was turned off to ensure silence. could be used without obstruction; that there was never an instance where the actions of court personnel, who
were vying to read the epistle during mass, caused back-biting and irritation among themselves; that the water
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred Valenciano 's letter to then Deputy generator had been broken beyond repair and decommissioned since December 2009; and that the court
Court Administrator (DCA) and Officer-in-Charge of the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua).
1
employees prepared for the mass before the day officially started, so that the performance of their official duties The OCA observed that the present controversy did not involve a national or local law or regulation in conflict
in court was not hampered. with the Free Exercise Clause. On the contrary, Valenciano was merely questioning the propriety of holding
religious masses at the basement of the QC Hall of Justice, which was nothing more than an issue of whether the
In her letter,11 Judge Lutero reported that Catholic masses were being held only during lunch breaks and did not said religious practice could be accommodated or not. It ended up concluding that based on prevailing
disturb court proceedings; that the basement of the QC Hall of Justice could still be used as waiting area for the jurisprudence, as well as the interpretations given to the religion clauses of the 1987 Constitution, there was
public; that court personnel and the public were never physically prevented from reaching the lavatories during nothing constitutionally abhorrent in allowing the continuation of the masses.15
mass as there was a clear path from the public offices leading to the comfort rooms; that water service
interruptions were caused by maintenance problems and not because the water pump was being shut off during The OCA added that by allowing or accommodating the celebration of Catholic masses within the premises of the
mass; and that the elevators could not be used during mass because elevator attendants took their lunch break QC Hall of Justice, the Court could not be said to have established Roman Catholicism as an official religion or to
from twelve (12) o'clock to one (1) o'clock in the afternoon. have endorsed the said religion, for the reason that it also allowed other religious denominations to practice
their religion within the courthouses.16
Judge Lutero opined that it is not the conduct of masses in public places which the Constitution prohibited, but
the passage of laws or the use of public funds for the purpose of establishing a religion or prohibiting the free ISSUE
exercise thereof. She conveyed the fact that no law or rule had been passed and that no public funds had been
appropriated or used to support the celebration of masses. She added that the holding of Catholic masses did WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY HALL OF JUSTICE VIOLATES THE
not mean that Catholics had better chances of obtaining favorable resolutions from the court. CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE AS WELL AS THE CONSTITUTIONAL
PROHIBITION AGAINST APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT,
Accordingly, Judge Lutero recommended that the holding of masses at the basement of the QC Hall of Justice be CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
allowed to continue considering that it was not inimical to the interests of the court employees and the public.
The Court's Ruling
The OCA Report
and Recommendation The Court agrees with the findings and recommendation of the OCA and denies the prayer of Valenciano that the
holding of religious rituals of any of the world's religions in the QC Hall of Justice or any halls of justice all over
In its Memorandum,12 dated August 7, 2014, the OCA believed that the practical inconveniences cited by the country be prohibited.
Valenciano were unfounded. It, thus, recommended that his letter-complaints, dated January 6, 2009, May 13,
2009 and March 23, 2010, be dismissed for lack of merit and that the RTC and MeTC Executive Judges of QC be The Holding of Religious
directed to closely regulate and monitor the holding of masses and other religious practices within the premises Rituals in the Halls of Justice
of the QC Hall of Justice.1âwphi1 does not Amount to a Union of
Church and State
The OCA opined that the principle of separation of Church and State, particularly with reference to the
Establishment Clause, ought not to be interpreted according to the rigid standards of separation; that the As earlier stated, Valenciano is against the holding of religious rituals in the halls of justice on the ground that it
neutrality of the State on religion should be benevolent because religion was an ingrained part of society and violates the constitutional provision on the separation of Church and State and the constitutional prohibition
played an important role in it; and that the State, therefore, instead of being belligerent (in the case of Strict against the appropriation of public money or property for the benefit of a sect, church, denomination, or any
Separation) or being aloof (in the case of Strict Neutrality) towards religion should instead interact and forbear.13 other system of religion. Indeed, Section 6, Article II of the 1987 Constitution provides:

The OCA advanced the view that the standard of Benevolent Neutrality/Accommodation was espoused because The separation of Church and State shall be inviolable.17
the principal religion clauses in our Constitution were not limited to the Establishment Clause, which created a
wall between the Church and the State, but was quickly followed by the declaration of the Free Exercise Clause,
The Court once pronounced that "our history, not to speak of the history of mankind, has taught us that the
which protected the right of the people to practice their religion. In effect, the standard of Benevolent
union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and
Neutrality/Accommodation balanced the interest of the State through the Establishment Clause, and the interest
the church the state, as a weapon in the furtherance of their respective ends and aims."18
and right of the individual to freely exercise his religion as guaranteed by the Free Exercise Clause.14

Justice Isagani Cruz expounded on this doctrine, viz.:

2
The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors." The idea is they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
to delineate the boundaries between the two institutions and, thus, avoid encroachments by one against the destinies of men and nations. The elevating influence of religion in human society is recognized here as
other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and
calls on the entities to "render therefore unto Caesar the things that are Caesar's and unto God the things that denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
are God's."19 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,
This, notwithstanding, the State still recognizes the inherent right of the people to have some form of belief minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution,
system, whether such may be belief in a Supreme Being, a certain way of life, or even an outright rejection of orphanage or leprosarium xxx. Optional religious instruction in the public schools is by constitutional mandate
religion. Our very own Constitution recognizes the heterogeneity and religiosity of our people as reflected allowed xxx. Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal
in lmbong v. Ochoa,20as follows: 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 xxx.22 [Emphasis supplied]
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 Thus, the right to believe or not to believe has again been enshrined in Section 5, Article III of the 1987
together. It has embraced minority groups and is tolerant towards all - the religious people of different sects and Constitution:
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 called for guidance and enlightenment in crafting our fundamental law. Thus, the Section 5. xxx. The free exercise and enjoyment of religious profession and worship, without discrimination or
preamble of the present Constitution reads: preference, shall forever be allowed. xxx.

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, Free Exercise Clause
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 Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty
promulgate this Constitution. 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."23
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 "The right to religious profession and worship has a two-fold aspect - freedom to believe and freedom to act on
means that the State recognizes with respect the influence of religion in so far as it instills into the mind the one's beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is
purest principles of morality. Moreover, in recognition of the contributions of religion to society, the 1935, 1973 subject to regulation where the belief is translated into external acts that affect the public welfare."24 Justice
and 1987 Constitutions contain benevolent and accommodating provisions towards religions such as tax Isagani A. Cruz explained these two (2) concepts in this wise:
exemption of church property, salary of religious officers in government institutions, and optional religious
instructions in public schools. [Emphases supplied]
(1) Freedom to Believe

In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve as a motivating force behind each
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own
person's actions:
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
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and of his soul - in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may
is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases.
elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all,
morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may
Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their not be called to account because he cannot prove what he believes.
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,"
(2) Freedom to Act on One's Beliefs
3
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This right is
becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. 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
It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A
in protecting the general welfare. The inherent police power can be exercised to prevent religious practices mere balancing of interests which balances a right with just a colorable state interest is therefore not
inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious
merely for the purpose of evading the reasonable requirements or prohibitions of the law. 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
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated disabilities, it
state interest" serves the purpose of revering religious liberty while at the same time affording protection to the
did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work
to religious dogma, not freedom from conformity to law because of religious dogma." 25
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]
Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact, these two [Emphases supplied]
principles are in perfect harmony with each other.
As reported by the Executive Judges of Quezon City, the masses were being conducted only during noon breaks
The State is aware of the existence of religious movements whose members believe in the divinity of Jose Rizal. and were not disruptive of public services. The court proceedings were not being distracted or interrupted and
Yet, it does not implement measures to suppress the said religious sects. Such inaction or indifference on the that the performance of the judiciary employees were not being adversely affected. Moreover, no Civil Service
part of the State gives meaning to the separation of Church and State, and at the same time, recognizes the rules were being violated. As there has been no detrimental effect on the public service or prejudice to the State,
religious freedom of the members of these sects to worship their own Supreme Being. there is simply no state interest compelling enough to prohibit the exercise of religious freedom in the halls of
justice.
As pointed out by Judge Lutero, "the Roman Catholics express their worship through the holy mass and to stop
these would be tantamount to repressing the right to the free exercise of their religion. Our Muslim brethren, In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November 13, 1981, the CSC came
who are government employees, are allowed to worship their Allah even during office hours inside their own out with Resolution No. 81-1277, which provided, among others, that "during Friday, the Muslim pray day,
offices. The Seventh Day Adventists are exempted from rendering Saturday duty because their religion prohibits Muslims are excused from work from 10:00 o'clock in the morning to 2:00 o'clock in the afternoon." The Court
them from working on a Saturday. Even Christians have been allowed to conduct their own bible studies in their struck this down28 as not sanctioned by the law. It wrote:
own offices. All these have been allowed in respect of the workers' right to the free exercise of their religion.
xxx"26
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every
Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and State. government working hours. For then, they would be rendering service twelve (12) hours less than that required
by the civil service rules for each month. Further, this would encourage other religious denominations to request
No Compelling State Interest for similar treatment.

Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state interest. To The performance of religious practices, whether by the Muslim employees or those belonging to other religious
successfully invoke compelling state interest, it must be demonstrated that the masses in the QC Hall of Justice denominations, should not prejudice the courts and the public. Indeed, the exercise of religious freedom does
unduly disrupt the delivery of public services or affect the judges and employees in the performance of their not exempt anyone from compliance with reasonable requirements of the law, including civil service laws.
official functions. In Estrada v. Escritor,27 the Court expounded on the test as follows:
Accommodation, Not Establishment of Religion
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 In order to give life to the constitutional right of freedom of religion, the State adopts a policy of
delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, accommodation. Accommodation is a recognition of the reality that some governmental measures may not be
whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to imposed on a certain portion of the population for the reason that these measures are contrary to their religious
prevail over the right to religious freedom as this is a fundamental .right that enjoys a preferred position in the
4
beliefs. As long as it can be shown that the exercise of the right does not impair the public welfare, the attempt 2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 o'clock to 12
of the State to regulate or prohibit such right would be an unconstitutional encroachment.29 o'clock and 1 o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M. without noon break and the
difference of 2 hours is not counted as undertime.
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan City (Re: Office
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of Hours),34the Court recognized that the observance of Ramadan as integral to the Islamic faith and
religion under certain circumstances. Accommodations are government policies that take religion specifically allowed Muslim employees in the Judiciary to hold flexible office hours from 7:30 o'clock in the morning to 3:30
into account not to promote the government's favored form of religion, but to allow individuals and groups to o'clock in the afternoon without any break during the period. This is a clear case of accommodation because
exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all civil servants, of
the exercise of, a person's or institution's religion. As Justice Brennan explained, the "government [may] take whatever religious denomination, to render public service of no less than eight (8) hours a day or forty (40) hours
religion into account ... to exempt, when possible, from generally applicable governmental regulation individuals a week.
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." [Emphases supplied] Non-Establishment Clause

In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption of members of Iglesia ni On the opposite side of the spectrum is the constitutional mandate that "no law shall be made respecting an
Cristo from the coverage of a closed shop agreement between their employer and a union, because it would establishment of religion,"35 otherwise known as the non-establishment clause. Indeed, there is a thin line
violate the teaching of their church not to affiliate with a labor organization. between accommodation and establishment, which makes it even more imperative to understand each of these
concepts by placing them in the Filipino society's perspective.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners, who were members of the Jehovah
's Witnesses, refused to salute the flag, sing the national anthem, and recite the patriotic pledge for it is their The non-establishment clause reinforces the wall of separation between Church and State. It simply means that
belief that those were acts of worship or religious devotion, which they could not conscientiously give to anyone the State cannot set up a Church; nor pass laws which aid one religion, aid all religion, or prefer one religion over
or anything except God. The Court accommodated them and granted them an exemption from observing the flag another nor force nor influence a person to go to or remain away from church against his will or force him to
ceremony out of respect for their religious beliefs. profess a belief or disbelief in any religion; that the state cannot punish a person for entertaining or professing
religious beliefs or disbeliefs, for church attendance or nonattendance; that no tax in any amount, large or small,
Further, several laws have been enacted to accommodate religion. The Revised Administrative Code of 1987 has can be levied to support any religious activity or institution whatever they may be called or whatever form they
declared Maundy Thursday, Good Friday, and Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 may adopt or teach or practice religion; that the state cannot openly or secretly participate in the affairs of any
proclaimed the FIRST Day of Shawwal, the tenth month of the Islamic Calendar, a national holiday for the religious organization or group and vice versa.36 Its minimal sense is that the state cannot establish or sponsor an
observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth official religion.37
month of the Islamic Calendar, a national holiday for the observance of Eidul Adha. Presidential Decree (P.D.) No.
1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, expressly allows a Filipino In the same breath that the establishment clause restricts what the government can do with religion, it also
Muslim to have more than one (1) wife and exempts him from the crime of bigamy punishable under Revised limits what religious sects can or cannot do. They can neither cause the government to adopt their particular
Penal Code (RPC). The same Code allows Muslims to have divorce.33 doctrines as policy for everyone, nor can they 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, establish a state religion.38
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322, provides:
Father Bernas further elaborated on this matter, as follows:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national
government, government-owned or controlled corporations, provinces, cities, municipalities and other "In effect, what non-establishment calls for is government neutrality in religious matters. Such government
instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty in the neutrality may be summarized in four general propositions: (1) Government must not prefer one religion over
afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or another or religion over irreligion because such preference would violate voluntarism and breed dissension; (2)
wages, provided, that the employee who is not fasting is not entitled to the benefit of this provision. Government funds must not be applied to religious purposes because this too would violate voluntarism and
breed interfaith dissension; (3) Government action must not aid religion because this too can violate voluntarism
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981, which reads in part: and breed interfaith dissension; [and] (4) Government action must not result in excessive entanglement with
religion because this too can violate voluntarism and breed interfaith dissension."39

5
Establishment entails a positive action on the part of the State. Accommodation, on the other hand, is passive. In parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give
the former, the State becomes involved through the use of government resources with the primary intention of effect to all its provisions whenever possible.42
setting up a state religion. In the latter, the State, without being entangled, merely gives consideration to its
citizens who want to freely exercise their religion. Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is the use of public
money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of the Chief Attorney scenario where the appropriation is primarily intended for the furtherance of a particular church.
recommended to deny, on constitutional grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in
honor of the Our Lady of Caysasay within the premises of the Court. Such controversy must be distinguished It has also been held that the aforecited constitutional provision "does not inhibit the use of public property for
from the present issue in that with respect to the former, a Catholic priest was the one who requested for the religious purposes when the religious character of such use is merely incidental to a temporary use which is
vigil. Moreover, in that case, the vigil would take one (1) whole working day; whereas in this case, the masses are available indiscriminately to the public in general." Hence, a public street may be used for a religious procession
held at the initiative of Catholic employees and only during the thirty-minute lunch break. even as it is available for a civic parade, in the same way that a public plaza is not barred to a religious rally if it
may also be used for a political assemblage.43
Guided by the foregoing, it is our considered view that the holding of Catholic masses at the basement of the QC
Hall of Justice is not a case of establishment, but merely accommodation. First, there is no law, ordinance or In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of public money or
circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the property, not as to whether a particular act involves a direct or a mere incidental benefit to any church.
Catholic masses at the basement. Second, when judiciary employees attend the masses to profess their faith, it is Otherwise, the framers of the Constitution would have placed it before "use, benefit or support" to describe the
at their own initiative as they are there on their own free will and volition, without any coercion from the judges same. Even the exception to the same provision bolsters this interpretation. The exception contemplates a
or administrative officers. Third, no government funds are being spent because the lightings and airconditioning situation wherein public funds are paid to a priest, preacher, minister, or other religious teacher, or dignitary
continue to be operational even if there are no religious rituals there. Fourth, the basement has neither been because they rendered service in the armed forces, or to any penal institution, or government orphanage or
converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its leprosarium. That a priest belongs to a particular church and the latter may have benefited from the money he
faithful. Fifth, the allowance of the masses has not prejudiced other religions. received is of no moment, for the purpose of the payment of public funds is merely to compensate the priest for
services rendered and for which other persons, who will perform the same services will also be compensated in
No Appropriation of Public the same manner.
Money or Property for the
Benefit of any Church Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44 As such, the foregoing
interpretation finds support in the
Section 29 (2), Article VI of the 1987 Constitution provides, "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, Establishment Clause, which is as clear as daylight in stating that what is proscribed is the passage of any law
denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious which tends to establish a religion, not merely to accommodate the free exercise thereof.
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."
The Constitution even grants tax exemption to properties actually, directly and exclusively devoted to religious
purposes.45 Certainly, this benefits the religious sects for a portion of what could have been collected for the
The word "apply" means "to use or employ for a particular purpose."40 "Appropriate" means "to prescribe a benefit of the public is surrendered in their favor.
particular use for particular moneys or to designate or destine a fund or property for a distinct use, or for the
payment of a particular demand."41
In Manosca v. CA,46 a parcel of land located in Taguig was determined by the National Historical Institute to be
the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then sought to expropriate the said
Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally property. The exercise of the power of eminent domain was questioned on the ground that it would only benefit
susceptible of various meanings, its correct construction may be made clear and specific by considering the members of Iglesia ni Cristo. The Court upheld the legality of the expropriation, viz.:
company of words in which it is found or with which it is associated. This is because a word or phrase in a statute
is always used in association with other words or phrases, and its meaning may, thus, be modified or restricted
The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others
by the latter. The particular words, clauses and phrases should not be studied as detached and isolated
could well be true but such a peculiar advantage still remains to be merely incidental and secondary in
expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its
nature.47 [Emphasis supplied]

6
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-third International those who seek to profess their faith belong to the majority or to the minority. It is emphatic in saying that "the
Eucharistic Congress was assailed on the ground that it violated the constitutional prohibition against the free exercise and enjoyment of religious profession and worship shall be without discrimination or preference."
appropriation of public money or property for the benefit of any church. In ruling that there was no such Otherwise, accommodation or tolerance would just be mere lip service.
violation, the Court held:
One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in reality, refuses to
It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with practice what he preaches. One cannot ask for tolerance when he refuses to do the same for others.
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 In fine, the Court denies the plea that the holding of Catholic masses at the basement of the QC Hall of Justice be
embarrassed in its activities simply because of incidental results, more or less religious in character, if the prohibited because the said practice does not violate the constitutional principle of separation of Church and
purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose State and the constitutional prohibition against appropriation of public money or property for the benefit of a
should not be frustrated by its subordination to mere incidental results not contemplated.48 [Emphasis supplied] sect, church, denomination, or any other system of religion.

Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the sole purpose of WHEREFORE, the Court resolves to:
supporting the Roman Catholics.
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May 13, 2009, and March 23,
Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its faithful contrary to 2010;
the claim of Valenciana. Judge
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of Justice, containing
Maceren reported that the basement is also being used as a public waiting area for most of the day and a photocopies and certified photocopies of previous actions made relative to the complaint;
meeting place for different employee organizations. The use of the area for holding masses is limited to lunch
break period from twelve (12) o'clock to one (1) o'clock in the afternoon. Further, Judge Sagun, Jr. related that
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial Court Executive Judge
masses run for just a little over thirty (30) minutes. It is, therefore, clear that no undue religious bias is being
Fernando T. Sagun, Jr.;
committed when the subject basement is allowed to be temporarily used by the Catholics to celebrate mass, as
the same area can be used by other groups of people and for other purposes. 49 Thus, the basement of the QC
Hall of Justice has remained to be a public property devoted for public use because the holding of Catholic 4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive Judge Caridad M.
masses therein is a mere incidental consequence of its primary purpose. Walse-Lutero;

Conclusion 5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in the QC Hall of Justice and
in all halls of justice in the country; and
Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor the holding of masses and
other religious practices within the courts does not promote excessive collaboration between courts and various 6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and
religions. On the contrary, this is necessary to ensure that there would be no excessive entanglement. other religious practices within the Quezon City Hall of Justice by ensuring, among others, that:

To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and commence (a) it does not disturb or interrupt court proceedings;
a domino effect. Strict separation, rather than benevolent neutrality/accommodation, would be the norm. Thus,
the establishment of Shari'a courts, the National Commission for Muslim Filipinos, and the exception of Muslims (b) it does not adversely affect and interrupt the delivery of public service; and
from the provisions of the RPC relative to the crime of bigamy would all be rendered nugatory because of strict
separation. The exception of members of Iglesia ni Cristo from joining a union or the non-compulsion recognized (c) it does not unduly inconvenience the public.
in favor of members of the Jehovah's Witnesses from doing certain gestures during the flag ceremony, will all go
down the drain simply because we insist on strict separation.
In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and
all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the
That the holding of masses at the basement of the QC Hall of Justice may offend non-Catholics is no reason to country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited
proscribe it. Our Constitution ensures and mandates an unconditional tolerance, without regard to whether only during the celebration of such activities so as not to offend the sensibilities of members of other religious
7
denominations or the non-religious public. After any religious affair, the icons and images shall be hidden or
concealed from public view.
ALTON J. LEMON ET AL., APPELLANTS, V. DAVID H. KURTZMAN, ETC., ET AL.
The disposition in this administrative matter shall apply to all halls of justice in the country. Other churches, No. 71—1470 | 1973-04-02
religious denominations or sects are entitled to the same rights, privileges, and practices in every hall of justice.
In other buildings not owned or controlled by the Judiciary, the Executive Judges should coordinate and seek ALTON J. LEMON ET AL., APPELLANTS, V. DAVID H. KURTZMAN, ETC., ET AL.
approval of the building owners/administrators accommodating their courts. 411 U.S. 192 (93 S.Ct. 1463, 36 L.Ed.2d 151)

Alton J. LEMON et al., Appellants, v. David H. KURTZMAN, etc., et al.


SO ORDERED.
No. 71—1470.
Argued: Nov. 8, 1972.
JOSE CATRAL MENDOZA Decided: April 2, 1973.
Associate Justice
opinion, BURGER
WE CONCUR: dissent, DOUGLAS, BRENNAN, STEWART

MARIA LOURDES P.A. SERENO Syllabus


Chief Justice
Following this Court's invalidation in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (Lemon I) of
Pennsylvania's statutory program to reimburse nonpublic sectarian schools (hereafter schools) for secular
educational services, the District Court on remand enjoined any payments under the program for services
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
rendered after Lemon I, but permitted Pennsylvania to reimburse the schools for services performed prior to that
Associate Justice Associate Justice
decision. Appellants challenge the scope of this decree. Held: The judgment is affirmed. Pp. 193—209.

TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA 348 F.Supp. 300, affirmed.


Associate Justice Associate Justice
THE CHIEF JUSTICE, in an opinion joined by Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice
REHNQUIST concluded that the District Court did not abuse its discretion in permitting Pennsylvania to reimburse
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
the schools for services rendered and costs incurred in reliance on the statutory scheme prior to its invalidation in
Associate Justice Associate Justice
Lemon I. Pp. 197—209.

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE (a) An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts
Associate Justice Associate Justice recognize that reality. Pp. 197—199.

(b) A trial court has wide latitude in shaping an equitable decree and reaching an accommodation between public
MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
and private needs. Pp. 200—201.
Associate Justice Associate Justice

ALFREDO BENJAMIN S. CAGUIOA (c) The contested reimbursement will not contravene the constitutional principle of Lemon I of avoiding the
Associate Justice ongoing entanglement of church and state, since only a final, ministerial post-audit is involved and no further
detailed state surveillance of the schools is required. At the same time, however, supervision already conducted
by Pennsylvania officials insures that the proposed reimbursement will not be used for sectarian purposes. The
proposed payment reflects only the schools' expenses incurred in expectation of reimbursement. Pp. 201—202.

(d) The schools relied in good faith on the state statute, which invited the contracts and authorized reimbursement
for past services: and appellants, in self-styled 'sensible recognition of the practical realities of the situation,' may

8
well have encouraged such reliance by the schools by not moving to have the payments enjoined before the
contract services had been performed. Pp. 203 205. Under § 5607 of the Act, any nonpublic school seeking reimbursement was to 'maintain such accounting
procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational
(e) The schools could not have enticipated the Lemon I holding which involved resolution of an issue of first service, as to establish that it actually expended in support of such service an amount of money equal to the
impression that 'was not clearly foreshadowed.' Pp. 206—207. amount of money sought in reimbursement.' To this end, the school accounts were to be subject to audit by the
State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction 'in four equal
(f) A State and those with whom it deals are not to be subjected to harsh, retrospective relief merely because they installments payable on the first day of September, December, March and June of the school term following the
act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 207—209. school term in which the secular educational service was rendered.' (Emphasis supplied.)

Mr. Justice WHITE concurred in the judgment. In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered 'excessive
entanglement' of church schools and State through the requirement of ongoing state scrutiny of the educational
David P. Bruton, Philadelphia, Pa., for appellants. programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political
process. We found it unnecessary to decide whether Act 109 was constitutionally infirm on the additional ground
William B. Ball, Harrisburg, Pa., for appellees. that the 'primary effect' of any state payments to church-related schools would be to promote the cause of religion
in contravention of the Establishment Clause of the First Amendment.
Mr. Chief Justice BURGER announced the judgment of the Court and an opinion in which Mr. Justice BLACKMUN,
Mr. Justice POWELL, and Mr. Justice REHNQUIST join. (2)

On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law.
certain secular educational services violated the Establishment Clause of the First Amendment. The case was Approximately one month later, appellants publicly declared their intention of challenging the constitutionality of
remanded to the three-judge District Court for further proceedings consistent with our opinion. Lemon v. the new legislation. During the following six months, the State took steps to implement the Act, promulgating
Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I). On remand, the District Court entered regulations and, in January 1969, entering for the first time into service contracts for the 1968—1969 school year
summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted
sectarian schools for educational services performed after June 28, 1971. The District Court's order permitted the schedules in June 1969, at the conclusion of the 1968—1969 school year, specifying the precise items of expense
State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants during that year for which they would seek reimbursement, to be made during the 1969—1970 school year. On
made no claim that appellees refund all sums paid under the Pennsylvania statute 1 struck down in Lemon I. June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional and its enforcement
enjoined.
Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court's injunction.
Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the
by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the responsible state officials from 'paying or processing for paying any funds pursuant to (Act 109).' However,
1970—1971 school year. We noted probable jurisdiction, 406 U.S. 943, 92 S.Ct. 2046, 32 L.Ed.2d 330 (1972), and appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge
we affirm the judgment of the District Court. Troutman. Appellants, describing their position as a 'sensible recognition of the practical realities of the situation,
. . . withdraw from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2
(1) (1969).' In the same letter, appellants' counsel mentioned the payments scheduled for December 2, 1969, but in
fact no attempt was ever made to enjoin those reimbursements.
The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly.
Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain On November 29, 1969, a divided District Court granted appellees' motion to dismiss appellants' complaint for
educational services provided by the schools pursuant to purchase-of-service contracts with the State. According failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on
to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellants
mathematics, modern foreign language, physical science, and physical education courses—'secular' courses of move for interlocutory relief pending appeal, even though on January 15, 1970, the schools entered into service
instruction. The State was not only to compensate the schools for the services provided, but also to undertake contracts with the State for the 1969—1970 school year. Consequently, the District Court had no occasion to
continuing surveillance of the instructional programs to insure that the services purchased were not provided in consider the exercise of injunctive power pendente lite.
connection with 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.'
See Lemon I, supra, 403 U.S., at 609—610, 91 S.Ct., at 2110. In September 1970, the schools began performing services for the 1970—1971 school year, compensable under
the terms of Act 109; and on January 15, 1971, contracts were entered into for that school year. On June 28, 1971,

9
we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent Dist., supra, 308 U.S., at 374, 60 S.Ct., at 319. However appealing the logic of Norton may have been in the abstract,
with our opinion. Not until appellants filed their motion for summary judgment, in August 1971, did they first its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which
indicate their intention to prevent reimbursement under Act 109 for the services already provided by the schools people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern
during the 1970—1971 school year. decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the
modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves
(3) perceive none.

Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently In Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we
in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional looked to 'the prior history of the rule in question, its purpose and effect, and whether retrospective operation
rights of a defendant in a criminal case should be applied to convictions of others that predated the new will further or retard its operation.' Id., at 629, 85 S.Ct., at 1738. Those guidelines are helpful. See infra, at 209—
constitutional development. E.g., Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Adams v. 203 but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are
Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of
L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the
384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But 'in the last few decades, we have period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the
recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its
nonconstitutional cases.' Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); progeny. But however we state the issue, the fact remains that we are asked to reexamine the District Court's
Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); Simpson v. evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, 397
Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); England v. Louisiana State Board of Medical U.S. 286, 295 (1970); id., at 296—297, 90 S.Ct. 1033, 1038, at 1039—1040, 25 L.Ed.2d 312 (Harlan, J., concurring).
Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). We have approved nonretroactive relief in civil
litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is
declared unconstitutional, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and City correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 27 n. 10, 91 S.Ct.
of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); or to the validity of elections 1267, 1275, 1281, 28 L.Ed.2d 554 (1971). Moreover, in constitutional adjudication as elsewhere, equitable
for local officials held under possibly discriminatory voting laws, Allen v. States Board of Elections, 393 U.S. 544, remedies are a special blend of what is necessary, 2 what is fair, and what is workable. 'Traditionally, equity has
89 S.Ct. 817, 22 L.Ed.2d 1 (1969). In each of these cases, the common request was that we should reach back to been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling
disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a public and private needs.' Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955).
different understanding of the controlling of judge-made law from the rule that ultimately prevailed. Mr. Justice Douglas, speaking for the Court, has said,

Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure 'The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree
us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the same to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy
breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute and practicality have made equity the instrument for nice adjustment and reconciliation between the public
'confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329—
as inoperative as though it had never been passed.' Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944).
30 L.Ed. 178 (1886). Conceding that we have receded from Norton in a host of criminal decisions and in other
recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as See also Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946).
departures from the established norm of Norton. We disagree.
In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities
The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional
upon the old is 'among the most difficult of those which have engaged the attention of courts, state and federal . roots.
. ..' Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329 (1940).
Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior (4)
conduct 'is subject to no set 'principle of absolute retroactive invalidity' but depends upon a consideration of
'particular relations . . . and particular conduct . . . of rights claimed to have become vested, of status, of prior The constitutional fulcrum of Lemon I was the excessive entanglement of church and state fostered by Act 109.
determinations deemed to have finality'; and 'of public policy in the light of the nature both of the statute and of We found it unnecessary to decide whether the 'legislative precautions (of Act 109) restrict the principal or primary
its previous application." Linkletter, supra, 381 U.S., at 627, 85 S.Ct., at 1736, quoting from Chicot County Drainage effect of the programs to the point where they do not offend the Religion Clauses.' 403 U.S., at 613—614, 91 S.Ct.,

