CHAPTER V

CRIMINAL LAW AND FAMILY LAW: THE

CHRISTIAN PHILOSOPHERS
Thou dost not murder.
Thou dost not commit
adultery. Thou dost not steal.
Thou dost not answer against thy neighbor a false testimony.
— Exodus 20:12
More than 300 years of Spanish Catholic enculturation and 40 years of American Protestant
evangelization have made the country a Christian stronghold in Asia, wielding influence in the
life and thought, and even politics, of Filipinos.
The earliest universities in the country offering courses on law and philosophy taught the
Scholasticism or Perennial Philosophy of the Dominican Thomas Aquinas, which has been
endorsed by the Catholic Church since the late Medieval Ages after the first universities in
Europe were established. Many of the premiere universities today, including Harvard,
Cambridge, and Oxford, started as theology and divinity schools. Harvard’s motto is Veritas
Christo et Ecclesiae (“Truth for Christ and the Church”). It was the same religious story for the
University of Santo Tomas, which was named after the Catholic patron of education and which
established the first law school in the country in 1734.
Aquinas was not a stranger to politics, as he belonged to a family of public officers in
Southern Italy. The Catholic Church used Aquinas’ fusion of faith and reason, which defined the
Age of Scholasticism. Aquinas lived in a time when church laws or canon laws, interpreted by
ecclesiastical tribunals and appealable to the papal Curia, were the only “international law” as
Europe was divided into kingdoms and petty states with their own feudal laws. Regarded as a
universal ruler, the Pope was given the title of ancient Rome’s Pontifex Maximus, the head of the
pagan college of hierophants or priest-juriconsults.
The Spanish commentators of the law, such as on the Penal Code — Pacheco, Cuello Calon,
Viada and Groizard; and on the Civil Code — Manresa, Castan, Sanchez Roman, Ruggiero, and
Colin and Capilant — trailed the Scholastic dissertations that harmonized Roman law with
customary laws and Christian legalism.
Some contemporary Catholic humanists have taken Phenomenology that analyzes human
consciousness, and Personalism that focuses on the dignity of the human person, as supplement
philosophies to Scholastic Thomism. These include Dietrich von Hildebrand and Karol Wojtyla
(later St. Pope John Paul II).
John Paul II’s views shaped international and national policies on social justice, the right to
life, and family rights. The Vatican delegates in the UN’s Cairo Conference on Women, with the
help of Catholic and Muslim countries, and Evangelical lobbyists, were successful in inserting
provisions proscribing abortion. Many of the prevailing issues in the country, such as
reproductive health, were also in view of his encyclicals on responsible parenthood. While
Aquinas justified death penalty, John Paul II advocated its abolition in the Evangelium Vitae.
Tolentino maintained that the Church’s Canon Law was among the influences of the Spanish
Civil Law enforced in the Philippines (Commentaries and Jurisprudence on the Civil Code of
the Philippines I, 8). When the Canon Law was revised in 1983 by John Paul II to include
psychological incapacity as a ground for marital nullity, the same was adopted in the Family
Code in 1987. The Family Code defines marriage as a “special contract of permanent union
between a man and a woman entered into in accordance with law for the establishment of
conjugal and family life” (Article 1).
The 1987 Philippine Constitution itself, with articles on the family, human dignity, social
justice, and the right to life, considerably reflects Christian principles as sponsored by Catholic
delegates Bishop Teodoro Bacani, Bernardo Villegas, Sr. Christine Tan, and Fr. Joaquin Bernas,
SJ. It was the product of a revolution initiated by Manila Archbishop Jaime Cardinal Sin, dubbed
as “Asia’s Cardinal Richelieu.”
In this chapter, we will discuss Aquinas’ view on justice and criminal law. We will then
proceed to Wojtyla’s domestic (family) philosophy exposed in his work, Love and
Responsibility. The chapter will end with a discussion on legal models for Church-State
relations, an endemic issue in the Philippines as one of the world’s most religious countries.

I. AQUINAS
ON CRIME
AND
PUNISHME
NT
Let every person be subject to the governing authorities. For there is no authority except from
God, and those that exist have been instituted by God…For he is the servant of God, an avenger
who carries out God’s wrath on the wrongdoer. Therefore one must be in subjection, not only to
avoid God’s wrath but also for the sake of conscience.
— Romans 13: 1-5
Aquinas justified the necessity of both civil and penal law. As a social animal, man needs civil
law to determine how he will deal with others, such as in buying and selling (S.T., I-II, Q. 95,
A.4). Since no man is by nature bad or evil, mere personal training by admonition may suffice to
keep a man virtuous. Still, punishments may be needed for those “depraved and prone to vice,
and not easily amenable to words…to be restrained from evil by force and fear” (S.T., I-II. Q. 95,
A.1).
People are of various predispositions and environment. Out of fear, a person can be habituated
to do what is virtuous since penal law forces him to do or resist doing an act until it becomes his
second nature. Human law may be a hindrance to some, but the just man will conform to it
spontaneously, as if no law is needed for him because how he lives is already in agreement with
the law.
 Aquinas distinguished general from particular justice. General justice refers to legal justice
that serves the community. It is also referred to as “distributive justice” as it distributes the
common good. On one hand, particular justice is in relation to individuals who are individually
different (S.T., II-II, Q. 58, A.5).
 Rendering justice does not necessarily mean same treatment, but equitable treatment on what
the other deserves by natural or contractual/positive right; that is, rendering to each that “which
is due to him according to equality of proportion” (S.T., II-I, Q.58, A.11, corpus). This
qualification on justice justifies the doctrine of reasonable classification under the Equal
Protection clause.
Consistency must be observed in justice. For “justice is a habit whereby a man renders to each
one his due by a constant and perpetual will” (S.T., II-II, Q.58, ad 5m).

