G.R. No.

11263 November 2, 1916

Full Case
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal domicile. From
a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do
not state a cause of action, followed by an order dismissing the case after the plaintiff declined to amend,
the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a
divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and immediately
thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a
month, when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint
are as follows:
That the defendant, one month after he had contracted marriage with the plaintiff,
demanded of her that she perform unchaste and lascivious acts on his genital organs; that
the plaintiff spurned the obscene demands of the defendant and refused to perform any
act other than legal and valid cohabitation; that the defendant, since that date had
continually on other successive dates, made similar lewd and indecorous demands on his
wife, the plaintiff, who always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word and deed and inflict
injuries upon her lips, her face and different parts of her body; and that, as the plaintiff
was unable by any means to induce the defendant to desist from his repugnant desires and
cease from maltreating her, she was obliged to leave the conjugal abode and take refuge
in the home of her parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of
the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the
termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc
Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary
contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and
obligations of which rest not upon the agreement of the parties but upon the general law which defines
and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of
which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it
at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this
relation, so long as it continues, are such as the law determines from time to time, and none other. When
the legal existence of the parties is merged into one by marriage, the new relation is regulated and
controlled by the state or government upon principles of public policy for the benefit of society as well as
the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one
of the parties and productive of no possible good to the community, relief in some way should be
obtainable. With these principles to guide us, we will inquire into the status of the law touching and
governing the question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula,
were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep.,
705). Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist
each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph
deals with the management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when he
charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for just
cause relieve her from this duty when the husband removes his residence to a foreign
country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the
whole extent specified in the preceding article.
1. The consorts.
xxx xxx xxx
ART. (149) 49. The person obliged to give support may, at his option, satisfy it,
either by paying the pension that may be fixed or by receiving and maintaining in his own
home the person having the right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support shall cease.
The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband
must live with and protect his wife. The wife must obey and live with her husband and follow him when
he changes his domicile or residence, except when he removes to a foreign country. But the husband who
is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and
maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose this
option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code
absolute? The supreme court of Spain in its decision of December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in its decisions
dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149
grants the person, obliged to furnish subsistence, between paying the pension fixed or
receiving and keeping in his own house the party who is entitled to the same, is not so
absolute as to prevent cases being considered wherein, either because this right would be
opposed to the exercise of a preferential right or because of the existence of some
justifiable cause morally opposed to the removal of the party enjoying the maintenance,
the right of selection must be understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise to this appeal was
whether there was any reason to prevent the exercise of the option granted by article 149
of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in
his own house the one who is entitled to receive it; and inasmuch as nothing has been
alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo,
which he ha not exercised, and it having been set forth that the natural father simply
claims his child for the purpose of thus better attending to her maintenance, no action
having been taken by him toward providing the support until, owing to such negligence,
the mother was obliged to demand it; it is seen that these circumstances, together with the
 fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to
maintain relations with her daughter, all constitute an impediment of such a nature as to
prevent the exercise of the option in the present case, without prejudice to such decision
as may be deemed proper with regard to the other questions previously cited in respect to
which no opinion should be expressed at this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is
insisted that there existed a preexisting or preferential right in each of these cases which was opposed to
the removal of the one entitled to support. It is true that in the first the person claiming the option was the
natural father of the child and had married a woman other than the child's mother, and in the second the
right to support had already been established by a final judgment in a criminal case. Notwithstanding
these facts the two cases clearly established the proposition that the option given by article 149 of the
Civil Code may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses
and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her
property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in
accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving
himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this
civil action against his wife, who was then living in opulence, for support and the revocation of the
powers heretofore granted in reference to the administration and disposal of her property. In her answer
the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the
powers voluntarily conferred and accepted by her were bilateral and could not be canceled by the
plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia
Territorial wherein, after due trial, judgment was rendered in her favor dismissing the action upon the
merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the
Audencia Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing that the spouses
are mutually obliged to provide each other with support, cannot but be subordinate to the
other provisions of said Code which regulates the family organization and the duties of
spouses not legally separated, among which duties are those of their living together and
mutually helping each other, as provided in article 56 of the aforementioned code; and
taking this for granted, the obligation of the spouse who has property to furnish support
to the one who has no property and is in need of it for subsistence, is to be understood as
limited to the case where, in accordance with law, their separation has been decreed,
either temporarily or finally and this case, with respect to the husband, cannot occur until
a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of
the management of his wife's property and of the product of the other property belonging
to the conjugal partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it would
allow married persons to disregard the marriage bond and separate from each other of
their own free will, thus establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible with the nature and
effects of marriage in disregard of the duties inherent therein and disturbing the unity of
the family, in opposition to what the law, in conformity with good morals, has
established; and.
Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not
legally separated, it is their duty to live together and afford each other help and support;
and for this reason, it cannot be held that the former has need of support from his wife so
 that he may live apart from her without the conjugal abode where it is his place to be, nor
of her conferring power upon him to dispose even of the fruits of her property in order
therewith to pay the matrimonial expenses and, consequently, those of his own support
without need of going to his wife; wherefore the judgment appealed from, denying the
petition of D. Ramon Benso for support, has not violated the articles of the Civil Code
and the doctrine invoked in the assignments of error 1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there are strong
indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would
allow married persons to disregard the marriage bond and separate from each other of their own free
will." If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine
therein enunciated would not be controlling in cases where one of the spouses was compelled to leave the
conjugal abode by the other or where the husband voluntarily abandons such abode and the wife seeks to
force him to furnish support. That this is true appears from the decision of the same high tribunal, dated
October 16, 1903. In this case the wife brought an action for support against her husband who had
willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court,
reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been
instituted, said:
In the case at bar, it has been proven that it was Don Teodoro Exposito who left the
conjugal abode, although he claims, without however proving his contention, that the
person responsible for this situation was his wife, as she turned him out of the house.
From this state of affairs it results that it is the wife who is party abandoned, the husband
not having prosecuted any action to keep her in his company and he therefore finds
himself, as long as he consents to the situation, under the ineluctable obligation to
support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in
relation with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken
ground that for the fulfillment of this duty the situation or relation of the spouses should
be regulated in the manner it indicates, has made the errors of law assigned in the first
three grounds alleged, because the nature of the duty of affording mutual support is
compatible and enforcible in all situations, so long as the needy spouse does not create
any illicit situation of the court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under
consideration, that neither spouse can be compelled to support the other outside of the conjugal abode,
unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other,
still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the
substantive law is not in every particular the same here as it is in Spain. As we have already stated,
articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The
law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the
Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code,
various causes for divorce, such as adultery on the part of the wife in every case and on the part of the
husband when public scandal or disgrace of the wife results therefrom; personal violence actually
inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to
change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife
to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and
the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground
for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute
doctrine was announced by this court in the case just cited after an exhaustive examination of the entire
subject. Although the case was appealed to the Supreme Court of the United States and the judgment
rendered by this court was there reversed, the reversal did not affect in any way or weaken the doctrine in
reference to adultery being the only ground for a divorce. And since the decision was promulgated by this
court in that case in December, 1903, no change or modification of the rule has been announced. It is,
therefore, the well settled and accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and sufficient
cause for living separate from her husband; and, consequently, if a court lacks power to decree a divorce,
as in the instant case, power to grant a separate maintenance must also be lacking. The weakness of this
argument lies in the assumption that the power to grant support in a separate action is dependent upon a
power to grant a divorce. That the one is not dependent upon the other is apparent from the very nature of
the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of the
husband to support his wife. This obligation is founded not so much on the express or implied terms of
the contract of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of
which is of such vital concern to the state itself that the laws will not permit him to terminate it by his
own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate
maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal
sense of the term, but rather a judgment calling for the performance of a duty made specific by the
mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and
the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the
habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an
impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature;
it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is
tolerated as a means of preserving the public peace and morals may be considered, it does not in any
respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme
sole.
The foregoing are the grounds upon which our short opinion and order for judgment, heretofore
filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts,
relieve himself from the duty to support his wife imposed by law; and where a husband, by wrongful,
illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage
of her departure to abrogate the law applicable to the marital relation and repudiate his duties thereunder.
In law and for all purposes within its purview, the wife still remains an inmate of the conjugal domicile;
for I regard it as a principle of law universally recognized that where a person by his wrongful and illegal
acts creates a condition which under ordinary circumstances would produce the loss of rights or status
pertaining to another, the law will, whenever necessary to protect fully the rights or status of the person
affected by such acts, regard the condition by such acts created as not existing and will recur to and act
upon the original situation of the parties to determine their relative rights or the status of the person
adversely affected.
I do not believe, therefore, that the case is properly conceived by defendant, when the consideration
thereof proceeds solely on the theory that the wife is outside the domicile fixed by the husband. Under the
facts alleged in the complainant the wife is legally still within the conjugal domicile.
Case Digest

ELOISA GOITIA Y DELA CAMARA vs. JOSE CAMPOS RUEDA 35 PHIL 252
G.R. No. 11263.
Decided On: November 2, 1916
Ponente: TRENT, J.:

Facts: This is an action by the wife against the husband for support outside of the conjugal domicile.
Eloitia Goitia and Jose Campos Rueda were legally married on January 7, 1915. After a month of
living together, the wife returned to the home of her parents due to the following reasons: that the
husband demand wife to perform unchaste and lascivious acts on his genital organs; that
whenever wife rejected husband’s indecorous demands, husband would maltreat wife by words
and inflict injuries on wife’s lips, face and different parts of her body; and that because she was
unable to desist husband’s repugnant desires and maltreatment, she was obliged to leave the
conjugal home. The wife also seeks for support from his husband even if she lives separately. The
husband on the other hand, seeks the relief of the courts in compelling his wife to return back to
their conjugal home.