10
at 2111, 29 L.Ed.2d 745. For, as we said of both Act 109 and the similar Rhode Island provision, '(a) comprehensive, 109. In June 1969, appellants initiated the litigation that culminated in Lemon I. Though initially appellants moved
discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are for a preliminary injunction to block the September 1969 payment of funds for services rendered during the 1968—
obeyed . . .. These prophylactic contacts will involve excessive and enduring entanglement between state and 1969 school year, for reasons of their own appellants withdrew the request. Funds were paid in September and
church.' Id., at 619, 91 S.Ct., at 2114. We further emphasized the reciprocal threat to First Amendment interests December 1969, and in March and June 1970. In 1970, the State entered into new contracts with the nonpublic
from enmeshing the divisive issue of direct aid to religions schools in the traditional political processes. Id., at schools; appellants took no steps to block the making of these contracts or to prevent the State from disbursing
622—624, 91 S.Ct., at 2115—2117. funds, in September and December 1970, or March and June 1971, for services rendered during the 1969—1970
school year. Appellants, meanwhile, had filed a notice of appeal to this Court by the time the distribution of funds
The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the for the 1969 1970 school year began. It was only after our decision in Lemon I six months after the contracts for
inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania's nonpublic the 1970—1971 school year were perfected and after all services under those contracts had been performed—
sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I. Act 109 required that appellants asserted their intention to block the payments due, beginning in the fall of 1971. Thus, for nearly
the Superintendent of Public Instruction to ensure that educational services to be reimbursed by the State were two years, the State and the schools proceeded to act on the assumption that appellants would continue to adhere
kept free of religions influences. Under the Act, the Superintendent's supervisory task was to have been completed to a 'sensible recognition of the practical realities of the situation.'
long ago, during the 1970—1971 school year itself; nothing in the record suggests that the Superintendent did not
faithfully execute his duties according to law. Hence, payment of the present disputed sums will compel no further There has been no demonstration by the appellee schools of the precise amount of any detriment incurred by
state oversight of the instructional processes of sectarian schools. By the same tokens, since the constitutionality them during the 1970—1971 school year in the expectation of reimbursement by the State. The complexity of
of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and such a determination for each of Pennsylvania's 1,181 nonpublic schools that contracted with the State under Act
legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109. 109 is readily apparent. 6 But we need not dwell on the matter of uncertainty. On this record the District Court
could reasonably find reliance on the part of the appellee schools and reasonably could conclude that no more
Two problems having constitutional overtones remain, but their resolution requires no compromise of the basic was needed to demonstrate retrospectively the degree of their reliance.
principles of Lemon I. There is, first, the impact of the single and final post-audit. The record indicates that the
post-audit process will involve only a ministerial 'cleanup' function, that of balancing expenditures and receipts in It is argued, though, that the schools were foolhardy to rely on any reimbursement by the State whatever, in view
the closing accounting—undertaken only once, and in that setting a minimal contact of the State with the affairs of the constitutional cloud over the Pennsylvania program from the outset. We conclude, however, that our
of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment holding in Lemon I 'decid(ed) an issue of first impression whose resolution was not clearly foreshadowed.' Chevron
that provides any state assistance or aid to sectarian schools—the issue we did not reach in Lemon I. Yet even Oil Co. v. Huson, 404 U.S., at 106, 92 S.Ct., at 355. A three-judge district court, with one dissent, upheld Act 109.
assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that Soon after, another three-judge district court in Rhode Island held unconstitutional the Rhode Island statutory
interest is implicated only once under special circumstances that will not recur. There is no present risk of scheme we considered together with Pennsylvania's program in Lemon I. Nor were district courts alone in
significant intrusive administrative entanglement, since only a final post-audit remains and detailed state disagreement over the constitutionality of Lemon-style plans to provide financial assistance to sectarian schools.
surveillance of the schools is a thing of the past. At the same time, that very process of oversight—now an This Court was itself divided when the issue was ultimately resolved after full briefing and argument. And the Court
accomplished fact—assures that state funds will not be applied for any sectarian purposes. 3 Finally, as will appear, acknowledged 'that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of
even this single proposed payment for services long since passing state scrutiny reflects no more than the schools' constitutional law.' Lemon I, 403 U.S., at 612, 91 S.Ct., at 2111. 7
reliance on promised payment for expenses incurred by them prior to June 28, 1971.
That there would be constitutional attack on Act 109 was plain from the outset. But this is not a case where it
Offsetting the remote possibility of constitutional harm from allowing the State to keep its bargain are the could be said that appellees acted in bad faith or that they relied on a plainly unlawful statute. In this case, even
expenses incurred by the schools in reliance on the state statute inviting the contracts made and authorizing the clarity of hindsight is not persuasive that the constitutional resolution of Lemon I could be predicted with
reimbursement for past services performed by the schools. 4 It is well established that reliance interests weigh assurance sufficient to undermine appellees' reliance on Act 109.
heavily in the shaping of an appropriate equitable remedy. City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204,
90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); (5)
Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). That there was such reliance by
the schools is reflected by a well-supported District Court finding. The District Court found that there was no In the end, then, appellants' position comes down to this: that any reliance whatever by the schools was unjustified
dispute 'that to deny the church-related schools any reimbursement for their services rendered would impose because Act 109 was an 'untested' state statute whose validity had never been authoritatively determined. The
upon them a substantial burden which would be difficult for them to meet.' 5 348 F.Supp. 300, 304—305. short answer to this argument is that governments must act if they are to fulfill their high responsibilities. As one
scholar has observed, the diverse state governments were preserved by the Framers 'as separate sources of
The significance of appellee schools' reliance is reinforced by the fact that appellants' tactical choice not to press authority and organs of administration—a point on which they hardly had a choice.' H. Wechsler, Principles,
for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well Politics, and Fundamental Law 50 (1961).
have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State under Act

11
tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they
Appellants ask, in effect, that we hold those charged with executing state legislative directives to the peril of having may be called, or whatever form they may adopt to teach or practice religion.' We reiterated the same idea in
their arrangements unraveled if they act before there has been an authoritative judicial determination that the Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954, in McGowan v. Maryland, 366 U.S. 420, 443,
governing legislation is constitutional. Appellants would have state officials stay their hands until newly enacted 81 S.Ct. 1101, 1114, 6 L.Ed.2d 393, and in Torcaso v. Watkins, 367 U.S. 488, 493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982.
state programs are 'ratified' by the federal courts, or risk draconian, retrospective decrees should the legislation We repeated the same idea in McCollum, People of State of Illinois, ex rel. v. Board of Education, 333 U.S. 203,
fall. In our view, appellants' position could seriously undermine the initiative of state legislators and executive 210, 68 S.Ct. 461, 465, 92 L.Ed. 649, and added that a State's tax-supported public schools could not be used 'for
officials alike. Until judges say otherwise, state officers—the officers of Pennsylvania—have the power to carry the dissemination of religious doctrines' nor could a State provide the church 'pupils for their religious classes
forward the directives of the state legislature. Those officials may, in some circumstances, elect to defer acting through use of the state's compulsory public school machinery.' Id., at 212, 68 S.Ct., at 466.
until an authoritative judicial pronouncement has been secured; but particularly when there are no fixed and clear
constitutional precedents, the choice is essentially one of political discretion and one this Court has never Mr. Justice Brennan in his separate opinion in Lemon I put the matter succinctly when he said,
conceived as an incident of judicial review. We do not engage lightly in post hoc evaluation of such political
judgment, founded as it is on 'one of the first principles of constitutional adjudication—the basic presumption of '(F)or more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has
the constitutional validity of a duly enacted state or federal law.' San Antonio Independent School District v. been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with religious
Rodriguez, 411 U.S. 1, at 60, 93 S.Ct. 1278, at 1311, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring). institutions.' 403 U.S. 642, 648—649, 91 S.Ct. 2129.

Federalism suggests that federal court intervention in state judicial processes be appropriately confined. See So there was clear warning that those who proposed such subsidies were treading on unconstitutional ground.
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and companion cases. Likewise, federalism They can tender no considerations of equity that should allow them to profit from their unconstitutional venture.
requires that federal injunctions unrelated to state courts be shaped with concern and care for the responsibilities
of the executive and legislative branches of state governments. 8 In short the propriety of the relief afforded The issues presented in this type of case are often caught up in political strategies, designed to turn judicial or
appellants by the District Court, applying familiar equitable principles, must be measured against the totality of legislative minorities into majorities. Lawyers planning trial strategies are familiar with those tactics. But those
circumstances and in light of the general principle that, absent contrary direction, state officials and those with who use them and lose have no equities that make constitutional what has long been declared to be
whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means unconstitutional. From the days of Madison, the issue of subsidy has never been a question of the amount of the
plainly unlawful. subsidy but rather a principle of no subsidy at all.

Affirmed. The problem of retroactivity involved in criminal cases is therefore inapplicable. There the question is whether the
newly announced rule goes to the fairness of the trial that had been completed under the old rule. See Johnson v.
Mr. Justice WHITE concurs in the judgment. New Jersey, 384 U.S. 719, 726—729, 86 S.Ct. 1772, 1777—1779, 16 L.Ed.2d 882. Here there is no new rule
supplanting an old rule. The rule of no subsidy has been the dominant one since the days of Madison. We deal
Mr. Justice MARSHALL took no part in the consideration or decision of this case. with the normal situation that governs judicial decisions. Normally they determine legal rights and obligations with
respect to events that have already transpired. By definition, courts decide disputes that have already arisen. A
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice STEWART concur, dissenting. losing litigant has no equity in the fact that he 'relied' on advice that turned out to be unreliable or wrong. 2 A
decision overruling a prior authority may at times deny a litigant due process if applied retroactively. See
There is as much a violation of the Establishment Clause of the First Amendment whether the payment from public Brinkerhoff-Faris Turst & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107. Only a compelling
funds to sectarian schools involves last year, the current year, or next year. Madison in his Remonstrance stated: circumstance has been held to limit a judicial ruling to prospective applications. The disruptive effect in criminal
'(T)he same authority which can force a citizen to contribute three pence only of his property for the support of law enforcement is one example. Stovall v. Denno, 388 U.S. 293, 300, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199.
any one establishment, may force him to conform to any other establishment . . ..' 1 Likewise, a ruling on the legality of municipal bonds has been given only prospective application where many prior
bonds had been issued in good faith on a contrary assumption. City of Phoenix, Arizona v. Kolodziejski, 399 U.S.
Whether the grant is for teaching last year or at the present time, taxpayers are forced to contribute to sectarian 204, 213—215, 90 S.Ct. 1990, 1996—1997, 26 L.Ed.2d 523.
schools a part of their tax dollars.
Retroactivity of the decision in Lemon I goes to the very core of the integrity of the judicial process. Constitutional
The ban on that practice is not new. Lemon I, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 did not announce a principles do not ride on the effervescent arguments advanced by those seeking to obtain unconstitutional
change in the law. We had announced over and over again that the use of taxpayers' money to support parochial subsidies. The happenstance of litigation is no criterion for dispensing these unconstitutional subsidies. No matter
schools violates the First Amendment, made applicable to the States by virtue of the Fourteenth. the words used for the apologia, the subsidy today given to sectarian schools out of taxpayers' monies exceeds by
far the 'three pence' which Madison condemned in his Remonstrance.
We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711: 'No

12
reliance of the nonpublic schools on the payments or the subsequent hardship upon them if the payments are not
I would reverse the judgment below and adhere to the constitutional principle announced in Lemon I. made.' 348 F.Supp. 300, 304 n. 6.

1 5

Nonpublic Elementary and Secondary Education Act, June 19, 1968, No. 109, Pa.Stat.Ann., Tit. 24, §§ 5601—5609 The District Court's comment, in turn, reflects the following colloquy between that court and counsel for
(Supp.1971). appellants, at the December 15, 1971, hearing after remand from this Court:

2 'MR. SAWYER: I am perfectly willing to concede—and I think I must here; we have taken no evidence—that there
was reliance. And I would like to state, so there is no question about that, that I am assuming there was reliance.
In Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965), the Court recalled Mr. Justice I think as a practical matter, however, the schools continued to do what they were doing before.
Cardozo's statement that 'the Federal Constitution has no voice upon the subject,' citing Great Northern R. Co. v.
Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). In Sunburst, the Court refused 'JUDGE HASTIE: Reliance in the sense, I assume, of determining activities and expenditures in anticipation that this
to accept the petitioner's contention that '(a)dherence to precedent as establishing a governing rule for the past amount would be reimbursed?
in respect of the meaning of a statute is . . . a denial of due process when coupled with the declaration of an
intention to refuse to adhere to it in adjudicating any controversies growing out of the transactions of the future.' 'MR. SAWYER: I know of a school that escrowed it, but I would think that would be rare. And I have to live with
Id., at 363—364, 53 S.Ct., at 148. Instead, the Court held that 'A state in defining the limits of adherence to that, I think, unless I want to be prepared to go ahead and ask to take testimony and try to prove that wasn't so. .
precedent may make a choice for itself between the principle of forward operation and that of relation backward.' . .'
Id., at 364, 53 S.Ct., at 148.
6
Sunburst does not, of course, suggest that we may ignore constitutional interests in deciding whether to attach
retrospective effect to a constitutional decision of this Court. As to each school, the determination of actual reliance would be subtle, premised largely on credibility and not on
facts of record. Nonreliance could not be assumed simply because expenditure levels remained constant before
3 and after Act 109; any school might well assert that it would have reduced its educational expenditures in some
particular but for the expectation of compensation for certain other expenditures incurred in connection with Act
See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971): 109. Similarly, the inquiry could not be limited to expenditures for those items specified by the Act. Increased
expenditures for any of the gamut of a school's activities might have been incurred in reliance on reimbursement
'If the government closed its eyes to the manner in which these grants are actually used it would be allowing public for services covered by Act 109.
funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would,
I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.' Id., at 640, 91 S.Ct., 7
at 2124 (Douglas, J., concurring).
According to the dissent, appellees can 'tender no considerations of equity' because they had 'clear warning' that
'The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance they were 'treading on unconstitutional ground.' The apparent premise for this assertion is the view that the
secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion Establishment Clause forbids any and all use of tax moneys to 'support' or to 'subsidize' sectarian schools. Yet the
not be so taught . . . and enforces it, it is then entangled in the 'no entanglement' aspect of the Court's Court's decisions, prior to and at the time of Lemon I, shied away from this sweeping application of the
Establishment Clause jurisprudence.' Id., at 668, 91 S.Ct., at 2138 (opinion of White, J.). Establishment Clause, favoring instead particularized analysis of state involvement in religious schools, with the
analysis based upon the facts and circumstances before us. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29
Here, the 'insoluble paradox' is avoided because the entangling supervision prerequisite to state aid has already L.Ed.2d 790 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970); Board of
been accomplished and need not enter into our present evaluation of the constitutional interests at stake in the Education of Central School District No. 1 v. Allen, 392 U.S. 236, 242—243, 88 S.Ct. 1923, 1925—1926, 20 L.Ed.2d
proposed payment. 1060 (1968); Everson v. Board of Education, 330 U.S. 1, 14, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). There is, then,
no basis for the dissent's suggestion that the Court has been 'unequivocal' in proscribing all state assistance to
4 religious schools.

We agree with the District Court that whether the payments in question constitute payments under valid contracts 8
or a subsidy 'makes no difference in our decision.' To characterize the payments as subsidies does not 'lessen the

13
DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY CANTA, CORDENCIO
This is not to say, of course, that the flexible range of federal injunctive powers should be curtailed so as to permit CONSIGNA, SUSANO ALCALA, LEONARDO DIZON, SALVADOR GELSANO and BENITO
state officers to proceed with their business regardless of serious constitutional questions concerning state LAUGO, petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN
legislation. Indeed, a significant purpose of these tools is to preserve rights of all parties and to minimize BORDAS, respondents.
unnecessary harm during the often protracted pendency of constitutional litigation.
DECISION
1 CORONA, J.:

Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 186 (G. Hunt ed.
1901). The Remonstrance is reprinted in Everson v. Board of Education, 330 U.S. 1, 63, 67 S.Ct. 504, 534, 91 L.Ed. This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-
711 (Rutledge, J., dissenting), and in Walz v. Tax Comm'n, 397 U.S. 664, 719, 90 S.Ct. 1409, 1437, 25 L.Ed.2d 697 G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of Surigao City, Branch 32
(Douglas, J., dissenting). in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.

The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in
2 Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish priest,
respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for the transfer of
The rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which rejected Delli Paoli v. United Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the records that the family
States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, was given retrospective effect. We said, 'The element of reliance of Fr. Floranos wife belonged to a political party opposed to petitioner Tarucs, thus the animosity between the
is not persuasive, for Delli Paoli has been under attack from its inception and many courts have in fact rejected it.' two factions with Fr. Florano being identified with his wifes political camp. Bishop de la Cruz, however, found this
Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100. too flimsy a reason for transferring Fr. Florano to another parish.

Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner
Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of
Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade him from pushing through
with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a parish
priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and
prejudicial to the best interests of the PIC. He likewise advised petitioners to air their complaints before the higher
authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws and canons of
the PIC.

Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around
3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant.

On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine
Independent Church for reasons of:

(1) disobedience to duly constituted authority in the Church;

(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia Filipina
Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the Plaza on June
19, 1996; and

THIRD DIVISION (3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general
membership.[1]
[G.R. No. 144801. March 10, 2005]

14
Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his letter Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down voluntarily to avert the hostility
and enmity among the members of the PIC parish in Socorro but stated that: 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
I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish.[2] forever be allowed. No religious test shall be required for the exercise of civil or political rights.

In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by Bishop In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. Give to
Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for transferring Fr. Florano to Ceasar what is Ceasars and to God what is Gods. We have, however, observed as early as 1928 that:
another parish. He issued a circular denying petitioners persistent clamor for the transfer/re-assignment of Fr.
Florano. Petitioners were informed of such denial but they continued to celebrate mass and hold other religious upon the examination of the decisions it will be readily apparent that cases involving questions relative to
activities through Fr. Ambong who had been restrained from performing any priestly functions in the PIC parish of ecclesiastical rights have always received the profoundest attention from the courts, not only because of their
Socorro, Surigao del Norte. inherent interest, but because of the far reaching effects of the decisions in human society. [However,] courts
have learned the lesson of conservatism in dealing with such matters, it having been found that, in a form of
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with government where the complete separation of civil and ecclesiastical authority is insisted upon, the civil courts
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32. They must not allow themselves to intrude unduly in matters of an ecclesiastical nature.[4] (italics ours)
impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop to have
petitioners expelled and excommunicated from the PIC. They contended that their expulsion was illegal because We agree with the Court of Appeals that the expulsion/excommunication of members of a religious
it was done without trial thus violating their right to due process of law. institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction institution/organization. It is not for the courts to exercise control over church authorities in the performance of
but it was denied. Their motion for reconsideration was likewise denied so they elevated the case to the Court of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to
Appeals. conform to just church regulations. In the words of Justice Samuel F. Miller[5]:

The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of the all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the Church
case without prejudice to its being refiled before the proper forum. It held: government and they are bound to submit to it.

We find it unnecessary to deal on the validity of the excommunication/expulsion of the private respondents In the leading case of Fonacier v. Court of Appeals,[6] we enunciated the doctrine that in disputes involving
(Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers to be outside the province religious institutions or organizations, there is one area which the Court should not touch: doctrinal and
of the civil courts. disciplinary differences.[7] Thus,

Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of civil or The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration
property rights. Those rights may be the subject of litigation in a civil court, and the courts have jurisdiction to alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and
determine controverted claims to the title, use, or possession of church property. (Ibid., p.466) 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. (emphasis ours)
Obviously, there was no violation of a civil right in the present case.
We would, however, like to comment on petitioners claim that they were not heard before they were
Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or protection expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times not to
of a civil or property rights in order for the court a quo to acquire jurisdiction in the instant case.[3] commit acts inimical to the best interests of PIC. They were also warned of the consequences of their actions,
among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and
Petitioners appealed from the above decision but their petition was denied. Their motion for reconsideration petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity among the members
was likewise denied, hence, this appeal. of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the chaos and dissension they
caused.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case involving
the expulsion/excommunication of members of a religious institution. WHEREFORE, the petition is herby DENIED for lack of merit.
We rule that the courts do not. Costs against petitioners.

15
SO ORDERED. petitioner was transferred to Bacolod City. He held the position of district pastor until his services were
terminated on 31 October 1991.

On various occasions from August up to October, 1991, petitioner received several communications3 from Mr.
Eufronio Ibesate, the treasurer of the Negros Mission asking him to admit accountability and responsibility for
Republic of the Philippines the church tithes and offerings collected by his wife, Mrs. Thelma Austria, in his district which amounted to
SUPREME COURT P15,078.10, and to remit the same to the Negros Mission.
Manila
In his written explanation dated 11 October 1991,4 petitioner reasoned out that he should not be made
FIRST DIVISION accountable for the unremitted collections since it was private respondents Pastor Gideon Buhat and Mr.
Eufronio Ibesate who authorized his wife to collect the tithes and offerings since he was very sick to do the
G.R. No. 124382 August 16, 1999 collecting at that time.

PASTOR DIONISIO V. AUSTRIA, petitioner, Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of Pastor Buhat, the president
vs. of the Negros Mission. During said call, petitioner tried to persuade Pastor Buhat to convene the Executive
HON. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), CEBU CITY, CENTRAL PHILIPPINE UNION Committee for the purpose of settling the dispute between him and the private respondent, Pastor David
MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS, ELDER HECTOR V. GAYARES, PASTORS REUBEN Rodrigo. The dispute between Pastor Rodrigo and petitioner arose from an incident in which petitioner assisted
MORALDE, OSCAR L. ALOLOR, WILLIAM U. DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT, ISACHAR his friend, Danny Diamada, to collect from Pastor Rodrigo the unpaid balance for the repair of the latter's motor
GARSULA, ELISEO DOBLE, PORFIRIO BALACY, DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO, MR. vehicle which he failed to pay to Diamada.5 Due to the assistance of petitioner in collecting Pastor Rodrigo's
EUFRONIO IBESATE, MRS. TESSIE BALACY, MR. ZOSIMO KARA-AN, and MR. ELEUTERIO debt, the latter harbored ill-feelings against petitioner. When news reached petitioner that Pastor Rodrigo was
LOBITANA, respondents. about to file a complaint against him with the Negros Mission, he immediately proceeded to the office of Pastor
Buhat on the date abovementioned and asked the latter to convene the Executive Committee. Pastor Buhat
KAPUNAN, J.: denied the request of petitioner since some committee members were out of town and there was no quorum.
Thereafter, the two exchanged heated arguments. Petitioner then left the office of Pastor Buhat. While on his
way out, petitioner overheard Pastor Buhat saying, "Pastor daw inisog na ina iya (Pador you are talking
Subject of the instant petition for certiorari under Rule 65 of the Rules of Court is the Resolution1 of public
tough)."6 Irked by such remark, petitioner returned to the office of Pastor Buhat, and tried to overturn the
respondent National Labor Relations Commission (the "NLRC"), rendered on 23 January 1996, in NLRC Case No.
latter's table, though unsuccessfully, since it was heavy. Thereafter, petitioner banged the attaché case of Pastor
V-0120-93, entitled "Pastor Dionisio V. Austria vs. Central Philippine Union Mission Corporation of Seventh Day
Buhat on the table, scattered the books in his office, and threw the phone. 7 Fortunately, private respondents
Adventists, et al.," which dismissed the case for illegal dismissal filed by the petitioner against private
Pastors Yonilo Leopoldo and Claudio Montaño were around and they pacified both Pastor Buhat and petitioner.
respondents for lack of jurisdiction.1âwphi1.nêt

On 17 October 1991, petitioner received a letter8 inviting him and his wife to attend the Executive Committee
Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day Adventists (hereinafter
meeting at the Negros Mission Conference Room on 21 October 1991, at nine in the morning. To be discussed in
referred to as the "SDA") is a religious corporation duly organized and existing under Philippine law and is
the meeting were the non-remittance of church collection and the events that transpired on 16 October 1991. A
represented in this case by the other private respondents, officers of the SDA. Petitioner, on the other hand, was
fact-finding committee was created to investigate petitioner. For two (2) days, from October 21 and 22, the fact-
a Pastor of the SDA until 31 October 1991, when his services were terminated.
finding committee conducted an investigation of petitioner. Sensing that the result of the investigation might be
one-sided, petitioner immediately wrote Pastor Rueben Moralde, president of the SDA and chairman of the fact-
The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for twenty eight (28) years from finding committee, requesting that certain members of the fact-finding committee be excluded in the
1963 to 1991.2 He began his work with the SDA on 15 July 1963 as a literature evangelist, selling literature of the investigation and resolution of the case.9 Out of the six (6) members requested to inhibit themselves from the
SDA over the island of Negros. From then on, petitioner worked his way up the ladder and got promoted several investigation and decision-making, only two (2) were actually excluded, namely: Pastor Buhat and Pastor
times. In January, 1968, petitioner became the Assistant Publishing Director in the West Visayan Mission of the Rodrigo. Subsequently, on 29 October 1991, petitioner received a letter of dismissal 10 citing misappropriation of
SDA. In July, 1972, he was elevated to the position of Pastor in the West Visayan Mission covering the island of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties, and
Panay, and the provinces of Romblon and Guimaras. Petitioner held the same position up to 1988. Finally, in commission of an offense against the person of employer's duly authorized representative, as grounds for the
1989, petitioner was promoted as District Pastor of the Negros Mission of the SDA and was assigned at Sagay, termination of his services.
Balintawak and Toboso, Negros Occidental, with twelve (12) churches under his jurisdiction. In January, 1991,

16
Reacting against the adverse decision of the SDA, petitioner filed a complaint11 on 14 November 1991, before SO ORDERED.13
the Labor Arbiter for illegal dismissal against the SDA and its officers and prayed for reinstatement with
backwages and benefits, moral and exemplary damages and other labor law benefits. Petitioner filed a motion for reconsideration of the above-named decision. On 18 July 1995, the NLRC issued a
Resolution reversing its original decision. The dispositive portion of the resolution reads:
On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered a decision in favor of petitioner, the dispositive
portion of which reads thus: WHEREFORE, premises considered, Our decision dated August 26, 1994 is VACATED and the decision of
the Labor Arbiter dated February 15, 1993 is REINSTATED.
WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE UNION MISSION
CORPORATION OF THE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and its officers, respondents herein, SO ORDERED.14
are hereby ordered to immediately reinstate complainant Pastor Dionisio Austria to his former position
as Pastor of Brgy. Taculing, Progreso and Banago, Bacolod City, without loss of seniority and other
In view of the reversal of the original decision of the NLRC, the SDA filed a motion for reconsideration of the
rights and backwages in the amount of ONE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED THIRTY
above resolution. Notable in the motion for reconsideration filed by private respondents is their invocation, for
PESOS (P115,830.00) without deductions and qualificatioons.
the first time on appeal, that the Labor Arbiter has no jurisdiction over the complaint filed by petitioner due to
the constitutional provision on the separation of church and state since the case allegedly involved an
Respondent CPUMCSDA is further ordered to pay complainant the following: ecclesiastical affair to which the State cannot interfere.

A. 13th month pay — P 21,060.00 The NLRC, without ruling on the merits of the case, reversed itself once again, sustained the argument posed by
private respondents and, accordingly, dismissed the complaint of petitioner. The dispositive portion of the NLRC
B. Allowance — P 4,770.83 resolution dated 23 January 1996, subject of the present petition, is as follows:

C. Service Incentive WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is hereby granted.
Accordingly, this case is hereby DISMISSED for lack of jurisdiction.
Leave Pay — P 3,461.85
SO ORDERED.15
D. Moral Damages — P 50,000.00
Hence, the recourse to this Court by petitioner.
E. Exemplary
After the filing of the petition, the Court ordered the Office of the Solicitor General (the "OSG") to file its
Damages — P 25,000.00 comment on behalf of public respondent NLRC. Interestingly, the OSG filed a manifestation and motion in lieu of
comment16setting forth its stand that it cannot sustain the resolution of the NLRC. In its manifestation, the OSG
submits that the termination of petitioner from his employment may be questioned before the NLRC as the
F. Attorney's Fee — P 22,012.27
same is secular in nature, not ecclesiastical. After the submission of memoranda of all the parties, the case was
submitted for decision.
SO ORDERED.12
The issues to be resolved in this petition are:
The SDA, through its officers, appealed the decision of the Labor Arbiter to the National Labor Labor Relations
Commission, Fourth Division, Cebu City. In a decision, dated 26 August 1994, the NLRC vacated the findings of
1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by
the Labor Arbiter. The decretal portion of the NLRC decision states:
petitioner against the SDA;

WHEREFORE, the Decision appealed from is hereby VACATED and a new one ENTERED dismissing this
2) Whether or not the termination of the services of petitioner is an ecclesiastical affair, and, as such,
case for want of merit.
involves the separation of church and state; and

17
3) Whether or not such termination is valid. termination. As aptly stated by the OSG, this again is an eloquent admission by private respondents that NLRC
has jurisdiction over the case. Aside from these, SDA admitted in a certification23 issued by its officer, Mr.
The first two issues shall be resolved jointly, since they are related. Ibesate, that petitioner has been its employee for twenty-eight (28) years. SDA even registered petitioner with
the Social Security System (SSS) as its employee. As a matter of fact, the worker's records of petitioner have been
submitted by private respondents as part of their exhibits. From all of these it is clear that when the SDA
Private respondents contend that by virtue of the doctrine of separation of church and state, the Labor Arbiter
terminated the services of petitioner, it was merely exercising its management prerogative to fire an employee
and the NLRC have no jurisdiction to entertain the complaint filed by petitioner. Since the matter at bar allegedly
which it believes to be unfit for the job. As such, the State, through the Labor Arbiter and the NLRC, has the right
involves the discipline of a religious minister, it is to be considered a purely ecclesiastical affair to which the State
to take cognizance of the case and to determine whether the SDA, as employer, rightfully exercised its
has no right to interfere.
management prerogative to dismiss an employee. This is in consonance with the mandate of the Constitution to
afford full protection to labor.
The contention of private respondents deserves scant consideration. The principle of separation of church and
state finds no application in this case.
Under the Labor Code, the provision which governs the dismissal of employees, is comprehensive enough to
include religious corporations, such as the SDA, in its coverage. Article 278 of the Labor Code on post-
The rationale of the principle of the separation of church and state is summed up in the familiar saying, "Strong employment states that "the provisions of this Title shall apply to all establishments or undertakings, whether for
fences make good-neighbors."17 The idea advocated by this principle is to delineate the boundaries between the profit or not." Obviously, the cited article does not make any exception in favor of a religious corporation. This is
two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the made more evident by the fact that the Rules Implementing the Labor Code, particularly, Section 1, Rule 1, Book
limits of their respective exclusive jurisdictions.18 The demarcation line calls on the entities to "render therefore VI on the Termination of Employment and Retirement, categorically includes religious institutions in the
unto Ceasar the things that are Ceasar's and unto God the things that are God's."19 While the state is prohibited coverage of the law, to wit:
from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular
matters.20
Sec. 1. Coverage. — This Rule shall apply to all establishments and undertakings, whether operated for
profit or not, including educational, medical, charitable and religious institutions and organizations, in
The case at bar does not concern an ecclesiastical or purely religious affair as to bar the State from taking cases of regular employment with the exception of the Government and its political subdivisions
cognizance of the same. An ecclesiastical affair is "one that concerns doctrine, creed, or form of worship of the including government-owned or controlled corporations.24
church, or the adoption and enforcement within a religious association of needful laws and regulations for the
government of the membership, and the power of excluding from such associations those deemed unworthy of
With this clear mandate, the SDA cannot hide behind the mantle of protection of the doctrine of separation of
membership.21 Based on this definition, an ecclesiastical affair involves the relationship between the church and
church and state to avoid its responsibilities as an employer under the Labor Code.
its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To
be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings
for excommunication, ordinations of religious ministers, administration of sacraments and other activities with Finally, as correctly pointed out by petitioner, private respondents are estopped from raising the issue of lack of
attached religious significance. The case at bar does not even remotely concern any of the abovecited examples. jurisdiction for the first time on appeal. It is already too late in the day for private respondents to question the
While the matter at hand relates to the church and its religious minister it does not ipso facto give the case a jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully participated in the trials and hearings of
religious significance. Simply stated, what is involved here is the relationship of the church as an employer and the case from start to finish. The Court has already ruled that the active participation of a party against whom
the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, the action war brought, coupled with his failure to object to the jurisdiction of the court or quasi-judicial body
worship or doctrines of the church. In this case, petitioner was not ex-communicated or expelled from the where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the
membership of the SDA but was terminated from employment. Indeed, the matter of terminating an employee, resolution of the case and will bar said party from later on impugning the court or body's jurisdiction.25 Thus, the
which is purely secular in nature, is different from the ecclesiastical act of expelling a member from the religious active participation of private respondents in the proceedings before the Labor Arbiter and the NLRC mooted the
congregation. question on jurisdiction.