Restitution and Retribution

Restitution is an act of commutative justice, where equality is reestablished by giving back
what is taken (S.T., Q.62. A.2). Man is bound to give restitution according to the loss he brought
upon another, with damages for what the other could have obtained (S.T., II-II, Q.62, A.5).
Restitution can be made by repayment of the equivalent or by compensation.
Articles 104 to 107 of the Revised Penal Code (RPC) similarly provide for restitution with the
value to be determined by the court; reparation that takes into consideration the value of the
property to the injured party; and indemnification.
When a person violates the law, he or she violates the civil order and the common good.
Retribution through exemplary punishment must restore that order (S.T., I-II, Q.87, A.1). A
punishment must consist of something perceived to be “evil” by the wrongdoer by depriving him
of a good, so that potential wrongdoers will refrain from breaking the law if only to avoid the
penalty (Summa Contra Gentiles, II, 141). Although punishment will be perceived as bad by the
law breaker, it will be for the common good of the community, and also good to the criminal
since the law will break his excessive indulgence of his will.

Conditions of Criminal Liability

Voluntariness and involuntariness of actions must be taken into account in judging liability.
Aquinas said that “we apply the word voluntary not only to that which proceeds from the will
directly, as from its action, but also to that which proceeds from it indirectly as from its inaction”
(S.T., I-II, Q.6, A. 3, Reply 1). Voluntariness requires an act of knowledge and an act of will, “to
wish and to act” (Reply 3). Aquinas faulted as species of imprudence “thoughtlessness” or defect
in judgment, inconstancy of action, and lack of due care or negligence (S.T., Q.53, A.2).
The RPC follows the same principles. Article 3 punishes both acts and omissions that violate
the law, including faults arising from imprudence, negligence, lack of foresight, and lack of skill.
Article 4 provides that a criminal act must be performed, not only intended.
Violence and fear can cause involuntariness of actions, according to Aquinas. By violence,
one is externally compelled contrary to one’s will. In fear, one does an act not because one wills
it, but because one wants to avoid the evil feared (A.6). Article 12 of the RPC similarly makes
irresistible force and uncontrollable fear as exempting circumstances for criminal liability.
Ignorance also causes involuntariness, but Aquinas distinguished between antecedent,
concomitant, and consequent ignorance (S.T., I-II, Q.7). “Antecedent ignorance” is “ignorance of
the circumstance of one’s act,” such as a man who, despite precaution, shoots and hits a passer-
by. Ignorance is “concomitant” when despite ignorance of what was committed, a criminal act
would nevertheless be done had the circumstances been right. Aquinas raised as example a man
who wished to kill his foe but instead killed a stag. Meanwhile, ignorance is “consequent” if it
was deliberate with respect to what one can and ought to know.
Antecedent ignorance in Aquinas is in Philippine law akin to mistake of fact (ignorantia facti),
which may excuse a party from the legal consequences of his conduct. It can also refer to
unintended accidents despite due care, without fault or intention. Concomitant ignorance can
refer to aberratio ictus and error in personae in Article 4 of the RPC, where there is an
unintended commission of a felony when a different crime or victim was in fact intended.
Ignorance of the law applies to Aquinas’ consequent ignorance, as Article 3 of the Civil Code
provides that ignorance of the law excuses no one from compliance therewith (ignorantia juris
neminem excusat).
Aquinas also maintained that a circumstance affects liability, “either by way of measure, as
time and place; or by qualifying the act as the mode of acting. It touches the effect, when we
consider what is done. It touches the cause of the act, as to the final cause, by the circumstance
why; as to the material cause, or object, in the circumstance about what; as to the principal
efficient cause, in the circumstance who, and as to the instrumental efficient cause, in the
circumstance by what aids” (S.T., I-II, Q.7, A.3).
The RPC’s Article 14 on Aggravating Circumstances similarly considers these factors, such as
the commission of a crime during nighttime and in an uninhabited place; the mode of acting with
treachery, impunity or with craft, fraud, and disguise; whether what is done is in contempt of
authorities; the consideration such as for a price or reward; who did the act, such a public officer
taking advantage of his position; and the aid of persons by a band or by means of motorized
vehicles, explosion, or breaking of walls, doors, or windows.
Aquinas discussed major crimes in the Summa against the respect due to persons, and also
murder, physical injuries, theft and robbery, unjust accusations, derision, cheating, usury, and
unnatural sexual acts or perversions, with reference to the Ten Commandments.