Issue: Whether or not the husband can be compelled to support the wife outside the conjugal domicile

Ruling: Marriage is something more than a mere contract. It is a new relation, the rights, duties and
obligations of which rest not upon the agreement of the parties but upon the general law which
defines and prescribes those rights, duties and obligations. When the legal existence is merged
into one by marriage, the new relation is regulated and controlled by the government upon
principles of public policy for the benefit of the society as well as the parties.

Marriage is an institution and its maintenance is in its purity which the public is deeply interested.
In the case at bar, when the continuance of the marriage becomes intolerable to one or both
parties and gives no possible good to the community, relief from the court should be attainable.
The Supreme Court made the observation that implied approval by the court of a wife’s separate
residence from her husband does not necessarily violate the sacredness and inviolability of the
marriage. Since separation de-facto is allowed in this case, it is only due to the fact that public
peace and wife’s purity must be preserved.

Lastly, the husband cannot, by his own wrongful acts, relieve himself from the duty to support his
wife imposed by law; and where a husband, by wrongful, illegal and unbearable conduct, drives
his wife from the domicile fixed by him, he cannot take the advantage of her departure to
abrogate his duty to still support his wife. In law, the wife is legally still within the conjugal
domicile, even if living separately, thus she is entitled to support and maintenance by the
husband.

Full Case
G.R. No. 118978 May 23, 1997
PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and GRACE DE GUZMAN, respondents.
REGALADO, J.:

Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and Telephone
Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company
funds as grounds to terminate the services of an employee. That employee, herein private respondent Grace de
Guzman, contrarily argues that what really motivated PT & T to terminate her services was her having
contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus
claims that she was discriminated against in gross violation of law, such a proscription by an employer being
outlawed by Article 136 of the Labor Code.

Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project
Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on
maternity leave.1 Under the Reliever Agreement which she signed with petitioner company, her employment
was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July
1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever were again
engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both
periods.2 After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.

On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary
employee, the probationary period to cover 150 days. In the job application form that was furnished her to be
filled up for the purpose, she indicated in the portion for civil status therein that she was single although she
had contracted marriage a few months earlier, that is, on May 26, 1991.3

It now appears that private respondent had made the same representation in the two successive reliever
agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the
same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum
dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about
the company's policy of not accepting married women for employment.4

In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy
regarding married women at the time, and that all along she had not deliberately hidden her true civil
status.5 Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed
from the company effective January 29, 1992,6 which she readily contested by initiating a complaint for illegal
dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations Commission in Baguio City.

At the preliminary conference conducted in connection therewith, private respondent volunteered the
information, and this was incorporated in the stipulation of facts between the parties, that she had failed to
remit the amount of P2,380.75 of her collections. She then executed a promissory note for that amount in favor
of petitioner7. All of these took place in a formal proceeding and with the agreement of the parties and/or their
counsel.

On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision declaring that private
respondent, who had already gained the status of a regular employee, was illegally dismissed by petitioner. Her
reinstatement, plus payment of the corresponding back wages and COLA, was correspondingly ordered, the
labor arbiter being of the firmly expressed view that the ground relied upon by petitioner in dismissing private
respondent was clearly insufficient, and that it was apparent that she had been discriminated against on account
of her having contracted marriage in violation of company rules.

On appeal to the National Labor Relations Commission (NLRC), said public respondent upheld the labor
arbiter and, in its decision dated April 29, 1994, it ruled that private respondent had indeed been the subject of
an unjust and unlawful discrimination by her employer, PT & T. However, the decision of the labor arbiter was
modified with the qualification that Grace de Guzman deserved to be suspended for three months in view of
the dishonest nature of her acts which should not be condoned. In all other respects, the NLRC affirmed the
decision of the labor arbiter, including the order for the reinstatement of private respondent in her employment
with PT & T.

The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent NLRC in its
resolution of November 9, 1994, hence this special civil action assailing the aforestated decisions of the labor
arbiter and respondent NLRC, as well as the denial resolution of the latter.

1. Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but,
through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women
constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of
labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting,
women have traditionally been considered as falling within the vulnerable groups or types of workers who
must be safeguarded with preventive and remedial social legislation against discriminatory and exploitative
practices in hiring, training, benefits, promotion and retention.

The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social
and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14,
Article II8 on the Declaration of Principles and State Policies, expressly recognizes the role of women in
nation-building and commands the State to ensure, at all times, the fundamental equality before the law of
women and men. Corollary thereto, Section 3 of Article XIII9 (the progenitor whereof dates back to both the
1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full
employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial
security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the State shall protect working
women through provisions for opportunities that would enable them to reach their full potential.

2. Corrective labor and social laws on gender inequality have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's
commitment as a signatory to the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). 11

Principal among these laws are Republic Act No. 6727 12 which explicitly prohibits discrimination against
women with respect to terms and conditions of employment, promotion, and training opportunities; Republic
Act No. 6955 13 which bans the "mail-order-bride" practice for a fee and the export of female labor to countries
that cannot guarantee protection to the rights of women workers; Republic Act No. 7192 14 also known as the
"Women in Development and Nation Building Act," which affords women equal opportunities with men to act
and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all
military or similar schools of the Armed Forces of the Philippines and the Philippine National Police; Republic
Act No. 7322 15 increasing the maternity benefits granted to women in the private sector; Republic Act No.
7877 16 which outlaws and punishes sexual harassment in the workplace and in the education and training
environment; and Republic Act No. 8042, 17 or the "Migrant Workers and Overseas Filipinos Act of 1995,"
which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on
women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in the
Family Code, 18 women's rights in the field of civil law have been greatly enhanced and expanded.

In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof.
Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of
women to be provided with facilities and standards which the Secretary of Labor may establish to ensure their
health and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail
lounge, massage clinic, bar or other similar establishments shall be considered as an employee under Article
138. Article 135, on the other hand, recognizes a woman's right against discrimination with respect to terms
and conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article
136 explicitly prohibits discrimination merely by reason of the marriage of a female employee.

3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of protection to labor
and security of tenure. Thus, an employer is required, as a condition sine qua non prior to severance of the
employment ties of an individual under his employ, to convincingly establish, through substantial evidence, the
existence of a valid and just cause in dispensing with the services of such employee, one's labor being regarded
as constitutionally protected property.

On the other hand, it is recognized that regulation of manpower by the company falls within the so-called
management prerogatives, which prescriptions encompass the matter of hiring, supervision of workers, work
assignments, working methods and assignments, as well as regulations on the transfer of employees, lay-off of
workers, and the discipline, dismissal, and recall of employees. 19 As put in a case, an employer is free to
regulate, according to his discretion and best business judgment, all aspects of employment, "from hiring to
firing," except in cases of unlawful discrimination or those which may be provided by law. 20

In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all
women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it
dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that
her ties with the company were dissolved principally because of the company's policy that married women are
not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.

That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the
branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that
the company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in
the termination notice sent to her by the same branch supervisor, private respondent was made to understand
that her severance from the service was not only by reason of her concealment of her married status but, over
and on top of that, was her violation of the company's policy against marriage ("and even told you that married
women employees are not applicable [sic] or accepted in our company.") 22 Parenthetically, this seems to be
the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this
case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable
with the corporation. 23

Verily, private respondent's act of concealing the true nature of her status from PT & T could not be properly
characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to
retain a permanent job in a stable company. In other words, she was practically forced by that very same illegal
company policy into misrepresenting her civil status for fear of being disqualified from work. While loss of
confidence is a just cause for termination of employment, it should not be simulated. 24 It must rest on an actual
breach of duty committed by the employee and not on the employer's caprices. 25 Furthermore, it should never
be used as a subterfuge for causes which are improper, illegal, or unjustified. 26

In the present controversy, petitioner's expostulations that it dismissed private respondent, not because the
latter got married but because she concealed that fact, does have a hollow ring. Her concealment, so it is
claimed, bespeaks dishonesty hence the consequent loss of confidence in her which justified her dismissal.

Petitioner would asseverate, therefore, that while it has nothing against marriage, it nonetheless takes umbrage
over the concealment of that fact. This improbable reasoning, with interstitial distinctions, perturbs the Court
since private respondent may well be minded to claim that the imputation of dishonesty should be the other
way around.
Petitioner would have the Court believe that although private respondent defied its policy against its female
employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits
as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial
matter to which it supposedly has no objection. In other words, PT & T says it gives its blessings to its female
employees contracting marriage, despite the maternity leaves and other benefits it would consequently respond
for and which obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there
will be no sanction; but if such employee conceals the same instead of proceeding to the confessional, she will
be dismissed. This line of reasoning does not impress us as reflecting its true management policy or that we are
being regaled with responsible advocacy.

This Court should be spared the ennui of strained reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy
against married women, both on the aspects of qualification and retention, which compelled private respondent
to conceal her supervenient marriage. It was, however, that very policy alone which was the cause of private
respondent's secretive conduct now complained of. It is then apropos to recall the familiar saying that he who
is the cause of the cause is the cause of the evil caused.

Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly
misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat
insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she
failed to remit some of her collections, but that is an altogether different story. The fact is that she was
dismissed solely because of her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this
supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion
born of experience in labor cases. For, there was no showing that private respondent deliberately
misappropriated the amount or whether her failure to remit the same was through negligence and, if so,
whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent
execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral
issue in the labor case.

Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was
served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days
as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected
just when her probationary period was winding down clearly raises the plausible conclusion that it was done in
order to prevent her from earning security of tenure. 27 On the other hand, her earlier stints with the company as
reliever were undoubtedly those of a regular employee, even if the same were for fixed periods, as she
performed activities which were essential or necessary in the usual trade and business of PT & T. 28 The
primary standard of determining regular employment is the reasonable connection between the activity
performed by the employee in relation to the business or trade of the employer. 29

As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she
is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages,
inclusive of allowances and other benefits or their monetary equivalent. 30 However, as she had undeniably
committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition
of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the
impression or inference that such act should be condoned. It would be unfair to the employer if she were to
return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her
entitlement to back wages, which shall be computed from the time her compensation was withheld up to the
time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her
three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT &
T. The Labor Code state, in no uncertain terms, as follows:

Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a
condition of employment or continuation of employment that a woman shall not get married,
or to stipulate expressly or tacitly that upon getting married, a woman employee shall be
deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise
prejudice a woman employee merely by reason of marriage.

This provision had a studied history for its origin can be traced to Section 8 of Presidential Decree No.
148, 31 better known as the "Women and
Child Labor Law," which amended paragraph (c), Section 12 of Republic Act No. 679, 32 entitled "An Act to
Regulate the Employment of Women and Children, to Provide Penalties for Violations Thereof, and for Other
Purposes." The forerunner to Republic Act No. 679, on the other hand, was Act No. 3071 which became law
on March 16, 1923 and which regulated the employment of women and children in shops, factories, industrial,
agricultural, and mercantile establishments and other places of labor in the then Philippine Islands.

It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et al. vs. Philippine Air
Lines, 33 a decision that emanated from the Office of the President. There, a policy of Philippine Air Lines
requiring that prospective flight attendants must be single and that they will be automatically separated from
the service once they marry was declared void, it being violative of the clear mandate in Article 136 of the
Labor Code with regard to discrimination against married women. Thus:

Of first impression is the incompatibility of the respondent's policy or regulation with the
codal provision of law. Respondent is resolute in its contention that Article 136 of the Labor
Code applies only to women employed in ordinary occupations and that the prohibition
against marriage of women engaged in extraordinary occupations, like flight attendants, is fair
and reasonable, considering the pecularities of their chosen profession.

We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew that
the controverted policy has already met its doom as early as March 13, 1973 when
Presidential Decree No. 148, otherwise known as the Women and Child Labor Law, was
promulgated. But for the timidity of those affected or their labor unions in challenging the
validity of the policy, the same was able to obtain a momentary reprieve. A close look at
Section 8 of said decree, which amended paragraph (c) of Section 12 of Republic Act No.
679, reveals that it is exactly the same provision reproduced verbatim in Article 136 of the
Labor Code, which was promulgated on May 1, 1974 to take effect six (6) months later, or on
November 1, 1974.

It cannot be gainsaid that, with the reiteration of the same provision in the new Labor Code,
all policies and acts against it are deemed illegal and therefore abrogated. True, Article 132
enjoins the Secretary of Labor to establish standards that will ensure the safety and health of
women employees and in appropriate cases shall by regulation require employers to
determine appropriate minimum standards for termination in special occupations, such as
those of flight attendants, but that is precisely the factor that militates against the policy of
respondent. The standards have not yet been established as set forth in the first paragraph, nor
has the Secretary of Labor issued any regulation affecting flight attendants.

It is logical to presume that, in the absence of said standards or regulations which are as yet to
be established, the policy of respondent against marriage is patently illegal. This finds support
in Section 9 of the New Constitution, which provides:
 Sec. 9. The State shall afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate
the relations between workers and employees. The State shall assure the rights of workers to
self-organization, collective bargaining, security of tenure, and just and humane conditions of
work . . . .

Moreover, we cannot agree to the respondent's proposition that termination from employment
of flight attendants on account of marriage is a fair and reasonable standard designed for their
own health, safety, protection and welfare, as no basis has been laid therefor. Actually,
respondent claims that its concern is not so much against the continued employment of the
flight attendant merely by reason of marriage as observed by the Secretary of Labor, but
rather on the consequence of marriage-pregnancy. Respondent discussed at length in the
instant appeal the supposed ill effects of pregnancy on flight attendants in the course of their
employment. We feel that this needs no further discussion as it had been adequately explained
by the Secretary of Labor in his decision of May 2, 1976.

In a vain attempt to give meaning to its position, respondent went as far as invoking the
provisions of Articles 52 and 216 of the New Civil Code on the preservation of marriage as
an inviolable social institution and the family as a basic social institution, respectively, as
bases for its policy of non-marriage. In both instances, respondent predicates absence of a
flight attendant from her home for long periods of time as contributory to an unhappy married
life. This is pure conjecture not based on actual conditions, considering that, in this modern
world, sophisticated technology has narrowed the distance from one place to another.
Moreover, respondent overlooked the fact that married flight attendants can program their
lives to adapt to prevailing circumstances and events.

Article 136 is not intended to apply only to women employed in ordinary occupations, or it
should have categorically expressed so. The sweeping intendment of the law, be it on special
or ordinary occupations, is reflected in the whole text and supported by Article 135 that
speaks of non-discrimination on the employment of women.

The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial
Corporation 34 considered as void a policy of the same nature. In said case, respondent, in dismissing from the
service the complainant, invoked a policy of the firm to consider female employees in the project it was
undertaking as separated the moment they get married due to lack of facilities for married women. Respondent
further claimed that complainant was employed in the project with an oral understanding that her services
would be terminated when she gets married. Branding the policy of the employer as an example of
"discriminatory chauvinism" tantamount to denying equal employment opportunities to women simply on
account of their sex, the appellate court struck down said employer policy as unlawful in view of its
repugnance to the Civil Code, Presidential Decree No. 148 and the Constitution.

Under American jurisprudence, job requirements which establish employer preference or conditions relating to
the marital status of an employee are categorized as a "sex-plus" discrimination where it is imposed on one sex
and not on the other. Further, the same should be evenly applied and must not inflict adverse effects on a racial
or sexual group which is protected by federal job discrimination laws. Employment rules that forbid or restrict
the employment of married women, but do not apply to married men, have been held to violate Title VII of the
United States Civil Rights Act of 1964, the main federal statute prohibiting job discrimination against
employees and applicants on the basis of, among other things, sex. 35

Further, it is not relevant that the rule is not directed against all women but just against married women. And,
where the employer discriminates against married women, but not against married men, the variable is sex and
the discrimination is unlawful. 36 Upon the other hand, a requirement that a woman employee must remain
unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular
requirements of the job would justify the same, but not on the ground of a general principle, such as the
desirability of spreading work in the workplace. A requirement of that nature would be valid provided it
reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-
marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the
restriction was not related to the job performance of the flight attendants. 37

5. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of
a woman to be free from any kind of stipulation against marriage in connection with her employment, but it
likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to
choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable
right. 38 Hence, while it is true that the parties to a contract may establish any agreements, terms, and
conditions that they may deem convenient, the same should not be contrary to law, morals, good customs,
public order, or public policy. 39 Carried to its logical consequences, it may even be said that petitioner's policy
against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of
marriage.

Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the parties,
that is, of capital and labor, are not merely contractual, impressed as they are with so much public interest that
the same should yield to the common good. 40 It goes on to intone that neither capital nor labor should visit acts
of oppression against the other, nor impair the interest or convenience of the public. 41 In the final reckoning,
the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the
foundation of the nation. 42 That it must be effectively interdicted here in all its indirect, disguised or
dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but
imperatively required.

ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone Company is hereby
DISMISSED for lack of merit, with double costs against petitioner.

SO ORDERED.
Case Digest
G.R. No. 118978 May 23, 1997

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and GRACE DE GUZMAN,

Facts: PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de Guzman specifically as
“Supernumerary Project Worker”, for a fixed period from November 21, 1990 until April 20, 1991 as reliever
for C.F. Tenorio who went on maternity leave. She was again invited for employment as replacement of Erlina
F. Dizon who went on leave on 2 periods, from June 10, 1991 to July 1, 1991 and July 19, 1991 to August 8,
1991.

On September 2, 1991, de Guzman was again asked to join PT&T as a probationary employee where
probationary period will cover 150 days. She indicated in the portion of the job application form under civil
status that she was single although she had contracted marriage a few months earlier. When petitioner learned
later about the marriage, its branch supervisor, Delia M. Oficial, sent de Guzman a memorandum requiring her
to explain the discrepancy. Included in the memorandum, was a reminder about the company’s policy of not
accepting married women for employment. She was dismissed from the company effective January 29, 1992.
Labor Arbiter handed down decision on November 23, 1993 declaring that petitioner illegally dismissed De
Guzman, who had already gained the status of a regular employee. Furthermore, it was apparent that she had
been discriminated on account of her having contracted marriage in violation of company policies.

Issue: Whether the alleged concealment of civil status can be grounds to terminate the services of an
employee.

Held: No. The Constitution provides a gamut of protective provisions due to the disparity in rights between
men and women in almost all phases of social and political life. Article II Section 14 of the 1987 Constitution
states that “The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men.” Corollary to this is Article XIII Section 3 which states that “The
State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all” and Article XIII Section 14 which states that
“The State shall protect working women by providing safe and healthful working conditions, taking into
account their maternal functions, and such facilities and opportunities that will enhance their welfare and
enable them to realize their full potential in the service of the nation.” Since the Labor Code was enacted on
May 1, 1974, corrective labor and social laws on gender inequality have emerged with more frequency in the
years. Two of these are Republic Act No. 6727 which explicitly prohibits discrimination against women with
respect to terms and conditions of employment, promotion, and training opportunities; and Republic Act No.
7192 or the Women in Development and Nation Building Act which, among others, affords women equal
opportunities with men to act and to enter into contracts. In the Labor Code, Article 136 explicitly prohibits
discrimination merely by reason of the marriage of a female employee. The private respondent’s act of
concealing the true nature of her status from PT&T could not be properly characterized as willful or in bad
faith as she was moved to act the way she did mainly because she wanted to retain a permanent job in a stable
company. In other words, she was practically forced by that very same illegal company policy into
misrepresenting her civil status for fear of being disqualified from work.