As pointed out by the OSG in its memorandum, the grounds invoked for petitioner's dismissal, namely: The jurisdictional question now settled, we shall now proceed to determine whether the dismissal of petitioner
misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect was valid.
of duties and commission of an offense against the person of his employer's duly authorized representative, are
all based on Article 282 of the Labor Code which enumerates the just causes for termination of At the outset, we note that as a general rule, findings of fact of administrative bodies like the NLRC are binding
employment.22 By this alone, it is palpable that the reason for petitioner's dismissal from the service is not upon this Court. A review of such findings is justified, however, in instances when the findings of the NLRC differ
religious in nature. Coupled with this is the act of the SDA in furnishing NLRC with a copy of petitioner's letter of from those of the labor arbiter, as in this case.26 When the findings of NLRC do not agree with those of the Labor

18
Arbiter, this Court must of necessity review the records to determine which findings should be preferred as more In the letter of termination,37 dated 29 October 1991, private respondents enumerated the following as grounds
comfortable to the evidentiary facts.27 for the dismissal of petitioner, namely: misappropriation of denominational funds, willful breach of trust, serious
misconduct, gross and habitual neglect of duties, and commission of an offense against the person of employer's
We turn now to the crux of the matter. In termination cases, the settled rule is that the burden of proving that duly authorized representative. Breach of trust and misappropriation of denominational funds refer to the
the termination was for a valid or authorized cause rests on the employer.28 Thus, private respondents must not alleged failure of petitioner to remit to the treasurer of the Negros Mission tithes, collections and offerings
merely rely on the weaknesses of petitioner's evidence but must stand on the merits of their own defense. amounting to P15,078.10 which were collected by his wife, Mrs. Thelma Austria, in the churches under his
jurisdiction. On the other hand, serious misconduct and commission of an offense against the person of the
employer's duly authorized representative pertain to the 16 October 1991 incident wherein petitioner allegedly
The issue being the legality of petitioner's dismissal, the same must be measured against the requisites for a
committed an act of violence in the office of Pastor Gideon Buhat. The final ground invoked by private
valid dismissal, namely: (a) the employee must be afforded due process, i.e., he must be given an opportunity to
respondents is gross and habitual neglect of duties allegedly committed by petitioner.
be heard and to defend himself, and; (b) the dismissal must be for a valid cause as provided in Article 282 of the
Labor Code.29 Without the concurrence of this twin requirements, the termination would, in the eyes of the law,
be illegal.30 We cannot sustain the validity of dismissal based on the ground of breach of trust. Private respondents allege
that they have lost their confidence in petitioner for his failure, despite demands, to remit the tithes and
offerings amounting to P15,078.10, which were collected in his district. A careful study of the voluminous
Before the services of an employee can be validly terminated, Article 277 (b) of the Labor Code and Section 2,
records of the case reveals that there is simply no basis for the alleged loss of confidence and breach of trust.
Rule XXIII, Book V of the Rules Implementing the Labor Code further require the employer to furnish the
Settled is the rule that under Article 282 (c) of the Labor Code, the breach of trust must be willful. A breach is
employee with two (2) written notices, to wit: (a) a written notice served on the employee specifying the ground
willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act
or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;
done carelessly, thoughtlessly, heedlessly or inadvertently.38 It must rest on substantial grounds and not on the
and, (b) a written notice of termination served on the employee indicating that upon due consideration of all the
employer's arbitrariness, whims, caprices or suspicion; otherwise the employee would eternally remain at the
circumstances, grounds have been established to justify his termination.
mercy of the employer.39 It should be genuine and not simulated.40 This ground has never been intended to
afford an occasion for abuse, because of its subjective nature. The records show that there were only six (6)
The first notice, which may be considered as the proper charge, serves to apprise the employee of the particular instances when petitioner personally collected and received from the church treasurers the tithes, collections,
acts or omissions for which his dismissal is sought.31 The second notice on the other hand seeks to inform the and donations for the church.41The stenographic notes on the testimony of Naomi Geniebla, the Negros Mission
employee of the employer's decision to dismiss him.32 This decision, however, must come only after the Church Auditor and a witness for private respondents, show that Pastor Austria was able to remit all his
employee is given a reasonable period from receipt of the first notice within which to answer the charge and collections to the treasurer of the Negros Mission.42
ample opportunity to be heard and defend himself with the assistance of a representative, if he so desires.33 This
is in consonance with the express provision of the law on the protection to labor and the broader dictates of
Though private respondents were able to establish that petitioner collected and received tithes and donations
procedural due process.34 Non-compliance therewith is fatal because these requirements are conditions sine
several times, they were notable to establish that petitioner failed to remit the same to the Negros Mission, and
qua non before dismissal may be validly effected.35
that he pocketed the amount and used it for his personal purpose. In fact, as admitted by their own witness,
Naomi Geniebla, petitioner remitted the amounts which he collected to the Negros Mission for which
Private respondent failed to substantially comply with the above requirements. With regard to the first notice, corresponding receipts were issued to him. Thus, the allegations of private respondents that petitioner breached
the letter,36 dated 17 October 1991, which notified petitioner and his wife to attend the meeting on 21 October their trust have no leg to stand on.
1991, cannot be construed as the written charge required by law. A perusal of the said letter reveals that it never
categorically stated the particular acts or omissions on which petitioner's impending termination was grounded.
In a vain attempt to support their claim of breach of trust, private respondents try to pin on petitioner the
In fact, the letter never even mentioned that petitioner would be subject to investigation. The letter merely
alleged non-remittance of the tithes collected by his wife. This argument deserves little consideration. First of all,
mentioned that petitioner and his wife were invited to a meeting wherein what would be discussed were the
as proven by convincing and substantial evidence consisting of the testimonies of the witnesses for private
alleged unremitted church tithes and the events that transpired on 16 October 1991. Thus, petitioner was
respondents who are church treasurers, it was Mrs. Thelma Austria who actually collected the tithes and
surprised to find out that the alleged meeting turned out to be an investigation. From the tenor of the letter, it
donations from them, and, who failed to remit the same to the treasurer of the Negros Mission. The testimony
cannot be presumed that petitioner was actually on the verge of dismissal. The alleged grounds for the dismissal
of these church treasurers were corroborated and confirmed by Ms. Geniebla and Mr. Ibesate, officers of the
of petitioner from the service were only revealed to him when the actual letter of dismissal was finally issued.
SDA. Hence, in the absence of conspiracy and collusion, which private respondents failed to demonstrate,
For this reason, it cannot be said that petitioner was given enough opportunity to properly prepare for his
between petitioner and his wife, petitioner cannot be made accountable for the alleged infraction committed by
defense. While admittedly, private respondents complied with the second requirement, the notice of
his wife. After all, they still have separate and distinct personalities. For this reason, the Labor Arbiter found it
termination, this does not cure the initial defect of lack of the proper written charge required by law.
difficult to see the basis for the alleged loss of confidence and breach of trust. The Court does not find any

19
cogent reason, therefore, to digress from the findings of the Labor Arbiter which is fully supported by the SO ORDERED.
evidence on record.
Republic of the Philippines
With respect to the grounds of serious misconduct and commission of an offense against the person of the SUPREME COURT
employer's duly authorized representative, we find the same unmeritorious and, as such, do not warrant Manila
petitioner's dismissal from the service.
EN BANC
Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and G.R. No. 95770 March 1, 1993
not mere error in judgment.43 For misconduct to be considered serious it must be of such grave and aggravated
character and not merely trivial or unimportant.44 Based on this standard, we believe that the act of petitioner in
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO EBRALINAG,
banging the attaché case on the table, throwing the telephone and scattering the books in the office of Pastor
JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO, represented by
Buhat, although improper, cannot be considered as grave enough to be considered as serious misconduct. After
their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR.
all, as correctly observed by the Labor Arbiter, though petitioner committed damage to property, he did not
& MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS.
physically assault Pastor Buhat or any other pastor present during the incident of 16 October 1991. In fact, the
FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO;
alleged offense committed upon the person of the employer's representatives was never really established or
NAPTHALE TANACAO, represented by his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented
proven by private respondents. Hence, there is no basis for the allegation that petitioner's act constituted
by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR.
serious misconduct or that the same was an offense against the person of the employer's duly authorized
& MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents
representative. As such, the cited actuation of petitioner does not justify the ultimate penalty of dismissal from
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO
employment. While the Constitution does condone wrongdoing by the employee, it nevertheless urges a
ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
moderation of the sanctions that may be applied to him in light of the many disadvantages that weigh heavily on
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his
him like an albatross on his neck.45 Where a penalty less punitive would suffice, whatever missteps may have
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE;
been committed by the worker ought not be visited with a consequence so severe such as dismissal from
LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY
employment.46 For the foregoing reasons, we believe that the minor infraction committed by petitioner does not
MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA,
merit the ultimate penalty of dismissal.
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.
The final ground alleged by private respondents in terminating petitioner, gross and habitual neglect of duties, PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father
does not require an exhaustive discussion. Suffice it to say that all private respondents had were allegations but RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS.
not proof. Aside from merely citing the said ground, private respondents failed to prove culpability on the part of LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their parents
petitioner. In fact, the evidence on record shows otherwise. Petitioner's rise from the ranks disclose that he was MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH;
actually a hard-worker. Private respondents' evidence,47 which consisted of petitioner's Worker's Reports, EMERSON TABLASON & MASTERLOU TABLASON, represented by their parent EMERLITO
revealed how petitioner travelled to different churches to attend to the faithful under his care. Indeed, he TABLASON, petitioners,
labored hard for the SDA, but, in return, he was rewarded with a dismissal from the service for a non-existent vs.
cause. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was terminated from service G.R. No. 95887 March 1, 1993
without just or lawful cause. Having been illegally dismissed, petitioner is entitled to reinstatement to his former
position without loss of seniority right48 and the payment of full backwages without any deduction
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT ALSADO &
corresponding to the period from his illegal dismissal up to actual reinstatement.46
RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA ALSADO, REU
ALSADO & LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES,
WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of public respondent National represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by
Labor Relations Commission, rendered on 23 January 1996, is NULLIFIED and SET ASIDE. The Decision of the her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her parents MR. & MRS.
Labor Arbiter, dated 15 February 1993, is REINSTATED and hereby AFFIRMED.1âwphi1.nêt TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL

20
DEMOTOR & LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be
& MELONEY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, issued rules and regulations for the proper conduct of the flag ceremony herein provided.
MARY GRACE MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX
MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE ANTIOLA and Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance
ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and with rules and regulations issued by the Secretary of Education, after proper notice and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO; hearing, shall subject the educational institution concerned and its head to public censure as
SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented by their parents an administrative punishment which shall be published at least once in a newspaper of
MARTILLANO PALATULON and CARMILA PALATULON, petitioners, general circulation.
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents.
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
Felino M. Ganal for petitioners. recognition or permit of the private educational institution responsible for such failure.

The Solicitor General for respondents. The implementing rules and regulations in Department Order No. 8 provide:

GRIÑO-AQUINO, J.: RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS.
These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise
essentially the same issue: whether school children who are members or a religious sect known as Jehovah's 1. The Filipino Flag shall be displayed by all educational institutions, public and private, every
Witnesses may be expelled from school (both public and private), for refusing, on account of their religious school day throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-
beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the Philippine national staff must be straight, slightly and gently tapering at the end, and of such height as would
anthem, saluting the Philippine flag and reciting the patriotic pledge. give the Flag a commanding position in front of the building or within the compound.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog, 2. Every public and private educational institution shall hold a flag-raising ceremony every
Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of morning except when it is raining, in which event the ceremony may be conducted indoors in
Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents the best way possible. A retreat shall be held in the afternoon of the same day. The flag-
who belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized raising ceremony in the morning shall be conducted in the following manner:
publishers" in the Philippines.
a. Pupils and teachers or students and faculty members who are in school
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan," and its premises shall assemble in formation facing the flag. At command,
the petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose books shall be put away or held in the left hand and everybody shall come
parents are Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal. to attention. Those with hats shall uncover. No one shall enter or leave
the school grounds during the ceremony.
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 b. The assembly shall sing the Philippine National Anthem accompanied by the
No. 1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education, school band or without the accompaniment if it has none; or the anthem may be
Culture and Sports (DECS) making the flag ceremony compulsory in all educational institutions. Republic Act No. played by the school band alone. At the first note of the Anthem, the flag shall be
1265 provides: 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
Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall hat over the heart. Those without hat may stand with their arms and hands down
be simple and dignified and shall include the playing or singing of the Philippine National and straight at the sides. Those in military or Boy Scout uniform shall give the
anthem. salute prescribed by their regulations. The salute shall be started as the Flag rises,
and completed upon last note of the anthem.
21
c. Immediately following the singing of the Anthem, the assembly shall recite in ceremony than the taking of an oath of office by a public official or by a candidate for
unison the following patriotic pledge (English or vernacular version), which may admission to the bar.
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 In requiring school pupils to participate in the flag salute, the State thru the Secretary of
predominantly Filipino. Education is not imposing a religion or religious belief or a religious test on said students. It is
merely enforcing a
English Version 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
I love the Philippines. by the Constitution which charges it with supervision over and regulation of all educational
It is the land of my birth; institutions, to establish and maintain a complete and adequate system of public education,
It is the home of my people. and see to it that all schools aim to develop, among other things, civic conscience and teach
It protects me and helps me to be, strong, happy and useful. the duties of citizenship.
In return, I will heed the counsel of my parents;
I will obey the rules of my school; The children of Jehovah's Witnesses cannot be exempted from participation in the flag
I will perform the duties of a patriotic, law-abiding citizen; ceremony. They have no valid right to such exemption. Moreover, exemption to the
I will serve my country unselfishly and faithfully; requirement will disrupt school discipline and demoralize the rest of the school population
I will be a true, Filipino in thought, in word, in deed. which by far constitutes the great majority.

xxx xxx xxx 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
Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite regulations promulgated by competent authority. (pp. 2-3).
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 Gerona was reiterated in Balbuna, as follows:
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). The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to
They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional promulgate said Department Order, and its provisions requiring the observance of the flag
limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect salute, not being a religious ceremony but an act and profession of love and allegiance and
against official control (p. 10, Rollo). 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
This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from al., 110 Phil. 150).
school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before
this Court. 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
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959) its publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives
and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the legislative cachet to the ruling in Gerona, thus:
expulsion of the students, thus:
5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of be dismissed after due investigation.
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 However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new
and state in the government, the flag is utterly devoid of any religious significance. Saluting Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the
the flag does not involve any religious ceremony. The flag salute is no more a religious DECS.

22
In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the fellow Citizens, nothing more. According to a popular expression, they
Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine could take it or leave it! Having elected not to comply with the regulation
national anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools, about the flag salute they forfeited their right to attend public schools.
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 15.)
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 7. School administrators shall therefore submit to this Office a report on those who choose
and Heads of Private Educational institutions as follows: not to participate in flag ceremony or salute the Philippine flag. (pp. 147-148, Rollo of G.R.
No. 95770; Emphasis supplied).
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 Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the
in the daily flag ceremony because of some religious belief. 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
2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order of the song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p.
No. 8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the heart of 48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rolloof G.R. No. 95770).
the DECS sustained effort to inculcate patriotism and nationalism.
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's
3. Let it be stressed that any belief that considers the flag as an image is not in any manner Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following:
whatever a justification for not saluting the Philippine flag or not participating in flag
ceremony. Thus, the Supreme Court of the Philippine says: 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
The flag is not an image but a symbol of the Republic of the Philippines, of the Philippines during Flag Ceremony and other occasions, as mandated by law specifically
an emblem of national sovereignty, of national unity and cohesion and Republic Act No. 1265, this Office hereby orders the dropping from the list in the School
freedom and liberty which it and the Constitution guarantee and protect. Register (BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I up to Grade VI
(Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.) effective today.

4. As regards the claim for freedom of belief, which an objectionist may advance, the xxx xxx xxx
Supreme Court asserts:
This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17,
But between the freedom of belief and the exercise of said belief, there is 1989 by virtue of Department Order No. 8 s. 1955 dated July 21, 1955 in accordance with
quite a stretch of road to travel. If the exercise of said religious belief Republic Act No. 1265 and Supreme Court Decision of a case "Genaro Gerona, et al.,
clashes with the established institutions of society and with the law, then Petitioners and Appellants vs. The Honorable Secretary of Education, et al., Respondents and
the former must yield and give way to the latter. (Gerona, et al. vs. Sec. of Appellees' dated August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
Education, et al., 106 Phil. 11.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls"
5. Accordingly, teachers and school employees who choose not to participate in the daily flag of students who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that
ceremony or to obey the flag salute regulation spelled out in Department Order No. 8, Series "they forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)
of 1955, shall be considered removed from the service after due process.
1st Indorsement
6. In strong language about pupils and students who do the same the Supreme Court has this DAANBANTAYAN DISTRICT II
to say: Daanbantayan, Cebu, July 24, 1990.

If they choose not to obey the flag salute regulation, they merely lost the Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School
benefits of public education being maintained at the expense of their with the information that this office is sad to order the dropping of Jeremias Diamos and
23
Jeaneth Diamos, Grades III and IV pupils respectively from the roll since they opted to follow and that pending the determination of the merits of these cases, a temporary restraining order be issued
their religious belief which is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, enjoining the respondents from enforcing the expulsion of the petitioners and to re-admit them to their
series of 1955, having elected not to comply with the regulation about the flag salute they respective classes.
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 On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory
Salute Law they may be re-accepted. injunction commanding the respondents to immediately re-admit the petitioners to their respective classes until
further orders from this Court (p. 57, Rollo).
(Sgd.) MANUEL F. BIONGCOG
District Supervisor The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be
impleaded as respondents in these cases.
(p. 47, Rollo of G.R. No. 95770.)
On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the
The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School, expulsion orders issued by the public respondents on the grounds that:
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 1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school
Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting children and consequently disloyal and mutant Filipino citizens.
Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the
Secretary of Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.)
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
The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina, worship.
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.
3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of
country, for which the flag stands.
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
4. The State's compelling interests being pursued by the DECS' lawful regulations in question do not
jurisdiction and with grave abuse of discretion — (1) in ordering their expulsion without prior notice and hearing,
warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies
hence, in violation of their right to due process, their right to free public education, and their right to freedom of
on the basis of their own self-perceived religious convictions.
speech, religion and worship (p. 23, Rollo). The petitioners pray that:

5. The issue is not freedom of speech but enforcement of law and jurisprudence.
c. Judgment be rendered:

6. State's power to regulate repressive and unlawful religious practices justified, besides having
i. declaring null and void the expulsion or dropping from the rolls of herein petitioners from
scriptural basis.
their respective schools;

7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No. 292
ii. prohibiting and enjoining respondent from further barring the petitioners from their
(The Administrative Code of 1987).
classes or otherwise implementing the expulsion ordered on petitioners; and

Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute
iii. compelling the respondent and all persons acting for him to admit and order the re-
law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.
admission of petitioners to their respective schools. (p. 41, Rollo.)

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in
the Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea
that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a
24
flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism,
conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and
rights to free speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the
Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution). 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 freedom is a fundamental right which is entitled to the highest priority and the amplest protection religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities.
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). As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and . . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous
freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to
thought. The second is subject to regulation where the belief is translated into external acts that affect free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with
the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177). 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
Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not that touch the heart of the existing order.
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 Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming that
to show their respect for the right of those who choose to participate in the solemn proceedings (Annex such unity and loyalty can be attained through coercion — is not a goal that is constitutionally
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 obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited
behavior, there is no warrant for their expulsion. means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will
to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty
514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a of the State to "protect and promote the right of all citizens to quality education . . . and to make such education
serious evil to public safety, public morals, public health or any other legitimate public interest, that accessible to all (Sec. 1, Art. XIV).
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. 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
The situation that the Court directly predicted in Gerona that: would violate the teaching of their church not to join any labor group:

The flag ceremony will become a thing of the past or perhaps conducted with very few participants, . . . It is certain that not every conscience can be accommodated by all the laws of the land; but when
and the time will come when we would have citizens untaught and uninculcated in and not imbued general laws conflict with scruples of conscience, exemptions ought to be granted unless some
with reverence for the flag and love of country, admiration for national heroes, and patriotism — a "compelling state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.
pathetic, even tragic situation, and all because a small portion of the school population imposed its Ct. 1790.)
will, demanded and was granted an exemption. (Gerona, p. 24.)
We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of
has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, the flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others.
singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such
"small portion of the school population" will shake up our part of the globe and suddenly produce a nation patriotic exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while
"untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and the highest regard must be afforded their right to the free exercise of their religion, "this should not be taken to
admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek mean that school authorities are powerless to discipline them" if they should commit breaches of the peace by
only is exemption from the flag ceremony, not exclusion from the public schools where they may study the actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at
Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem

25
and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to
and present danger of a serious evil to public safety, public morals, public health or any other legitimate public worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a
interest that the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517). 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
Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 prohibited from harboring them or punished for doing so.
when every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and
bowed before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedrathat
they would not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own they are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious
flag was proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride beliefs, which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they
and joy over the newly-regained freedom and sovereignty of our nation. 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
Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the forbidden territory that the State, for all its power and authority, cannot invade.
Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our
country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag. 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
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public is freedom from conformity to religious dogma, not freedom from conformity to law because of religious
respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order dogma."
which was issued by this Court is hereby made permanent.
But in the case at bar, the law to which the petitioners are made to conform clashes with their own
SO ORDERED. understanding of their religious obligations. Significantly, as the ponencia notes, their intransigence does not
disturb the peaceful atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the
flag and recite the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.
petitioners simply stand at attention and keep quiet "to show their respect for the right of those who choose to
participate in the solemn proceedings." It is for this innocuous conduct that, pursuant to the challenged law and
Quiason, J., took no part. regulations, the teachers have been dismissed and the students excelled.

Gutierrez, Jr., J., is on leave. 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
Separate Opinions his mind. The salute 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
CRUZ, J., concurring: 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.
I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital
postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.
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
In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was recitation by rote of its opinions or proscribing the assertion of unorthodox or unpopular views as in this case.
apparently laboring under the conviction that the State had the right to determine what was religious and what The conscientious objections of the petitioners, no less than the impatience of those who disagree with them,
was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was are protected by the Constitution. The State cannot make the individual speak when the soul within rebels.
not a religious image but a symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This
was no different from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he PADILLA, J., concurring:
is only a civic figure deserving honor but not veneration.

26
I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was
students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on apparently laboring under the conviction that the State had the right to determine what was religious and what
grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was
from the school. not a religious image but a symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This
At the same time, I am really concerned with what could be the was no different from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he
far-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or elite class of is only a civic figure deserving honor but not veneration.
teachers and students who will hereafter be exempt from participating, even when they are in the school
premises, in the flag ceremony in deference to their religious scruples. What happens, for instance, if some It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to
citizens, based also on their religious beliefs, were to refuse to pay taxes and license fees to the government? worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a
Perhaps problems of this nature should not be anticipated. They will be resolved when and if they ever arise. But beast or a tree (or a flag), and the State cannot prevent him from doing so. For that matter, neither can it compel
with today's decision, we may have created more problems than we have solved. 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.
It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially
the youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedrathat
that the State has the right to adopt reasonable means by which these laudable objectives can be effectively they are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious
pursued and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest beliefs, which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they
sentiments of love of country and people. 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
In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select few to be forbidden territory that the State, for all its power and authority, cannot invade.
exempt from the flag ceremony and all that it represent seven if the exemption is predicated on respect for
religious scruples, could be divisive in its impact on the school population or community. 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
I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs is freedom from conformity to religious dogma, not freedom from conformity to law because of religious
cannot actively participate in the flag ceremony conducted in the school premises should be excluded dogma."
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 But in the case at bar, the law to which the petitioners are made to conform clashes with their own
Republic, he or she should remain in the classroom while honors to the flag are conducted and manifested in the understanding of their religious obligations. Significantly, as the ponencia notes, their intransigence does not
"quadrangle" or equivalent place within school premises; or if the flag ceremony must be held in a hall, the disturb the peaceful atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the
religious objector must take his or her place at the rear of (or outside) the hall while those who actively flag and recite the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The
participate in the ceremony must take the front places. This arrangement can, in my view, achieve an petitioners simply stand at attention and keep quiet "to show their respect for the right of those who choose to
accommodation and, to a certain extent, harmonization of a citizen's constitutional right to freedom of religion participate in the solemn proceedings." It is for this innocuous conduct that, pursuant to the challenged law and
and a valid exercise of the State's fundamental and legitimate authority to require homage and honor to the flag regulations, the teachers have been dismissed and the students excelled.
as the symbol of the Nation.
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to
# Separate Opinions 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 salute is a symbolic manner of communication that conveys its message as clearly as the written or
CRUZ, J., concurring: 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
I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital
free society.
postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.

27
The democratic system provides for the accommodation of diverse ideas, including the unconventional and even [G.R. No. 119673. July 26, 1996]
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 proscribing the assertion of unorthodox or unpopular views as in this case. IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR
The conscientious objections of the petitioners, no less than the impatience of those who disagree with them, MOTION PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDEZ, respondents.
are protected by the Constitution. The State cannot make the individual speak when the soul within rebels.
DECISION
PADILLA, J., concurring:
PUNO, J.:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals
students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on
affirming the action of the respondent Board of Review for Motion Pictures and Television which x-rated the TV
grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled
Program Ang Iglesia ni Cristo.
from the school.
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled Ang
At the same time, I am really concerned with what could be the Iglesia ni Cristo aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and
far-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or elite class of propagates petitioners religious beliefs, doctrines and practices often times in comparative studies with other
teachers and students who will hereafter be exempt from participating, even when they are in the school religions.
premises, in the flag ceremony in deference to their religious scruples. What happens, for instance, if some
Sometime in the months of September, October and November 1992, petitioner submitted to the
citizens, based also on their religious beliefs, were to refuse to pay taxes and license fees to the government?
respondent Board of Review for Motion Pictures and Television the VTR tapes of its TV program Series Nos. 116,
Perhaps problems of this nature should not be anticipated. They will be resolved when and if they ever arise. But
119, 121 and 128. The Board classified the series as X or not for public viewing on the ground that they offend and
with today's decision, we may have created more problems than we have solved.
constitute an attack against other religions which is expressly prohibited by law.

It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it
the youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed appealed to the Office of the President the classification of its TV Series No. 128.It succeeded in its appeal for on
that the State has the right to adopt reasonable means by which these laudable objectives can be effectively December 18, 1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the
pursued and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest Board allowed Series No. 128 to be publicly telecast.
sentiments of love of country and people.
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
In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select few to be abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited
exempt from the flag ceremony and all that it represent seven if the exemption is predicated on respect for its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under
religious scruples, could be divisive in its impact on the school population or community. P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.

I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs On January 4, 1993, the trial court held a hearing on petitioners prayer for a writ of preliminary
cannot actively participate in the flag ceremony conducted in the school premises should be excluded injunction. The parties orally argued and then marked their documentary evidence.Petitioner submitted the
beforehand from such ceremony. Instead of allowing the religious objector to attend the flag ceremony and following as its exhibits, viz.:
display therein his inability to salute the flag, sing the national anthem and recite the pledge of loyalty to the (1) Exhibit A, respondent Boards Voting Slip for Television showing its September 9, 1992 action on
Republic, he or she should remain in the classroom while honors to the flag are conducted and manifested in the petitioners Series No. 115 as follows:[2]
"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 REMARKS:
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 There are some inconsistencies in the particular program as it is very surprising for this program to show series
and a valid exercise of the State's fundamental and legitimate authority to require homage and honor to the flag of Catholic ceremonies and also some religious sects and using it in their discussion about the bible. There are
as the symbol of the Nation. remarks which are direct criticism which affect other religions.

EN BANC
28
Need more opinions for this particular program. Please subject to more opinions. (6) Exhibits E, E-1, petitioners block time contract with ABS-CBN Broadcasting Corporation dated
September 1, 1992.[7]
(2) Exhibit A-1, respondent Boards Voting Slip for Television showing its September 11, 1992 (7) Exhibit F, petitioners Airtime Contract with Island Broadcasting Corporation.[8]
subsequent action on petitioners Series No. 115 as follows:[3]
(8) Exhibit G, letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr.,
REMARKS: addressed to Henrietta S. Mendez reversing the decision of the respondent Board which x-rated
the showing of petitioners Series No. 129. The letter reads in part:
This program is criticizing different religions, based on their own interpretation of the Bible.
xxx xxx xxx
We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on other The television episode in question is protected by the constitutional guarantee of free speech and expression
faith. under Article III, Section 4 of the 1987 Constitution.

(3) Exhibit B, respondent Boards Voting Slip for Television showing its October 9, 1992 action on We have viewed a tape of the television episode in question, as well as studied the passages found by MTRCB to
petitioners Series No. 119, as follows:[4] be objectionable and we find no indication that the episode poses any clear and present danger sufficient to
limit the said constitutional guarantee.
REMARKS:

(9) Exhibits H, H-1, letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President
The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the
Fidel V. Ramos appealing the action of the respondent Board x-rating petitioners Series No. 128.
Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so.
On its part, respondent Board submitted the following exhibits, viz.:
This is intolerance and robs off all sects of freedom of choice, worship and decision.
(1) Exhibit 1, Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing
the showing of Series No. 128 under parental guidance.
(4) Exhibit C, respondent Boards Voting Slip for Television showing its October 20, 1992 action on
petitioners Series No. 121 as follows:[5] (2) Exhibit 2, which is Exhibit G of petitioner.

REMARKS: (3) Exhibit 3, letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the Catholic xxx
religion.
In the matter of your television show Ang Iglesia ni Cristo Series No. 119, please be informed that the Board was
I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which constrained to deny your show a permit to exhibit. The material involved constitute an attack against another
they clearly present in this episode. religion which is expressly prohibited by law. Please be guided in the submission of future shows.

(5) Exhibit D, respondent Boards Voting Slip for Television showing its November 20, 1992 action on After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on
petitioners Series No. 128 as follows:[6] petitioners bond of P10,000.00.
REMARKS: 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
The episode presented criticizes the religious beliefs of the Catholic and Protestants beliefs. 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
We suggest a second review. Judgment,[10] on December 15, 1993, the dispositive portion of which reads:

xxx

29
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Motion Pictures and WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH
Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of Ang Iglesia ni THE POWER TO CENSOR RELIGIOUS PROGRAMS.
Cristo program.
IV
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing religions in
showing Ang Iglesia ni Cristo program. 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.
SO ORDERED.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review
petitioners TV program Ang Iglesia ni Cristo, and (2) second, assuming it has the power, whether it gravely abused
Petitioner moved for reconsideration[11] praying: (a) for the deletion of the second paragraph of the its discretion when it prohibited the airing of petitioners religious program, series Nos. 115, 119 and 121, for the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to reason that they constitute an attack against other religions and that they are indecent, contrary to law and good
submit for review the tapes of its program. The respondent Board opposed the motion.[12] On March 7, 1993, the customs.
trial court granted petitioners Motion for Reconsideration. It ordered:[13]
The first issue can be resolved by examining the powers of the Board under P.D. No. 1986. Its Section 3
xxx pertinently provides:

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Courts Order dated Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers and duties:
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 xxx xxx xxx
requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program Ang Iglesia ni Cristo.
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
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. [14]
theatrical or non-theatrical distribution for television broadcast or for general viewing, imported or produced in
On March 5, 1995, the respondent Court of Appeals[15] reversed the trial court. It ruled that: (1) the the Philippines and in the latter case, whether they be for local viewing or for export.
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 c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production,
of Ang Iglesia ni Cristo on the ground that the materials constitute an attack against another religion. It also found copying, distribution, sale, lease, exhibition and/or television broadcast of the motion
the series indecent, contrary to law and contrary to good customs. 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
In this petition for review on certiorari under Rule 45, petitioner raises the following issues: being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
I 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:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ANG IGLESIA NI CRISTO
PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION. 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

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly
RELIGIOUS FREEDOM, THE ANG IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE constituted authorities;
ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER.
iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
III

30
v) Those which tend to abet the traffic in and use of prohibited drugs; (2) Freedom to Act on Ones Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all the
dead; 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
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which in protecting the general welfare. The inherent police power can be exercised to prevent religious practices
are sub-judice in nature (emphasis ours). 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.
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 approve, delete x x x and/or prohibit the x x x exhibition and/or television Justice Frankfurter put it succinctly: The constitutional provision on religious freedom terminated disabilities,
broadcast of x x x television programs x x x. The law also directs the Board to apply contemporary Filipino cultural it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity
values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or to religious dogma, not freedom from conformity to law because of religious dogma.
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. 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
Petitioner contends that the term television program should not include religious programs like its program nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A person cannot
Ang Iglesia ni Cristo. A contrary interpretation, it is urged, will contravene Section 5, Article III of the Constitution refuse to pay taxes on the ground that it would be against his religious tenets to recognize any authority except
which guarantees that no law shall be made respecting an establishment of religion, or prohibiting the free exercise that of God alone. An atheist cannot express his disbelief in acts of derision that wound the feelings of the
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or faithful.The police power can be validly asserted against the Indian practice of the suttee born of deep religious
preference, shall forever be allowed. conviction, that calls on the widow to immolate herself at the funeral pile of her husband.
We reject petitioners submission which need not set us adrift in a constitutional voyage towards an We thus reject petitioners postulate that its religious program is per se beyond review by the respondent
uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is
past and present. We have affirmed this preferred status well aware that it is designed to protect the broadest a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to freedom can be regulated by the State when it will bring about the clear and present danger of some substantive
live as he believes he ought to live, consistent with the liberty of others and with the common good. [16] We have evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public
also laboriously defined in our jurisprudence the intersecting umbras and penumbras of the right to religious health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the
profession and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist:[17] 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
Religious Profession and Worship
men were caused by irreconcilable religious differences. 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
The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act to these beliefs. Even now, we have yet to settle the near century old strife in Mindanao, the roots of which have
on ones beliefs. The first is absolute as long as the belief is confined within the realm of thought.The second is been nourished by the mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The
subject to regulation where the belief is translated into external acts that affect the public welfare. 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
(1) Freedom to Believe 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.
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; It is also petitioners submission that the respondent appellate court gravely erred when it affirmed the ruling
acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the
of his soul in fact, cherish any religious conviction as he and he alone sees fit.However absurd his beliefs may be respondent Board disallowed the program series for attacking other religions. Thus, Exhibits A, A-1, (respondent
to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He Boards Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for x x x criticizing different
may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a religions, based on their own interpretation of the Bible. They suggested that the program should only explain
matter of faith. Men may believe what they cannot prove. Every one has a right to his beliefs and he may not be petitioners x x x own faith and beliefs and avoid attacks on other faiths. Exhibit B shows that Series No. 119 was x-
called to account because he cannot prove what he believes. rated because the Iglesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration

31
of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is Third. The respondents cannot also rely on the ground attacks against another religion in x-rating the
intolerance x x x. Exhibit C shows that Series No. 121 was x-rated x x x for reasons of the attacks, they do on, religious program of petitioner. Even a sideglance at Section 3 of PD 1986 will reveal that it is not among the
specifically, the Catholic religion. x x x (T)hey can not tell, dictate any other religion that they are right and the rest grounds to justify an order prohibiting the broadcast of petitioners television program. The ground attack against
are wrong x x x. Exhibit D also shows that Series No. 128 was not favorably recommended because it x x x outrages another religion was merely added by the respondent Board in its Rules. [21] This rule is void for it runs smack against
Catholic and Protestants beliefs. On second review, it was x-rated because of its unbalanced interpretations of the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they
some parts of the Bible.[18] In sum, the respondent Board x-rated petitioners TV program series Nos. 115, 119, 121 seek to enforce.
and 128 because of petitioners 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 It is opined that the respondent board can still utilize attack against any religion as a ground allegedly x x x
and good customs. because Section 3 (c) of PD 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
We reverse the ruling of the appellate court. 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
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including to justify the subsequent punishment of a show which offends any religion. It cannot be utilized to justify prior
religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included attack against any
greeted with furrowed brows.[19] It is the burden of the respondent Board to overthrow this presumption. If it fails religion as a ground for censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree
to discharge this burden, its act of censorship will be struck down. It failed in the case at bar. to disuse it. There can be no other intent. Indeed, even the Executive Department espouses this view. Thus, in an
Second. The evidence shows that the respondent Board x-rated petitioners TV series for attacking other Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali Gonzales
religions, especially the Catholic church. An examination of the evidence, especially Exhibits A, A-1, B, C, and D will explained:
show that the so-called attacks are mere criticisms of some of the deeply held dogmas and tenets of other xxx
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 petitioners freedom However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television
of speech and interferes with its right to free exercise of religion. It misappreciates the essence of freedom to program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986, which is
differ as delineated in the benchmark case of Cantwell v. Connecticut,[20] viz.: 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
xxx xxx xxx 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
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of values as standard. As stated, the intention of the Board to subject the INCs television program to previewing
one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, and censorship is prompted by the fact that its religious program makes mention of beliefs and practices of other
as we know, at times, resorts to exaggeration, to vilification of men who have been, or are prominent in church religion. On the face of the law itself, there can conceivably be no basis for censorship of said program by the
or state or even to false statements. But the people of this nation have ordained in the light of history that Board as much as the alleged reason cited by the Board does not appear to be within the contemplation of the
inspite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened standards of censorship set by law. (Italics supplied)
opinion and right conduct on the part of the citizens of democracy.
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present
The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no danger rule. In American Bible Society v. City of Manila,[22] this Court held: The constitutional guaranty of free
excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious
task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and information. Any restraint of such right can be justified like other restraints on freedom of expression on the
beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment ground that there is a clear and present danger of any substantive evil which the State has the right to prevent.
clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, In Victorianovs. Elizalde Rope Workers Union,[23] we further ruled that x x x it is only where it is unavoidably
the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board necessary to prevent an immediate and grave danger to the security and welfare of the community that
cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger.
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 The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will
speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth. bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including
32
religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress
imminent evil which has taken the life of a reality already on ground. 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.:
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 The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its
Holmes who formulated the test in Schenck v. US,[24] as follows: x x x the question in every case is whether the abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.
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 On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of
designed to determine the latitude which should be given to speech that espouses anti-government executive power, is extremely delicate in nature and can only be justified where the statute is unequivocably
action. Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, applicable to the supposed objectionable publication. In excluding any publication for the mails, the object should
when its umbrella was used to protect speech other than subversive speech.[25] Thus, for instance, the test was be not to interfere with the freedom of the press or with any other fundamental right of the people. This is the
applied to annul a total ban on labor picketing.[26] The use of the test took a downswing in the 1950s when the US more true with reference to articles supposedly libelous than to other particulars of the law, since whether an
Supreme Court decided Dennis v. United States involving communist conspiracy.[27] In Dennis, the components of article is or is not libelous, is fundamentally a legal question. In order for there to be due process of law, the action
the test were altered as the High Court adopted Judge Learned Hands formulation that x x x in each case [courts] of the Director of Posts must be subject to revision by the courts in case he had abused his discretion or exceeded
must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as his authority. (Ex-parte Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post
is necessary to avoid the danger. The imminence requirement of the test was thus diminished and to that extent, Publishing Co. vs. Murray[1916], 23-Fed., 773)
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 As has been said, the performance of the duty of determining whether a publication contains printed
requirement which according to a noted commentator ensured that only speech directed at inciting lawlessness matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment and
could be punished.[29] Presently in the United States, the clear and present danger test is not applied to protect low discretion. Every intendment of the law is in favor of the correctness of his action. The rule is (and we go only to
value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still those cases coming from the United States Supreme Court and pertaining to the United States Postmaster-
applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience General), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that
reaction, out of court contempt and release of information that endangers a fair trial.[30] Hence, even following it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses
the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown[1900], 103 Fed., 909, announcing a somewhat
which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot different doctrine and relied upon by the Attorney-General).
be doubted that religious truths disturb and disturb terribly.
To be sure, legal scholars in the United States are still debating the proposition whether or not courts
It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because alone are competent to decide whether speech is constitutionally protected.[35]The issue involves highly arguable
the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech policy considerations and can be better addressed by our legislators.
is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed
apprehended cannot be established.The contention overlooks the fact that the case at bar involves videotapes
insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioners TV program entitled Ang
that are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of
Iglesia ni Cristo, and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating
the speech, it is not unreasonable to assume that the respondent Board, with its expertise, can determine whether
petitioners TV Program Series Nos. 115, 119, and 121. No costs.
its sulphur will bring about the substantive evil feared by the law.
SO ORDERED.
Finally, it is also opined by Mr. Justice Kapunan that x x x 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 EN BANC
administrative agencies. The same submission is made by Mr. Justice Mendoza.
[A.M. No. P-02-1651. August 4, 2003]
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 ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.
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 DECISION
expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. [33]
PUNO, J.:
33
The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a Declaration of Pledging
authority higher than the state. To be held on balance are the states interest and the respondents religious Faithfulness, viz:
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 DECLARATION OF PLEDGING FAITHFULNESS
is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these
clauses for in the United States, there is probably no more intensely controverted area of constitutional I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital
interpretation than the religion clauses.[1] The U.S. Supreme Court itself has acknowledged that in this relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper
constitutional area, there is considerable internal inconsistency in the opinions of the Court.[2] As stated by a public authorities and that it is because of having been unable to do so that I therefore make this public
professor of law, (i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom declaration pledging faithfulness in this marital relationship.
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 I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and
legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal
largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose recognition of this relationship by the civil authorities and if at any future time a change in circumstances make
in an administrative case involving only one person does not alter the paramount importance of the question for this possible, I promise to legalize this union.
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]
Signed this 28th day of July 1991.[10]
I. Facts
Escritors partner, Quilapio, executed a similar pledge on the same day.[11] Both pledges were executed in
Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still
The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact
necessary therefore to lay down the facts in detail, careful not to omit the essentials. 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
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F.
considered her identification of her signature and the signature of Quilapio sufficient authentication of the
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an investigation of
documents.[12]
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 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed
partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting
as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment,
allowed to remain employed therein as it might appear that the court condones her act.[5] Escritor reiterated her religious congregations approval of her conjugal arrangement with Quilapio, viz:
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no
allegation and challenged Estrada to appear in the open and prove his allegation in the proper forum. [6] Judge truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of
Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital
hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH
said case was still pending in the Office of the Court Administrator (OCA). Escritors motion was denied. The TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
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 Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons to be held
City, he learned from conversations therein that Escritor was living with a man not her husband and that she had to and honored in full accord with the principles of Gods Word.
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 Escritors live-in arrangement did not command respect.[7]
xxx xxx xxx
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 Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH
of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovahs TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in
Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their relation to her case.[13]

34
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course
of Judge Macedas investigation, Escritor again testified that her congregation allows her conjugal arrangement A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings Q: Do you mean to say, Minister, by executing this document the contracting parties have the right
which explain the basis of her congregations belief and practice regarding her conjugal arrangement.Escritor to cohabit?
started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She
met this woman who confirmed to her that she was living with her (Escritors) husband.[14] 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,
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a presiding in that verse of the Bible, Jesus said that everyone divorcing his wife, except on account of
minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained fornication, makes her a subject for adultery, and whoever marries a divorced woman commits
the import of and procedure for executing a Declaration of Pledging Faithfulness, viz: adultery.[15]
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May
regulations in your congregation? 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the
request them to execute a Public Declaration of Pledge of faithfulness. 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
Q: What is that document? that the personal circumstances of the couple had been considered by the Atimonan Congregation when they
executed their declarations.
A: Declaration of Pledge of faithfulness.
Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the
(sic) to execute this document? article, Maintaining Marriage in Honor Before God and Men, [16] in the March 15, 1977 issue of the Watch Tower
A: This must be signed, the document must be signed by the elders of the congregation; the couple, magazine, entitled The Watchtower.
who is a member (sic) of the congregation, baptized member and true member of the The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding
congregation. within the congregation all over the world except in countries where divorce is allowed. The Jehovahs congregation
Q: What standard rules and regulations do you have in relation with this document? 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
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship the couples marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration
(sic) gives the Christian Congregation view that the couple has put themselves on record before finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can
God and man that they are faithful to each other. As if that relation is validated by God. 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
Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, conducted an investigation on her marital status before the declaration was approved and the declaration is valid
who are members of the congregation? everywhere, including the Almanza Congregation. That Escritors and Quilapios declarations were approved are
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness. shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the
congregations branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998
Q: And what does pledge mean to you? 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
A: It means to me that they have contracted, let us say, I am the one who contracted with the
already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in
opposite member of my congregation, opposite sex, and that this document will give us the the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as
right to a marital relationship.
the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to Quilapio and they remain members in good standing in the congregation.[17]
enter a marriage?
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs Witnesses
A: Yes, Sir. 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
35
Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one has
the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so,
and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness
article is distributed to the Jehovahs Witnesses congregations which also distribute them to the public.[18] 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
The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing
resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his
own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the ability.
relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel,
that the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that
she bound herself to seek means to . . . legalize their union. Thus, even assuming arguendo that the declaration is Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to
valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by
internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally the political state. She always gives primary concern to Gods view of the union. Along with this, every effort
upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law should be made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage
for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize honorable among all. Such course will bring Gods blessing and result to the honor and praise of the author of
their live-in relationship can simply join the Jehovahs Witnesses congregation and use their religion as a defense marriage, Jehovah God. (1 Cor. 10:31-33)[20]
against legal liability.[19]
Respondent also brought to the attention of the investigating judge that complainants Memorandum came
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her.
based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine
article entitled, Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz: In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations credible
as they were supported by testimonial and documentary evidence. He also noted that (b)y strict Catholic
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate greatly standards, the live-in relationship of respondent with her mate should fall within the definition of immoral
affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of conduct, to wit: that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion
the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative of the good and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666).
nature of Caesars authority regarding marriage. From country to country, marriage and divorce legislation He pointed out, however, that the more relevant question is whether or not to exact from respondent Escritor, a
presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of member of Jehovahs Witnesses, the strict moral standards of the Catholic faith in determining her administrative
technicalities, the Christian, or the one desiring to become a disciple of Gods Son, can be guided by basic responsibility in the case at bar.[22] The investigating judge acknowledged that religious freedom is a fundamental
Scriptural principles that hold true in all cases. right which is entitled to the highest priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate
Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby recommended the dismissal of the
the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or complaint against Escritor.[23]
whether in itself, it violates the standards of Gods 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 After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court
prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator
declaration on the part of the woman or the man make it so. The only right course is cessation of the Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation
relationship. Similarly with an incestuous relationship with a member of ones immediate family, or a homosexual to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time
relationship or other such situation condemned by Gods Word. It is not the lack of any legal validation that she joined the judiciary as her husband had died a year before, it is due to her relationship with a married man,
makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a voluntarily carried on, that respondent may still be subject to disciplinary action.[24] Considering the ruling of the
person involved in such a situation could not make any kind of Declaration of Faithfulness, since it would have no Court in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to adhere to the exacting standards
merit in Gods eyes. of morality and decency in their professional and private conduct in order to preserve the good name and integrity
of the court of justice, DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of
the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that
If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should she be penalized with suspension of six months and one day without pay with a warning that a repetition of a
do all one can to establish the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce is similar act will be dealt with more severely in accordance with the Civil Service Rules. [26]
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. II. Issue
36
Whether or not respondent should be found guilty of the administrative charge of gross and immoral interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws
conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents right to as divine decrees.[29]
religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which
government employees are held administratively liable. 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
III. Applicable Laws 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
Respondent is charged with committing gross and immoral conduct under Book V, Title I, Chapter VI, Sec. these functions because he was the head and representative of the community.[30]
46(b)(5) of the Revised Administrative Code which provides, viz:
There being no distinction between the religious and the secular, the same authority that promulgated laws
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or regulating relations between man and man promulgated laws concerning mans obligations to the
dismissed except for cause as provided by law and after due process. 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
(b) The following shall be grounds for disciplinary action: penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons
and tailors and prescribed rules for inheritance of property;[31] and also catalogued the gods and assigned them
their places in the divine hierarchy so as to put Hammurabis own god to a position of equality with existing
xxx xxx xxx
gods.[32] In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union
(5) Disgraceful and immoral conduct; xxx. 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
Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and practices and with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God.[34] The Mosaic
moral standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal arrangement with a man creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the
not her legal husband does not constitute disgraceful and immoral conduct for which she should be held Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people
administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section should travel and when to pitch camp, when they should make war and when peace. Saul and David were made
5 of the Constitution, which provides, viz: 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
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these.
forever be allowed. No religious test shall be required for the exercise of civil or political rights.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the
IV. Old World Antecedents of the American Religion Clauses purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-
god to a primary position over the previous reigning gods.[35] Moses, on the other hand, capitalized on the natural
yearnings of the Hebrew slaves for freedom and independence to further Gods purposes. Liberation and Exodus
To understand the life that the religion clauses have taken, it would be well to understand not only its birth were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building
in the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize of the temple and the full worship of God.[36]
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 Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything
American experience.[27] This fresh look at the religion clauses is proper in deciding this case of first impression. 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
In primitive times, all of life may be said to have been religious. Every significant event in the primitive mans pointed out, viz:
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 Historically it was the Hebrew and Christian conception of a single and universal God that introduced a
bring upon him the wrathful vengeance of a superhuman mysterious power.[28] Distinction between the religious religious exclusivism leading to compulsion and persecution in the realm of religion.Ancient religions were
and non-religious would thus have been meaningless to him. He sought protection from all kinds of evil - whether regarded as confined to each separate people believing in them, and the question of change from one
a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of
the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only proselytism, change of belief and liberty of religion arose.[37] (emphasis supplied)

37
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private
to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the heathen sacrifices were forbidden.
whole of government.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the
received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated church had been the victim of persecution and repression, but this time it welcomed the states persecution and
prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God. [38] Under Solomon, the repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their
subordination of religion to state became complete; he used religion as an engine to further the states error than to die unsaved.
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] 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
The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor- Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal
worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it
esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leos crowning
the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should of Charlemagne, became the churchs accepted principle of its relationship to the state in the Middle Ages. As
not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the
gods, as other emperors before him.[40] 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
The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution
prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established,
Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the
outlaws. Their crime was hatred of the human race, placing them in the same category as pirates and brigands and approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
other enemies of mankind who were subject to summary punishments.[41]
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic
In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to
efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a
state over which he had no control. He had two options: either to force it into submission and break its power or democratic state and its citizens, history shows that it is more accurate to say that the same causes that gave rise
enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and
destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to ultimately of the principle of separation of church and state.[46] Pleas for tolerance and freedom of conscience can
sacrifice.[42] But his efforts proved futile. without doubt be found in the writings of leaders of the Reformation.But just as Protestants living in the countries
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and of papists pleaded for toleration of religion, so did the papists that lived where Protestants were
Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing is dominant.[47] Papist and Protestant governments alike accepted the idea of cooperation between church and state
done by them contrary to discipline.[43] A year later, after Galerius died, Constantine and Licius jointly issued the and regarded as essential to national unity the uniformity of at least the outward manifestations of
epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It religion.[48]Certainly, Luther, leader of the Reformation, stated that neither pope, nor bishop, nor any man
provided that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be whatever has the right of making one syllable binding on a Christian man, unless it be done with his own
free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were consent.[49] But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he
abrogated and it was enacted that every person who cherishes the desire to observe the Christian religion shall made an alliance with the secular powers that (h)eretics are not to be disputed with, but to be condemned
freely and unconditionally proceed to observe the same without let or hindrance. Furthermore, it was provided unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in
that the same free and open power to follow their own religion or worship is granted also to others, in accordance the blood of the Catholic bishops, and of the Pope, who is a devil in disguise.[50] To Luther, unity among the peoples
with the tranquillity of our times, in order that every person may have free opportunity to worship the object of in the interests of the state was an important consideration. Other personalities in the Reformation such as
his choice.(emphasis supplied)[44] 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
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the
eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a Inquisition.[51]
means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperors command,

38
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the The centuries immediately before and contemporaneous with the colonization of America had been filled with
Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their
imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish absolute political and religious supremacy. With the power of government supporting them, at various times and
nothing except to make the evil more widespread.[52] The minority or dissident sects also ardently advocated places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had
religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of
of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious
conscience. They regarded religion as outside the realm of political governments.[53] The English Baptists group happened to be on top and in league with the government of a particular time and place, men and women
proclaimed that the magistrate is not to meddle with religion or matters of conscience, nor compel men to this or had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had
that form of religion.[54] been inflicted were such things as speaking disrespectfully of the views of ministers of government-established
churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: and tithes to support them.[61]
the Erastian (after the German doctor Erastus), the theocratic, and the separatist.The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers
belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up
justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious to the time the United States Constitution was adopted, viz:
interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord,
New World, was discernibly in its incipient form in the arguments of some dissident minorities that the by proscribing all differences in religious opinions.[62]
magistrate should not intermeddle in religious affairs.[55] After the Reformation, Erastianism pervaded all Europe
except for Calvins theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its
In sum, this history shows two salient features: First, with minor exceptions, the history of church-state
height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on
relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the
all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than
God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
wool.[56] Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were
unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing
regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put
acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred
to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism
by ambitious princes and emperors in exchange for religions invaluable service. This was the context in which
attained its present doctrinal status.[57] Elizabeth was to be recognized as the only Supreme Governor of this realm
the unique experiment of the principle of religious freedom and separation of church and state saw its birth in
. . . as well in all spiritual or ecclesiastical things or causes as temporal. She and her successors were vested, in their
American constitutional democracy and in human history.[63]
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 V. Factors Contributing to the Adoption
granted full liberty to all Protestant sects, but denied toleration to Catholics. [59] In 1689, William III issued the Act of the American Religion Clauses
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] 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
When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional
their religious and political ideas from England and English books and pamphlets largely provided their cultural
foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy
fare.[64] But although these settlers escaped from Europe to be freed from bondage of laws which compelled them
Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was
to support and attend government favored churches, some of these settlers themselves transplanted into
Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-
American soil the oppressive practices they escaped from. The charters granted by the English Crown to the
supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet
individuals and companies designated to make the laws which would control the destinies of the colonials
adopted as the basis of its church-state relations the principle of the mutual independence of religion and
authorized them to erect religious establishments, which all, whether believers or not, were required to support
government and the concomitant principle that neither might be used as an engine to further the policies of the
or attend.[65] At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode
other, although the principle was in its seminal form in the arguments of some dissident minorities and
Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a
intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the
single religion, eventually extended support to several different faiths.[66]
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: 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
39
English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most freedom was not based on practical considerations but on the concept of mutual independence of religion and
Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it
tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained .
Awakening, and the influence of European rationalism and deism.[67] Each of these factors shall be briefly . . with full libertie in religious concernments.[76] In Williams pamphlet, The Bloudy Tenent of Persecution for cause
discussed. 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
First, the practical factors. Englands policy of opening the gates of the American colonies to different faiths but only one principle. Religious persecution is wrong because it confounds the Civil and Religious and because
resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego States . . . are proved essentially Civil. The power of true discerning the true fear of God is not one of the powers
protecting what was considered to be the true and eternal church of a particular time in order to encourage trade that the people have transferred to Civil Authority.[78] Williams Bloudy Tenet is considered an epochal milestone
and commerce. The colonies were large financial investments which would be profitable only if people would in the history of religious freedom and the separation of church and state.[79]
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 William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration,
its exclusiveness, encouraging them to think less of the Church and more of the State and of commerce. [68] The having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion
diversity brought about by the colonies open gates encouraged religious freedom and non-establishment in in matters of conscience because imposition, restraint and persecution for conscience sake, highly invade the
several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live Divine prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He
together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the
rightness of ones religion, which impels persecution for the sake of ones religion, waned. Finally, because of the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious
great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could groups. Penn was responsible in large part for the Concessions and agreements of the Proprietors, Freeholders,
not survive.[69] 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
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers,
about four percent of the entire population of the country had a church affiliation at the time the republic was the Presbyterians likewise greatly contributed to the evolution of separation and freedom.[81] The Constitutional
founded.[70] This might be attributed to the drifting to the American colonies of the skepticism that characterized fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in
European Enlightenment.[71] Economic considerations might have also been a factor. The individualism of the 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and
American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated Pennsylvania.[82]
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 Undeniably, John Locke and the social contract theory also contributed to the American experiment. The
others for similar independence nor accede to compulsory taxation to support a church to which they did not social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in Americas
belong.[72] 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
However, for those who were affiliated to churches, the colonial policy regarding their worship generally treatment by a new nation that severed its political bonds with the English crown which violated the self-evident
followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters truth that all men are created equal.[83]
the right to hold public services subject to registration of their ministers and places of worship.[73] Although the
toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious The social contract theory was applied by many religious groups in arguing against establishment, putting
freedom, it nevertheless was of some influence to the American experiment.[74] Even then, for practical emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political
considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War body. That Locke and the social contract theory were influential in the development of religious freedom and
of Independence which thus had a unifying effect on the colonies. separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz:

Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve
originating in New England, caused a break with formal church religion and a resistance to coercion by established himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be
churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, supposed to extend any further than the common good, but is obliged to secure every ones property. To give
putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this
God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, ground we affirm that the magistrates power extends not to establishing any articles of faith or forms of
this group became staunch advocates of separation of church and state.[75] 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
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island inward persuasion of the mind, without which nothing can be acceptable to God. [84] (emphasis supplied)
where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious
40
The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and the purpose of Religious Worship he wished to support. On the basis of this list, collections were to be made by
rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The
Caesar that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the realm assessment of any person who failed to enroll in any society was to be divided proportionately among the
of religion was not one of the powers conferred on government as part of the social contract.[85] societies.[94] The bill evoked strong opposition.

Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was
Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,[86] in introduced requiring all persons to pay a moderate tax or contribution annually for the support of the Christian
general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill
the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the was the monumental Memorial and Remonstrance against Religious Assessments written by Madison and widely
relegation of historic theology to the background.[87] For these men of the enlightenment, religion should be distributed before the reconvening of legislature in the fall of 1785.[96] It stressed natural rights, the governments
allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while
entanglements has caused intolerance and corruption as witnessed throughout history. [88] Not only the leaders also citing practical considerations such as loss of population through migration. He wrote, viz:
but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of
Paines Age of Reason.[89] 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
Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is
American experiment of the First Amendment. Virginia was the first state in the history of the world to proclaim the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is
the decree of absolute divorce between church and state.[90] Many factors contributed to this, among which were unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds,
that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a
converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he
had alienated many influential laymen with its identification with the Crowns tyranny, and above all, present in believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the
Virginia was a group of political leaders who were devoted to liberty generally, [91] who had accepted the social claims of civil society. Before any man can be considered as a member of civil society, he must be considered
contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate
were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. 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
The first major step towards separation in Virginia was the adoption of the following provision in the Bill of sovereign.[97] (emphases supplied)
Rights of the states first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures
by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free appended to the Memorial. The assessment bill was speedily defeated.
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) 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:

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal
Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness,
the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet
enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the chose not to propagate it by coercions on either, as was in his Almighty power to do;
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; xxx xxx xxx
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 Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any
while the rest did not, the legislature enacted in 1779 a bill making permanent the establishments loss of its religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his
exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be
assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in
introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which society for no wise diminish, enlarge or affect their civil capacities.[98] (emphases supplied)

41
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or care programs.[110] Stated otherwise and with some exaggeration, (w)hereas two centuries ago, in matters of social
particular establishment in Virginia.[99] But the passage of this law was obtained not only because of the influence life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social
of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government.[111] With
dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an government regulation of individual conduct having become more pervasive, inevitably some of those regulations
underprivileged minority of the population. This made them anxious to pull down the existing state church as they would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent
realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential collisions between purely secular government actions and religion clause values.[112]
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, Parallel to this expansion of government has been the expansion of religious organizations in population,
on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches
subjective, spiritual and supernatural, having no relation with the social order.[102] To them, the Holy Ghost was run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses,
sufficient to maintain and direct the Church without governmental assistance and state-supported religion was halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these
contrary ti the spirit of the Gospel.[103] Thus, separation was necessary.[104] Jeffersons religious freedom statute activities, religious organizations complement and compete with commercial enterprises, thus blurring the line
was a milestone in the history of religious freedom. The United States Supreme Court has not just once between many types of activities undertaken by religious groups and secular activities. Churches have also
acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in
intended to afford the same protection against government interference with religious liberty as the Virginia pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality
Statute of Religious Liberty. 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
Even in the absence of the religion clauses, the principle that government had no power to legislate in the environment in which religious organizations and activities exist and the laws affecting them are made. It is no
area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could longer easy for individuals to live solely among their own kind or to shelter their children from exposure to
be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the competing values. The result is disagreement over what laws should require, permit or prohibit;[113] and agreement
assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.[105] However, that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid,
omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.[114]
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 Religion cases arise from different circumstances. The more obvious ones arise from a government action
restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly
to this day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit
Clause, viz: 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,
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. 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
VI. Religion Clauses in the United States: practices and would consider them, when practical, in enacting laws of general application. But when the
Concept, Jurisprudence, Standards 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 widespread agreement regarding the value of the First Amendment religion clauses comes an
With the change in political and social context and the increasing inadvertent collisions between law and
equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has
religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified
been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot
records in Congress renders it difficult to ascertain its meaning.[108] Consequently, the jurisprudence in this area
agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal
is volatile and fraught with inconsistencies whether within a Court decision or across decisions.
purposes.[119] It was in the 1890 case of Davis v. Beason[120] that the United States Supreme Court first had
One source of difficulty is the difference in the context in which the First Amendment was adopted and in occasion to define religion, viz:
which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities,
The term religion has reference to ones views of his relations to his Creator, and to the obligations they
education, health care, poor relief, and other aspects of social life with significant moral dimension - while
impose of reverence for his being and character, and of obedience to his will. It is often confounded with
government played a supportive and indirect role by maintaining conditions in which these activities may be
the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to
carried out by religious or religiously-motivated associations. Today, government plays this primary role and
the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or
religion plays the supportive role.[109] Government runs even family planning, sex education, adoption and foster
42
forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States sides of the same coin.[130] In devoting two clauses to religion, the Founders were stating not two opposing
to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in
by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, different circumstances.[131] The purpose of the religion clauses - both in the restriction it imposes on the power
not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or of the government to interfere with the free exercise of religion and the limitation on the power of government
the modes of worship of any sect.[121] 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
The definition was clearly theistic which was reflective of the popular attitudes in 1890. 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
In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces the right the Establishment Clause specifically addresses a form of interference with religious liberty with which the
to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox Framers were most familiar and for which government historically had demonstrated a propensity.[135] In other
faiths.[123] By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of
as Buddhism and Taoism.[124]In 1961, the Court, in Torcaso v. Watkins,[125] expanded the term religion to non- those who might dissent from whatever religion is established.[136] It has even been suggested that the sense of
theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced the First Amendment is captured if it were to read as Congress shall make no law respecting an establishment of
a definitional problem in United States v. Seeger[126] which involved four men who claimed conscientious objector religion or otherwise prohibiting the free exercise thereof because the fundamental and single purpose of the two
status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion religious clauses is to avoid any infringement on the free exercise of religions[137] Thus, the Establishment Clause
opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that you could call mandates separation of church and state to protect each from the other, in service of the larger goal of preserving
(it) a belief in a Supreme Being or God. These just do not happen to be the words that I use. Forest Peter, another religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the
one of the four claimed that after considerable meditation and reflection on values derived from the Western state apparatus to the disadvantage of those of other faiths, or of no faith at all[138] because history has shown
religious and philosophical tradition, he determined that it would be a violation of his moral code to take human that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and
life and that he considered this belief superior to any obligation to the state. The Court avoided a constitutional disobedience from those who hold different beliefs than an enlightened secular state.[139] In the words of the U.S.
question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Supreme Court, the two clauses are interrelated, viz: (t)he structure of our government has, for the preservation
Universal Military Training and Service Act of 1940 which exempt from combat anyone who, by reason of religious of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured
training and belief, is conscientiously opposed to participation in war in any form. Speaking for the Court, Justice religious liberty from the invasion of the civil authority.[140]
Clark ruled, viz:
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure
Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief
meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, Justice Burger explains, viz:
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 The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well
in God. (emphasis supplied) 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)
The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such
religious belief and training. 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
Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion
beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the
qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases.
occupies a central place in the believers life.Second, the religion must involve a moral code transcending individual
belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must A. Free Exercise Clause
not inquire into the truth or reasonableness of the belief.[127] Fourth, there must be some associational
ties,[128] although there is also a view that religious beliefs held by a single person rather than being part of the
teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.[129] 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
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled that the failure to practice polygamy by male members of his religion when circumstances would permit would be
the issue of definition, the court then has to draw lines to determine what is or is not permissible under the punished with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352,
religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds
43
conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld
belief but not to action. It cited Jeffersons Bill Establishing Religious Freedom which, according to the Court, other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such
declares the true distinction between what properly belongs to the Church and what to the State. [144] The bill, as the Davis case and Church of Latter Day Saints v. United States.[149] However, more than a century
making a distinction between belief and action, states in relevant part, viz: 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
That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute
or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys prohibition of governmental proscription of beliefs.[150]
all religious liberty;
The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs[151] and
that it is time enough for the rightful purposes of civil government for its officers to interfere when principles proscribes government from questioning a persons beliefs or imposing penalties or disabilities based solely on
break out into overt acts against peace and good order.[145] (emphasis supplied) 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
The Court then held, viz:
prohibits inquiry into the truth of a persons religious beliefs. As held in United States v. Ballard,[153] (h)eresy trials
Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of
were in violation of social duties or subversive of good order. . . their religious doctrines or beliefs.

Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the Court
opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior
worship, would it be seriously contended that the civil government under which he lived could not interfere to approval of a state agency. The law was challenged by Cantwell, a member of the Jehovahs Witnesses which is
prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held
dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:
practice?
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
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided
know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and
that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious
even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the
belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the
probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and
land, and in effect to permit every citizen to become a law unto himself.Government could exist only in name
right conduct on the part of citizens of a democracy.[155]
under such circumstances.[146]

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed
The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating
protection of belief but also freedom to act for the propagation of that belief, viz:
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 Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but,
particular religious belief unaccompanied by any conduct would most certainly be motivated only by the in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of
legislatures preference of a competing religious belief. Thus, all cases of regulation of belief would amount to society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end,
regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state unduly to infringe the protected freedom. (emphasis supplied)[156]
regulations of conduct are for public welfare purposes and have nothing to do with the legislatures religious
preferences. Any burden on religion that results from state regulation of conduct arises only when particular
The Court stated, however, that government had the power to regulate the times, places, and manner of
individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These
solicitation on the streets and assure the peace and safety of the community.
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 Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police could not prohibit
Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other
unless the legislature formally outlawed the belief itself.[148] citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the
Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the

44
city park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional
Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was value - to the common everyday economic and public welfare objectives of the majority in the legislature. This
considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with
time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny
example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic would only grow to a full flower in the 1960s.[167]
as held in the case of Heffron v. International Society for Krishna Consciousness.[159]
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free
The least protected under the Free Exercise Clause is religious conduct, usually in the form of exercise jurisprudence.[168] A two-part balancing test was established in Braunfeld v. Brown[169] where the Court
unconventional religious practices. Protection in this realm depends on the character of the action and the considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to
government rationale for regulating the action.[160] The Mormons religious conduct of polygamy is an example of observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren,
unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that
the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise
held, viz: (c)rime is not the less odious because sanctioned by what any particular sect may designate as Clause only if there were alternative ways of achieving the states interest. He employed a two-part balancing
religion.[161] test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious
exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously goal by the means which imposed the least burden on religious practices.[170] The Court found that the state had
dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no
how insignificant was the governments non-religious regulatory interest so long as the government is proscribing alternative means of pursuing this interest but to require Sunday as a uniform rest day.
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 Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v.
for religious reasons which was plainly unconstitutional and governments inadvertent interference with religion Verner.[171] This test was similar to the two-part balancing test in Braunfeld,[172] but this latter test stressed that
in pursuing some secular objective.[162] In the 1940 case of Minersville School District v. Gobitis,[163] the Court the state interest was not merely any colorable state interest, but must be paramount and compelling to
upheld a local school board requirement that all public school students participate in a daily flag salute program, override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
including the Jehovahs Witnesses who were forced to salute the American flag in violation of their religious compensation under the law as her employment was terminated for refusal to work on Saturdays on religious
training, which considered flag salute to be worship of a graven image. The Court recognized that the general grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for
requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses practice of their religion, determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:
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 Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by
government interference with religion, it continued to hold that the Free Exercise Clause presented no problem religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina
to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial Supreme Court is to withstand appellants constitutional challenge, it must be either because her disqualification
the states non-religious objectives, and no matter how many alternative approaches were available to the state as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or
to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular because any incidental burden on the free exercise of appellants religion may be justified by a compelling
objective. state interest in the regulation of a subject within the States constitutional power to regulate. . . NAACP v.
Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied)
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 The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational
form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled relationship of the substantial infringement to the religious right and a colorable state interest. (I)n this highly
that compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students who sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for
were members of the Jehovahs Witnesses from saluting the flag. A close scrutiny of the case, however, would permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.[174] The Court found that
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 there was no such compelling state interest to override Sherberts religious liberty. It added that even if the state
turn on ones possession of particular religious views or the sincerity with which they are held. While religion could show that Sherberts exemption would pose serious detrimental effects to the unemployment compensation
supplies appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
share these religious views hold such a compulsory rite to infringe constitutional liberty of the would address such detrimental effects without infringing religious liberty. The state, however, did not discharge
individual. (emphasis supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused
assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of
interests which the state may lawfully protect.[166] The Court seemed to recognize the extent to which its Sherberts benefits would force her to choose between receiving benefits and following her religion. This choice
45
placed the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her there was general acknowledgement of the need for universal education, the Religion Clauses had specially and
Saturday worship. This germinal case of Sherbert firmly established the exemption doctrine, [175] viz: 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
It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws provisions relating to religion have been zealously protected, sometimes even at the expense of other interests
conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest of admittedly high social importance. . .
intervenes.
The essence of all that has been said and written on the subject is that only those interests of the highest order
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .
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, . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection
the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.[176] 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
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously
in Sherbert continued to be applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment Appeals grounded conduct must often be subject to the broad police power of the State is not to deny that there are
Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of
justification, a state could not withhold unemployment compensation from an employee who resigned or was the State to control, even under regulations of general applicability. . . .This case, therefore, does not become
discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job easier because respondents were convicted for their actions in refusing to send their children to the public high
requirements.But not every governmental refusal to allow an exemption from a regulation which burdens a school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . [183]
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 The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise
governments refusal to exempt Amish employers who requested for exemption from paying social security taxes Clause. In Employment Division, Oregon Department of Human Resources v. Smith,[184] the sharply
on wages on the ground of religious beliefs. The Court held that (b)ecause the broad public interest in maintaining divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification
a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for approach and imposed serious limits on the scope of protection of religious freedom afforded by the First
resisting the tax.[180] It reasoned that unlike in Sherbert, an exemption would significantly impair governments Amendment. In this case, the well-established practice of the Native American Church, a sect outside the Judeo-
achievement of its objective - the fiscal vitality of the social security system; mandatory participation is Christian mainstream of American religion, came in conflict with the states interest in prohibiting the use of illicit
indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify drugs. Oregons controlled substances statute made the possession of peyote a criminal offense. Two members of
not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in
require him to reduce or eliminate his payments so that he will not contribute to the governments war-related Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a
activities, for example. 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 strict scrutiny and compelling state interest test significantly increased the degree of protection
the Oregon Employment Appeals Board denied their application as they were discharged for job-related
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
misconduct. Justice Scalia, writing for the majority, ruled that if prohibiting the exercise of religion . . . is . . .
compelling secular justification was necessary to uphold public policies that collided with religious
merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not
practices. Although the members of the Court often disagreed over which governmental interests should be
been offended. In other words, the Free Exercise Clause would be offended only if a particular religious practice
considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general
were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated
test established a strong presumption in favor of the free exercise of religion.[181]
Oregons drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the Court upheld the opinion held, viz:
religious practice of the Old Order Amish faith over the states compulsory high school attendance law. The Amish
We have never invalidated any governmental action on the basis of the Sherbert test except the denial of
parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger,
unemployment compensation.
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 Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we
such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State would not apply it to require exemptions from a generally applicable criminal law. . .
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
46
We conclude today that the sounder approach, and the approach in accord with the vast majority of our Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but
precedents, is to hold the test inapplicable to such challenges. The governments ability to enforce generally as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack
applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, legislative clout,[187] contrary to the original theory of the First Amendment.[188] Undeniably, claims for judicial
cannot depend on measuring the effects of a governmental action on a religious objectors spiritual exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually
development. . . .To make an individuals obligation to obey such a law contingent upon the laws coincidence wiped out their judicial recourse for exemption.[189] Thus, the Smith decision elicited much negative public reaction
with his religious beliefs except where the States interest is compelling - permitting him, by virtue of his especially from the religious community, and commentaries insisted that the Court was allowing the Free Exercise
beliefs, to become a law unto himself, . . . - contradicts both constitutional tradition and common sense. 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
Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling burdening a persons free exercise of religion, even if such burden resulted from a generally applicable rule, unless
governmental interest test was the most controversial part of the decision.Although she concurred in the result the government could demonstrate a compelling state interest and the rule constituted the least restrictive means
that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic of furthering that interest.[191] RFRA, in effect, sought to overturn the substance of the Smith ruling and restore
departure from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared
fundamental commitment to religious liberty. This portion of her concurring opinion was supported by Justices the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital principles
Brennan, Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he necessary to maintain separation of powers and the federal balance. It emphasized the primacy of its role as
compelling state interest test effectuates the First Amendments command that religious liberty is an interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional
independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments challenge of final judicial authority on a question of constitutional interpretation.
upon this liberty, whether direct or indirect, unless required by clear and compelling government interest of the After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah[193] which was ruled consistent
highest order. Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West
Marshall. He charged the majority with mischaracterizing precedents and overturning. . . settled law concerning African religions brought to the Carribean by East African slaves. An ordinance made it a crime to unnecessarily
the Religion Clauses of our Constitution. He pointed out that the Native American Church restricted and supervised kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of
the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the food consumption. The ordinance came as a response to the local concern over the sacrificial practices of the
sacramental drug use.He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a
Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that Oregons interest in generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade
enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents animal slaughter only insofar as it took place within the context of religious rituals.
right to the free exercise of their religion.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard in Smith virtually protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-
eliminated the requirement that the government justify with a compelling state interest the burdens on religious religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its
exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects violates a law, could be accorded protection as shown in Wisconsin.[194]
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 B. Establishment Clause
deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is
no less an interference with the minoritys religious freedom. If the regulation had instead restricted the majoritys The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of
religious practice, the majoritarian legislative process would in all probability have modified or rejected the Education.[195] Prior cases had made passing reference to the Establishment Clause[196] and raised establishment
regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys questions but were decided on other grounds.[197] It was in the Everson case that the U.S. Supreme Court adopted
religious interests implements the majoritys religious viewpoint at the expense of the minoritys. Second, Jeffersons metaphor of a wall of separation between church and state as encapsulating the meaning of the
government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering Establishment Clause. The often and loosely used phrase separation of church and state does not appear in the
the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist Association in narrating the history of
almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should the religion clauses, viz:
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 Believing with you that religion is a matter which lies solely between man and his God; that he owes account to
approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.[186] 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

47
their Legislature should make no law respecting an establishment of religion or prohibiting the free exercise supplied)[205] Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were
thereof, thus building a wall of separation between Church and State.[199] (emphasis supplied) unconstitutional as fostering excessive entanglement between government and religion.

The most controversial of the education cases involving the Establishment Clause are the school prayer
Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader of decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer
the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect decisions of the early 1960s.[206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a New York Board of
of the amendment thus secured.[200] Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools
The interpretation of the Establishment Clause has in large part been in cases involving education, notably at the start of each school day. The majority opinion written by Justice Black stated that in this country it is no part
state aid to private religious schools and prayer in public schools.[201] In Everson v. Board of Education, for of the business of government to compose official prayers for any group of the American people to recite as part
example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred of a religious program carried on by government. In fact, history shows that this very practice of establishing
in transporting their children to and from Catholic schools. The reimbursement was part of a general program governmentally composed prayers for religious services was one of the reasons that caused many of the early
under which all parents of children in public schools and nonprofit private schools, regardless of religion, were colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most
entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends
the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the states to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington
legitimate interest in getting children regardless of their religion, safely and expeditiously to and from accredited School District v. Schempp[208] and Murray v. Curlett[209] where the Court struck down the practice of Bible reading
schools. The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment and the recitation of the Lords prayer in the Pennsylvania and Maryland schools. The Court held that to withstand
Clause, viz: 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 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 The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of
religion over another. Neither can force nor influence a person to go to or remain away from church against his history that powerful sects or groups might bring about a fusion of governmental and religious functions or a
will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or concert or dependency of one upon the other to the end that official support of the State of Federal Government
professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a
or small, can be levied to support any religious activities or institutions, whatever they may be called, or further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training,
whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, teaching and observance and, more particularly, the right of every person to freely choose his own course with
openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words reference thereto, free of any compulsion from the state.[210]
of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation
between Church and State.[202] 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,
The Court then ended the opinion, viz: 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
The First Amendment has erected a wall between church and state. That wall must be kept high and Court struck down an Alabama law that required public school students to observe a moment of silence for the
impregnable. We could not approve the slightest breach. New Jersey has not breached it here.[203] 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
By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that
Clause. Optional religious instruction within public school premises and instructional time were declared offensive
evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in determining the
of the Establishment Clause in the 1948 case of McCollum v. Board of Education,[213] decided just a year after the
constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory
seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths
program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and instructional
obtained permission from the Board of Education to offer classes in religious instruction to public school students
materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial
in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting
schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
that their children be permitted to attend. The classes were taught in three separate groups by Protestant
Establishment Clause. First, the statute must have a secular legislative purpose; second, its primary or principal
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class
effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20
hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the
L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an excessive entanglement with
school authorities but they were subject to the approval and supervision of the superintendent of schools.Students
religion. (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis
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
48
religious instruction were required to attend the religious classes. The Court held that the use of tax-supported opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a
property for religious instruction and the close cooperation between the school authorities and the religious neutral harbinger of the holiday season for many, rather than a symbol of Christianity.
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 The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and
only prohibited government preference of one religion over another and not an impartial governmental assistance charitable institutions have been exempt from local property taxes and their income exempt from federal and
of all religions. In Zorach v. Clauson,[214] however, the Court upheld released time programs allowing students in state income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax Commissions grant of
public schools to leave campus upon parental permission to attend religious services while other students property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this
attended study hall. Justice Douglas, the writer of the opinion, stressed that (t)he First Amendment does not required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz:
require that in every and all respects there shall be a separation of Church and State. The Court It has not singled out one particular church or religious group or even churches as such; rather, it has granted
distinguished Zorach from McCollum, viz: exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public
In the McCollum case the classrooms were used for religious instruction and the force of the public school was corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing
used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present influences in community life and finds this classification useful, desirable, and in the public interest. [223]
released time program unless separation of Church and State means that public institutions can make no
adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill The Court added that the exemption was not establishing religion but sparing the exercise of religion from the
of Rights such a philosophy of hostility to religion.[215] 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
In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs exemption and the Courts traditional deference to legislative bodies with respect to the taxing power, viz:
and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary
in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain businesses from operating on Sunday colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and
despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing religious exercise generally so long as none was favored over others and none suffered
laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, interference.[225] (emphasis supplied)
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 C. Strict Neutrality v. Benevolent Neutrality
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] 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
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of beginning legislative upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell
sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The majority opinion did poignantly recognizes this, viz:
not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily
religious beliefs, viz: prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine unconstitutional for a state to require employers to accommodate their employees work schedules to their
guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally
religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among mandatory for a state to require employers to pay workers compensation when the resulting inconsistency
the people of this country. As Justice Douglas observed, (w)e are a religious people whose institutions between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis supplied) constitutional for the government to give money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or
history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide
Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were to
religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps
attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S.
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of
Congress.[220] That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v.
Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229,
Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
252-55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub. Educ. and Religious

49
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century,
Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226] 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
But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to connection with divine law, and instead adhering to a secular belief in a universal harmony.[235] Thus, according to
extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the states
regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of hostility towards religion allows no interaction between the two.[236] In fact, when Jefferson became President, he
jurisprudence has demonstrated two main standards used by the Court in deciding religion clause refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution
cases: separation (in the form of strict separation or the tamer version of strict neutrality or prohibited the government from intermeddling with religion.[237] This approach erects an absolute barrier to
separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or
of sheer volume, appears to lie with the separationists, strict or tame.[227] But the accommodationists have also indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed
attracted a number of influential scholars and jurists.[228] The two standards producing two streams of on believers.[238] Only the complete separation of religion from politics would eliminate the formal influence of
jurisprudence branch out respectively from the history of the First Amendment in England and the American religious institutions and provide for a free choice among political views thus a strict wall of separation is
colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary
and from American societal life which reveres religion and practices age-old religious traditions. Stated practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for
otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid reading of the huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of
principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible claiming a constitutional principle that has never existed and is never likely to.[240]
reading of the principle.[229] The latter also appeals to history in support of its position, viz: A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by
The opposing school of thought argues that the First Congress intended to allow government support of the Court, showing the Courts tendency to press relentlessly towards a more secular society. [241] It finds basis in
religion, at least as long as that support did not discriminate in favor of one particular religion. . . the Supreme the Everson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the
Court has overlooked many important pieces of history. Madison, for example, was on the congressional First Amendment but at the same time held that the First Amendment requires the state to be neutral in its
committee that appointed a chaplain, he declared several national days of prayer and fasting during his relations with groups of religious believers and non-believers; it does not require the state to be their
presidency, and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover, while president, adversary.State power is no more to be used so as to handicap religions than it is to favor them. (emphasis
Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, supplied)[242] While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may
there is no support in the Congressional records that either the First Congress, which framed the First not be used as a basis for classification for purposes of governmental action, whether the action confers rights or
Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does
complete independence between religion and government. In fact, the evidence in the public documents goes not permit, much less require, accommodation of secular programs to religious belief. [243] Professor Kurland
the other way.[230] (emphasis supplied) wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the
To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room freedom and separation clauses should be read as a single precept that government cannot utilize religion as a
for accommodation, less than twenty-four hours after Congress adopted the First Amendments prohibition on standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a
laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many benefit or to impose a burden.[244]
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 The Court has repeatedly declared that religious freedom means government neutrality in religious matters and
move was a mimicking of European customs, where they made a mere mockery of thanksgivings, the other on the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for
establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was secular purposes and in ways that have primarily secular effects.[245]
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 Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form
words. Contrary to the claim of separationists that rationalism pervaded America in the late 19 thcentury and that of prayer, spoken or silent, in the public schools as in Engel and Schempp.[246] The McCollum case prohibiting
America was less specifically Christian during those years than at any other time before or optional religious instruction within public school premises during regular class hours also demonstrates strict
since,[232] accommodationaists claim that American citizens at the time of the Constitutions origins were a neutrality. In these education cases, the Court refused to uphold the government action as they were based not
remarkably religious people in particularly Christian terms.[233] 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
The two streams of jurisprudence - separationist or accommodationist - are anchored on a different religious exercise, the First Amendment has not been offended.However, if the strict neutrality standard is applied
reading of the wall of separation. The strict separtionist view holds that Jefferson meant the wall of separation in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As
50
pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to a brooding those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent
and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is prohibited by neutrality which will permit religious exercise to exist without sponsorship and without
the Constitution.[247] Professor Laurence Tribe commented in his authoritative treatise, viz: interference.[259] (emphasis supplied)

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 The Zorach case expressed the doctrine of accommodation,[260] viz:
special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy The First Amendment, however, does not say that in every and all respects there shall be a separation of
or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no
Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.[248] 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
The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection
separation captures the spirit of the American ideal of church-state separation, in real life church and state are not to religious groups. Policemen who helped parishioners into their places of worship would violate the
and cannot be totally separate.[249] This is all the more true in contemporary times when both the government and Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive;
religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and all
government and religion at many points.[250] 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
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent opens each session: God save the United States and this Honorable Court.
neutrality which gives room for accommodation is buttressed by a different view of the wall of separation
associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the xxx xxx xxx
Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
church from the state,[251] i.e., the garden of the church must be walled in for its own protection from the worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
wilderness of the world[252] with its potential for corrupting those values so necessary to religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects
commitment.[253] Howe called this the theological or evangelical rationale for church-state separation while the the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it
wall espoused by enlightened statesmen such as Jefferson and Madison, was a political rationale seeking to protect may not would be to find in the Constitution a requirement that the government show a callous indifference
politics from intrusions by the church.[254] But it has been asserted that this contrast between the Williams and to religious groups. . . But we find no constitutional requirement which makes it necessary for government to
Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a be hostile to religion and to throw its weight against efforts to widen their effective scope of religious
conflict between religious and secular (political); the religious style was biblical and evangelical in character while influence.[261] (emphases supplied)
the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.[255]

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the
wall is to safeguard religious liberty. Williams view would therefore allow for interaction between church and state, survival of society itself, thus there is no human society without one or more ways of performing the essential
but is strict with regard to state action which would threaten the integrity of religious commitment. [256] His function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or
conception of separation is not total such that it provides basis for certain interactions between church and state even dispensable, for society it is not, which is why there is no human society without one or more ways of
dictated by apparent necessity or practicality.[257] This theological view of separation is found in Williams performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground
writings, viz: religion(s) and surrogate religion(s) in their ideology.[262] As one sociologist wrote:

. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the It is widely held by students of society that there are certain functional prerequisites without which society
wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an
garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the
again, it must of necessity be walled in peculiarly unto Himself from the world. . .[258] functional prerequisites.[263]

Chief Justice Burger spoke of benevolent neutrality in Walz, viz: Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which
modern social scientists would classify as a religionReligion is as much a human universal as language.[264]
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

51
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United government action that promotes the (political) majoritys favored brand of religion and government action that
States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause impedes religious practices not favored by the majority. The substantive endin view is the preservation of the
questions. Among these are the inscription of In God We Trust on American currency, the recognition of America autonomy of religious life and not just the formal process value of ensuring that government does not act on the
as one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-honored practice basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government
of opening oral argument with the invocation God save the United States and this honorable Court, and the to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus,
practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part
denomination to lead representatives in prayer.[265] These practices clearly show the preference for one in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak,
theological viewpoint -the existence of and potential for intervention by a god - over the contrary theological since the religion clauses single out religion by name for special protection. Second, the accommodationist
viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is
other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the grace
activities with strong moral dimension.[266] The persistence of these de facto establishments are in large part of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of
explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams wall, has peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory
demanded respect for these de facto establishments.[267] But the separationists have a different explanation. To legislation. The accomplishment of the purpose of the First Amendment requires more than the religion blindness
characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become
Court, the many dissenting and concurring opinions explain some of these practices as de minimis instances of frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities,
government endorsement or as historic governmental practices that have largely lost their religious significance thus the government must make special provisions to preserve a degree of independence for religious entities for
or at least have proven not to lead the government into further involvement with religion.[268] 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
With religion looked upon with benevolence and not hostility, benevolent interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of
neutrality allows accommodation of religion under certain circumstances. Accommodations are government majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic
policies that take religion specifically into account not to promote the governments favored form of religion, but republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into
to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is conflict with the religious scruples of those holding different world views, even in the absence of a deliberate
to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan explained, intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some
the government [may] take religion into accountto exempt, when possible, from generally applicable laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to
governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, religious conscience is so great and the advancement of public purposes so small or incomparable that only
or to create without state involvement an atmosphere in which voluntary religious exercise may indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and
flourish.[269] (emphasis supplied) Accommodation is forbearance and not alliance. it does not executive officials are frequently willing to make such exemptions when the need is brought to their attention, but
reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in this may not always be the case when the religious practice is either unknown at the time of enactment or is for
which the minority finds itself.[270] some reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents
Accommodation is distinguished from strict neutrality in that the latter holds that government should needless injury to the religious consciences of those who can have an influence in the legislature; while a
base public policy solely on secular considerations, without regard to the religious consequences of its constitutional interpretation that requires accommodations extends this treatment to religious faiths that are
actions. The debate between accommodation and strict neutrality is at base a question of means: Is the freedom less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a
of religion best achieved when the government is conscious of the effects of its action on the various religious commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws
policy of religious blindness - keeping government aloof from religious practices and issues? An accommodationist against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring
holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such
believes that it is good public policy, and also constitutionally required, for the government to avoid religion- laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public
specific policy even at the cost of inhibiting religious exercise.[271] 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
There are strong and compelling reasons, however, to take the accommodationist position rather than the whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.[272]
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 Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally
government may not establish religion and neither may government prohibit it. Taken together, the religion compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and
clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause. [273] Some

52
Justices of the Supreme Court have also used the term accommodation to describe government actions that If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the
acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of
public property or the delivery of a prayer at public ceremonial events.[274] Stated otherwise, using benevolent some important (or compelling) secular objective and that it is the least restrictive means of achieving that
neutrality as a standard could result to three situations of accommodation:those objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption
where accommodation is required, those where it is permissible, and those where it is prohibited. In the first from the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they need
situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religious
religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs, however
exemptions are intentional government advancement, these exemptions merely relieve the prohibition on the sincere and conscientious, do not suffice.[284]
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 In other words, a three-step process (also referred to as the two-step balancing process supra when the second
compelling state interest.[275] By allowing such exemptions, the Free Exercise Clause does not give believers the and third steps are combined) as in Sherbert is followed in weighing the states interest and religious freedom
right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual when these collide. Three questions are answered in this process. First, (h)as the statute or government action
rather than temporal authority[276] for those who seriously invoke the Free Exercise Clause claim to be fulfilling a created a burden on the free exercise of religion? The courts often look into the sincerity of the religious belief,
solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its
from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim
a yet more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to
bears witness to that which transcends the political order, such denials should be rare and painfully reluctant. [277] enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of
The Yoder case is an example where the Court held that the state must accommodate the religious beliefs Columbia,[285] the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a
of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the
another example where the Court held that the state unemployment compensation plan must accommodate the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject
religious convictions of Sherbert.[278]In these cases of burdensome effect, the modern approach of the Court has all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his
been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate religious community, but for the most part, the injustice is done only in the particular case. [286] Aside from the
that the regulation which burdens the religious exercise pursues a particularly important or compelling sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in
government goal through the least restrictive means. If the states objective could be served as well or almost as terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that
well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption the Amish peoples convictions against becoming involved in public high schools were central to their way of life
must be given.[279] This approach of the Court on burdensome effect was only applied since the 1960s. Prior to this and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a cardinal
time, the Court took the separationist view that as long as the state was acting in pursuit of non-religious ends and principle.[287] Professor Lupu puts to task the person claiming exemption, viz:
regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as On the claimants side, the meaning and significance of the relevant religious practice must be
in Reynolds.[280] In the second situation where accommodation is permissible, the state may, but is not required demonstrated. Religious command should outweigh custom, individual conscience should count for more than
to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the personal convenience, and theological principle should be of greater significance than institutional
constitutionality of tax exemption given by New York to church properties, but did not rule that the state was ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the
required to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to individuals religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive
religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.[281] The and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as
Court held that New York could have an interest in encouraging religious values and avoiding threats to those constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist
values through the burden of property taxes. Other examples are the Zorach case allowing released time in public creed.[288]
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
Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of
there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise
religious liberty? In this step, the government has to establish that its purposes are legitimate for the state and
exemptions are valid.[282] An example where accommodation was prohibited is McCollum where the Court ruled
that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it
against optional religious instruction in the public school premises. [283] In effect, the last situation would arrive at
must precisely show how and to what extent those objectives will be undermined if exemptions are
a strict neutrality conclusion.
granted.[289] The person claiming religious freedom, on the other hand, will endeavor to show that the interest is
In the first situation where accommodation is required, the approach follows this basic framework: 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
53
which is more compelling under the particular set of facts. The greater the states interests, the more central the That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and
religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine that the free exercise and enjoyment of religious profession and worship without discrimination or preference
the importance of the secular interest and the extent to which that interest will be impaired by an exemption for shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the
the religious practice. Should the court find the interest truly compelling, there will be no requirement that the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered
state diminish the effectiveness of its regulation by granting the exemption.[290] with or molested in following his calling.[299]

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 This provision was based on the First Amendment of the United States Constitution. Likewise,
state?[291] The analysis requires the state to show that the means in which it is achieving its legitimate state the Instructions declared that (t)he separation between State and Church shall be real, entire and absolute. [300]
objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the
little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:
the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of
insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that
should give careful attention to context, both religious and regulatory, to achieve refined judgment. [292] free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed.

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the complete separation of church
and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled,
and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any
mirroring the evolving views of a dynamic society.[293]
particular religious sect.[302]
VII. Religion Clauses in the Philippines
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public
A. History money or property for religious purposes, viz:
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and
a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil that the free exercise and enjoyment of religious profession and worship without discrimination or preference,
authorities exercised religious functions and the friars exercised civil powers.[294] Catholics alone enjoyed the right shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No
of engaging in public ceremonies of worship.[295] Although the Spanish Constitution itself was not extended to the public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use,
Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use,
fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such.
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 This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed
advent of this regime, the unique American experiment of separation of church and state was transported to independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
Philippine soil. include freedom of religion in drafting their constitution preparatory to the grant of independence. The law
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, prescribed that (a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious
1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided organization shall be molested in person or property on account of religious belief or mode of worship. [303]
that the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate
the free exercise of religion.[297] Even the Filipinos themselves guaranteed religious freedom a month later or on Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of
January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio December 10, 1898, which first introduced religious toleration in our country. President McKinleys Instructions to
Aguinaldo. It provided that the State recognizes the liberty and equality of all religion (de todos los cultos) in the the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of
same manner as the separation of the Church and State. But the Malolos Constitution and government was short- 1902 and in the Jones Law.[304] In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in
lived as the Americans took over the reigns of government.[298] the Bill of Rights, Article IV, Section 7, viz:
With the Philippines under the American regime, President McKinley issued Instructions to the Second Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and
Philippine Commission, the body created to take over the civil government in the Philippines in the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
1900. The Instructions guaranteed religious freedom, viz: forever be allowed. No religious test shall be required for the exercise of civil or political rights.

54
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 1. Free Exercise Clause
statesmen and jurists that vitalized them.[306]

The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion
religious freedom in the Bill of Rights in Article IV, Section 8, viz: or burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause principally
Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall advancement of religious groups on their intrinsic merits and not on the support of the state.[312]
forever be allowed. No religious test shall be required for the exercise of civil or political rights. 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:
This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church and
state shall be inviolable. The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything,
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the
the 1987 Constitution under the Bill of Rights in Article III, Section 5.[307]Likewise, the provision on separation of scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief,
church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article there is quite a stretch of road to travel.[314]
II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical The difficulty in interpretation sets in when belief is externalized into speech and action.
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible
in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary
turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of
scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily required of those engaged
streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine jurisprudence on in the business of general merchandise under the citys ordinances. Plaintiff argued that this amounted to religious
this subject is for the most part, benevolent neutrality which gives room for accommodation. censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale
B. Jurisprudence 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:

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it
of religion. Religion is derived from the Middle English religioun, from Old French religion, from Latin religio, the right to disseminate religious information. Any restraint of such right can only be justified like other
vaguely referring to a bond between man and the gods.[308] This pre-Christian term for the cult and rituals of pagan restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive
Rome was first Christianized in the Latin translation of the Bible.[309] While the U.S. Supreme Court has had to take evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol.
up the challenge of defining the parameters and contours of religion to determine whether a non-theistic belief 1, 4th ed., p. 297) (emphasis supplied)
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 This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the religious
Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined religion as a profession of faith freedom area, and in Philippine jurisprudence, for that matter. [315] The case did not clearly show, however,
to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular
the Aglipay definition in American Bible Society v. City of Manila,[311] a case involving the Free Exercise clause. The value the government regulation sought to protect, whether the religious speech posed a clear and present danger
latter also cited the American case of Davis in defining religion, viz: (i)t has reference to ones views of his relations to this or other secular value protected by government, or whether there was danger but it could not be
to His Creator and to the obligations they impose of reverence to His being and character and obedience to His characterized as clear and present. It is one thing to apply the test and find that there is no clear and present
Will. The Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. danger, and quite another not to apply the test altogether.

55
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of
not engaged in the business or occupation of selling said merchandise for profit. To add, the Court, citing Murdock laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the
v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are
would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs mutually and vitally interested, for to them, they mean national existence and survival as a nation or national
as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Thus, in American extinction.[322]
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 In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz:
Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is
the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the freedom from conformity to religious dogma, not freedom from conformity to law because of religious
registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the dogma.[323]
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
It stated in categorical terms, viz:
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 The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from
does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by
organization. In the Courts resolution of the motion for reconsideration of the Tolentino decision, the Court noted competent authority.[324]
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.
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,[319] this determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with
time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this the established institutions of society and with the law such that when a law of general applicability (in this case
case, petitioners were members of the Jehovahs Witnesses. They challenged a Department Order issued by the the Department Order) incidentally burdens the exercise of ones religion, ones right to religious freedom cannot
Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary
public schools. In violation of the Order, petitioners children refused to salute the Philippine flag, sing the national of Education, et al.[325]
anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this
Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine
unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation
flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz:
of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the
. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No.
former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the
the one exercising it. (emphasis supplied)[320] 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 Victorianos resignation, which in turn notified Victoriano that
The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the
unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss
beliefs of the petitioners with the following justification:
him from the service. Victoriano sought to enjoin the company and the union from dismissing him.The court having
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act
courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive
there would be confusion and misunderstanding for there might be as many interpretations and meaning to be of the Establishment Clause. With respect to the first issue, the Court ruled, viz:
given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the
Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington,
meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.[321]
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
It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing to prevent an immediate and grave danger to the security and welfare of the community that infringement of
objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and religious freedom may be justified, and only to the smallest extent necessary.[327] (emphasis supplied)
the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioners
children, stressing that:
56
As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and which has for its purpose and effect the advancement of the states secular goals, provided that there is no other
free exercise of religion, declared, viz: 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,
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of unless a compelling state interest intervenes.
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any
form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the
chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding
Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned
with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the compelling state
purpose is to impede the observance of one or all religions, or to discriminate invidiously between the interest test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350
religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, was not unconstitutional. It upheld the exemption, stating that there was no compelling state interest to strike it
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 down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the
general law which has for its purpose and effect to advance the states secular goals, the statute is valid inevitable conclusion is that the compelling state interest test was not appropriate and could not find application
despite its indirect burden on religious observance, unless the state can accomplish its purpose without in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the
imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming
366 U.S. 420, 444-5 and 449)[328] (emphasis supplied) unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a
government agency, who propounded the state interest to justify overriding Sherberts claim of religious
Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid objectives freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state
secular in character even if the incidental result would be favorable to a religion or sect. It also cited Board of interest was not sufficiently compelling to prevail over Sherberts free exercise claim. This situation did not obtain
Education v. Allen,[330] which held that in order to withstand the strictures of constitutional prohibition, a statute in the Victoriano case where it was the government itself, through Congress, which provided the exemption in
must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these Republic Act No. 3350 to allow Victorianos exercise of religion. Thus, the government could not argue against the
criteria in upholding Republic Act No. 3350, the Court pointed out, viz: exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would
not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise
free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious
dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of freedom.
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 Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion
protection of said employees against the aggregate force of the collective bargaining agreement, and relieving Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,[334] Anucension v. National Labor Union, et
certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
due to unemployment.[331] Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were
walking to St. Jude Church within the Malacanang security area to pray for an end to violence when they were
The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the
that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was
indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good
persons of a burden imposed by union security agreements which Congress itself also imposed through the faith and concluded that they were using their religious liberty to express their opposition to the
Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters
when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling of religion, viz:
state interest intervenes. The Court then abruptly added that (i)n the instant case, We see no compelling state
interest to withhold exemption.[333] . . . 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]
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 The Court reiterated the Gerona ruling, viz:
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
57
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the Court
but only in the manner by which they had attempted to translate the same to action. This curtailment is in in Ebralinag v. The Division Superintendent of Schools.[341] A unanimous Court overturned the Gerona ruling after
accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who were expelled from school
for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time
the exercise of said religious belief clashes with the established institutions of society and with the law, then the transported the grave and imminent danger test laid down in Justice Teehankees dissent in German, viz:
former must yield and give way to the latter. The government steps in and either restrains said exercise or even The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late
prosecutes the one exercising it. (italics supplied) 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
The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to
functioning of the executive branch of the government, which petitioners mass action would certainly prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not
disrupt[338] and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went justified.[342] (emphasis supplied)
back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions
of society and the law. The Court added, viz:
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national
a test in religious freedom cases. His dissent stated in relevant part, viz: anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the
A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated
Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues. 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
1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote
of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also
omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly
receive training for a vocation or profession and be taught the virtues of patriotism, respect for human rights,
along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot
appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art.
be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave and
XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will
delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the
sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes as the
iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to
sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales of
love of country or respect for duly constituted authorities. [343]
justice on the side of such rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp.
569-570)
Barnette also found its way to the opinion, viz:
2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity
subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of
justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390,
and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, 67 L. ed. 1042, 1046).[344]
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) Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state
interest test in according exemption to the Jehovahs Witnesses, viz:
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the
rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the
sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it
peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by would violate the teaching of their church not to join any group:
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]

58
x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints
laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest on speech, including religious speech and the x-rating was a suppression of petitioners freedom of speech as much
intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790) 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
We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the state from protecting any religion from this kind of attack.
the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others.[345] 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
The Court annulled the orders expelling petitioners from school. 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:
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 The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes
remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including
of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent
speech and the free exercise of religious profession and worship; the Court then stated in a footnote that the flag evil which has taken the life of a reality already on ground.
salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.[346]