II. WOJTYLA’S TALKS ABOUT SEX

What is honor compared to a woman’s love? What is duty against the feel of a newborn son in
your arms . . .Wind and words. Wind and words. We are only human, and the gods have
fashioned us for love. That is our great glory, and our great tragedy.
— Maester Aemon, from George R.R. Martin’s A Game of Thrones
Love and Responsibility (LR) caused a sensation when it was first published in the original
Polish for discussing taboo topics on sensuality, unsatisfied wives faking orgasms, how to make
natural family planning work, and the importance of mutual sexual climax. To top it all, it was
written by a cleric. LR was written when Wojtyla, later Pope John Paul II, was a philosophy
lecturer on phenomenology and existentialism.
It is said that Wojtyla’s information on sex came from his kayaking and skiing retreats with
some 200 married and single friends. Like the celibate Hindu priest Vatsyayana, author of the
Kama Sutra, Wojtyla believed that it is his duty to reflect on the dignity of human sexuality at
the onset of the sexual revolution in the 60s. From his work, we can put into perspective
Philippine family law policies on absolute divorce, same-sex unions, monogamy, and artificial
birth control that solidified under John Paul II’s long and charismatic papacy.
While most sex education studies interpret man’s sexuality much like animal sexuality,
Wojtyla reminded us that what is “natural” to beasts is “subnatural” to humans (LR, 108). Man
has the power of self-determination and free will to choose his sexual acts, unlike animals. As a
thinking being, a person is rational, his sexual activity, being “choices,” are issues of morality —
of personal responsibility and freedom. Man is not simply a sexual being; he or she is a sexual
person.

The Sexual Partner as a Person

Wojtyla reformulated the Kantian imperative in that anyone who treats another as means to an
end violates that person’s natural right to pursue his ends. According to Wojtyla, “you may not
treat a person as only the means to an end, but must allow for the fact that he too should have
distinct personal ends” (L.R., 28). A person must thus be loved as he or she is, accepted and
regarded in his totality, and not only sexually desired.
Sexual objectification reduces a person to a consumer item, making him or her dispensable
once another person possesses the same attribute or when the person loses his or her desirable
traits. Love is the only legitimate sexual response to a person, which ensures that the other will
not be treated only as a sexual object.
The value of a person demands an unconditional commitment of the will in the fullest possible
way. In sex, this occurs in the demand for committed love in marriage (L.R., 117). In sex, there is
the meeting of bodies and souls; of minds, emotions, and sensibilities. Because of this, persons
are most susceptible, given up, and lost to the other, in moments of orgasm. The consequence of
sex has considerable existential effects spelling life and death, love and hatred. Sex without its
life-making and lovemaking values runs the risk of reducing sexual persons to mere pleasure
commodities.

Pleasure and Love

Pleasure is natural and good, but it is not the highest good. Love is the fullest realization of the
possibilities of man. Because of love, one expects and discovers more from oneself because of
the affirmation of the other. Wojtyla spoke of “altero-centrism,” saying that the sexual instinct
moves the “I” of the instinct of self-preservation to the “I” of another (L.R., 65). By losing
oneself to the other, one gains oneself with the other. Explaining self-sacrifice and self-
limitation, Wojtyla said that man longs for love more than freedom — freedom is the means and
love is the end (L.R., 136).
Again, the sexual urge is a natural drive. Sensuality is not a sin since it can be biological. “In
any normal man, the lust of the body has its own dynamic, of which sensual reactions are a
manifestation…a sensual reaction generally runs its full course even if it meets opposition”
(L.R., 162). In fact, sexual desire exists because one needs the other sex. Urge is an expression of
the need for a complement.
Here is where Wojtyla established what is normal from deviant sexuality. “The natural
direction of the sexual urge is towards a human being of the other sex and not merely towards
‘the other sex’ as such” (L.R., 49). It is “person of the other sex.” Pornography, fetishism, and
self-indulgence do not deal with persons but with mere attributes and fantasies. In
homosexuality, both partners have the same attributes, the giver and the receiver bearing the
same gender. It is man and woman who have intrinsic biological, emotional, and psychological
differences that make them fully complement each other. In this relationship, one meets his or
her true Sexual Other that can bear fruit to a new life.
In human phenomenology, “love is a phenomenon peculiar to the world of human beings”
(L.R., 49). In the animal world, only the sexual instinct is at work. Love is neither the sensuality
nor the romantic feeling of it, but the decision to demand from oneself for the sake of one’s love
even if one sometimes does not anymore “feel” in love. While love starts and flourishes with
sensuality and sentimentality, it must be able to survive losing these physical and emotional
courses by an act of the will. If there is a will, there is a way for love to survive.