Full case
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial
Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private
respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner
entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private
respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents
consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled
checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in
evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner
had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the
properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final
and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo
Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that
reason, the trial court declared the documents and papers to be properties of private respondent, ordered
petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing
from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in
Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-1
to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is
contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing
private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in
evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the
trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of
Atty. Felix; Jr. which it found to be "impressed with merit:"2
 On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court,
there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the
documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the said order to this
Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order,
respondent's request for petitioner to admit the genuineness and authenticity of the subject annexes
cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes, At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him in the legal separation case pending
in the Regional Trial Court of Makati? Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under
oath, Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against
him. Petitioner became bound by his admission. For Cecilia to avail herself of her husband's
admission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his
use of the documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and
authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the
decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents and
papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by
this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order
was dismissed and, therefore, the prohibition against the further use of the documents and papers became
effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable simply
because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom
the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by
law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any
proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets
of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting
marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other without the consent of the affected spouse while the
marriage subsists.6 Neither may be examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing
is freedom of communication; quite another is a compulsion for each one to share what one knows with the
other. And this has nothing to do with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

Case Digest
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

Facts:This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from
private respondent's clinic without the latter's knowledge and consent. Petitioner Cecilia Zulueta is the wife of
private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of
medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the
drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's
passport, and photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.

Issue: Whether or not the documents and papers in question are inadmissible in evidence;

Held: No. Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the
party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the
Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as
prescribed by law." Any violation of this provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom
of communication between the spouses by making it privileged. Neither husband nor wife may testify for or
against the other without the consent of the affected spouse while the marriage subsists. Neither may be
examined without the consent of the other as to any communication received in confidence by one from the
other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite
another is a compulsion for each one to share what one knows with the other. And this has nothing to do with
the duty of fidelity that each owes to the other.

Full case

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

ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.

DECISION

PUNO, J.:

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

I. Facts
The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is
necessary therefore to lay down the facts in detail, careful not to omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man
not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he
filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image
of the court, thus she should not be allowed to remain employed therein as it might appear that the court
condones her act.5

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the
allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper forum."6 Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes
from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against
him and said case was still pending in the Office of the Court Administrator (OCA). Escritor’s motion was
denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed
that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of
Justice of Las Piñas City, he learned from conversations therein that Escritor was living with a man not her
husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge
Caoibes as he believed that employees of the judiciary should be respectable and Escritor’s live-in arrangement
did not command respect.7

Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow, her
husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as
the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991
a "Declaration of Pledging Faithfulness," viz:

DECLARATION OF PLEDGING FAITHFULNESS

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

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

Signed this 28th day of July 1991.10

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

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

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

xxx xxx xxx

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

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge
Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report and recommendation. In the
course of Judge Maceda’s investigation, Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge
some clippings which explain the basis of her congregation’s belief and practice regarding her conjugal
arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living
with another woman. She met this woman who confirmed to her that she was living with her (Escritor’s)
husband.14

Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985, also testified. He had been a presiding
minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a "Declaration of Pledging Faithfulness", viz:

Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and
regulations in your congregation?

A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request
them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document?

A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to
execute this document?

A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a
member (sic) of the congregation, baptized member and true member of the congregation.

Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic)
gives the Christian Congregation view that the couple has put themselves on record before God and man that
they are faithful to each other. As if that relation is validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are
members of the congregation?

A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q: And what does pledge mean to you?

A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member
of my congregation, opposite sex, and that this document will give us the right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a
marriage?

A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?

A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit?

A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The
basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible,
Jesus said "that everyone divorcing his wife, except on account of fornication, makes her a subject for adultery,
and whoever marries a divorced woman commits adultery.15

Escritor and Quilapio transferred to Salazar’s Congregation, the Almanza Congregation in Las Piñas, in May
2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations.
However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The
Almanza Congregation assumed that the personal circumstances of the couple had been considered by the
Atimonan Congregation when they executed their declarations.

Escritor and Quilapio’s declarations are recorded in the Watch Tower Central office. They were executed in
the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the
article, "Maintaining Marriage in Honor Before God and Men," 16 in the March 15, 1977 issue of the Watch
Tower magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah’s Witnesses congregation and is binding
within the congregation all over the world except in countries where divorce is allowed. The Jehovah’s
congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities’ approval of the marital relationship because of legal impediments. It is thus standard practice of the
congregation to check the couple’s marital status before giving imprimatur to the conjugal arrangement. The
execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the
offended spouse can remarry. The marital status of the declarants and their respective spouses’ commission of
adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that
the Atimonan Congregation conducted an investigation on her marital status before the declaration was
approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor’s and
Quilapio’s declarations were approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregation’s branch office that these three witnesses
are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal
impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the
civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize
their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned,
there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.17

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah’s Witnesses
since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled, "Maintaining Marriage Before God and Men"
to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977
issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch
Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the
article. The article is distributed to the Jehovah’s Witnesses congregations which also distribute them to the
public.18

The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for
resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in
their own religious congregation, the Jehovah’s Witnesses. Complainant Estrada adds however, that the effect
of the relationship to Escritor’s administrative liability must likewise be determined. Estrada argued, through
counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the "proper public
authorities" such that she bound herself "to seek means to . . . legalize their union." Thus, even assuming
arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in
the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and
her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot
override the norms of conduct required by law for government employees. To rule otherwise would create a
dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah’s
Witnesses congregation and use their religion as a defense against legal liability.19

On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based
on the belief and practice of her religion, the Jehovah’s Witnesses. She quoted portions of the magazine article
entitled, "Maintaining Marriage Before God and Men," in her memorandum signed by herself, viz:

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

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

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

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

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

Respondent also brought to the attention of the investigating judge that complainant’s Memorandum came
from Judge Caoibes’ chambers21 whom she claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritor’s factual allegations credible
as they were supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic
standards, the live-in relationship of respondent with her mate should fall within the definition of immoral
conduct, to wit: ‘that which is willful, flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community’ (7 C.J.S. 959)’ (Delos Reyes vs. Aznar, 179
SCRA, at p. 666)." He pointed out, however, that "the more relevant question is whether or not to exact from
respondent Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral standards of the Catholic faith in
determining her administrative responsibility in the case at bar."22 The investigating judge acknowledged that
"religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra,
citing Chief Justice Enrique M. Fernando’s separate opinion in German vs. Barangan, 135 SCRA 514, 530-
531)" and thereby recommended the dismissal of the complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court
Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated
to marry by the time she joined the judiciary as her husband had died a year before, "it is due to her
relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary
action."24 Considering the ruling of the Court in Dicdican v. Fernan, et al.25 that "court personnel have been
enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct
in order to preserve the good name and integrity of the court of justice," DCA Lock found Escritor’s defense of
freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he
recommended that respondent be found guilty of immorality and that she be penalized with suspension of six
months and one day without pay with a warning that a repetition of a similar act will be dealt with more
severely in accordance with the Civil Service Rules.26

II. Issue

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

III. Applicable Laws

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

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

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

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

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

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

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to understand not only its birth in
the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize
the approaches of the courts and the political branches to religious freedom in the recent past in the United
States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in
the American experience.27 This fresh look at the religion clauses is proper in deciding this case of first
impression.

In primitive times, all of life may be said to have been religious. Every significant event in the primitive man’s
life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious
sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo
which would then bring upon him "the wrathful vengeance of a superhuman mysterious power."28 Distinction
between the religious and non-religious would thus have been meaningless to him. He sought protection from
all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head
of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman
enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked
upon as a divine being and his laws as divine decrees.29

Time came, however, when the function of acting as intermediary between human and spiritual powers became
sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class. This saw the birth of the social and communal problem
of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest
was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he
carried out these functions because he was the head and representative of the community.30

There being no distinction between the religious and the secular, the same authority that promulgated laws
regulating relations between man and man promulgated laws concerning man’s obligations to the supernatural.
This authority was the king who was the head of the state and the source of all law and who only delegated
performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed
penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of
masons and tailors and prescribed rules for inheritance of property;31 and also catalogued the gods and assigned
them their places in the divine hierarchy so as to put Hammurabi’s own god to a position of equality with
existing gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the dominant partner.33

With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with
the Mosaic religion: theocracy. The authority and power of the state was ascribed to God.34 The Mosaic creed
was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the
Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the
people should travel and when to pitch camp, when they should make war and when peace. Saul and David
were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic
code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of
secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God
commanded these.

Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes
of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god
to a primary position over the previous reigning gods.35 Moses, on the other hand, capitalized on the natural
yearnings of the Hebrew slaves for freedom and independence to further God’s purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation
for the building of the temple and the full worship of God.36

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything
else, charted not only the future of religion in western civilization, but equally, the future of the relationship
between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott
who pointed out, viz:

Historically it was the Hebrew and Christian conception of a single and universal God that introduced a
religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were
regarded as confined to each separate people believing in them, and the question of change from one religious
belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism,
change of belief and liberty of religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only
superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his
successors was the whole of government.