The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals Replying to the challenge on the applicability of the clear and present danger test to the case, the Court
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types
was that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court
exemption of the school children of the Jehovahs Witnesses from the flag salute ceremonies on the basis of their contempt and release of information that endangers a fair trial[351] and ruled, viz:
own self-perceived religious convictions.[347] The Court, however, referred to the test only towards the end of the . . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test
decision and did not even mention what the Solicitor General argued as the compelling state interest, much less to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience
did the Court explain why the interest was not sufficiently compelling to override petitioners religious freedom. reaction. It cannot be doubted that religious truths disturb and disturb terribly.[352]
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 In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be
case, the majority opinion in unequivocal terms applied the clear and present danger test to religious speech. This invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated the
case involved the television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner clear and present danger test in American Bible Society and the grave and imminent danger in Victoriano, but this
Iglesia ni Cristos submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion time clearly justifying its applicability and showing how the test was applied to the case.
Pictures and Television classified these as X or not for public viewing on the ground that they offend and constitute
an attack against other religions which is expressly prohibited by law.Invoking religious freedom, petitioner alleged In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious
that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is
of its television program and x-rating them. While upholding the Boards power to review the Iglesia television justified.[353]
show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz commentary 2. Establishment Clause
on the constitution, the Court held that freedom to believe is absolute but freedom to act on ones belief, where it
affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent
in Barnette which was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
conformity to religious dogma, not freedom from conformity to law because of religious dogma.[349]Nevertheless, dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the
the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From
when the exercise will bring about the clear and present danger of some substantive evil which the State is duty the religious perspective, religion requires voluntarism because compulsory faith lacks religious
bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public efficacy. Compelled religion is a contradiction in terms.[354] As a social value, it means that the growth of a religious
welfare.[350] sect as a social force must come from the voluntary support of its members because of the belief that both spiritual

59
and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of purpose should not be frustrated by its subordination to mere incidental results not contemplated.
official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)
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] In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government
The neutrality principle was applied in the first significant non-establishment case under the 1935 action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a
Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged the issuance particular religion.
and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the
Church on the ground that the constitutional prohibition against the use of public money for religious purposes separation of church and state was not at issue as the controversy was over who should have custody of a saints
has been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act image, it nevertheless made pronouncements on the separation of church and state along the same line as
No. 4052[358] which appropriated a sum for the cost of plates and printing of postage stamps with new designs and the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having
authorized the Director of Posts to dispose of the sum in a manner and frequency advantageous to the a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that
Government. The printing and issuance of the postage stamps in question appears to have been approved by the barrio fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in rural communities
authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the that relieves the monotony and drudgery of the lives of the masses. Corollarily, the Court found nothing illegal
role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his
stamps, viz: image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the
The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without image of the patron saint was purchased in connection with the celebration of the barrio fiesta honoring the patron
the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or
our history, not to speak of the history of mankind, has taught us that the union of church and state is the religious beliefs of the barrio residents. Citing the Aglipay ruling, the Court declared, viz:
prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a Not every governmental activity which involves the expenditure of public funds and which has some religious
weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and
we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in banning the use of public money or property.
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
Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel issue involving the religion
be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.
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
Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for divided on the issue. Seven members of the Court, one short of the number necessary to declare a law
religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test
that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: The challenged Administrative
preamble of their Constitution, implored the aid of Divine Providence, in order to establish a government that Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its
shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, face, inconsistent with the religious freedom guaranteed by the Constitution. Citing Torcaso v.
and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty Watkins,[363] the ponencia held, viz:
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 Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was
recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be
sects and denominations. . .[359] 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
xxx xxx xxx 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
It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As
an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was emphatically declared by Justice Black: this Maryland religious test for public office unconstitutionally invades
not the aim and purpose of the Government. We are of the opinion that the Government should not be the appellants freedom of belief and religion and therefore cannot be enforced against him.
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
60
The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here to establish religion and a command not to inhibit its practice; this tension between the religion clauses often
being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is leaves the courts with a choice between competing values in religion cases.[370]
thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express
constitutional mandate.[364] 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
On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave
Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law importance to the Establishment Clause in stating that the principle of separation of church and state justified the
as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice prohibition.
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 Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently
cherished liberty of religion which the constitutional provision seeks to enforce and protect. Consequently, the exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom;
Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest the question arises whether the exemption does not amount to support of the religion in violation of the
ineligible for the office of municipal mayor. Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court
ruled, viz:
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 In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in
properties of the Philippine Independent Church, the resolution of which necessitated the determination of who South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday
was the legitimate bishop of the church. The Court cited American Jurisprudence,[366] viz: 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
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in of the Establishment Clause to forestall.[371] (emphasis supplied)
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 Tension also exists when a law of general application provides exemption in order to uphold free exercise as
law of the church. . .[367] 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
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly exercise of religion from the burden of property taxation levied on private profit institutions. Justice Burger
elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, wrote, viz:
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 (t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in
the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. [372]
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 Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious
jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz: sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the
alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is
rule of a church and having reference to the power of excluding from the church those allegedly unworthy of imposed by union security agreements.[373] (emphasis supplied)
membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.[369]
Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless
VIII. Free Exercise Clause vis--vis Establishment Clause 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.
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 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

61
Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must light of the Philippine religion clauses history. As a result, in a case where the party claims religious liberty in the
review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should face of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in
prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the convincing the Court that the wall of separation would not be breached if the Court grants him an
free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935
early national period of the United States that the free exercise principle long antedated any broad-based support Constitutions as shown by other provisions on religion in all three constitutions. It is a cardinal rule in
of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizens constitutional construction that the constitution must be interpreted as a whole and apparently conflicting
free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the provisions should be reconciled and harmonized in a manner that will give to all of them full force and
courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts effect.[377] From this construction, it will be ascertained that the intent of the framers was to adopt a benevolent
convey a message of hostility to the religion that in that case cannot be freely exercised. [374] American professor neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of
of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle should be dominant in any this intent is the goal of construing the constitution.[378]
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, We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935
Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article
is characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct VI, Section 22, par. 3(b), viz:
and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and
the religion clauses are intended to protect must be considered in their interpretation and resolution of the improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.
tension. This, in fact, has been the approach followed by the Philippine Court.[376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar
Based on Philippine and American Religion Clause History, exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the
Law and Jurisprudence 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
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale
from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained that if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the
in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting
Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the them from taxation.[380] The amendment was readily approved with 83 affirmative votes against 15 negative
religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, votes.[381]
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 The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S.
Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by
to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion stating that church property was not singled out but was exempt along with property owned by non-profit, quasi-
clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the public corporations because the state upheld the secular policy that considers these groups as beneficial and
religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. The
contradictions so that two main streams of jurisprudence had become identifiable. The first stream Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property
employs separation while the second employs benevolent neutrality in interpreting the religious taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent
clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax
adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution.Philippine exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution,
jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under the regime of
jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of
might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious
religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the exercise.
Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationistapproach, Philippine jurisprudence should also follow this approach in (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,
62
benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when During the debates of the Constitutional Convention, there were three positions on the issue of religious
such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as
orphanage, or leprosarium. (emphasis supplied) 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
The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools
contain the above exception, viz: 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
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second
benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite
benefit or support of any priest, preacher, minister, or dignitary as such[382] 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
In the deliberations of this draft provision, an amendment was proposed to strike down everything after church does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court,
denomination.[383] The proposal intended to imitate the silence of the U.S. Constitution on the subject of support using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class
for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation within the school premises. The constitutional provision on optional religious instruction shows that Philippine
under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion.
from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition
Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid
under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General
of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop
upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S.
the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the
Constitution did not contain a prohibition on appropriations similar to the Jones Law.[384] To settle the question on
blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing)
the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the
this Constitution. A preamble is a key to open the mind of the authors of the constitution as to the evil sought to
feared situation where the enumerated government institutions could not employ religious officials with
be prevented and the objects sought to be accomplished by the provisions thereof. [388] There was no debate on
compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74
the inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people
affirmative votes against 34 negative votes.[385] As pointed out in the deliberations, the U.S. Constitution does not
implored the aid of Divine Providence, (t)hey thereby manifested their intense religious nature and placed
provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent
unfaltering reliance upon Him who guides the destinies of men and nations. [389] The 1935 Constitutions religion
neutrality approach, implicitly approved the state of Texas payment of prison chaplains salaries as reasonably
clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility,
necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the
but benevolence, to religion.[390]
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 The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par.
departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the
Philippine jurisdiction.While the provision prohibiting aid to religion protects the wall of separation between property should not only be used directly, but also actually and exclusively for religious or charitable
church and state, the provision at the same time gives constitutional sanction to a breach in the wall. 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,
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment
Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in
Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section
Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted as may be
5, viz:
provided by law and not as now authorized by law as stated in the 1935 Constitution. The 1973 counterpart,
. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . 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
The law then applicable was Section 928 of the Administrative Code, viz:
continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973
It shall be lawful, however, for the priest or minister of any church established in the town where a public school Constitution this provision made its maiden appearance: (t)he separation of church and state shall be inviolable.
is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times The 1973 Constitution retained the portion of the preamble imploring the aid of Divine Providence.
a week, in the school building, to those public-school pupils whose parents or guardians desire it and express
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church
their desire therefor in writing filed with the principal of the school . . .
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

63
one religion and another but even as between religion and non-religion - is embodied in the Philippine there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the
Constitution. The sub-committees answer was that it did not seem so. Citing the Aglipay case where Justice Laurel statement of separation of church and state but on the non-establishment clause in the Bill of Rights.[398]
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, The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was
but may aid all religions equally or the cause of religion in general.[391] Among the position papers submitted to considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of
the Committee on Church on State was a background paper for reconsideration of the religion provisions of the Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in Constitutional Convention objected to reference to a personal God.[399] God of History, Lord of History and God
fact recognizes the value of religion and accommodates religious values.[392] Stated otherwise, the Establishment were also proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is
Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the obvious that the 1987 Constitution is not hostile nor indifferent to religion;[400] its wall of separation is not a wall
provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing of hostility or indifference.[401]
new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar
provision.[393] 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
Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall
was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with of separation between the church and state.[402]The strict neutrality approach which examines only whether
respect to the prohibition on the use of public money and property for religious purposes and the salaries of government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects
religious officers serving in the enumerated government institutions, now contained in Article VI, Section such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their
29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks
money for purposes which might have religious connections but which would benefit the public generally. Citing further than the secular purposes of government action and examines the effect of these actions on religious
the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence
directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing
explanation, Commissioner Bacani no longer pursued his proposal.[394] these goals, however, government might adopt laws or actions of general applicability which inadvertently burden
The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by
Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after
within the regular class hours and without additional cost to the government. There were protracted debates on all is the integral purpose of the religion clauses. The case at bar involves this first type of accommodation where
what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, an exemption is sought from a law of general applicability that inadvertently burdens religious exercise.
electricity, janitorial services,[395] and when during the day instruction would be conducted.[396] In deliberating on Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
the phrase within the regular class hours, Commissioner Aquino expressed her reservations to this proposal as this neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes
would violate the time-honored principle of separation of church and state.She cited the McCullom case where before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs
religious instruction during regular school hours was stricken down as unconstitutional and also cited what she and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it
considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in
Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses
. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability,
religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal
then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious
introduce something here which is contrary to American practices.[397](emphasis supplied) 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
(W)ithin regular class hours was approved. approach not only because of its merits as discussed above, but more importantly, because our constitutional
The provision on the separation of church and state was retained but placed under the Principles in the history and interpretation indubitably show that benevolent neutrality is the launching pad from which the
Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is
Fr. Bernas stated, viz: 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.
. . . 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
64
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine the clear and present danger test in the maiden case of American Bible Society. Not surprisingly, all the cases
jurisprudence, albeit not expressly called benevolent neutrality or accommodation. In Aglipay, the Court not only which employed the clear and present danger or grave and immediate danger test involved, in one form or
stressed the elevating influence of religion in human society but acknowledged the Constitutional provisions on another, religious speech as this test is often used in cases on freedom of expression. On the other hand,
exemption from tax of church property, salary of religious officers in government institutions, and optional the Geronaand German cases set the rule that religious freedom will not prevail over established institutions of
religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy society and law. Gerona, however, which was the authority cited by German has been overruled
Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional by Ebralinag which employed the grave and immediate danger test. Victoriano was the only case that employed
provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that the compelling state interest test, but as explained previously, the use of the test was inappropriate to the facts
government participation in long-standing traditions which have acquired a social character - the barrio fiesta is a of the case.
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 case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where
the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the clear and present danger and grave and immediate danger tests were appropriate as speech has easily
the burden on free exercise of religion. In Ebralinag,members of the Jehovahs Witnesses were exempt from discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not
saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar
without offending the Establishment Clause. 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
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law states interests: some effects may be immediate and short-term while others delayed and far-reaching. A test
has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is
Philippine religion clauses have taken a life of their own, breathing the air of benevolent therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious
neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - the most
impregnable as the wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses are a unique inalienable and sacred of all human rights, in the words of Jefferson.[406] This right is sacred for an invocation of
American experiment which understandably came about as a result of Americas English background and the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government
colonization, the life that these clauses have taken in this jurisdiction is the Philippines own experiment, reflective is premised upon an acknowledgment of such higher sovereignty,[407] thus the Filipinos implore the aid of Almighty
of the Filipinos own national soul, history and tradition. After all, the life of the law. . . has been experience. 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
But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest
neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy
of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful
permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to ones until they are destroyed.[408] In determining which shall prevail between the states interest and religious
exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the liberty, reasonableness shall be the guide.[409] The compelling state interest serves the purpose of revering religious
higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state liberty while at the same time affording protection to the paramount interests of the state. This was the test used
and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the compelling state interest
very purpose of the social contract by which people establish the state is for the state to protect their liberties; for test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious
this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It liberty will not be preserved.
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] X. Application of the Religion Clauses to the Case at Bar

The all important question then is the test that should be used in ascertaining the limits of the exercise of A. The Religion Clauses and Morality
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 In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of
liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates disgraceful and immoral conduct for which he/she may be held administratively liable.[410] In these cases, there
the established institutions of society and law. The Victoriano case mentioned the immediate and grave danger was not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves did not
test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the
least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the compelling alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo[411]and the 1999
state interest test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the grave case of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the complainant is a mere stranger and the
and immediate danger test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral

65
sensibilities of the community in which the respondent and the partner live and work, and the government fails to recognize the necessity of Devlins proposition in a democracy. Without fundamental agreement on political
employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society.
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 In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the
government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including
relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this
there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship representative democracy, the state is prohibited from determining which convictions and moral judgments may
constitutes disgraceful and immoral conduct punishable under the Civil Service Law. Respondent having admitted be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and
the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively decide. Majority rule is a necessary principle in this democratic governance.[417] Thus, when public deliberation on
liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the
defense, respondent invokes religious freedom since her religion, the Jehovahs Witnesses, has, after thorough majority, i.e., the mainstream or median groups.[418] Nevertheless, in the very act of adopting and accepting a
investigation, allowed her conjugal arrangement with Quilapio based on the churchs religious beliefs and constitution and the limits it specifies -- including protection of religious freedom not only for a minority, however
practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. 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
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this promise,
Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the
on the religion clauses in deciding the instant case. A discussion on morality is in order. 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
At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious
beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding what accommodations.
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 The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness
up not only of political ideas but also of ideas about the manner its members should behave and govern their and deposit of our moral life.[420] In a liberal democracy, the law reflects social morality over a period of
lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what time.[421] Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with
is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good public morality or legislature might fail to repeal laws embodying outdated traditional moral views. [422] Law has
and evil, they will fail; if having established the society on common agreement, the agreement collapses, the also been defined as something men create in their best moments to protect themselves in their worst
society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds moments.[423] Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to
are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part modification and reversal to better reflect the public morals of a society at a given time. After all, the life of the
of the price of society; and mankind, which needs society, must pay its price. [414] This design is parallel with the law...has been experience, in the words of Justice Holmes. This is not to say though that law is all of morality. Law
social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to deals with the minimum standards of human conduct while morality is concerned with the maximum. A person
protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher
government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental moral standards set by society for him to be called a morally upright person.[424] Law also serves as a helpful starting
law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and point for thinking about a proper or ideal public morality for a society[425] in pursuit of moral progress.
creates a new one.[415] Similarly, in the realm of morality, the breakdown of the fundamental agreement about the
manner a societys members should behave and govern their lives would disintegrate society. Thus, society is In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law and public morality. We
justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded upon the moral
institutions.[416] From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions
he is merely saying that in the midst of this diversity, there should nevertheless be a fundamental agreement about upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent
good and evil that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That
hence the need to come to an agreement; his position also allows for change of morality from time to time which which we call punishment is only an external means of emphasizing moral disapprobation: the method of
may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and punishment is in reality the amount of punishment.[427]Stated otherwise, there are certain standards of behavior
principles in their constitution in establishing and maintaining their society, and these fundamental values and or moral principles which society requires to be observed and these form the bases of criminal law. Their breach
principles are translated into legislation that governs the order of society, laws that may be amended from time is an offense not only against the person injured but against society as a whole.[428] Thus, even if all involved in the
to time. Harts argument propounded in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public
single society as having common moral foundation (is) overly simplistic because societies have always been diverse interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point in his separate opinion. He

66
observes that certain immoral acts which appear private and not harmful to society such as sexual congress Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with
between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be
in this country. His opinion asks whether these laws on private morality are justified or they constitute defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the
impingement on ones freedom of belief. Discussion on private morality, however, is not material to the case at government to afford him protection or relief.
bar for whether respondents conduct, which constitutes concubinage, [430] is private in the sense that there is no
injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has A provision similar to the one under consideration is embodied in article 826 of the German Civil
taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Code.[433] (emphases supplied)
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
The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
unlike in rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the
clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality
offended spouse in concubinage negates the prosecution of the action, [432] but does not alter the legislatures
proceeds from a persons views of his relations to His Creator and to the obligations they impose of reverence to
characterization of the act as a moral disapprobation punishable by law. The separate opinion states that,
His being and character and obedience to His Will, in accordance with this Courts definition of religion in American
(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion
Bible Society citing Davis. Religion also dictates how we ought to live for the nature of religion is not just to know,
that the law, as an instrument of the secular State should only concern itself with secular morality. The Court does
but often, to act in accordance with mans views of his relations to His Creator.[434] But the Establishment Clause
not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by
puts a negative bar against establishment of this morality arising from one religion or the other, and implies the
the separate opinion, between secular and private morality, but between public and secular morality on the one
affirmative establishment of a civil order for the resolution of public moral disputes. This agreement on a secular
hand, and religious morality on the other, which will be subsequently discussed.
mechanism is the price of ending the war of all sects against all; the establishment of a secular public moral order
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality is the social contract produced by religious truce.[435]
in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional
not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with
Responsibility for lawyers[436], or public morals in the Revised Penal Code,[437]or morals in the New Civil Code,[438] or
Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of
moral character in the Constitution,[439] the distinction between public and secular morality on the one hand, and
damages. Articles 19 and 21 provide, viz:
religious morality, on the other, should be kept in mind. [440] The morality referred to in the law is public and
Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as expressed in
everyone his due and observe honesty and good faith. 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
xxx xxx xxx 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
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good buttressed by a religious belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if
customs or public policy shall compensate the latter for the damage. (emphasis supplied) 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,
We then cited in Velayo the Code Commissions comment on Article 21: 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
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy
adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to of neutrality.[442]
provide for specifically in the statutes.
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
But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The
detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society
answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles
and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral
which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule
judgments based on religion might have a compelling influence on those engaged in public deliberations over what
is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause
actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of
damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience
a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind
of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to
endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth
transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring
with heaven.[443] Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
quality which ought to be one of its superlative attributes.
67
but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared that
clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory matters dealing with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare
and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as unquestionably ecclesiastical matters which are outside the province of the civil courts. [444] But while the state,
in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting including the Court, accords such deference to religious belief and exercise which enjoy protection under the
animal sacrifice of the Santeria.Recognizing the religious nature of the Filipinos and the elevating influence of religious clauses, the social contract and the constitutional order are designed in such a way that when religious
religion in society, however, the Philippine constitutions religion clauses prescribe not a strict but a benevolent belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief
the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional insofar as they affect the interests of the state. The states inroad on religion exercise in excess of this constitutional
limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow design is prohibited by the religion clauses; the Old World, European and American history narrated above bears
for accommodation of morality based on religion, provided it does not offend compelling state interests. out the wisdom of this proscription.

Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in Having distinguished between public and secular morality and religious morality, the more difficult task is
deciding the case at bar, the approach should consider that, (a)s a rule . . . moral laws are justified only to the determining which immoral acts under this public and secular morality fall under the phrase disgraceful and
extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid immoral conduct for which a government employee may be held administratively liable. The line is not easy to
application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which draw for it is like a line that divides land and sea, a coastline of irregularities and indentations.[445] But the case at
they are enacted would, a departure be justified. In religion clause parlance, the separate opinion holds that laws bar does not require us to comprehensively delineate between those immoral acts for which one may be held
of general applicability governing morals should have a secular purpose of directly or indirectly protecting the administratively liable and those to which administrative liability does not attach. We need not concern ourselves
interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on in this case therefore whether laziness, gluttony, vanity, selfishness, avarice and cowardice are immoral acts which
marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the constitute grounds for administrative liability. Nor need we expend too much energy grappling with the
sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have
unconventional religious belief and practice (which the separate opinion holds should be respected on the ground different standards of morality as discussed by the dissents and separate opinions, although these observations
of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to
family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and the general rule that the law is the witness and deposit of our moral life, then the rule is not true; in fact, that
men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different
values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting
purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling,
OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal
presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes arrangement of a government employee whose partner is legally married to another which Philippine law and
the accommodation of the unconventional religious belief and practice regarding marriage. 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
The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the question before us.
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 In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice Ynares-Santiago
only in this realm where it has authority. More concretely, should the Court declare respondents conduct as groped for standards of morality and stated that the ascertainment of what is moral or immoral calls for the
immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her discovery of contemporary community standards but did not articulate how these standards are to be
conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct ascertained. Instead, it held that, (f)or those in the service of the Government, provisions of law and court
is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and precedents . . . have to be considered. It identified the Civil Service Law and the laws on adultery and concubinage
cannot say that her conduct should be made reprehensible in the realm of her church where it is presently as laws which respondents conduct has offended and cited a string of precedents where a government employee
sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting was found guilty of committing a disgraceful and immoral conduct for maintaining illicit relations and was thereby
her conduct are correct. On the other hand, should the Court declare her conduct permissible, the Court will be penalized. As stated above, there is no dispute that under settled jurisprudence, respondents conduct constitutes
holding that under her unique circumstances, public morality is not offended or that upholding her religious disgraceful and immoral conduct. However, the cases cited by the dissent do not involve the defense of religious
freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in
Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not settling the issue in the case at bar.
allow respondents conjugal arrangement should likewise allow such conjugal arrangement or should not find
anything immoral about it and therefore members of these churches are not answerable for immorality to their Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in laying down the standard
Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court of morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined by

68
respondents concept of morality. The law provides the standard; the offense is complete if respondent intended dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably
to perform, and did in fact perform, the act which it condemns. The Mann Act under consideration in the Cleveland shows adherence to benevolent neutrality - is not contemplated by our constitution.
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 Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik[451] cited in Mr. Justice
interpretation of the phrase immoral purpose. The U.S. Supreme Court held that the petitioner Mormons act of Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of
transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he
another member of their Mormon church in such a project, was covered by the phrase immoral purpose. In so had three children because it (was) not immoral by Muslim standards for Judge Malik to marry a second time while
ruling, the Court relied on Reynolds which held that the Mormons practice of polygamy, in spite of their defense his first marriage (existed). Putting the quoted portion in its proper context would readily show that the Sulu
of religious freedom, was odious among the northern and western nations of Europe, [448] a return to Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the
barbarism,[449] contrary to the spirit of Christianity and of the civilization which Christianity has produced in the dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal
Western world,[450] and thus punishable by law. Laws of the Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a person
married x x x under Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry a second time
The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements while his first marriage exists.[452] It was by law, therefore, that the Muslim conduct in question was classified as
of the U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the Philippines where an exception to the crime of bigamy and thus an exception to the general standards of morality. The
Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in
jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under the same the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional
circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy
summarily conclude therefore that her conduct is likewise so odious and barbaric as to be immoral and punishable in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar,
by law. there is no similar law which the Court can apply as basis for treating respondents conduct as an exception to the
prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to
While positing the view that the resolution of the case at bar lies more on determining the applicable moral justify exemption.
standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed
respondents plea of religious freedom and disposed of this defense by stating that (a) clear and present danger of B. Application of Benevolent Neutrality and the
a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and Compelling State Interest Test to the Case at Bar
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 The case at bar being one of first impression, we now subject the respondents claim of religious freedom to
is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility that
purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law;
disgraceful and immoral conduct. The Reynolds ruling, however, was reached with a strict neutrality approach, necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating
which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction a more compelling state interest.
adopts benevolent neutrality in interpreting the religion clauses.
In applying the test, the first inquiry is whether respondents right to religious freedom has been
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief
constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent and practice and family on the one hand, and giving up her employment and keeping her religious practice and
avers that respondent should be held administratively liable not for disgraceful and immoral conduct but conduct family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherberts
prejudicial to the best interest of the service as she is a necessary co-accused of her partner in concubinage. The religious exercise was burdened as the denial of unemployment benefits forces her to choose between following
dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her
justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself religion in order to accept work, on the other hand. The burden on respondent in the case at bar is even greater
against the charge of conduct prejudicial to the best interest of the service. In addition, there is no evidence of the as the price she has to pay for her employment is not only her religious precept but also her family which, by the
alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondents Declaration Pledging Faithfulness, stands honorable before God and men.
plea of religious freedom cannot prevail without so much as employing a test that would balance respondents
religious freedom and the states interest at stake in the case at bar. The foregoing discussion on the doctrine of The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be
religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to avoid
respondents plea of religious freedom without even subjecting it to the compelling state interest test that would punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral
balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the 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,
69
Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the decide the case will make a decisive difference in the life of the respondent who stands not only before the Court
authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for but before her Jehovah God.
such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for
illicit conduct but to make the union of their members under respondents circumstances honorable before God IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is
and men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality
letters[453] of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony of respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to
after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCAs letters were not override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its
submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30)
dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court days from the Office of the Court Administrators receipt of this Decision.
Administrator had different positions regarding respondents request for exemption from the flag ceremony on SO ORDERED.
the ground of the Jehovahs Witnesses contrary belief and practice. Respondents request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to
escape punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that EN BANC
she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further
question the respondents sincerity and the centrality of her practice in her faith, it should be given the opportunity A.M. No. P-02-1651 June 22, 2006
to do so.The government has not been represented in the case at bar from its incipience until this point. (Formerly OCA I.P.I. No. 00-1021-P)
In any event, even if the Court deems sufficient respondents evidence on the sincerity of her religious
ALEJANDRO ESTRADA, Complainant,
belief and its centrality in her faith, the case at bar cannot still be decided using the compelling state interest
vs.
test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should
SOLEDAD S. ESCRITOR, Respondent.
discharge in the Courts use of the compelling state interest test. We note that the OCA found respondents defense
RESOLUTION
of religious freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et al., viz:

It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the PUNO, J.:
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
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands
preserve the good name and integrity of the courts of justice.
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
It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation of her behavior and protect its interest in marriage and family and the integrity of the courts where respondent is
the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, an employee. How the Court will tilt the scales of justice in the case at bar will decide not only the fate of
there is nothing in the OCAs memorandum to the Court that demonstrates how this interest is so compelling that respondent Escritor but of other believers coming to Court bearing grievances on their free exercise of religion.
it should override respondents plea of religious freedom nor is it shown that the means employed by the This case comes to us from our remand to the Office of the Court Administrator on August 4, 2003.1
government in pursuing its interest is the least restrictive to respondents religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling I. THE PAST PROCEEDINGS
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 In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes,
given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondents Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of respondent
stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise Soledad Escritor, court interpreter in said court, for living with a man not her husband, and having borne a child
protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, within this live-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the
the Courts action would be an unconstitutional encroachment of her right to religious freedom. [454] We cannot image of the court, thus she should not be allowed to remain employed therein as it might appear that the court
therefore simply take a passing look at respondents claim of religious freedom, but must instead apply the condones her act.2 Consequently, respondent was charged with committing "disgraceful and immoral conduct"
compelling state interest test.The government must be heard on the issue as it has not been given an opportunity under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. 3
to discharge its burden of demonstrating the states compelling interest which can override respondents religious
belief and practice. To repeat, this is a case of first impression where we are applying the compelling state interest Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband
test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the benefit of
70
marriage more than twenty years ago when her husband was still alive but living with another woman. She also exemption based on the Free Exercise Clause (from the law with which she is administratively charged), it is the
admitted that she and Quilapio have a son.5 But as a member of the religious sect known as the Jehovah’s compelling state interest test, the strictest test, which must be applied.14
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 Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of
living together, she executed on July 28, 1991, a "Declaration of Pledging Faithfulness."7 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
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned by freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to the Office of the Court
their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene in the case so it can:
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 (a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;
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
(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and
of the elders of the congregation. As a matter of practice, the marital status of the declarants and their
practice; and
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 (c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s
the Watch Tower Central Office.11 religious freedom. 15

Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled
remarry. Thus, their declarations remained valid.12 In sum, therefore, insofar as the congregation is concerned, upon prior to the remand, and constitute "the law of the case" insofar as they resolved the issues of which
there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain framework and test are to be applied in this case, and no motion for its reconsideration having been filed.16 The
members in good standing in the congregation. 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.
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 B. Law of the case
administratively liable,13 the Court had to determine the contours of religious freedom under Article III, Section 5
of the Constitution, which provides, viz: 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,
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The respondent nor the government has filed a motion for reconsideration assailing this ruling, the same has
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall attained finality and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crass
forever be allowed. No religious test shall be required for the exercise of civil or political rights. 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
A. Ruling
still be the same.