The Meaning of Total Self-Giving

A fully developed sexual relationship is only possible in a durable union where total self-
giving is encouraged. This is not the case in cohabitation and in “trial” marriages, which are
conditional and indicate that the couple is not ready for a long-term commitment. The
commitment of monogamy in marriage is necessary “to signify the maturity of the union
between a man and a woman, to testify that theirs is a love on which a lasting union and
community can be based, a family can rightly be found (L.R., 220). Further, sex is more
enjoyable between couples when they have the “the right to live in total intimacy” (L.R., 278).
Meanwhile, total self-giving can be frustrated by contraception. If a man truly loves his wife,
he needs to accept and regard the natural order, the natural cycle of the woman, as part of her
being. The couple will see each other’s fertility as a gift, not a disease to be medicated. The
husband will adjust to the woman’s bodily rhythms than place an artificial barrier in their very
act of lovemaking. Man can master his nature only by caring for, and not by mutilating or
interfering with, his healthy and normal reproductive designs.
“Biological methods, besides causing temporary barrenness, may bring about serious and
irreversible changes in the organism,” argued Wojtyla. He explained that “chemical means are in
their very nature cellular poisons, otherwise, they would not have the power to kill genital cells,
and so they must be physically harmful. Mechanical means cause local injuries in the woman’s
reproductive tract, and what is more, interfere with the intensity of the act” (L.R., 282).
Finally, love is not just something in the man or in the woman, but something that must be
common to them. Love is bilateral. It is shared and interpersonal — “a force which joins and
unites” (L.R., 85). Trust can only happen between a couple if they know that they regard each
other as lifetime partners.
How does one measure love? Love is gauged by responsibility. The full stage of love is
reached when the “I” becomes inseparable from the “I” of the other. It is a love that lasts in
sickness and in health, in richness and in poverty, for better or for worse; a love that in all
conditions cannot abandon the other because the other is already part of oneself. This is the
trajectory and goal of marriage, for two people to become one; and their union and original
calling no man must put asunder.

III. DOVETAILING OF CHURCH AND STATE

Think not that I came to destroy the law, or the prophets: I came not to destroy but to fulfill.
— Jesus of Nazareth, Matthew 5:17
With the influence of Christian philosophy in Philippine politics and law, one encounters the
principle of separation of church and state as a major issue. Filipino philosophy specialist
Leonardo Mercado cited four political models of church and state relations where we can draw
the proper symbiosis between these two entities. They are: sacred heteronomy, first profane
autonomy, second profane autonomy, and theandric ontonomy.
In sacred heteronomy, spiritual concerns are perceived as superior to the material, and
therefore, religion rules all affairs of life. This happened in the theocracy of the Old Testament,
the frailocracy of the Medieval Ages, and in the Islamism of Arabic countries. This model is not
viable in the Philippines given its different religions. Even the majority Catholic Church affirms
the State’s right to exist independently from spiritual affairs.
In reverse, the first profane autonomy model gives the government power over the sacred. This
occurs in Communist countries like China, where the government appoints bishops in the official
“Patriotic Catholic Church” and where churches must be registered. Since religious concerns
exceed national boundaries and temporal interests, the State will be inadequate in controlling the
affairs of a church. Overpowering religions often lead to state implosion, as happened in the
former Soviet Union.
Meanwhile, the second profane autonomy model is the Western (American) ideal. There is a
demarcation between Church and State, geared towards independent co-existence. One result of
this model is that religion becomes a private affair. Apparently, Americans themselves find this
separation scheme schizophrenic. The Philippine Constitution, following the American
Constitution, advocates this model through the principle of separation of Church and State.
Devout Muslims find strange this separation principle because Islam has no organized clergy
or hierarchy for its politics to disassociate from. Islamists are not against the religions of the
Book but on Western social contract theory where people alone can decide the values upon
which they stand, independent of notions of God, moral absolutes, and truth.
Finally, the theandric ontonomy (from Greek word theos or god, and andros, man) weaves
together the political and the spiritual fabric of society.
Eastern philosophy in general prefers this model, where law and religion are combined in legal
concepts like the Hindu dharma (i.e., duty/truth/ceremony/ethics), the ancient Chinese li
(law/ritual/right), the Jewish Torah, and the Islamic shariah. Eastern law does not dichotomize
religion and state but seeks holistic and personal harmony of matter and spirit. It is no accident
that the major religions originated from the East, and Eastern philosophy dovetails its sacred
books.

Separation of Church and State

Filipino culture, like its Asian neighbors, by practice belongs to the theandric ontonomy
model. Deep religiosity is present throughout Philippine history. Historian Felipe Jocano stressed
the pervasive influence of religion even among pre-Hispanic Filipinos, where houses, boats,
farming equipment, cooking utensils, and other implements were not used without
accompanying rites. The anitos were believed to function as real deities and the pintados tattoo
their bodies as an offering. Spirits were thought to dwell in nature (saying excuses, “tabi-tabi
po,” in crossing unfamiliar trenches) and the babaylan had the role of a village priest and healer.
Even during the anti-clerical air of the Philippine Revolution, the Katipuneros did not think of
separating Church and State but in establishing a Filipinized church. The separation clause was a
most controversial issue for the framers of the Malolos Constitution, where after a long debate,
the proposal of separation won only by a margin of one vote.
The influence of religious thought continued during the American occupation. The Blue
Sunday Law that made every Sunday of the week a rest day was passed. Even today, whenever
the nation is in deep crisis, Filipinos invoke the assistance of the religious sector as the most
organized non-government support group. Of recent memory are the EDSA revolutions that
toppled presidents, initiated by Church pastors.
Although the Philippine Constitution does not officially endorse any religion, its preamble,
just like the U.S. Constitution, nevertheless acknowledges the existence of a Supreme Being.
In his commentaries on the Constitution, Fr. Joaquin Bernas, SJ, a member of the 1986
Constitutional Commission, noted that the law’s separation clause only means two things. First,
that the government will not establish any religion; and second, that every citizen shall enjoy
freedom of conscience. This is clear in the Bill of Rights stating that “no law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof.” (Art III, Sec. 5).
This shows that the limitation is on government power from imposing a religion or imposing on
religion. The popular opinion that the clause is a ground for Church and State “indifference” is
not reflected in the Constitution.
The United States, where the separation clause has been adopted since our 1935 Constitution,
has the same nuances on this “wall of separation.” University of Chicago law professor Philip
Hamburger, columnist of the New Yorker, contended that the separation of Church and State was
drafted in the 18th century First Amendment to limit the government from following European
countries that established official religions.
The U.S. Supreme Court first used the words “separation of Church and State” in a case in
1879. Separation calls for “neutrality,” in Chief Justice Warren Burger’s words, “benevolent
neutrality,” not hostility. The Amendment, said Hamburger, was only later misinterpreted to
limit religion. Secularists go as far as to use the clause to censor the language of “morality” in
the U.S. government and to suggest the abolition of religious holidays like Christmas and Easter.
Hamburger argued that the myriad of connections between the interests of Church and State do
not amount to an establishment, let alone a full union of Church and State. Union and separation
are overgeneralizations between which lies much middle ground.
International Law authority Jorge Coquia rectified the separation clause, and proposed instead
a more realistic article on “the distinction and cooperation of Church and State.” Coquia argued
that the principle of separation is loaded, inviting hostility between Church and State, instead of
engaging these entities to work together for the general good.
In the next chapter, we shift from matters of crime, passion, and the spirit, to laws on more
worldly pursuits.

CHAPTER V CASE READINGS

ON THE RIGHT TO LIFE

LEO ECHEGARAY v. SECRETARY OF JUSTICE, ET AL.

(G.R. No. 132601, January 19, 1999)

PANGANIBAN, J., separate opinion:

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee
that “(n)o person shall be deprived of life, liberty or property without due process of law.” This
primary right of the people to enjoy life — life at its fullest, life in dignity and honor — is not
only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and pro-human
rights provisions. Hence, the Constitution values the dignity of every human person and
guarantees full respect for human rights, expressly prohibits any form of torture which is
arguably a lesser penalty than death, emphasizes the individual right to life by giving protection
to the life of the mother and the unborn from the moment of conception and establishes the
people’s rights to health, a balanced ecology and education.
This Constitutional explosion of concern for man more than property for people more than the
state, and for life more than mere existence augurs well for the strict application of the
constitutional limits against the revival of death penalty as the final and irreversible exaction of
society against its perceived enemies.
Indeed, volumes have been written about individual rights to free speech, assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life,
the other rights cease in their enjoyment, utility and expression.
xxx
“Thou shall not kill” is fundamental commandment to all Christians, as well as to the rest of
the “sovereign Filipino people” who believe in Almighty God. While the Catholic Church, to
which the vast majority of our people belong, acknowledges the power of public authorities to
prescribe the death penalty, it advisedly limits such prerogative only to “cases of extreme
gravity.” To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life),
“punishment must be carefully evaluated and decided upon, and ought not to go to the extreme
of executing the offender except in cases of absolute necessity: in other words, when it would not
be possible otherwise to defend society . . . (which is) very rare, if not practically non-existent.”
Although not absolutely banning it, both the Constitution and the Church indubitably abhor
the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human
life over and above even the state which man created precisely to protect, cherish and defend
him. The Constitution reluctantly allows capital punishment only for “compelling reasons
involving heinous crimes” just as the Church grudgingly permits it only reasons of “absolute
necessity” involving crimes of “extreme gravity,” which are very rare and practically non-
existent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of “compelling reasons” to
prescribe death against well-defined “heinous” crimes?
I respectfully submit it has not.
ON PSYCHOLOGICAL INCAPACITY

LEOUEL SANTOS v. THE HONORABLE COURT OF APPEALS AND JULIA

ROSARIO BEDIA-SANTOS
(G.R. No. 112019, January 4, 1995)

VITUG, J.:

Accordingly, although neither decisive nor even perhaps all that persuasive for having no
juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the
code’s enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at
least, to the interpretation or construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties, giving an account on how the third paragraph
of Canon 1095 has been framed, states:
The history of the drafting of this canon does not leave any doubt that the legislator intended,
indeed, to broaden the rule. A strict and narrow norm was proposed first:
Those who cannot assume the essential obligations of marriage because of a grave psycho-
sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf.
SCH/1975, Canon 297, a new canon, Novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf.
SCH/1980, Canon 1049);
then the same wording was retained in the text submitted to the pope (cf. SCH/1982, Canon
1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob causas naturae psychiae).
So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was
altogether eliminated. It would be, however, incorrect to draw the conclusion that the cause of
the incapacity need not be some kind of psychological disorder; after all, normal and healthy
person should be able to assume the ordinary obligations of marriage.
Fr. Orsy concedes that the term “psychological incapacity” defies any precise definition since
psychological causes can be of an infinite variety.
In a book, entitled “Canons and Commentaries on Marriage,” written by Ignatius Gramunt,
Javier Hervada and LeRoy Wauck, the following explanation appears:
This incapacity consists of the following: (a) a true inability to commit oneself to the essentials
of marriage. Some psychosexual disorders and other disorders of personality can be the psychic
cause of this defect, which is here described in legal terms. This particular type of incapacity
consists of a real inability to render what is due by the contract. This could be compared to the
incapacity of a farmer to enter a binding contract to deliver the crops which he cannot possibly
reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the
conjugal act, the community of life and love, the rendering of mutual help, the procreation and
education of offspring; (c) the inability must be tantamount to a psychological abnormality. The
mere difficulty of assuming these obligations, which could be overcome by normal effort,
obviously does not constitute incapacity. The canon contemplates a true psychological disorder
which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb.
5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be
proved not only that the person is afflicted by a psychological defect, but that the defect did in
fact deprive the person, at the moment of giving consent, of the ability to assume the essential
duties of marriage and consequently of the possibility of being bound by these duties.
Justice Sempio-Diy cites with approval the work of Dr. Gerardo Veloso, a former Presiding
Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1),
who opines that psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability. The incapacity must be grave or serious such that the party
would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in
the history of the party antedating the marriage, although the overt manifestations may emerge
only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be
beyond the means of the party involved.
It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the use of the
phrase “psychological incapacity” under Article 36 of the Code has not been meant to
comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio
Baluma’s “Void and Voidable Marriages in the Family Code and their Parallels in Canon Law,”
quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric
Association; Edward Hudson’s “Handbook II for Marriage Nullity Cases”). Article 36 of the
Family Code cannot be taken and construed independently of, but must stand in conjunction
with, existing precepts in our law on marriage. Thus correlated, “psychological incapacity”
should refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged
by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine the
meaning of “psychological incapacity” to the most serious cases of personality disorders clearly
demonstrative of an utter intensitivity or inability to give meaning and significance to the
marriage. This pschologic condition must exist at the time the marriage is celebrated. The law
does not evidently envision, upon the other hand, an inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of nullity of the void marriage to be
“legitimate.”
The other forms of psychoses, if existing at the inception of marriage, like the state of a party
being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code.
If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the
marriage, they become mere grounds for legal separation under Article 55 of the Family Code.
These provisions of the Code, however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree and severity of the disorder,
indicia of psychological incapacity.
Until further statutory and jurisprudential parameters are established, every circumstance that
may have some bearing on the degree, extent, and other conditions of that incapacity must, in
every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity
is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be helpful or even desirable.
Marriage is not an adventure but a lifetime commitment. We should continue to be reminded
that innate in our society, then enshrined in our Civil Code, and even now still indelible in
Article 1 of the Family Code, is that —
Art. 1. Marriage is a special contract of permanent union between a man a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the foundation
of the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code. (Emphasis
supplied.)
 Our Constitution is no less emphatic:
Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State. (Article XV, 1987 Constitution).
The above provisions express so well and so distinctly the basic nucleus of our laws on
marriage and the family, and they are doubt the tenets we still hold on to.
ON THE SEPARATION OF CHURCH AND STATE

ALEJANDRO ESTRADA v. SOLEDAD S.

ESCRITOR (A.M. No. P-02-1651, June 22, 2006)

PUNO, J.:

xxx
We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of
religion by secular powers to promote secular purposes and policies, and the willing acceptance
of that role by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This
was the context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and in human
history.
Strictly speaking, the American experiment of freedom and separation was not translated in
the First Amendment. That experiment had been launched four years earlier, when the founders
of the republic carefully withheld from the new national government any power to deal with
religion. As James Madison said, the national government had no “jurisdiction” over religion or
any “shadow of right to intermeddle” with it.
The omission of an express guaranty of religious freedom and other natural rights, however,
nearly prevented the ratification of the Constitution. The restriction had to be made explicit with
the adoption of the religion clauses in the First Amendment as they are worded to this day. Thus,
the First Amendment did not take away or abridge any power of the national government; its
intent was to make express the absence of power. It commands, in two parts (with the first part
usually referred to as the Establishment Clause and the second part, the Free Exercise Clause),
viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve
contradictory purposes. They have a single goal — to promote freedom of individual religious
beliefs and practices. In simplest terms, the Free Exercise Clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and practice, while the
Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence individual religious beliefs
and practices.
In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of non-
establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context