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the
We review the highlights of our decision dated August 4, 2003.
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 1. Old World Antecedents

71
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses, 2. Religion Clauses in the U.S. Context
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 The Court then turned to the religion clauses’ interpretation and construction in the United States, not because
these controversies in the ancient and medieval world and in the American experience."17 We delved into the we are bound by their interpretation, but because the U.S. religion clauses are the precursors to the Philippine
conception of religion from primitive times, when it started out as the state religion clauses, although we have significantly departed from the U.S. interpretation as will be discussed later
on.
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 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
We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of regarding the value of the First Amendment religion clauses, there is an equally broad disagreement as to what
church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied
name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history the religion clauses as regards its exact meaning and the paucity of records in the U.S. Congress renders it
witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the difficult to ascertain its meaning.27
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 U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
in which the unique experiment of the principle of religious freedom and separation of church and state saw its clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the
birth in American constitutional democracy and in human history. 22 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
Strictly speaking, the American experiment of freedom and separation was not translated in the First on the Jeffersonian premise that a "wall of separation" must exist between the state and the Church to protect
Amendment. That experiment had been launched four years earlier, when the founders of the republic carefully the state from the church.28 Both protect the principle of church-state separation with a rigid reading of the
withheld from the new national government any power to deal with religion. As James Madison said, the principle. On the other hand, the second standard, the benevolent neutrality or accommodation, is buttressed by
national government had no "jurisdiction" over religion or any "shadow of right to intermeddle" with it. 23 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.
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 a. Strict Separation and Strict Neutrality/Separation
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 The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church,
commands, in two parts (with the first part usually referred to as the Establishment Clause and the second part, and the state’s hostility towards religion allows no interaction between the two. According to this Jeffersonian
the Free Exercise Clause), viz: 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
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. 25 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
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory political views, thus a strict "wall of separation" is necessary. 30
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 Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
beliefs and practice, while the Establishment Clause prohibits government from inhibiting religious belief with practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for
rewards for religious beliefs and practices. In other words, the two religion clauses were intended to deny huge amounts of mostly indirect aid from religion.31 For example, less than twenty-four hours after Congress
government the power to use either the carrot or the stick to influence individual religious beliefs and adopted the First Amendment’s prohibition on laws respecting an establishment of religion, Congress decided to
practices.26 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
In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as caught in an awkward position of claiming a constitutional principle that has never existed and is never likely
an engine to promote state interests, to the principle of non-establishment to allow the free exercise of religion. to.33

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The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references to
governmental neutrality theory) finds basis in Everson v. Board of Education,34 where the Court declared that the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First
Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment. However, unlike the strict Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens
separationists, the strict neutrality view believes that the "wall of separation" does not require the state to be each session: "God save the United States and this Honorable Court."
their adversary. Rather, the state must be neutral in its relations with groups of religious believers and non-
believers. "State power is no more to be used so as to handicap religions than it is to favor them."35 The strict xxx xxx xxx
neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used as a basis for We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
classification for purposes of governmental action, whether the action confers rights or privileges or imposes worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects
require, accommodation of secular programs to religious belief.36 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
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, religious groups. . . But we find no constitutional requirement which makes it necessary for government to be
it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence. 43
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 Benevolent neutrality recognizes that religion plays an important role in the public life of the United States as
prohibited by the Constitution.38 Professor Laurence Tribe commented in his authoritative treatise, viz: 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
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The America as "one nation under God" in the official pledge of allegiance to the flag; the Supreme Court’s time-
Framers, whatever specific applications they may have intended, clearly envisioned religion as something honored practice of opening oral argument with the invocation "God save the United States and this Honorable
special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy Court"; and the practice of Congress and every state legislature of paying a chaplain, usually of a particular
or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the [U.S.] Protestant denomination, to lead representatives in prayer. These practices clearly show the preference for one
Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.39 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
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, is other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other
that while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state government activities with strong moral dimension. 44
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 Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S. Court
involvement and activity, resulting in the intersection of government and religion at many points.40 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
b. Benevolent Neutrality/Accommodation 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
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 (1) Legislative Acts and the Free Exercise Clause
doctrine was expressed in Zorach v. Clauson,42 which held, viz:
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church relation to governmental action, almost invariably in the form of legislative acts.
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 Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional,
would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay either because it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether one
even property taxes. Municipalities would not be permitted to render police or fire protection to religious subscribes to the separationist approach or the benevolent neutrality or accommodationist approach.
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

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But the more difficult religion cases involve legislative acts which have a secular purpose and general sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government permissible limitation.’"58 The Court found that there was no such compelling state interest to override
action is not religiously motivated, these laws have a "burdensome effect" on religious exercise. 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
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of upon the state to show that no alternative means of regulations would address such detrimental effects without
religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for
groups to exercise their religion without hindrance. The purpose of accommodations is to remove a burden on, Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the
or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the "government unemployment benefits. The Court reasoned that upholding the denial of Sherbert’s benefits would force her to
[may] take religion into account…to exempt, when possible, from generally applicable governmental regulation choose between receiving benefits and following her religion. This choice placed "the same kind of burden upon
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This germinal case
involvement an atmosphere in which voluntary religious exercise may flourish."51 In the ideal world, the of Sherbert firmly established the exemption doctrine, 59 viz:
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 It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws
burdened may turn to the courts for protection.52 conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes.
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 Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a sincerely
courts.53 Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of the held religious belief or practice, the state must justify the burden by demonstrating that the law embodies a
facially neutral law that has a "burdensome" effect.54 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
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith 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
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 Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in order,
of general application infringes religious exercise, albeit incidentally, the state interest sought to be promoted notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the Court
must be so paramount and compelling as to override the free exercise claim. Otherwise, the Court itself will overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The
carve out the exemption. Court, in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:
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 It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that
sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State
benefits could withstand constitutional scrutiny, the Court ruled, viz: 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
Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by
the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if
religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina
less explicit, prohibition against the establishment of any religion. The values underlying these two provisions
Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification
relating to religion have been zealously protected, sometimes even at the expense of other interests of
as a beneficiary represents no infringement by the State of her constitutional right of free exercise, or because
admittedly high social importance. . .
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 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. . .
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

74
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the compelling secular justification was necessary to uphold public policies that collided with religious practices.
Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to Although the members of the U.S. Court often disagreed over which governmental interests should be
regulation by the States in the exercise of their undoubted power to promote the health, safety, and general considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this
welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously general test established a strong presumption in favor of the free exercise of religion.67 Most scholars and courts
grounded conduct must often be subject to the broad police power of the State is not to deny that there are agreed that under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of heightened
areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of scrutiny protection, if not always a compelling interest one. 68 The 1990 case of Employment Division, Oregon
the State to control, even under regulations of general applicability. . . .This case, therefore, does not become Department of Human Resources v. Smith,69 drastically changed all that.
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 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
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject to resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment
heightened scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b) compensation benefits. 70
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 Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption
religion resulted in the forfeiture of a government benefit;63 and (c) the Court could carve out accommodations from an otherwise valid law. Scalia said that "[w]e have never held that an individual’s religious beliefs excuse
or exemptions from a facially neutral law of general application, whether general or criminal. 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
The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond speech, proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an individual of the
press, or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to work on the obligation to comply with a ‘valid and neutral law of general applicability of the ground that the law proscribes
Sabbath nor the Amish parents’ refusal to let their children attend ninth and tenth grades can be classified as (or prescribes) conduct that his religion prescribes (or proscribes).’" 72
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 Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as
direct restraints, such as the criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the Cantwell, Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims alone.
two cases indicate, the protection granted was extensive. Only extremely strong governmental interests justified All involved "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of
impingement on religious conduct, as the absolute language of the test of the Free Exercise Clause suggests. 64 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
Fourth, the strong language was backed by a requirement that the government provide proof of the important "unconnected with any communicative activity or parental right." 74
interest at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in
determining the injury to the government’s interest, a court was required to focus on the effect that exempting Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
religious claimants from the regulation would have, rather than on the value of the regulation in general. Thus, unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that "[e]ven if
injury to governmental interest had to be measured at the margin: assuming the law still applied to all others, we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would
what would be the effect of exempting the religious claimant in this case and other similarly situated religious not apply it to require exemptions from a generally applicable criminal law." 75
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
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that
from the law being challenged. 65
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,
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every
prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of regulation of conduct that does not protect an interest of the highest order." The Court said that those seeking
exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation about religious exemptions from laws should look to the democratic process for protection, not the courts. 76
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
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
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection applicability only have to meet the rational basis test, no matter how much they burden religion. 77
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
75
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test, At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
asserting that "(t)he compelling state interest test effectuates the First Amendment’s command that religious limiting the term "religion" in today’s pluralistic society, and (2) the belief that courts have no business
liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit determining the significance of an individual’s religious beliefs. For the Smith Court, these two concerns appear
encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government to lead to the conclusion that the Free Exercise Clause must protect everything or it must protect virtually
interest ‘of the highest order.’"78 She said that strict scrutiny is appropriate for free exercise challenges because nothing. As a result, the Court perceives its only viable options are to leave free exercise protection to the
"[t]he compelling interest test reflects the First Amendment’s mandate of preserving religious liberty to the political process or to allow a "system in which each conscience is a law unto itself." 96 The Court’s
fullest extent possible in a pluralistic society." 79 characterization of its choices have been soundly rejected as false, viz:

Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the Court has
protection of minority religions to the political process. She said that, "First Amendment was enacted precisely a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply and
to protect the rights of those whose religious practice are not shared by the majority and may be viewed with this should not be applied at all. The Constitution does not give the judiciary the option of simply refusing to
hostility." 80 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."
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting There is no constitutional opt-out provision for constitutional words that are difficult to apply.
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 Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area of
scrutiny should be used in evaluating government laws burdening religion. 81 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
Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan majority of Congress possibly evaluating the significance of a religious belief against the importance of a specific law. The Court
noisily denounced the decision.83 Smith has the rather unusual distinction of being one case that is almost describes the results of this middle ground where "federal judges will regularly balance against the importance
universally despised (and this is not too strong a word) by both the liberals and conservatives.84 Liberals chasten of general laws the significance of religious practice," and then dismisses it as a "parade of horribles" that is too
the Court for its hostility to minority faiths which, in light of Smith’s general applicability rule, will allegedly suffer "horrible to contemplate."
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 It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
secular nation that is increasingly hostile to religious belief as an oppressive and archaic anachronism. 85 individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance
rather than acquiesce to the Court’s approach of simply refusing to grant any constitutional significance to their
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow beliefs at all. If the Court is concerned about requiring lawmakers at times constitutionally to exempt religious
understanding of free exercise jurisprudence.86 First, the First amendment was intended to protect minority individuals from statutory provisions, its concern is misplaced. It is the lawmakers who have sought to prevent
religions from the tyranny of the religious and political majority. 87 Critics of Smith have worried about religious the Court from dismantling the Free Exercise Clause through such legislation as the [Religious Freedom
minorities, who can suffer disproportionately from laws that enact majoritarian mores.88 Smith, in effect would Restoration Act of 1993], and in any case, the Court should not be overly concerned about hurting legislature’s
allow discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court is concerned about
legislative clout,89 contrary to the original theory of the First Amendment.90 Undeniably, claims for judicial putting such burden on judges. If so, it would truly be odd to say that
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- requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should be
state regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinder expected to fulfill.97
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 Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious beliefs
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate"—
protection to inadvertent interference, it would be left almost meaningless.93 Third, the Reynolds-Gobitis- an assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has been sharply criticized even
Smith94 doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by
held fundamental religious convictions of an individual in order to pursue some trivial state economic or opposing the arguments that the Court was wrong as a matter of original meaning [of the religion clauses] or
bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively that the decision conflicted with precedent [i.e. the Smith decision made shocking use of precedent]—those
pursue its objective without serious inadvertent impact on religion.95 points were often conceded. 98

76
To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder, by on Congress. The power of Congress to act towards the states in matters of religion arises from the Fourteenth
asserting that these were premised on two constitutional rights combined—the right of parents to direct the Amendment. 108
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 From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
attendance law, and under the Court’s opinion in Yoder, parents whose objection to the law was not religious accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we
would also have to obey it. The fatal flaw in this argument, however, is that if two constitutional claims will fail consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grossly
on its own, how would it prevail if combined?99 As for Sherbert, the Smith Court attempted to limit its doctrine inconsistent with the importance placed by the framers on religious faith. Smith is dangerous precedent because
as applicable only to denials of unemployment compensation benefits where the religiously-compelled conduct it subordinates fundamental rights of religious belief and practice to all neutral, general legislation. Sherbert
that leads to job loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was recognized the need to protect religious exercise in light of the massive increase in the size of government, the
so damaging in its effect: the religious person was more likely to be entitled to constitutional protection when concerns within its reach, and the number of laws administered by it. However, Smith abandons the protection
forced to choose between religious conscience and going to jail than when forced to choose between religious of religious exercise at a time when the scope and reach of government has never been greater. It has been
conscience and financial loss. 100 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
Thus, the Smith decision elicited much negative public reaction especially from the religious community, and majority.109
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 The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the
1993.102 The RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise claims. Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly where it
Indeed, the findings section of the Act notes that Smith "virtually eliminated the requirement that the would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of Rights,
government justify burdens on religious exercise imposed by laws neutral toward religion."103 The Act declares the religion clauses of the First Amendment are most important to those who cannot prevail in the political
that its purpose is to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. process. The Court in Smith ignores the fact that the protections found in the Bill of Rights were deemed too
Yoder, and to guarantee its application in all cases where free exercise of religion is substantially burdened; and important to leave to the political process. Because mainstream religions generally have been successful in
to provide a claim of defense to a person whose religious exercise is substantially burdened by protecting their interests through the political process, it is the non-mainstream religions that are adversely
government.104 The RFRA thus sought to overrule Smith and make strict scrutiny the test for all free exercise affected by Smith. In short, the U.S. Supreme Court has made it clear to such religions that they should not look
clause claims. 105 to the First Amendment for religious freedom. 110

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that (3) Accommodation under the Religion Clauses
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
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
creates new constitutional rights or expands the scope of rights. 107
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;
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for the and (c) those which the religion clauses prohibit.111
constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
Mandatory accommodation results when the Court finds that accommodation is required by the Free Exercise
"Values that are protected against governmental interference through enshrinement in the Bill of Rights are not Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all three conditions
thereby banished from the political process. Just as society believes in the negative protection accorded to the of the compelling interest test are met, i.e, a statute or government action has burdened claimant’s free exercise
press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed of religion, and there is no doubt as to the sincerity of the religious belief; the state has failed to demonstrate a
word, so also a society that believes in the negative protection accorded to religious belief can be expected to be particularly important or compelling governmental goal in preventing an exemption; and that the state has failed
solicitous of that value in its legislation as well." 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
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress. could explain a refusal to make exemptions. Thus, if the state’s objective could be served as well or almost as
Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial power to say what the well by granting an exemption to those whose religious beliefs are burdened by the regulation, the Court must
Constitution means, the law offered no definition of Free Exercise, and on its face appeared to be a procedural grant the exemption. The Yoder case is an example where the Court held that the state must accommodate the
measure establishing a standard of proof and allocating the duty of meeting it. In effect, the Court ruled that religious beliefs of the Amish who objected to enrolling their children in high school as required by law. The
Congress had no power in the area of religion. And yet, Free Exercise exists in the First Amendment as a negative
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Sherbert case is another example where the Court held that the state unemployment compensation plan must If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the
accommodate the religious convictions of Sherbert.112 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
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate religious objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption
interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the constitutionality from the law or practice at issue. In order to be protected, the claimant’s beliefs must be ‘sincere’, but they need
of tax exemption given by New York to church properties, but did not rule that the state was required to provide not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimant’s religious
tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no denomination. ‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs,
means co-extensive with the noninterference mandated by the Free Exercise Clause."113 Other examples are however sincere and conscientious, do not suffice.122
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 In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationist
accommodation allowed by the Religion Clauses. 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
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative accommodations. The current prevailing view as pronounced in Smith, however, is that that there are no
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited required accommodation under the First Amendment, although it permits of legislative accommodations.
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 3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
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 a. US Constitution and jurisprudence vis-à-vis Philippine Constitution
premises.118
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
Given that a free exercise claim could lead to three different results, the question now remains as to how the clear that one cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses as
Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test embodied in the First Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in the U.S.
which is most in line with the benevolent neutrality-accommodation approach. 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.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church property,123 salary of
out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. religious officers in government institutions,124 and optional religious instruction.125 Our own preamble also
Religious freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. invokes the aid of a divine being.126 These constitutional provisions are wholly ours and have no counterpart in
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of the U.S. Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting these
religion under certain circumstances. constitutions, manifested their adherence to the benevolent neutrality approach that requires accommodations
in interpreting the religion clauses.127
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 The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that
prevent or burden what someone’s religious faith requires, or alternatively, requires someone to undertake an the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution
act that faith would preclude. In essence, then, free exercise arguments contemplate religious exemptions from is a misreading of the ponencia. What the ponencia pointed out was that even as early as 1935, or more than
otherwise general laws.119 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.
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 There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution, insofar
society.120Underlying the compelling state interest test is the notion that free exercise is a fundamental right and as religious accommodations are concerned. It is indubitable that benevolent neutrality-accommodation,
that laws burdening it should be subject to strict scrutiny.121 whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine
Constitution.128 As stated in our Decision, dated August 4, 2003:
In its application, the compelling state interest test follows a three-step process, summarized as follows:

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The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive
the First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the religious evil which the State has the right to prevent. (citations omitted, emphasis supplied)
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 Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of Schools.132 The
conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause case involved several Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the
jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the
separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities religious freedom issue, a unanimous Court overturned an earlier ruling denying such exemption,133 using the
to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court in "grave and imminent danger" test, viz:
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
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late
a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in
Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
convincing the Court that the wall of separation would not be breached if the Court grants him an exemption.
existence of a grave and present danger of a character both grave and imminent, of a serious evil to public
These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as
safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to
shown by other provisions on religion in all three constitutions. It is a cardinal rule in constitutional construction
prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not
that the constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled
justified.134 (emphases supplied)
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 In these two cases, the Court itself carved out an exemption from a law of general application, on the strength
constitution.129 [citations omitted] directly of the Free Exercise Clause.

We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion clauses We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope
to effectively deny accommodations on the sole basis that the law in question is neutral and of general Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive accommodation,
application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has never held that where religious exemption is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No.
"an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting 3350 was questioned. The said R.A. exempt employees from the application and coverage of a closed shop
conduct that the State is free to regulate," our own Constitutions have made significant changes to agreement—mandated in another law—based on religious objections. A unanimous Court upheld the
accommodate and exempt religion. Philippine jurisprudence shows that the Court has allowed exemptions from constitutionality of the law, holding that "government is not precluded from pursuing valid objectives secular in
a law of general application, in effect, interpreting our religion clauses to cover both mandatory and permissive character even if the incidental result would be favorable to a religion or sect." Interestingly, the secular purpose
accommodations.130 of the challenged law which the Court upheld was the advancement of "the constitutional right to the free
exercise of religion."136
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 Having established that benevolent neutrality-accommodation is the framework by which free exercise cases
secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the business of must be decided, the next question then turned to the test that should be used in ascertaining the limits of the
general merchandise under the city’s ordinances. Plaintiff argued that this amounted to "religious censorship exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled
and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles that in cases involving purely conduct based on religious belief, as in the case at bar, the compelling state
and other religious literature to the people of the Philippines." Although the Court categorically held that the interest test, is proper, viz:
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 Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the
secure a license and pay a license fee or tax would impair its free exercise of religious profession and worship Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did
and its right of dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona
control or suppress its enjoyment." The decision states in part, viz: 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 constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the doctrine that a law of general applicability may burden religious exercise provided the law is the least
the right to disseminate religious information. Any restraint of such right can only be justified like other 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

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and immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and mandatory
the "clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the cases accommodation is more critically important in analyzing free exercise exemption claims because it forces the
which employed the "clear and present danger" or "grave and immediate danger" test involved, in one form or Court to confront how far it can validly set the limits of religious liberty under the Free Exercise Clause, rather
another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the than presenting the separation theory and accommodation theory as opposite concepts, and then rejecting
Gerona and German cases set the rule that religious freedom will not prevail over established institutions of relevant and instructive American jurisprudence (such as the Smith case) just because it does not espouse the
society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag theory selected." He then asserts that the Smith doctrine cannot be dismissed because it does not really espouse
which employed the "grave and immediate danger" test. Victoriano was the only case that employed the the strict neutrality approach, but more of permissive accommodation.
"compelling state interest" test, but as explained previously, the use of the test was inappropriate to the facts of
the case. Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only legislative
accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religion
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually
"clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily espouses the theory of accommodation or benevolent neutrality, the accommodation is limited to the
discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not permissive, or legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious
congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to exemptions directly under the Free Exercise Clause because Smith does not recognize such exemption.
Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state interest" Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine would effectively render the Free Exercise
test is proper where conduct is involved for the whole gamut of human conduct has different effects on the protection—a fundamental right under our Constitution—nugatory because he would deny its status as an
state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test independent source of right.
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 b. The Compelling State Interest Test
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
As previously stated, the compelling state interest test involves a three-step process. We explained this process
Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is
in detail, by showing the questions which must be answered in each step, viz:
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 …First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts
which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the
interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the
carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially claimant’s belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. xxx
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 xxx xxx xxx
revering religious liberty while at the same time affording protection to the paramount interests of the state. Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of religious
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the liberty?" In this step, the government has to establish that its purposes are legitimate for the state and that they
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very are compelling. Government must do more than assert the objectives at risk if exemption is given; it must
state, without which, religious liberty will not be preserved. 137 (citations omitted) precisely show how and to what extent those objectives will be undermined if exemptions are granted. xxx

At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of the xxx xxx xxx
benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test needs to Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means possible
be applied by the Court in determining the validity of a free exercise claim of exemption as made here by so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?"
Escritor." This assertion is inconsistent with the position negating the benevolent neutrality or accommodation The analysis requires the state to show that the means in which it is achieving its legitimate state objective is the
approach. If it were true, indeed, that the religion clauses do not require accommodations based on the free least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible
exercise of religion, then there would be no need for a test to determine the validity of a free exercise claim, as on religious liberties xxx.138 [citations omitted]
any and all claims for religious exemptions from a law of general application would fail.
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

80
Exercise Clause. Second, if the Court finds that the State may, but is not required to, accommodate religious What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable
interests, permissive accommodation results. Finally, if the Court finds that that establishment concerns prevail when the law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio
over potential accommodation interests, then it must rule that the accommodation is prohibited. 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.
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 On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatory
of a legislative exemption, and the Court cannot make the accommodation or exemption. 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
Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American Bible Exercise Clause required the accommodation, or mandatory accommodations) has already been decided, not
Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality- just once, but twice by the Court. Thus, the crux of the matter is whether this Court can make exemptions as in
accommodation covers not only the grant of permissive, or legislative accommodations, but also mandatory Ebralinag and the American Bible Society, in cases involving criminal laws of general application.
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. We hold that the Constitution itself mandates the Court to do so for the following reasons.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion clauses,
accommodation/exemption to a religious act from the application of general penal laws, permissive the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and given
accommodation based on religious freedom has been granted with respect to one of the crimes penalized under leeway than in the U.S.
the Revised Penal Code, that of bigamy.
Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations,
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption from was to address the "inadvertent burdensome effect" that an otherwise facially neutral law would have on
a general federal law criminalizing polygamy, even if it was proven that the practice constituted a religious duty religious exercise. Just because the law is criminal in nature, therefore, should not bring it out of the ambit of the
under their faith.140 In contradistinction, Philippine law accommodates the same practice among Moslems, Free Exercise Clause. As stated by Justice O’Connor in her concurring opinion in Smith, "[t]here is nothing
through a legislative act. For while the act of marrying more than one still constitutes bigamy under the Revised talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral towards
Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as
Philippines, provides that the penal laws relative to the crime of bigamy "shall not apply to a person effectively as laws aimed at religion."142
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 Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who are
when, in his dissent in our Decision dated August 4, 2003 and citing Sulu Islamic Association of Masjid likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protect
Lambayong v. Malik,141 he stated that a Muslim Judge "is not criminally liable for bigamy because Shari’a law adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and
allows a Muslim to have more than one wife." indifference and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in this ....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty of infrequently, they come into conflict with the religious scruples of those holding different world views, even in
religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from generally the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a
applicable laws to individuals whose religious practice conflict with those laws," his theory is infirmed by the practical matter because some laws are so necessary to the common good that exceptions are intolerable. But in
showing that the benevolent neutrality approach which allows for both mandatory and permissive other instances, the injury to religious conscience is so great and the advancement of public purposes so small or
accommodations was unequivocally adopted by our framers in the Philippine Constitution, our legislature, and incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural
our jurisprudence. 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
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to the the time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allows
notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right accommodations prevents needless injury to the religious consciences of those who can have an influence in the
and an independent source of right. 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.

81
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s
for the first time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslem report,146along with the evidence submitted by the OSG, this case is once again with us, to resolve the
polygamy and the criminal law of bigamy. 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
Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill of hearing officer of this case, and apply the three-step process of the compelling state interest test based on the
Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the evidence presented by the parties, especially the government.
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 On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality of
the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a claim of respondent’s claimed religious belief and practice are beyond serious doubt.147 Thus, having previously
exemption based on the Free Exercise Clause, solely on the premise that the law in question is a general criminal established the preliminary conditions required by the compelling state interest test, i.e., that a law or
law. 143 If the burden is great and the sincerity of the religious belief is not in question, adherence to the government practice inhibits the free exercise of respondent’s religious beliefs, and there being no doubt as to
benevolent neutrality-accommodation approach require that the Court make an individual determination and the sincerity and centrality of her faith to claim the exemption based on the free exercise clause, the burden
not dismiss the claim outright. 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.
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 A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering
erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain. Although paramount interests" which could limit or override respondent’s fundamental right to religious freedom. Neither
benevolent neutrality is the lens with which the Court ought to view religion clause cases, the interest of the did the government exert any effort to show that the means it seeks to achieve its legitimate state objective is
state should also be afforded utmost protection. This is precisely the purpose of the test—to draw the line the least intrusive means.
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 The OSG merely offered the following as exhibits and their purposes:
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:
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.
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment
in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s claimed
the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which
religious belief and practice.
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 2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued and
the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards signed by Bro. Leach.
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 PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and practice;
limits.145 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.
II. THE CURRENT PROCEEDINGS
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic social
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the careful institutions. The Solicitor General, quoting the Constitution148 and the Family Code,149 argues that marriage and
application of the compelling state interest test, i.e., determining whether respondent is entitled to exemption, the family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in the
an issue which is essentially factual or evidentiary in nature. Declaration of Pledging Faithfulness should not be recognized or given effect, as "it is utterly destructive of the
avowed institutions of marriage and the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity."150

82
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that "the
that the State has a compelling interest in the preservation of marriage and the family as basic social institutions, conjugal arrangement of respondent and her live-in partner should not be condoned because adulterous
which is ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also relationships are constantly frowned upon by society";152 and "that State laws on marriage, which are moral in
argues that in dismissing the administrative complaint against respondent, "the majority opinion effectively nature, take clear precedence over the religious beliefs and practices of any church, religious sect or
condones and accords a semblance of legitimacy to her patently unlawful cohabitation..." and "facilitates the denomination on marriage. Verily, religious beliefs and practices should not be permitted to override laws
circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to relating to public policy such as those of marriage."153
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. 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
There has never been any question that the state has an interest in protecting the institutions of marriage and already been addressed in our decision dated August 4, 2003.154 In said Decision, we noted that Mme. Justice
the family, or even in the sound administration of justice. Indeed, the provisions by which respondent’s Ynares-Santiago’s dissenting opinion dwelt more on the standards of morality, without categorically holding that
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative religious freedom is not in issue.155 We, therefore, went into a discussion on morality, in order to show that:
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. (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
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in our sanctions.156 Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the
Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the most Code of Professional Responsibility for lawyers,157 or "public morals" in the Revised Penal Code,158 or
inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that the "morals" in the New Civil Code,159 or "moral character" in the Constitution,160 the distinction between
state’s interest is important, because our Constitution itself holds the right to religious freedom sacred. The State public and secular morality on the one hand, and religious morality, on the other, should be kept in
must articulate in specific terms the state interest involved in preventing the exemption, which must be mind;161
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 (b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for
itself. accommodation of morality based on religion, provided it does not offend compelling state
interests;162
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 (c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement
interest in refusing to make an exception for the cohabitation which respondent’s faith finds moral. In other the Court makes in the case at bar should be understood only in this realm where it has authority.163
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
(d) Having distinguished between public and secular morality and religious morality, the more difficult
Solicitor General failed to do.
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
To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in enforcing its liable.164 Only one conduct is in question before this Court, i.e., the conjugal arrangement of a
prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or government employee whose partner is legally married to another which Philippine law and
symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to jurisprudence consider both immoral and illegal.165
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
(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes
or her partner. The State has never sought to prosecute respondent nor her partner. The State’s asserted
"disgraceful and immoral conduct," the case at bar involves the defense of religious freedom, therefore
interest thus amounts only to the symbolic preservation of an unenforced prohibition. Incidentally, as echoes of
none of the cases cited by Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in
the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to
Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah’s
deny the exemption would effectively break up "an otherwise ideal union of two individuals who have managed
Witnesses under the same circumstances as respondent will not prevail over the laws on adultery,
to stay together as husband and wife [approximately twenty-five years]" and have the effect of defeating the
concubinage or some other law. We cannot summarily conclude therefore
very substance of marriage and the family.

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167

83
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that
prejudicial to the best interest of the service, and we reiterate that the dissent offends due process as the state has used the least intrusive means possible so that the free exercise is not infringed any more than
respondent was not given an opportunity to defend herself against the charge of "conduct prejudicial to the best necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end
interest of the service." Indeed, there is no evidence of the alleged prejudice to the best interest of the that imposes as little as possible on religious liberties.174 Again, the Solicitor General utterly failed to prove this
service.168 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
Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent congregation, no iota of evidence was offered. In fact, the records are bereft of even a feeble attempt to procure
exemption from the laws which respondent Escritor has been charged to have violated, the exemption would any such evidence to show that the means the state adopted in pursuing this compelling interest is the least
not apply to Catholics who have secured church annulment of their marriage even without a final annulment restrictive to respondent’s religious freedom.
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 Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal
followed before cohabitation without marriage is given the blessing of the congregation. This includes an arrangement cannot be penalized as she has made out a case for exemption from the law based on her
investigative process whereby the elders of the congregation verify the circumstances of the declarants. Also, fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that
the Declaration is not a blanket authority to cohabit without marriage because once all legal impediments for the freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred
couple are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize freedom, however, man stands accountable to an authority higher than the state, and so the state interest
their union. 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
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the subscribe to the Infinite.
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 IN VIEW WHEREOF, the instant administrative complaint is dismissed.
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 SO ORDERED.
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,
REYNATO S. PUNO
sports, philosophy, or family relations. The language itself thus seems to answer whether we have a paradigm of
Associate Justice
equality or liberty; the language of the Clause is clearly in the form of a grant of liberty. 169

WE CONCUR:
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 ARTEMIO V. PANGANIBAN
text, history, structure and values implicated in the interpretation of the clauses, all point toward this Chief Justice
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 LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
to protect minorities and individuals from mobocracy in a democracy (the majority or a coalition of Associate Justice Asscociate Justice
minorities). 170

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
accommodation of religious exercises as required by the Free Exercise Clause.171 Thus, in arguing that Associate Justice Asscociate Justice
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 MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
accommodation of morality based on religion, provided it does not offend compelling state interests.173 Associate Justice Asscociate Justice

84
provisions of section 1058 of the Administrative Code. But to this was appended, for some unknown reason, the
CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR. averment that each and every fact of the petition not otherwise admitted by the return was denied. Although
Associate Justice Asscociate Justice counsel for the appellant makes mention of the form which the return of the writ of habeas corpus took, so as
not to complicate matters unnecessarily, we prefer to give attention only to so much of the return as is
contemplated by law and to disregard the rest as surplusage. The petitioner not having traversed the return, the
ADOLFO S. AZCUNA DANTE O. TINGA only issue is whether the facts stated in the return as a matter of law authorized the restraint (Code of Civil
Associate Justice Asscociate Justice Procedure, chap. XXVI; Code of Criminal Procedure, secs. 77 et seq.).

The Philippine law pertaining to the segregation of lepers is found in article XV of chapter 37 of the
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA Administrative Code. Codal section 1058 empowers the Director of Health and his authorized agents "to cause to
Associate Justice Asscociate Justice be apprehended, and detained, isolated, or confined, all leprous persons in the Philippine Islands. "In
amplification of this portion of the law are found provisions relating to arrest of suspected lepers, medical
PRESBITERO J. VELASCO, JR. inspection and diagnostic procedure, confirmation of diagnosis by bacteriological methods, establishment of
Associate Justice hospitals, detention camps, and a leper colony, etc.

In its simplest aspects, therefore, we have this situation presented: A leper confined in the San Lazaro Hospital
by the health authorities in conformity with law, but with counsel for the leper contending that the said law is
unconstitutional, and advancing as the basis for that contention the theory to be substantiated by proof that
human beings are not incurable with leprosy, and that the disease may not be communicated by contact.
Republic of the Philippines
SUPREME COURT Section 1058 of the Administrative Code was enacted by the legislative body in the legitimate exercise of the
Manila police power which extends to the preservation of the public health. It was place on the statute books in
recognition of leprosy as a grave health problem. The methods provided for the control of leprosy plainly
EN BANC constitute due process of law. The assumption must be that if evidence was required to establish the necessity
for the law, that it was before the legislature when the act was passed. In the case of a statute purporting the
have been enacted in the interest of the public health, all questions relating to the determination of matters of
G.R. No. 27484 September 1, 1927
fact are for the legislature. If there is probable basis for sustaining the conclusion reached, its findings are not
ANGEL LORENZO, petitioner-appellant,
subject to judicial review. Debatable questions are for the Legislature to decide. The courts do not sit to resolve
vs.
the merits of conflicting theories. (1 Cooley's Constitutional Limitations, 8th ed., pp. 379, 380; R. C. L., pp. 111 et
THE DIRECTOR OF HEALTH, respondent-appelle.
seq.; Jacobson vs. Massachusetts [1904], 197 U. S., 11 Segregation of Lepers [1884], V Hawaiian, 162;
People vs. Durston [N. Y.] [1890], 7 L. R. A., 715; Blue vs. Beach [Ind.] [1900], 50 L. R. A., 64;
Gregorio for appellant.
Nelson vs. Minneapolis [Minn.] [1910], 29 L. R. A., N. S., 260.)
Attorney-General Jaranilla for appellee.

Judicial notice will be taken of the fact that leprosy is commonly believed to be an infectious disease tending to
MALCOLM, J.:
cause one afflicted with it to be shunned and excluded from society, and that compulsory segregation of lepers
as a means of preventing the spread of the disease of supported by high scientific authority (See Osler and
The purpose of this appeal is to induce the court to set aside the judgment of the Court of First Instance of McCrea, The Principles and Practice of Medicine, 9th ed., p. 153.) Upon this view, laws for the segregation of
Manila sustaining the law authorizing the segregation of lepers, and denying the petition for habeas corpus, by lepers have been provided the world over. Similarly, the local legislature has regarded leprosy as a contagious
requiring the trial court to receive evidence to determine if leprosy is or is not a contagious disease. disease and has authorized measures to control the dread scourge. To that forum must the petitioner go to
reopen the question. We are frank to say that it would require a much stronger case than the one at bar for us to
The petition for the writ of habeas corpus was in the usual form. Therein it was admitted that the applicant was a sanction admitting the testimony of expert or other witnesses to show that a law of this character may possibly
leper. It was, however, alleged that his confinement in the San Lazaro Hospital in the City of Manila was in violate some constitutional provision.
violation of his constitutional rights. The further allegation was made that leprosy is not an infectious disease.
The return of the writ stated that the leper was confined in the San Lazaro Hospital in conformity with the

85
For more reasons than one, we think that Judge Concepcion took exactly the correct stand in deciding this test On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major
case, and that consequently his decision should be upheld. arguments:

Judgment affirmed, with costs 1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of
the rights guaranteed to Filipinos under the Constitution;

Republic of the Philippines 2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily;
SUPREME COURT and
Manila
3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that
EN BANC the Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs.
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio
Araneta to return to the Philippines, and enjoin respondents from implementing President Aquino's decision to
G.R. No. 88211 October 27, 1989
bar the return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
invoked by the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in
ESTRELLA, petitioners,
reality or substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy
vs.
orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO,
denied for lack of merit.
FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents. We deny the motion for reconsideration.

RESOLUTION 1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to reconsider the decision of the Court.
EN BANC:
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the
view that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition,
decision.
after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual
former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said: scenario under which the Court's decision was rendered. The threats to the government, to which the return of
the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the
contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs.
In the interest of the safety of those who will take the death of Mr. Marcos in widely and
Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal,"
passionately conflicting ways, and for the tranquility of the state and order of society, the
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that
remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such
the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
time as the government, be it under this administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested,
has unstated residual powers which are implied from the grant of executive power and which are necessary for
her to comply with her duties under the Constitution. The powers of the President are not limited to what are
86
expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. There is no similarity between the residual powers of the President under the 1987 Constitution and the power
This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers
the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of
limitation of specific power of the President, particularly those relating to the commander-in-chief clause, the specific power of legislation.
but not a diminution of the general grant of executive power.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to
That the President has powers other than those expressly stated in the Constitution is nothing new. This is protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and
recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance
among three (3) separate branches. with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave
abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.
Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the
United States of America." In Alexander Hamilton's widely accepted view, this statement ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
cannot be read as mere shorthand for the specific executive authorizations that follow it in
[sections] 2 and 3. Hamilton stressed the difference between the sweeping language of
article II, section 1, and the conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore to be
considered, as intended merely to specify the principal articles implied in the definition of
execution power; leaving the rest to flow from the general grant of that power, interpreted Separate Opinions
in confomity with other parts of the Constitution...
CRUZ, J., dissenting:
In Myers v. United States, the Supreme Court — accepted Hamilton's proposition, concluding
that the federal executive, unlike the Congress, could exercise power from sources not Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
enumerated, so long as not forbidden by the constitutional text: the executive power was plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met
given in general terms, strengthened by specific terms where emphasis was regarded as with only passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death
appropriate, and was limited by direct expressions where limitation was needed. . ." The no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood.
language of Chief Justice Taft in Myers makes clear that the constitutional concept of
inherent power is not a synonym for power without limit; rather, the concept suggests only This only shows that if he was at all a threat to the national security when he was already moribund that feeble
that not all powers granted in the Constitution are themselves exhausted by internal threat has died with him. As the government stresses, he has been reduced to a non-person (which makes me
enumeration, so that, within a sphere properly regarded as one of "executive' power, wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or that or whatever
authority is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN except by his fanatical followers. It is only a dead body waiting to be interred in this country.
CONSTITUTIONAL LAW 158-159 (1978).]

This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no
And neither can we subscribe to the view that a recognition of the President's implied or residual powers is kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it
tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual forever.
powers of the President under the Constitution should not be confused with the power of the President under
the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides:
PARAS, J., dissenting on the Motion for Reconsideration:
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency
or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular I find no reason to deviate from the dissenting opinion I have already expressed.
National Assembly fails or is unable to act adequately on any matter for any reason that in
his judgment requires immediate action, he may, in order to meet the exigency, issue the Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a
necessary decrees, orders, or letters of instruction, which shall form part of the law of the dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised Penal Code
land, prohibits the commission of libel against a deceased individual. And even if we were to assume the non-
87
existence anymore of his human rights what about the human rights of his widow and the other members of his It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national
family? security and public safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard evidence" (factual bases) or convincing
Secondly, up to now, the alleged threats to national security have remained unproved and consequently, proof of such threat. "All we have are general conclusions of national security and public safety' in avoidance of a
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military destabilization. specific, demandable and enforceable constitutional and basic human right to return." Recent events have, to
In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains to come, more my mind, served to confirm the validity of such dissenting statement.
trouble may be expected.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into mother earth,
request can mean a hardening of resistance against the well-intentioned aim of the administration. Upon the where there are no protests, "demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way for a united Jackson in Barnette is the "unanimity of the graveyard."
citizenry.
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the would pose that threat to national security. This argument is untenable as it is without merit. As I see it, Marcos'
quality of mercy is not strained." Surely, compassion is the better part of government. Remove mercy, and you supporters pose a greater threat to peace and order, with Marcos deprived of his right to burial in this country.
remove the best reason against civil strife, which if not abated can turn our country into a mainstream of fiery On the other hand, if the remains of Mr. Marcos are brought to the country and allowed the burial to which he is
dissent and in the end, as one great man has put it, the question will no longer be what is right, but what is left. constitutionally and humanly entitled, Marcos' supporters would be deprived of an otherwise potent
argument—so conducive to mass protests and even violence—that their Idol has been cruelly denied the right to
be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
PADILLA, J., dissenting:
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously asserted
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been long before his death. But, more importantly, the right of every Filipino to be buried in his country, is part of
rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first cogent and a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for
the burial of Mr. Marcos in this country, but I submit that these conditions must, as a fundamental postulate,
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this recognize the right of the man, as a Filipino, to be buried in this country NOW.
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be buried
in this country. Will the respondents be allowed to complete the circle of denying the constitutional and human
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my
right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes the right to return to, die and be
respect and regard for my brethren and sisters in the majority, I am deeply concerned and greatly disturbed that,
buried in this country? The answer should be in the negative if the Constitution is to still prevail; the answer
with their decision banning a dead Marcos from burial in this country, they have passed an opportunity to defuse
should be in the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to
a constitutional crisis that, in my humble assessment, threatens to ignite an already divided nation, Regrettably,
blend his mortal remains with a few square feet of earth in the treasured land of his birth.
they have ignored the constitutional dimension of the problem rooted in the ageless and finest tradition of our
people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say people, of unending hatred, recriminations and retaliations. God save this country!
that the constitutional and human right to be buried in this country would apply to any Filipino, except Mr.
Marcos, because he was a dictator and he plundered the country. This is the most irrelevant argument that can
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of
be raised at this time. For, our democracy is built on the fundamental assumption (so we believe) that the
the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the Philippine government
Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant,
may impose in the interest of peace and order.
religious or agnostic as long as he is a Filipino.

SARMIENTO, J., Dissenting:

88
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point.
allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex- I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in his homeland.
President's bereaved to bury his remains in his homeland, and for them to return from exile. As I had, then, As for the former, let them get their just deserts here too. And let the matter rest.
voted to grant the petition, so do I vote to grant reconsideration.
Separate Opinions
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the
President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the CRUZ, J., dissenting:
resolution of the majority. I have found none. I am not agreed, that:
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met
power is vested, has unstated residual powers which are implied from the grant of executive with only passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death
power and which are necessary for her to comply with her duties under the Constitution. The no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood.
powers of the President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution. This,
This only shows that if he was at all a threat to the national security when he was already moribund that feeble
notwithstanding the avowed intent of the members of the Constitutional Commission of
threat has died with him. As the government stresses, he has been reduced to a non-person (which makes me
1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr.
wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or that or whatever
Marcos, for the result was a limitation of specific powers of the President, particularly those
except by his fanatical followers. It is only a dead body waiting to be interred in this country.
relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no
kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of
forever.
the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a presidential
imprimatur, it would have said so. It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive power can amend the Charter.
PARAS, J., dissenting on the Motion for Reconsideration:
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on
individual liberties, but more so, against presidential intrusions. And especially so, because the President is the I find no reason to deviate from the dissenting opinion I have already expressed.
caretaker of the military establishment that has, several times over, been unkind to part of the population it has
also sworn to protect. Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a
dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised Penal Code
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a prohibits the commission of libel against a deceased individual. And even if we were to assume the non-
catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and existence anymore of his human rights what about the human rights of his widow and the other members of his
imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed interpose family?
a threat to national security. And apparently, the majority itself is not convinced ("has been viewed...").
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit, unpersuasive. Our Armed Forces can easily control any possible uprising or political and military destabilization.
reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over and over that In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains to come, more
Marcos followers are not capable of successful destabilization effort. And only this morning (October 27, 1989), trouble may be expected.
media reported the assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that menace the gains of Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the
EDSA. request can mean a hardening of resistance against the well-intentioned aim of the administration. Upon the

89
other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way for a united It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters
citizenry. would pose that threat to national security. This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of his right to burial in this country.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the On the other hand, if the remains of Mr. Marcos are brought to the country and allowed the burial to which he is
quality of mercy is not strained." Surely, compassion is the better part of government. Remove mercy, and you constitutionally and humanly entitled, Marcos' supporters would be deprived of an otherwise potent
remove the best reason against civil strife, which if not abated can turn our country into a mainstream of fiery argument—so conducive to mass protests and even violence—that their Idol has been cruelly denied the right to
dissent and in the end, as one great man has put it, the question will no longer be what is right, but what is left. be buried in his homeland.

PADILLA, J., dissenting: It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously asserted
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been
long before his death. But, more importantly, the right of every Filipino to be buried in his country, is part of
rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first cogent and
a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for
the burial of Mr. Marcos in this country, but I submit that these conditions must, as a fundamental postulate,
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
recognize the right of the man, as a Filipino, to be buried in this country NOW.
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be buried
in this country. Will the respondents be allowed to complete the circle of denying the constitutional and human
right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes the right to return to, die and be The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my
buried in this country? The answer should be in the negative if the Constitution is to still prevail; the answer respect and regard for my brethren and sisters in the majority, I am deeply concerned and greatly disturbed that,
should be in the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to with their decision banning a dead Marcos from burial in this country, they have passed an opportunity to defuse
blend his mortal remains with a few square feet of earth in the treasured land of his birth. a constitutional crisis that, in my humble assessment, threatens to ignite an already divided nation, Regrettably,
they have ignored the constitutional dimension of the problem rooted in the ageless and finest tradition of our
people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say
people, of unending hatred, recriminations and retaliations. God save this country!
that the constitutional and human right to be buried in this country would apply to any Filipino, except Mr.
Marcos, because he was a dictator and he plundered the country. This is the most irrelevant argument that can
be raised at this time. For, our democracy is built on the fundamental assumption (so we believe) that the My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of
Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the Philippine government
religious or agnostic as long as he is a Filipino. may impose in the interest of peace and order.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national SARMIENTO, J., Dissenting:
security and public safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard evidence" (factual bases) or convincing The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not
proof of such threat. "All we have are general conclusions of national security and public safety' in avoidance of a allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex-
specific, demandable and enforceable constitutional and basic human right to return." Recent events have, to President's bereaved to bury his remains in his homeland, and for them to return from exile. As I had, then,
my mind, served to confirm the validity of such dissenting statement. voted to grant the petition, so do I vote to grant reconsideration.

If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the
be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into mother earth, President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the
where there are no protests, "demos", or even dissents, where the rule that reigns, in the language of Mr. Justice resolution of the majority. I have found none. I am not agreed, that:
Jackson in Barnette is the "unanimity of the graveyard."
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
90
power and which are necessary for her to comply with her duties under the Constitution. The EN BANC
powers of the President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution. This, G.R. No. 182161 December 3, 2009
notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr.
Reverend Father ROBERT P. REYES, Petitioner,
Marcos, for the result was a limitation of specific powers of the President, particularly those
vs.
relating to the commander-in-chief clause, but not a diminution of the general grant of
RAUL M. GONZALEZ, in his capacity as the secretary of the COURT OF APPEALS, secretary DEPARTMENT OF
executive power.
JUSTICE, AND COMMISSIONER MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER OF THE
BUREAU OF IMMIGRATION, Respondents.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of
the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that the right may
DECISION
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a presidential
imprimatur, it would have said so. It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive power can amend the Charter. LEONARDO-DE CASTRO, J.:

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4, 2008
individual liberties, but more so, against presidential intrusions. And especially so, because the President is the Decision1 of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for the issuance of the
caretaker of the military establishment that has, several times over, been unkind to part of the population it has writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CA’s Resolution dated March 25, 2008,
also sworn to protect. denying petitioner’s motion for reconsideration of the aforesaid February 4, 2008 Decision.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a The undisputed facts as found by the CA are as follows:
catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and
imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed interpose Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In the morning
a threat to national security. And apparently, the majority itself is not convinced ("has been viewed..."). of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp Crame to await inquest
proceedings. In the evening of the same day, the Department of Justice (DOJ) Panel of Prosecutors, composed of
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit, Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain
reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over and over that whether or not there was probable cause to hold petitioner and the others for trial on charges of Rebellion
Marcos followers are not capable of successful destabilization effort. And only this morning (October 27, 1989), and/or Inciting to Rebellion.
media reported the assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that menace the gains of On December 1, 2007, upon the request of the Department of Interior and Local Government (DILG), respondent
EDSA. DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of
Immigration to include in the Hold Departure List of the Bureau of Immigration and Deportation (BID) the name
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point. of petitioner and 49 others relative to the aforementioned case in the interest of national security and public
I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in his homeland. safety.
As for the former, let them get their just deserts here too. And let the matter rest.
On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of Rebellion
under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S.
No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the
Republic of the Philippines Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to produce any evidence indicating his
SUPREME COURT specific participation in the crime charged; and that under the Constitution, the determination of probable cause
Manila must be made personally by a judge.

91
On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against petitioner and 17 detain and interrogate him for several minutes because of the existing HDO; that the power of the DOJ Secretary
others for lack of probable cause. The trial court ratiocinated that the evidence submitted by the DOJ Panel of to issue HDO has no legal basis; and that petitioner did not file a motion to lift the HDO before the RTC nor the
Investigating Prosecutors failed to show that petitioner and the other accused-civilians conspired and DOJ because to do so would be tantamount to recognizing the power of the DOJ Secretary to issue HDO.
confederated with the accused-soldiers in taking arms against the government; that petitioner and other
accused-civilians were arrested because they ignored the call of the police despite the deadline given to them to For respondents’ part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the DOJ’s power
come out from the 2nd Floor of the Hotel and submit themselves to the police authorities; that mere presence at to issue HDO springs from its mandate under the Administrative Code to investigate and prosecute offenders as
the scene of the crime and expressing one’s sentiments on electoral and political reforms did not make them the principal law agency of the government; that in its ten-year existence, the constitutionality of DOJ Circular
conspirators absent concrete evidence that the accused-civilians knew beforehand the intent of the accused- No. 17 has not been challenged except now; and that on January 3, 2008, the DOJ Panel of Investigating
soldiers to commit rebellion; and that the cooperation which the law penalizes must be one that is knowingly Prosecutors had filed a Motion for Reconsideration of the Order of Dismissal of the trial court.
and intentionally rendered.
On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated January 31,
On December 18, 2007, petitioner’s counsel Atty. Francisco L. Chavez wrote the DOJ Secretary requesting the 2008 of the trial court denying respondent DOJ’s Motion for Reconsideration for utter lack of merit. The trial
lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126. court also observed that the said Motion should be dismissed outright for being filed out of time. 4

On even date, Secretary Gonzales replied to petitioner’s letter stating that the DOJ could not act on petitioner’s The petition for a writ of amparo is anchored on the ground that respondents violated petitioner’s constitutional
request until Atty. Chavez’s right to represent petitioner is settled in view of the fact that a certain Atty. J. V. right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold Departure Order (HDO) and
Bautista representing himself as counsel of petitioner had also written a letter to the DOJ. the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been dismissed.

On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the rebellion case On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the privilege of
against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was held by BID officials at the writ of amparo.
the NAIA as his name is included in the Hold Departure List; that had it not been for the timely intervention of
petitioner’s counsel, petitioner would not have been able to take his scheduled flight to Hong Kong; that on
Petitioner’s Motion for Reconsideration5 thereon was also denied in the assailed Resolution6 dated March 25,
December 26, 2007, petitioner was able to fly back to the Philippines from Hong Kong but every time petitioner
2008.
would present himself at the NAIA for his flights abroad, he stands to be detained and interrogated by BID
officers because of the continued inclusion of his name in the Hold Departure List; and that the Secretary of
Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further maintained that immediate Hence, the present petition which is based on the following grounds:
recourse to the Supreme Court for the availment of the writ is exigent as the continued restraint on petitioner’s
right to travel is illegal. I.

On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the Return of the THE DOJ SECRETARY’S ARROGATION OF POWER AND USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE
Writ raising the following affirmative defenses: 1) that the Secretary of Justice is authorized to issue Hold ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY BEEN "REGULARLY EXERCISED
Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No. 18 Series of 20073 pursuant to his IN THE PAST" OR HAS "NEVER BEEN QUESTIONED (IN THE PAST).
mandate under the Administrative Code of 1987 as ahead of the principal law agency of the government; 2) that
HDO No. 45 dated December 1, 2007 was issued by the Sec. Gonzales in the course of the preliminary II.
investigation of the case against herein petitioner upon the request of the DILG; 3) that the lifting of HDO No. 45
is premature in view of public respondent’s pending Motion for Reconsideration dated January 3, 2008 filed by
the respondents of the Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS,
Rebellion for lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE
motion to lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18 can not be NO. 07-3126 TO ASSAIL SUCH CLAIMED POWER.
attacked collaterally in an amparo proceeding.
III.
During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals, counsels for both
parties appeared. Petitioner’s counsel Atty. Francisco Chavez manifested that petitioner is currently in Hong THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING ACTUAL RESTRAINT ON
Kong; that every time petitioner would leave and return to the country, the immigration officers at the NAIA PETITIONER’S RIGHT TO TRAVEL THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES NOT
92
SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a categorical pronouncement that the
RESTRAINT. Amparo Rule in its present form is confined to these two instances of "extralegal killings" and "enforced
disappearances," or to threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an
IV.
arrest, detention or abduction of a person by a government official or organized groups or private individuals
acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ SECRETARY’S CLAIMED POWER whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such
TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, persons outside the protection of law."12
HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING. 7
In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding the rule on the writ of amparo as
Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings follows:
and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution.
Petitioner argues that "[liberty] includes the right to exist and the right to be free from arbitrary personal
To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in
restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways." Part
the number of killings and enforced disappearances, and to the perceived lack of available and effective
of the right to liberty guaranteed by the Constitution is the right of a person to travel.
remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights
to life, liberty or security, as an extraordinary and independent remedy beyond those available under the
In their Comment,8 both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45 prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are
was validly issued by the Secretary of Justice in accordance with Department of Justice Circular No. 17, Series of purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds.
1998,9 and Circular No. 18, Series of 2007,10 which were issued pursuant to said Secretary’s mandate under the Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the
Administrative Code of 1987, as head of the principal law agency of the government, to investigate the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be
commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the supported by justifying allegations of fact, to wit:
constitutionality of the DOJ Secretary’s authority to issue hold departure orders under DOJ Circulars Nos. 17 and
18 is not within the ambit of a writ of amparo.
"(a) The personal circumstances of the petitioner;

The case hinges on the issue as to whether or not petitioner’s right to liberty has been violated or threatened
(b) The name and personal circumstances of the respondent responsible for the threat, act or
with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo.
omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed
appellation;
The petition must fail.
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by
Section 1 of the Rule on the Writ of Amparo provides: an unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
employee, or of a private individual or entity. the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with any report;
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and

93
(f) The relief prayed for. A closer look at the right to security of person would yield various permutations of the exercise of this right.

The petition may include a general prayer for other just and equitable reliefs." 14 First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of
Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts and freedom from fear and want has been proclaimed as the highest aspiration of the common people."
determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but
or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Emphasis essentially an individual international human right. It is the "right to security of person" as the word "security"
supplied) itself means "freedom from fear." Article 3 of the UDHR provides, viz:

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. Everyone has the right to life, liberty and security of person.
He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is a
continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to xxx
travel is covered by the Rule on the Writ of Amparo.
The Philippines is a signatory to both the UDHR and the ICCPR.
The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are
the following: (1) right to life; (2) right to liberty; and (3) right to security. In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to
life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of
In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained the concept of right to life in this action. Fear caused by the same stimulus can range from being baseless to well-founded as people react
wise: differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their
imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more
While the right to life under Article III, Section 1 guarantees essentially the right to be alive- upon which the correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the
enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the
quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and right to security mentioned in the earlier part of the provision.
property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the
government he established and consented to, will protect the security of his person and property. The ideal of Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III,
security in life and property… pervades the whole history of man. It touches every aspect of man’s existence." In Section II of the 1987 Constitution guarantees that, as a general rule, one’s body cannot be searched or invaded
a broad sense, the right to security of person "emanates in a person’s legal and uninterrupted enjoyment of his without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced
life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of disappearances constitute more than a search or invasion of the body. It may constitute dismemberment,
life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life
to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."16 itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an
affront to the bodily integrity or security of a person.
The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr., 17 in this
manner: xxx

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the
right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III,
physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of
with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is
welfare." x x x a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of
the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional
Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded on the import of the right to guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not
security, thus: afford protection to these rights especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to victims of extralegal killings or
94
enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x Even in civil cases pending before the trial courts, the Court has no authority to separately and directly intervene
x x (emphasis supplied) 19 through the writ of amparo, as elucidated in Tapuz v. Del Rosario,27 thus:

The right to travel refers to the right to move from one place to another.20 As we have stated in Marcos v. Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the
Sandiganbayan,21 "xxx a person’s right to travel is subject to the usual constraints imposed by the very necessity reported acts of violence and harassment, we see no point in separately and directly intervening through a writ
of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the of amparo in the absence of any clear prima facie showing that the right to life, libert
jurisdiction for humanitarian reasons is a matter of the court’s sound discretion." 22
is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by
Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of
against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the the writ with a separately filed criminal case.
manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy. Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ may
deny his motion to lift the HDO.28 Petitioner’s apprehension is at best merely speculative. Thus, he has failed to
In Canlas et al. v. Napico Homeowners Association I – XIII, Inc. et al.,23 this Court ruled that: show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an
actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ
Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure
This new remedy of writ of amparo which is made available by this Court is intended for the protection of the
Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and
highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare
Implementation of Watchlist Orders and for Other Purposes).
any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not
waste its precious time and effort on matters not covered by the writ.
WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-G.R. No.
00011 is hereby AFFIRMED.
We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule on
the Writ of Amparo which reads:
SO ORDERED.
Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate
petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal TERESITA J. LEONARDO-DE CASTRO
case.1avvphi1 Associate Justice

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. WE CONCUR:

Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift REYNATO S. PUNO
HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the Chief Justice
DOJ’s HDO, as his co-accused did in the same criminal case. Petitioner argues that it was not the RTC-Makati but
the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but
also to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO.24 We ANTONIO T. CARPIO RENATO C. CORONA
quote with approval the CA’s ruling on this matter: Associate Justice Associate Justice

The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO
Mogul25that once a complaint or information is filed in court, any disposition of the case such as its dismissal or Associate Justice Associate Justice
its continuation rests on the sound discretion of the court. Despite the denial of respondent’s MR of the
dismissal of the case against petitioner, the trial court has not lost control over Criminal Case No. 07-3126 which
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
is still pending before it. By virtue of its residual power, the court a quo retains the authority to entertain
Associate Justice Associate Justice
incidents in the instant case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of
the HDO was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).26
95
ordinances as unconstitutional for violating the constitutional right of minors to travel, as well as the right of
ARTURO D. BRION DIOSDADO M. PERALTA parents to rear their children.
Associate Justice Associate Justice The Facts

Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors, several
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
local governments in Metro Manila started to strictly implement their curfew ordinances on minors through
Associate Justice Associate Justice
police operations which were publicly known as part of "Oplan Rody."[3]

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR. Among those local governments that implemented curfew ordinances were respondents: (a) Navotas City,
Associate Justice Associate Justice through Pambayang Ordinansa Blg. 99-02,[4] dated August 26, 1999, entitled "Nagtatakda ng 'Curfew' ng mga
Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila," as
CERTIFICATION amended by Pambayang Ordinansa Blg. 2002-13,[5] dated June 6, 2002 (Navotas Ordinance); (b) City of Manila,
through Ordinance No. 8046[6] entitled "An Ordinance Declaring the Hours from 10:00 P.M. to 4:00A.M. of the
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Following Day as 'Barangay Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age; Prescribing
Penalties Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c) Quezon City,
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Court. through Ordinance No. SP-2301,[7] Series of 2014, entitled "An Ordinance Setting for a [sic] Disciplinary Hours in
Quezon City for Minors from 10:00 P.M. to 5:00A.M., Providing Penalties for Parent/Guardian, for Violation
Thereof and for Other Purposes" dated July 31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances).[8]
REYNATO S. PUNO
Chief Justice Petitioners,[9] spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK)- an association of young
adults and minors that aims to forward a free and just society, in particular the protection of the rights and
welfare of the youth and minors[10] - filed this present petition, arguing that the Curfew Ordinances are
unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the
void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing legitimate activities of
minors during curfew hours; (c) deprive minors of the right to liberty and the right to travel without substantive
due process; and (d) deprive parents of their natural and primary right in rearing the youth without substantive
due process.[11] In addition, petitioners assert that the Manila Ordinance contravenes RA 9344, as amended by
RA 10630.[12]
EN BANC
[ GR No. 225442, Aug 08, 2017 ] More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory
enforcement as there are no clear provisions or detailed standards on how law enforcers should apprehend and
properly determine the age of the alleged curfew violators.[13] They further argue that the law enforcer's
SAMAHAN NG MGA PROGRESIBONG KABATAAN v. QUEZON CITY + apprehension depends only on his physical assessment, and, thus, subjective and based only on the law
DECISION enforcer's visual assessment of the alleged curfew violator.[14]

While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities exempted
from the operation of the imposed curfews, i.e., exemption of working students or students with evening class,
they contend that the lists of exemptions do not cover the range and breadth of legitimate activities or reasons
PERLAS-BERNABE, J.:
as to why minors would be out at night, and, hence, proscribe or impair the legitimate activities of minors during
This petition for certiorari and prohibition[1] assails the constitutionality of the curfew ordinances issued by the curfew hours.[15]
local governments of Quezon City, Manila, and Navotas. The petition prays that a temporary restraining order
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of the
(TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of their
right to liberty and the right to travel without substantive due process;[16] and (b) fail to pass the strict scrutiny
respective local governments, to prohibit, refrain, and desist from implementing and enforcing these issuances,
test, for not being narrowly tailored and for employing means that bear no reasonable relation to their
pending resolution of this case, and eventually, declare the City of Manila's ordinance asultra vires for being
purpose.[17] They argue that the prohibition of minors on streets during curfew hours will not per se protect and
contrary to Republic Act No. (RA) 9344,[2] or the "Juvenile Justice and Welfare Act," as amended, and all curfew
promote the social and moral welfare of children of the community.[18]

96
Furthermore, petitioners claim that the Manila Ordinance, particularly Section 4[19] thereof, contravenes Section Case law explains that the present Constitution has "expanded the concept of judicial power, which up to then
57-A[20] of RA 9344, as amended, given that the cited curfew provision imposes on minors the penalties of was confined to its traditional ambit of settling actual controversies involving rights that were legally
imprisonment, reprimand, and admonition. They contend that the imposition of penalties contravenes RA 9344's demandable and enforceable."[25]
express command that no penalty shall be imposed on minors for curfew violations.[21]
In Araullo v. Aquino III,[26] it was held that petitions for certiorari and prohibition filed before the Court "are the
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the parents' remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
prerogative to impose them in the exercise of their natural and primary right in the rearing of the youth, and that branch or instrumentality of the Government may be determined under the Constitution."[27] It was explained
even if a compelling interest exists, less restrictive means are available to achieve the same. In this regard, they that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are necessarily broader in scope
suggest massive street lighting programs, installation of CCTVs (closed-circuit televisions) in public streets, and and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not
regular visible patrols by law enforcers as other viable means of protecting children and preventing crimes at only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions, but
night. They further opine that the government can impose more reasonable sanctions, i.e., mandatory parental also to set right, undo[,] and restrain any act of grave abuse of discretion amounting to lack or excess of
counseling and education seminars informing the parents of the reasons behind the curfew, and that jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial,
imprisonment is too harsh a penalty for parents who allowed their children to be out during curfew hours. [22] quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second
paragraph of Section 1, [Article VIII of the 1987 Constitution cited above]."[28]
The Issue Before the Court
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association,
The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are Inc.,[29] it was expounded that "[m]eanwhile that no specific procedural rule has been promulgated to enforce
unconstitutional. [the] 'expanded' constitutional definition of judicial power and because of the commonality of 'grave abuse of
discretion' as a ground for review under Rule 65 and the courts' expanded jurisdiction, the Supreme Court -
The Court's Ruling
based on its power to relax its rules - allowed Rule 65 to be used as the medium for petitions invoking the courts'
The petition is partly granted. expanded jurisdiction[.]"[30]

I. In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of Quezon
City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground that these
At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the dismissal of the ordinances violate the Constitution, specifically, the provisions pertaining to the right to travel of minors, and the
petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the Rules of Court to assail right of parents to rear their children. They also claim that the Manila Ordinance, by imposing penalties against
the constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the Court, contrary to the minors, conflicts with RA 9344, as amended, which prohibits the imposition of penalties on minors for status
hierarchy of courts doctrine; and (c) the lack of actual controversy and standing to warrant judicial review.[23] offenses. It has been held that "[t]here is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will
A. Propriety of the Petition for Certiorari and Prohibition. or personal bias."[31] In light of the foregoing, petitioners correctly availed of the remedies of certiorari and
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual prohibition, although these governmental actions were not made pursuant to any judicial or quasi-judicial
controversies involving rights which are legally demandable and enforceable," but also "to determine whether or function.
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any B. Direct Resort to the Court.
branch or instrumentality of the Government."[24] Section 1, Article VIII of the 1987 Constitution reads:
Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of legislative
ARTICLE VIII and executive enactments, the next question to be resolved is whether or not petitioners' direct resort to this
JUDICIAL DEPARTMENT Court is justified.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court
established by law. exercising concurrent jurisdiction with a higher court. The Supreme Court has original jurisdiction over petitions
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of the Court of Appeals [(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction is
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentalitv of the allowed when there are special and important reasons therefor, clearly and especially set out in the
Government. (Emphasis and underscoring supplied) petition[.]"[32] This Court is tasked to resolve "the issue of constitutionality of a law or regulation at the first
instance [if it] is of paramount importance and immediately affects the social, economic, and moral well-being
of the people,"[33] as in this case. Hence, petitioners' direct resort to the Court is justified.
97
C. Requisites of Judicial Review. "The gist of the question of [legal] standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
"The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected in any
law or governmental act may be heard and decided by the Court unless there is compliance with the legal of his constitutional rights by the operation of statute or ordinance, he has no standing."[42]
requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of
judicial power; (b) the person challenging the act must have the standing to question the validity of the subject As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights, namely: (1)
act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue the right of minors to freely travel within their respective localities; and (2) the primary right of parents to rear
of constitutionality must be the very lis mota of the case."[34] In this case, respondents assail the existence of the their children. Related to the first is the purported conflict between RA 9344, as amended, and the penal
first two (2) requisites. provisions of the Manila Ordinance.

1. Actual Case or Controversy. Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to raise the
issue affecting the minor's right to travel,[43] because: (a) she was still a minor at the time the petition was filed
"Basic in the exercise of judicial power — whether under the traditional or in the expanded setting — is the before this Court,[44] and, hence, a proper subject of the Curfew Ordinances; and (b) as alleged, she travels from
presence of an actual case or controversy."[35] "[A]n actual case or controversy is one which 'involves a conflict of Manila to Quezon City at night after school and is, thus, in imminent danger of apprehension by virtue of the
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim, John Arvin Navarro Buenaagua, Ronel
hypothetical or abstract difference or dispute.' In other words, 'there must be a contrariety of legal rights that Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted in the petition that they are all of legal age,
can be interpreted and enforced on the basis of existing law and jurisprudence."'[36]According to recent and therefore, beyond the ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances,
jurisprudence, in the Court's exercise of its expanded jurisdiction under the 1987 Constitution, this requirement for which they could base any direct injury as a consequence thereof.
is simplified "by merely requiring a prima facie showing of grave abuse of discretion in the assailed
governmental act."[37] None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the parents'
right to rear their children as they have not shown that they stand before this Court as parent/s and/or
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe guardian/s whose constitutional parental right has been infringed. It should be noted that Clarissa is represented
for adjudication when the act being challenged has had a direct adverse effect on the individual challenging by her father, Julian Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for himself for the
it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then been alleged violation of his parental right. But Mr. Villegas did not question the Curfew Ordinances based on his
accomplished or performed by either branch before a court may come into the picture, and the petitioner primary right as a parent as he only stands as the representative of his minor child, Clarissa, whose right to travel
must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. was supposedly infringed.
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."[38] As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an action in
court.[45] Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to allege that it was
Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case given the authorized by its members who were affected by the Curfew Ordinances, i.e., the minors, to file this case on
evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair the minors' and their behalf.
parents' constitutional rights, and whether the Manila Ordinance goes against the provisions of RA 9344. Based