xxx
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence
on the religion clauses. First is the standard of separation, which may take the form of either (a)
strict separation or (b) the tamer version of strict neutrality or separation, or what Mr. Justice
Carpio refers to as the second theory of governmental neutrality. Although the latter form is
not as hostile to religion as the former, both are anchored on the Jeffersonian premise that a “wall
of separation” must exist between the state and the Church to protect the state from the church.
Both protect the principle of church-state separation with a rigid reading of the principle. On the
other hand, the second standard, the benevolent neutrality or accommodation, is buttressed by
the view that the wall of separation is meant to protect the church from the state. A brief review
of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state
from the church, and the state’s hostility towards religion allows no interaction between the two.
According to this Jeffersonian view, an absolute barrier to formal interdependence of religion
and state needs to be erected. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers. Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free choice among
political views, thus a strict “wall of separation” is necessary.
Strict separation faces difficulties, however, as it is deeply embedded in American history
and contemporary practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid from religion. For
example, less than twenty-four hours after Congress adopted the First Amendment’s prohibition
on laws respecting an establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer. Thus, strict
separationists are caught in an awkward position of claiming a constitutional principle that has
never existed and is never likely to.
The tamer version of the strict separationist view, the strict neutrality or separationist view,
(or, the governmental neutrality theory) finds basis in Everson v. Board of Education, where
the Court declared that Jefferson’s “wall of separation” encapsulated the meaning of the First
Amendment. However, unlike the strict separationists, the strict neutrality view believes that the
“wall of separation” does not require the state to be their adversary. Rather, the state must be
neutral in its relations with 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.” The strict neutrality
approach is not hostile to religion, but it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to religious
belief.
The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Abington
School District v. Schempp, strict neutrality could lead to “a brooding and pervasive devotion
to the secular and a passive, or even active, hostility to the religious” which is prohibited by the
Constitution. x x x
Thus, the dilemma of the separationist approach, whether in the form of strict separation or
strict neutrality, is that while the Jeffersonian wall of separation “captures the spirit of the
American ideal of church-state separation,” in real life, church and state are not and cannot be
totally separate. This is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the
“wall of separation,” associated with Williams, founder of the Rhode Island colony. Unlike the
Jeffersonian wall that is meant to protect the state from the church, the wall is meant to protect
the church from the state. This doctrine was expressed in Zorach v. Clauson, which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to each other — hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection to religious groups.
Policemen who helped parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our
courtroom oaths — these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each session: “God
save the United States and this Honorable Court.”
xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the
best of our traditions. For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to religious groups. .
. But we find no constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen their effective scope of
religious influence.
Benevolent neutrality recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality,
pose Establishment Clause questions. Among these are the inscription of “In God We Trust” on
American currency; the recognition of America as “one nation under God” in the official pledge
of allegiance to the flag; the Supreme Court’s time-honored practice of opening oral argument
with the invocation “God save the United States and this Honorable Court”; and the practice of
Congress and every state legislature of paying a chaplain, usually of a particular Protestant
denomination, to lead representatives in prayer. These practices clearly show the preference for
one theological viewpoint — the existence of and potential for intervention by a god — over the
contrary theological viewpoint of atheism. Church and government agencies also cooperate in
the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism
and drug addiction, in foreign aid and other government activities with strong moral dimension.
Examples of accommodations in American jurisprudence also abound, including, but not
limited to the U.S. Court declaring the following acts as constitutional: a state hiring a
Presbyterian minister to lead the legislature in daily prayers, or requiring employers to pay
workers compensation when the resulting inconsistency between work and Sabbath leads to
discharge; for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior; or to provide religious school pupils with books; or
bus rides to religious schools; or with cash to pay for state-mandated standardized tests.
xxx
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence, and Practice

a. U.S. Constitution and jurisprudence vis-à-vis Philippine Constitution

xxx
There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution. As stated in our Decision, dated August
4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were
largely adopted from the First Amendment of the U.S. Constitution x x x Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might
simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of
U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent neutrality approach
might be adopted and each will have U.S. authorities to support it. Or, one might conclude that
as the history of the First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses’ history. As a result, in a case where the party claims religious liberty
in the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if
the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on
religion in all three constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting provisions should be
reconciled and harmonized in a manner that will give to all of them full force and effect. From
this construction, it will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution.
[citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of
the religion clauses to effectively deny accommodations on the sole basis that the law in question
is neutral and of general application. For even if it were true that “an unbroken line of U.S.
Supreme Court decisions” has never held that “an individual’s religious beliefs [do not] excuse
him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate,” our own Constitutions have made significant changes to accommodate and exempt
religion. Philippine jurisprudence shows that the Court has allowed exemptions from a law
of general application, in effect, interpreting our religion clauses to cover both mandatory
and permissive accommodations.
To illustrate, in American Bible Society v. City of Manila, the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this case,
plaintiff was required by an ordinance to secure a mayor’s permit and a municipal license as
ordinarily required of those engaged in the business of general merchandise under the city’s
ordinances. Plaintiff argued that this amounted to “religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines.” Although the Court categorically held
that the questioned ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said “merchandise” for profit, it also ruled that applying the
ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination of
religious beliefs “as the power to tax the exercise of a privilege is the power to control or
suppress its enjoyment.” The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such right
can only be justified like other restraints of freedom of expression on the grounds that there is
a clear and present danger of any substantive evil which the State has the right to prevent.
(citations omitted, emphasis supplied)
xxx
Having established that benevolent neutrality-accommodation is the framework by which
free exercise cases must be decided, the next question then turned to the test that should be used
in ascertaining the limits of the exercise of religious freedom. In our Decision dated August 4,
2003, we reviewed our jurisprudence, and ruled that in cases involving purely conduct based on
religious belief, as in the case at bar, the compelling state interest test, is proper, viz:
xxx
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. [The
Court] explained this process in detail, by showing the questions which must be answered in
each step, viz:
…First, “[H]as the statute or government action created a burden on the free exercise of
religion?” The courts often look into the sincerity of the religious belief, but without inquiring
into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as
held in Ballard and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation.
xxx
Second, the court asks: “[I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty?” In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do
more than assert the objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are granted.
xxx
Third, the Court asks: “[H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state?” The analysis requires the state to show that the means
in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that imposes as little as possible on religious
liberties x x
x. [citations omitted]
Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that the
State may, but is not required to, accommodate religious interests, permissive accommodation
results. Finally, if the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is prohibited.
xxx
On this point, two things must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommodation is uncertain, for Philippine law and jurisprudence have,
in fact, allowed legislative accommodation. Second, the power of the Courts to grant exemptions
in general (i.e., finding that the Free Exercise Clause required the accommodation, or
mandatory accommodations) has already been decided, not just once, but twice by the Court.
Thus, the crux of the matter is whether this Court can make exemptions as in Ebralinag and the
American Bible Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the
Philippine religion clauses, the benevolent neutrality-accommodation approach in Philippine
jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the “inadvertent burdensome effect” that an otherwise facially
neutral law would have on religious exercise. Just because the law is criminal in nature,
therefore, should not bring it out of the ambit of the Free Exercise Clause. As stated by Justice
O’Connor in her concurring opinion in Smith, “[t]here is nothing talismanic about neutral laws
of general applicability or general criminal prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or intrude upon his religious duties just as
effectively as laws aimed at religion.”
Third, there is wisdom in accommodation made by the Court as this is the recourse of
minority religions who are likewise protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and indifference and overt
hostility to the minority.
xxx
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor
will it be applied for the first time, as an exemption of such nature, albeit by legislative act, has
already been granted to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental rights
like the right to life, liberty or property, the Religion Clauses are stated in absolute terms,
unqualified by the requirement of “due process,” “unreasonableness,” or “lawful order.” Only
the right to free speech is comparable in its absolute grant. Given the unequivocal and
unqualified grant couched in the language, the Court cannot simply dismiss a claim of exemption
based on the Free Exercise Clause, solely on the premise that the law in question is a general
criminal law. If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make
an individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-
accommodation approach does not mean that the Court ought to grant exemptions every time a
free exercise claim comes before it. This is an erroneous reading of the framework which the
dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality is the lens with
which the Court ought to view religion clause cases, the interest of the state should also be
afforded utmost protection. This is precisely the purpose of the test — to draw the line between
mandatory, permissible and forbidden religious exercise. Thus, under the framework, the
Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this
precisely is the protection afforded by the religion clauses of the Constitution. As stated in the
Decision:
x x x While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or importance of
the state interest or the sufficiency of the means adopted by the state to pursue its interest, the
Court can set a doctrine on the ideal towards which religious clause jurisprudence should be
directed. We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is directed is the
protection of religious liberty “not only for a minority, however small-not only for a
majority, however large but for each of us” to the greatest extent possible within flexible
constitutional limits.
ST. THOMAS AQUINAS ON ROBBERY

PEOPLE OF THE PHILIPPINES v. TEODORO DE LA CRUZ y TOJOS, ET AL.

(G.R. No. L-52, February 21, 1946)
 PERFECTO, J.:

One of the geniuses who flourished in the thirteenth century, the philosopher and theologian
whose exalted native endowment and original creative power in the intellectual field is the
admiration of Christian world, Saint Thomas Aquinas, maintained that the appropriation of
others’ goods which they (the owners) do not need, if made in obedience to extreme necessity,
does not constitute robbery. He declared that the superfluous things in the possession of some
persons, by natural law, are goods for the maintenance of the poor. Evident and urgent
necessity makes the one who appropriates the goods of another for the maintenance of his own
life the legal owner of said goods (Summa Theologica, 2d part, Question LXVI, Art. VII). To
strengthen his position, he quoted from Saint Ambrose (serm. 64, De temp. Decret. 47, cap.
Sicut hi) the following: “The bread you are retaining belongs to the hungry; the cloth you are
keeping aside belongs to the naked; the money you are hiding underground is for the
redemption and absolution of the unfortunate.” But, without subscribing necessarily to the
above propositions of the two saintly authors, in the present case, there is absolutely no
showing that extreme necessity impelled accused to perpetrate the robbery here in question.
There is not the remotest hint that appellant would have died of hunger without the money and
jewel which he and his fellow gangsters took from complainants’ drug store, or that he
would face an imminent danger of losing any vital limb or right. On the contrary, he testified
that he was engaged in selling foodstuffs, such as bread; wearing apparel, such as shoes; and
even articles of luxury, such as pomade. And it is evident that he earned more than enough to
satisfy his prime needs, for he allowed himself the leisure and the spare money for gambling.
He robbed, therefore, not because he was compelled by any pressing necessities, but by
following impulses of moral perversity. For such individual, and for all individuals belonging
to his depraved tribe, there is no reason to waste any pity or leniency. The race of robbers,
bandits, gangsters, and other malefactors of the same brand, should be ostracized perpetually
from human society until the shame shall have disappeared completely from memory.