With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each
received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated
prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.38 Under Solomon, the
subordination of religion to state became complete; he used religion as an engine to further the state’s
purposes. He reformed the order of priesthood established by Moses because the high priest under that order
endorsed the claim of his rival to the throne.39

The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-
worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a
high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the
head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine
Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined
the ranks of the gods, as other emperors before him.40

The onset of Christianity, however, posed a difficulty to the emperor as the Christians’ dogmatic exclusiveness
prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of
Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered
outlaws. Their crime was "hatred of the human race", placing them in the same category as pirates and
brigands and other "enemies of mankind" who were subject to summary punishments.41

In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more
efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within
a state over which he had no control. He had two options: either to force it into submission and break its power
or enter into an alliance with it and procure political control over it. He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced
them to sacrifice.42 But his efforts proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and
Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on condition that
nothing is done by them contrary to discipline."43 A year later, after Galerius died, Constantine and Licius
jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of
religious liberty. It provided "that liberty of worship shall not be denied to any, but that the mind and will of
every individual shall be free to manage divine affairs according to his own choice." (emphasis supplied) Thus,
all restrictive statutes were abrogated and it was enacted "that every person who cherishes the desire to observe
the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance."
Furthermore, it was provided that the "same free and open power to follow their own religion or worship is
granted also to others, in accordance with the tranquillity of our times, in order that every person may have free
opportunity to worship the object of his choice."(emphasis supplied)44

Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and
eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity
a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperor’s
command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear,
and private heathen sacrifices were forbidden.

The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his
successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the
church had been the victim of persecution and repression, but this time it welcomed the state’s persecution and
repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of
their error than to die unsaved.

Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle
of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman
Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings,
the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not
merely equality but superiority over the secular states. This claim, symbolized by Pope Leo’s crowning of
Charlemagne, became the church’s accepted principle of its relationship to the state in the Middle Ages. As
viewed by the church, the union of church and state was now a union of the state in the church. The rulers of
the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the
Pope, he himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history
of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars
and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the
Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused
heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in
1252.

The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic
Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe
to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations
between a democratic state and its citizens, history shows that it is more accurate to say that the "same causes
that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of
religious liberty, and ultimately of the principle of separation of church and state."46 Pleas for tolerance and
freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as
Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived
where Protestants were dominant.47 Papist and Protestant governments alike accepted the idea of cooperation
between church and state and regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope, nor bishop,
nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with
his own consent."49 But when the tables had turned and he was no longer the hunted heretic, he likewise stated
when he made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be
condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe
their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise."50 To Luther, unity
among the peoples in the interests of the state was an important consideration. Other personalities in the
Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an
engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime,
he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he
cooperated in the Inquisition.51

There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance
than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial edict, the imprisonments,
the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing
except to make the evil more widespread."52 The minority or dissident sects also ardently advocated religious
liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of the
Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political governments.53 The English Baptists
proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this
or that form of religion."54

Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian
(after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luther’s belief that
civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified.
The second was founded on ecclesiastical supremacy and the use of state machinery to further religious
interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in
the New World, was discernibly in its incipient form in the arguments of some dissident minorities that
the magistrate should not intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all
Europe except for Calvin’s theocratic Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage
woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of
any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was complete:
ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were
adopted and English Protestantism attained its present doctrinal status.57 Elizabeth was to be recognized as "the
only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal."
She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however,
Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto
toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the
Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally
permitted to sit in Parliament.60

When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional
foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the
Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was
Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-
supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet
adopted as the basis of its church-state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an engine to further the policies of the
other, although the principle was in its seminal form in the arguments of some dissident minorities and
intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the
past by the time America declared its independence from the Old World, but their memory was still vivid in
the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

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

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

Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious
discord, by proscribing all differences in religious opinions.62
In sum, this history shows two salient features: First, with minor exceptions, the history of church-state
relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred
by ambitious princes and emperors in exchange for religion’s invaluable service. This was the context in which
the unique experiment of the principle of religious freedom and separation of church and state saw its birth in
American constitutional democracy and in human history.63

V. Factors Contributing to the Adoption

of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established
many of the American colonies. British thought pervaded these colonies as the immigrants brought with them
their religious and political ideas from England and English books and pamphlets largely provided their
cultural fare.64 But although these settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some of these settlers themselves
transplanted into American soil the oppressive practices they escaped from. The charters granted by the
English Crown to the individuals and companies designated to make the laws which would control the
destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not,
were required to support or attend.65 At one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which
originally tolerated only a single religion, eventually extended support to several different faiths.66

This was the state of the American colonies when the unique American experiment of separation of church and
state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number
of interdependent practical and ideological factors contributed in bringing it forth. Among these were the
"English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most
Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn
tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and deism."67 Each of these factors shall be briefly
discussed.

First, the practical factors. England’s policy of opening the gates of the American colonies to different faiths
resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a particular time in order to encourage
trade and commerce. The colonies were large financial investments which would be profitable only if people
would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious
belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their
religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of
commerce."68 The diversity brought about by the colonies’ open gates encouraged religious freedom and non-
establishment in several ways. First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the
passionate conviction in the exclusive rightness of one’s religion, which impels persecution for the sake of
one’s religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible,
and without such uniformity, establishment could not survive.69

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only
about four percent of the entire population of the country had a church affiliation at the time the republic was
founded.70 This might be attributed to the drifting to the American colonies of the skepticism that characterized
European Enlightenment.71 Economic considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which
treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed
to religious liberty and disestablishment as persons who were not connected with any church were not likely to
persecute others for similar independence nor accede to compulsory taxation to support a church to which they
did not belong.72

However, for those who were affiliated to churches, the colonial policy regarding their worship generally
followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their ministers and places of
worship.73 Although the toleration accorded to Protestant dissenters who qualified under its terms was only a
modest advance in religious freedom, it nevertheless was of some influence to the American
experiment.74 Even then, for practical considerations, concessions had to be made to other dissenting churches
to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival
originating in New England, caused a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal religion that appealed directly to the
individual, putting emphasis on the rights and duties of the individual conscience and its answerability
exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were
fundamentalists, this group became staunch advocates of separation of church and state.75

Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island
where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious
freedom was not based on practical considerations but on the concept of mutual independence of religion and
government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have
it "much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be
maintained . . . with full libertie in religious concernments."76 In Williams’ pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,77 he articulated the
philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church
and state did not constitute two but only one principle. Religious persecution is wrong because it "confounds
the Civil and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning the
true fear of God" is not one of the powers that the people have transferred to Civil Authority.78 Williams’
Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of
church and state.79

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration,
having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed
coercion in matters of conscience because "imposition, restraint and persecution for conscience sake, highly
invade the Divine prerogative." Aside from his idealism, proprietary interests made toleration in Pennsylvania
necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants
both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of
religious groups. Penn was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil
liberty which provided among others, for liberty of conscience.80 The Baptist followers of Williams and the
Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from
the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and
freedom.81 The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that
adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful
examples of Rhode Island and Pennsylvania.82

Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social
contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in America’s
Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of
Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious
treatment by a new nation that severed its political bonds with the English crown which violated the self-
evident truth that all men are created equal.83

The social contract theory was applied by many religious groups in arguing against establishment, putting
emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a
political body. That Locke and the social contract theory were influential in the development of religious
freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in
1774, viz:

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

The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist
and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction ("render
unto Caesar that which is Caesar’s"; "my kingdom is not of this world") and to the rationalist, the power to act
in the realm of religion was not one of the powers conferred on government as part of the social contract.85

Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,86 in
general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion.
Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the
relegation of historic theology to the background.87 For these men of the enlightenment, religion should be
allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose
entanglements has caused intolerance and corruption as witnessed throughout history.88 Not only the leaders
but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of
Paine’s Age of Reason.89

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

The first major step towards separation in Virginia was the adoption of the following provision in the Bill of
Rights of the state’s first constitution:

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

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians
and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were churchmen. The legislature
compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and
absence from worship and requiring the dissenters to contribute to the support of the establishment.93 But the
dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established church would not allow that
only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the
establishment’s loss of its exclusive status and its power to tax its members; but those who voted for it did so
in the hope that a general assessment bill would be passed. Without the latter, the establishment would not
survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk
and indicate which "society for the purpose of Religious Worship" he wished to support. On the basis of this
list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the
religious congregation. The assessment of any person who failed to enroll in any society was to be divided
proportionately among the societies.94 The bill evoked strong opposition.

In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was
introduced requiring all persons "to pay a moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of Christians, or for some form of
Christian worship."95 This likewise aroused the same opposition to the 1779 bill. The most telling blow against
the 1784 bill was the monumental "Memorial and Remonstrance against Religious Assessments" written by
Madison and widely distributed before the reconvening of legislature in the fall of 1785.96 It stressed natural
rights, the government’s lack of jurisdiction over the domain of religion, and the social contract as the
ideological basis of separation while also citing practical considerations such as loss of population through
migration. He wrote, viz:

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

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of
signatures appended to the Memorial. The assessment bill was speedily defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been
voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January 1786. It provided,
viz:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal
punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind,
yet chose not to propagate it by coercions on either, as was in his Almighty power to do;

xxx xxx xxx

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

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general
or particular establishment in Virginia.99 But the passage of this law was obtained not only because of the
influence of the great leaders in Virginia but also because of substantial popular support coming mainly from
the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in
Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing
state church as they realized that it was impossible for them to be elevated to that privileged position. Apart
from these expediential considerations, however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the language of natural religion.101 Influenced by
Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of
the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social
order.102 To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental
assistance and state-supported religion was contrary ti the spirit of the Gospel.103 Thus, separation was
necessary.104 Jefferson’s religious freedom statute was a milestone in the history of religious freedom. The
United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of
the U.S. Constitution had the same objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that government had no power to legislate in the area
of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could
be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the
assumed lack of power of Congress to act on any subject not expressly mentioned in the
Constitution.105 However, omission of an express guaranty of religious freedom and other natural rights nearly
prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some
objection was expressed to the absence of a restriction on the Federal Government as regards legislation on
religion.107 Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First
Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause, viz:

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

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally
broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records
in Congress renders it difficult to ascertain its meaning.108 Consequently, the jurisprudence in this area is
volatile and fraught with inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted and in
which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other aspects of social life with significant moral
dimension - while government played a supportive and indirect role by maintaining conditions in which these
activities may be carried out by religious or religiously-motivated associations. Today, government plays this
primary role and religion plays the supportive role.109 Government runs even family planning, sex education,
adoption and foster care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries
ago, in matters of social life which have a significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is
the handmaid of government."111 With government regulation of individual conduct having become more
pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As
a result, increasingly, there may be inadvertent collisions between purely secular government actions and
religion clause values.112

Parallel to this expansion of government has been the expansion of religious organizations in population,
physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults.
Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement
houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media
programs. In these activities, religious organizations complement and compete with commercial enterprises,
thus blurring the line between many types of activities undertaken by religious groups and secular activities.
Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious
faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing
affirmations for racial equality on religious foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the growth in population density, mobility and
diversity has significantly changed the environment in which religious organizations and activities exist and
the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to
shelter their children from exposure to competing values. The result is disagreement over what laws should
require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be
respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal
and political realities must be avoided.114

Religion cases arise from different circumstances. The more obvious ones arise from a government action
which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are
plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit
religion.115 The more difficult religion clause cases involve government action with a secular purpose and
general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise
Clause cases, these government actions are referred to as those with "burdensome effect" on religious exercise
even if the government action is not religiously motivated.116 Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in enacting laws of general application.
But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for
protection.117 Most of these free exercise claims brought to the Court are for exemption, not invalidation of the
facially neutral law that has a "burdensome" effect.118

With the change in political and social context and the increasing inadvertent collisions between law and
religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been
modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and
moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes.119 It was in the 1890 case of Davis v. Beason120 that the United States
Supreme Court first had occasion to define religion, viz:

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

The definition was clearly theistic which was reflective of the popular attitudes in 1890.

In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces the right to
maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox
faiths."123 By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia
such as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the term "religion" to
non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the
Court faced a definitional problem in United States v. Seeger126 which involved four men who claimed
"conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a
member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme
Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to
be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and
reflection "on values derived from the Western religious and philosophical tradition," he determined that it
would be "a violation of his moral code to take human life and that he considered this belief superior to any
obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free
Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of
1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously
opposed to participation in war in any form." Speaking for the Court, Justice Clark ruled, viz:

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

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such
religious belief and training.

Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs
such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify
as religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies
a central place in the believer’s life. Second, the religion must involve a moral code transcending individual
belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court
must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some associational
ties,128 although there is also a view that religious beliefs held by a single person rather than being part of the
teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.129

Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled
the issue of definition, the court then has to draw lines to determine what is or is not permissible under the
religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two
sides of the same coin.130 In devoting two clauses to religion, the Founders were stating not two opposing
thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in
different circumstances.131 The purpose of the religion clauses - both in the restriction it imposes on the power
of the government to interfere with the free exercise of religion and the limitation on the power of government
to establish, aid, and support religion - is the protection and promotion of religious liberty.132 The end, the goal,
and the rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are directed is government-induced
homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses and the
Establishment Clause specifically addresses a form of interference with religious liberty with which the
Framers were most familiar and for which government historically had demonstrated a propensity.135 In other
words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights
of those who might dissent from whatever religion is established.136 It has even been suggested that the sense of
the First Amendment is captured if it were to read as "Congress shall make no law respecting an establishment
of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single purpose of
the two religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to protect each from the other, in service of the
larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any
religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at
all138 because history has shown that religious fervor conjoined with state power is likely to tolerate far less
religious disagreement and disobedience from those who hold different beliefs than an enlightened secular
state.139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our
government has, for the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."140

In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that
government does not establish and instead remains neutral toward religion is not absolutely straight. Chief
Justice Burger explains, viz:

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

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

A. Free Exercise Clause

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

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession
or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys
all religious liberty;
that it is time enough for the rightful purposes of civil government for its officers to interfere when principles
break out into overt acts against peace and good order.145 (emphasis supplied)

The Court then held, viz:

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

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

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

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating
individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a
particular religious belief unaccompanied by any conduct would most certainly be motivated only by the
legislature’s preference of a competing religious belief. Thus, all cases of regulation of belief would amount to
regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state
regulations of conduct are for public welfare purposes and have nothing to do with the legislature’s religious
preferences. Any burden on religion that results from state regulation of conduct arises only when particular
individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These
burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that
regulation address action rather than belief, the Free Exercise Clause did not pose any problem.147 The Free
Exercise Clause thus gave no protection against the proscription of actions even if considered central to a
religion unless the legislature formally outlawed the belief itself.148

This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld
other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy
such as the Davis case and Church of Latter Day Saints v. United States.149 However, more than a century since
Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But
while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.150

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs151 and
proscribes government from questioning a person’s beliefs or imposing penalties or disabilities based solely on
those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,152 a
unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief
in the existence of God. The protection also allows courts to look into the good faith of a person in his belief,
but prohibits inquiry into the truth of a person’s religious beliefs. As held in United States v.
Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may
not be put to the proof of their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are
accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court
struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior
approval of a state agency. The law was challenged by Cantwell, a member of the Jehovah’s Witnesses which
is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was
held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:

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

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

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

The Court stated, however, that government had the power to regulate the times, places, and manner of
solicitation on the streets and assure the peace and safety of the community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not prohibit
members of the Jehovah’s Witnesses from peaceably and orderly proselytizing on Sundays merely because
other citizens complained. In another case likewise involving the Jehovah’s Witnesses, Niemotko v.
Maryland,158 the Court unanimously held unconstitutional a city council’s denial of a permit to the Jehovah’s
Witnesses to use the city park for a public meeting. The city council’s refusal was because of the
"unsatisfactory" answers of the Jehovah’s Witnesses to questions about Catholicism, military service, and
other issues. The denial of the public forum was considered blatant censorship. While protected, religious
speech in the public forum is still subject to reasonable time, place and manner regulations similar to non-
religious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to
maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional
religious practices. Protection in this realm depends on the character of the action and the government rationale
for regulating the action.160 The Mormons’ religious conduct of polygamy is an example of unconventional
religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice.
Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz:
"(c)rime is not the less odious because sanctioned by what any particular sect may designate as religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously
dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no
matter how insignificant was the government’s non-religious regulatory interest so long as the government is
proscribing action and not belief. Thus, the Court abandoned the simplistic belief-action distinction and instead
recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of
religious exercise for religious reasons which was plainly unconstitutional and government’s inadvertent
interference with religion in pursuing some secular objective.162 In the 1940 case of Minersville School District
v. Gobitis,163 the Court upheld a local school board requirement that all public school students participate in a
daily flag salute program, including the Jehovah’s Witnesses who were forced to salute the American flag in
violation of their religious training, which considered flag salute to be worship of a "graven image." The Court
recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah
Witnesses’ practice of their religion, but justified the government regulation as an appropriate means of
attaining national unity, which was the "basis of national security." Thus, although the Court was already
aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold
that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter
how serious the interference, no matter how trivial the state’s non-religious objectives, and no matter how
many alternative approaches were available to the state to pursue its objectives with less impact on religion, so
long as government was acting in pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar
set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form
of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that
"compulsory unification of opinions leads only to the unanimity of the graveyard" and exempt the students
who were members of the Jehovah’s Witnesses from saluting the flag. A close scrutiny of the case, however,
would show that it was decided not on the issue of religious conduct as the Court said, "(n)or does the issue as
we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While
religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens
who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the
individual." (emphasis supplied)165 The Court pronounced, however, that, "freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to
interests which the state may lawfully protect."166 The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political minorities - a specially protected
constitutional value - to the common everyday economic and public welfare objectives of the majority in the
legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free
Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the seeds of
this heightened scrutiny would only grow to a full flower in the 1960s.167

Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free
exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v. Brown169 where the Court
considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required
them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted,
however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were alternative ways of achieving the state’s interest. He employed a two-part
balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden
on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an
overriding secular goal by the means which imposed the least burden on religious practices.170 The Court found
that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility
and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This
test was similar to the two-part balancing test in Braunfeld,172 but this latter test stressed that the state interest
was not merely any colorable state interest, but must be paramount and compelling to override the free
exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under
the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim
was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether
the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by
religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a
‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . .’
NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.’ Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65
S Ct 315."174 The Court found that there was no such compelling state interest to override Sherbert’s religious
liberty. It added that even if the state could show that Sherbert’s exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to
show that no alternative means of regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of Sherbert’s benefits would force her to
choose between receiving benefits and following her religion. This choice placed "the same kind of burden
upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This
germinal case of Sherbert firmly established the exemption doctrine, 175 viz:

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

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the
Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence
of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se
violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was
addressed.176

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert
continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178 for
example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification,
a state could not withhold unemployment compensation from an employee who resigned or was discharged
due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But
not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held
religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v.
Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government’s
refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages
on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in maintaining a
sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis
for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would significantly impair
government’s achievement of its objective - "the fiscal vitality of the social security system;" mandatory
participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would
be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that
his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the
government’s war-related activities, for example.

The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to
religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with religious practices. Although the
members of the Court often disagreed over which governmental interests should be considered compelling,
thereby producing dissenting and separate opinions in religious conduct cases, this general test established a
strong presumption in favor of the free exercise of religion.181

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the
religious practice of the Old Order Amish faith over the state’s compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief
Justice Burger, writing for the majority, held, viz:

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

The essence of all that has been said and written on the subject is that only those interests of the highest order
and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .

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

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise
Clause. In Employment Division, Oregon Department of Human Resources v. Smith,184 the sharply
divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification
approach and imposed serious limits on the scope of protection of religious freedom afforded by the First
Amendment. In this case, the well-established practice of the Native American Church, a sect outside the
Judeo-Christian mainstream of American religion, came in conflict with the state’s interest in prohibiting the
use of illicit drugs. Oregon’s controlled substances statute made the possession of peyote a criminal offense.
Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social
service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The
social service agency fired Smith and Black citing their use of peyote as "job-related misconduct". They
applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application
as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that "if
prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and
otherwise valid law, the First Amendment has not been offended." In other words, the Free Exercise Clause
would be offended only if a particular religious practice were singled out for proscription. The majority
opinion relied heavily on the Reynolds case and in effect, equated Oregon’s drug prohibition law with the anti-
polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test except the denial of
unemployment compensation.

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

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

Justice O’Connor wrote a concurring opinion pointing out that the majority’s rejection of the compelling
governmental interest test was the most controversial part of the decision. Although she concurred in the result
that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic
departure "from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nation’s
fundamental commitment to religious liberty." This portion of her concurring opinion was supported by
Justices Brennan, Marshall and Blackmun who dissented from the Court’s decision. Justice O’Connor asserted
that "(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments
upon this liberty, whether direct or indirect, unless required by clear and compelling government interest ‘of
the highest order’." Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and
Marshall. He charged the majority with "mischaracterizing" precedents and "overturning. . . settled law
concerning the Religion Clauses of our Constitution." He pointed out that the Native American Church
restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to
prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that "Oregon’s interest in enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents’ right to the free exercise of their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court’s standard in Smith virtually
eliminated the requirement that the government justify with a compelling state interest the burdens on religious
exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several
respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.185 First,
the First amendment was intended to protect minority religions from the tyranny of the religious and political
majority. A deliberate regulatory interference with minority religious freedom is the worst form of this
tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the
religious and political majority is no less an interference with the minority’s religious freedom. If the
regulation had instead restricted the majority’s religious practice, the majoritarian legislative process would in
all probability have modified or rejected the regulation. Thus, the imposition of the political majority’s non-
religious objectives at the expense of the minority’s religious interests implements the majority’s religious
viewpoint at the expense of the minority’s. Second, government impairment of religious liberty would most
often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not
afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-
Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply
held fundamental religious convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively
pursue its objective without serious inadvertent impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as
discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack
legislative clout,187 contrary to the original theory of the First Amendment.188 Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless minority religions and Smith
virtually wiped out their judicial recourse for exemption.189 Thus, the Smith decision elicited much negative
public reaction especially from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.190 So much was the uproar that a majority in Congress was
convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a person’s free exercise of religion, even if such burden
resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest
and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in effect, sought to
overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the
RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne
v. Flores.192 The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers
and the federal balance." It emphasized the primacy of its role as interpreter of the Constitution and
unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled consistent with
the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to
"unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the
primary purpose of food consumption." The ordinance came as a response to the local concern over the
sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the
questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners
of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious
rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely
protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-
religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if
its violates a law, could be accorded protection as shown in Wisconsin.194

B. Establishment Clause

The Court’s first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of
Education.195 Prior cases had made passing reference to the Establishment Clause196 and raised establishment
questions but were decided on other grounds.197 It was in the Everson case that the U.S. Supreme Court
adopted Jefferson’s metaphor of "a wall of separation between church and state" as encapsulating the meaning
of the Establishment Clause. The often and loosely used phrase "separation of church and state" does not
appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case
of Reynolds v. United States198 quoted Jefferson’s famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account
to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and
not opinions, I contemplate with sovereign reverence that act of the whole American people which declared
that their Legislature should ‘make no law respecting an establishment of religion or prohibiting the free
exercise thereof,’ thus building a wall of separation between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged
leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope
and effect of the amendment thus secured."200

The interpretation of the Establishment Clause has in large part been in cases involving education, notably
state aid to private religious schools and prayer in public schools.201 In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred
in transporting their children to and from Catholic schools. The reimbursement was part of a general program
under which all parents of children in public schools and nonprofit private schools, regardless of religion, were
entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court,
justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the
state’s legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from
accredited schools." The Court, after narrating the history of the First Amendment in Virginia, interpreted the
Establishment Clause, viz:

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

The Court then ended the opinion, viz:

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

By 1971, the Court integrated the different elements of the Court’s Establishment Clause jurisprudence that
evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman204 in determining the
constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania
statutory program providing publicly funded reimbursement for the cost of teachers’ salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers
in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass
scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its
primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v.
Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster ‘an
excessive entanglement with religion.’ (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S
Ct 1409 [1970])" (emphasis supplied)205 Using this test, the Court held that the Pennsylvania statutory program
and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and
religion.

The most controversial of the education cases involving the Establishment Clause are the school prayer
decisions. "Few decisions of the modern Supreme Court have been criticized more intensely than the school
prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the Court invalidated a New York
Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the
public schools at the start of each school day. The majority opinion written by Justice Black stated that "in this
country it is no part of the business of government to compose official prayers for any group of the American
people to recite as part of a religious program carried on by government." In fact, history shows that this very
practice of establishing governmentally composed prayers for religious services was one of the reasons that
caused many of the early colonists to leave England and seek religious freedom in America. The Court called
to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union
of government and religion tends to destroy government and to degrade religion. The following year, the Engel
decision was reinforced in Abington School District v. Schempp208 and Murray v. Curlett209 where the Court
struck down the practice of Bible reading and the recitation of the Lord’s prayer in the Pennsylvania and
Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must
have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated,
viz:

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

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress
and resolutions passed by several state legislatures condemned these decisions.211 On several occasions,
constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the
Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree212 where
the Court struck down an Alabama law that required public school students to observe a moment of silence
"for the purpose of meditation or voluntary prayer" at the start of each school day.

Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause.
Optional religious instruction within public school premises and instructional time were declared offensive of
the Establishment Clause in the 1948 case of McCollum v. Board of Education,213 decided just a year after the
seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant
faiths obtained permission from the Board of Education to offer classes in religious instruction to public school
students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards
requesting that their children be permitted to attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes
during regular class hours in the regular classrooms of the school building. The religious teachers were
employed at no expense to the school authorities but they were subject to the approval and supervision of the
superintendent of schools. Students who did not choose to take religious instruction were required to leave
their classrooms and go to some other place in the school building for their secular studies while those who
were released from their secular study for religious instruction were required to attend the religious classes.
The Court held that the use of tax-supported property for religious instruction and the close cooperation
between the school authorities and the religious council in promoting religious education amounted to a
prohibited use of tax-established and tax-supported public school system to aid religious groups spread their
faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one
religion over another and not an impartial governmental assistance of all religions. In Zorach v.
Clauson,214 however, the Court upheld released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other students attended study hall. Justice
Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State." The Court distinguished Zorach from McCollum, viz:

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

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

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

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

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

Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to
attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S.
Congress."220 That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a
"neutral harbinger of the holiday season" for many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and
charitable institutions have been exempt from local property taxes and their income exempt from federal and
state income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York City Tax Commission’s
grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory
that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality,
viz:

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

The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the
burden of property taxation levied on private profit institutions"224 and preventing excessive entanglement
between state and religion. At the same time, the Court acknowledged the long-standing practice of religious
tax exemption and the Court’s traditional deference to legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and
religious exercise generally so long as none was favored over others and none suffered
interference.225 (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

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

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

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

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

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for
accommodation, less than twenty-four hours after Congress adopted the First Amendment’s prohibition on
laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the
many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the
ground that the move was a "mimicking of European customs, where they made a mere mockery of
thanksgivings", the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion was passed without further recorded
discussion.231 Thus, accommodationists also go back to the framers to ascertain the meaning of the First
Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that
rationalism pervaded America in the late 19th century and that America was less specifically Christian during
those years than at any other time before or since,232 accommodationaists claim that American citizens at the
time of the Constitution’s origins were a remarkably religious people in particularly Christian terms.233

The two streams of jurisprudence - separationist or accommodationist - are anchored on a different

reading of the "wall of separation." The strict separtionist view holds that Jefferson meant the "wall of
separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.234 He has
often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced
from its medieval connection with divine law, and instead adhering to a secular belief in a universal
harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the
state from the church, the state’s hostility towards religion allows no interaction between the two.236 In fact,
when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are
religious exercises and the Constitution prohibited the government from intermeddling with religion.237 This
approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to
alleviate burdens the programs placed on believers.238 Only the complete separation of religion from politics
would eliminate the formal influence of religious institutions and provide for a free choice among political
views thus a strict "wall of separation" is necessary.239 Strict separation faces difficulties, however, as it is
deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect,
flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict
separationists are caught in an awkward position of claiming a constitutional principle that has never existed
and is never likely to.240

A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the
Court, showing the Court’s tendency to press relentlessly towards a more secular society.241 It finds basis in the
Everson case where the Court declared that Jefferson’s "wall of separation" encapsulated the meaning of the
First Amendment but at the same time held that the First Amendment "requires the state to be neutral in its
relations with groups of religious believers and non-believers; it does not require the state to be their adversary.
State power is no more to be used so as to handicap religions than it is to favor them." (emphasis
supplied)242 While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may
not be used as a basis for classification for purposes of governmental action, whether the action confers rights
or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It
does not permit, much less require, accommodation of secular programs to religious belief.243 Professor
Kurland wrote, viz:

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

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and
the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for
secular purposes and in ways that have primarily secular effects.245

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

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause.
The Framers, whatever specific applications they may have intended, clearly envisioned religion as something
special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of
philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that
the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious
classifications.248

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall
of separation "captures the spirit of the American ideal of church-state separation", in real life church and state
are not and cannot be totally separate.249 This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.250

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which
gives room for accommodation is buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe’s classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the
church from the state,251 i.e., the "garden" of the church must be walled in for its own protection from the
"wilderness" of the world252 with its potential for corrupting those values so necessary to religious
commitment.253 Howe called this the "theological" or "evangelical" rationale for church-state separation while
the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was a "political" rationale
seeking to protect politics from intrusions by the church.254 But it has been asserted that this contrast between
the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of
religious thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical
and evangelical in character while the secular style was grounded in natural religion, more generic and
philosophical in its religious orientation.255

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall
is to safeguard religious liberty. Williams’ view would therefore allow for interaction between church and
state, but is strict with regard to state action which would threaten the integrity of religious commitment.256 His
conception of separation is not total such that it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality.257 This "theological" view of separation is found in Williams’
writings, viz:

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

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

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

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

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

xxx xxx xxx

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

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

It is widely held by students of society that there are certain functional prerequisites without which society
would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the
functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something
which modern social scientists would classify as a religion…Religion is as much a human universal as
language."264

Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United
States as shown by many traditional government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We Trust" on American currency, the
recognition of America as "one nation under God" in the official pledge of allegiance to the flag, the Supreme
Court’s time-honored practice of opening oral argument with the invocation "God save the United States and
this honorable Court," and the practice of Congress and every state legislature of paying a chaplain, usually of
a particular Protestant denomination to lead representatives in prayer.265 These practices clearly show the
preference for one theological viewpoint -the existence of and potential for intervention by a god - over the
contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of
low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout history, the evangelical theory of
separation, i.e., Williams’ wall, has demanded respect for these de facto establishments.267 But the
separationists have a different explanation. To characterize these as de jure establishments according to the
principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions
explain some of these practices as "‘de minimis’ instances of government endorsement or as historic
governmental practices that have largely lost their religious significance or at least have proven not to lead the
government into further involvement with religion.268

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations are government policies that take religion specifically
into account not to promote the government’s favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the "government
[may] take religion into account…to exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may flourish."269 (emphasis
supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but
respect for the conflict between the temporal and spiritual authority in which the minority finds itself.270

Accommodation is distinguished from strict neutrality in that the latter holds that government should base
public policy solely on secular considerations, without regard to the religious consequences of its actions. The
debate between accommodation and strict neutrality is at base a question of means: "Is the freedom of religion
best achieved when the government is conscious of the effects of its action on the various religious practices of
its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of
‘religious blindness’ - keeping government aloof from religious practices and issues?" An accommodationist
holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent
believes that it is good public policy, and also constitutionally required, for the government to avoid religion-
specific policy even at the cost of inhibiting religious exercise.271

There are strong and compelling reasons, however, to take the accommodationist position rather than the strict
neutrality position. First, the accommodationist interpretation is most consistent with the language of the First
Amendment. The religion clauses contain two parallel provisions, both specifically directed at "religion." The
government may not "establish" religion and neither may government "prohibit" it. Taken together, the religion
clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom -
government action that promotes the (political) majority’s favored brand of religion and government action
that impedes religious practices not favored by the majority. The substantive end in view is the preservation of
the autonomy of religious life and not just the formal process value of ensuring that government does not act
on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular
entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit
minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the
religion clauses, so to speak, since the religion clauses single out religion by name for special protection.
Second, the accommodationist position best achieves the purposes of the First Amendment. The principle
underlying the First Amendment is that freedom to carry out one’s duties to a Supreme Being is an inalienable
right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights
of others, including the public right of peace and good order. Nevertheless it is a substantive right and not
merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First
Amendment requires more than the "religion blindness" of strict neutrality. With the pervasiveness of
government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable
for secular entities are sometimes inappropriate for religious entities, thus the government must make special
provisions to preserve a degree of independence for religious entities for them to carry out their religious
missions according to their religious beliefs. Otherwise, religion will become just like other secular entities
subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is
particularly necessary to protect adherents of minority religions from the inevitable effects of majoritarianism,
which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are
inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the
religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere
with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes so small or incomparable that only indifference
or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need is brought to their attention, but this
may not always be the case when the religious practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less
able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation.
Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion,
regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the
workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting
religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to
choose between violating religious conscience of a segment of the population or dispensing with legislation it
considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the
alternative: no exemption or no law.272

Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally
compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.273 Some
Justices of the Supreme Court have also used the term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol
on public property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation: those where accommodation is
required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is
required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create
penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are "intentional
government advancement", these exemptions merely relieve the prohibition on the free exercise thus allowing
the burdened religious adherent to be left alone. The state must create exceptions to laws of general
applicability when these laws threaten religious convictions or practices in the absence of a compelling state
interest.275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege
to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn
duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived
from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal
to a yet more compelling duty. Of course, those denied will usually not find the reason for the denial
compelling. "Because they may turn out to be right about the duty in question, and because, even if they are
wrong, religion bears witness to that which transcends the political order, such denials should be rare and
painfully reluctant."277

The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of
the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.278 In these cases of "burdensome effect", the modern approach of the Court
has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to
demonstrate that the regulation which burdens the religious exercise pursues a particularly important or
compelling government goal through the least restrictive means. If the state’s objective could be served as well
or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given.279 This approach of the Court on "burdensome effect" was only applied since
the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit
of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did
not pose a hindrance such as in Reynolds.280 In the second situation where accommodation is permissible, the
state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation
where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did
not rule that the state was required to provide tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means co-extensive with the noninterference mandated
by the Free Exercise Clause."281 The Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property taxes. Other examples are the
Zorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains
from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail
over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise
Clause does not mean that all claims for free exercise exemptions are valid.282 An example where
accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the
public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion.

In the first situation where accommodation is required, the approach follows this basic framework:

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

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

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

Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state and
that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if exemptions are
granted.289 The person claiming religious freedom, on the other hand, will endeavor to show that the interest is
not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious
liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of facts. The greater the state’s interests, the more
central the religious belief would have to be to overcome it. In assessing the state interest, the court will have
to determine the importance of the secular interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by granting the exemption.290

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the
state?"291 The analysis requires the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less
drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state
interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined
judgment.292

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government
and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled,
mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines

A. History

Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a
union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil
authorities exercised religious functions and the friars exercised civil powers.294 Catholics alone enjoyed the
right of engaging in public ceremonies of worship.295 Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule.
Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines.
Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred
to crimes against the state religion.296 The coming of the Americans to our country, however, changed this
state-church scheme for with the advent of this regime, the unique American experiment of "separation of
church and state" was transported to Philippine soil.

Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10,
1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided
that "the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured
in the free exercise of religion."297 Even the Filipinos themselves guaranteed religious freedom a month later or
on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General
Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all religion (de todos los
cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns of government.298

With the Philippines under the American regime, President McKinley issued Instructions to the Second
Philippine Commission, the body created to take over the civil government in the Philippines in 1900. The
Instructions guaranteed religious freedom, viz:

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

This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions
declared that "(t)he separation between State and Church shall be real, entire and absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the
religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

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

In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of
church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed
upon any particular religious sect."302

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public
money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and
that the free exercise and enjoyment of religious profession and worship without discrimination or preference,
shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No
public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the
use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed
independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the grant of independence. The law
prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious belief or mode of worship."303

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate
Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris
of December 10, 1898, which first introduced religious toleration in our country. President McKinley’s
Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law."304 In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:

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

This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his speech as
Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the
Bill of Rights in the Jones Law were avoided whenever possible because "the principles must remain couched
in a language expressive of their historical background, nature, extent and limitations as construed and
interpreted by the great statesmen and jurists that vitalized them."306

The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on
religious freedom in the Bill of Rights in Article IV, Section 8, viz:

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

This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church
and state shall be inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the
1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6,
Article II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses.
However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses
flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for
accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of
"religion". "Religion" is derived from the Middle English religioun, from Old French religion, from Latin
religio, vaguely referring to a "bond between man and the gods."308 This pre-Christian term for the cult and
rituals of pagan Rome was first Christianized in the Latin translation of the Bible.309 While the U.S. Supreme
Court has had to take up the challenge of defining the parameters and contours of "religion" to determine
whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted with
the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause,
defined "religion" as a "profession of faith to an active power that binds and elevates man to his Creator."
Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,311 a
case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion,
viz: "(i)t has reference to one’s views of his relations to His Creator and to the obligations they impose of
reverence to His being and character and obedience to His Will." The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of one’s religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of
the advancement of religious groups on their intrinsic merits and not on the support of the state.312

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v.
Secretary of Education313 is instructive on the matter, viz:

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

The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible
Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The
defendant City of Manila required plaintiff to secure a mayor’s permit and a municipal license as ordinarily
required of those engaged in the business of general merchandise under the city’s ordinances. Plaintiff argued
that this amounted to "religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the people of the
Philippines."

After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

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

This was the Court’s maiden unequivocal affirmation of the "clear and present danger" rule in the religious
freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the
secular value the government regulation sought to protect, whether the religious speech posed a clear and
present danger to this or other secular value protected by government, or whether there was danger but it could
not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and
present danger, and quite another not to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was
not engaged in the business or occupation of selling said "merchandise" for profit. To add, the Court, citing
Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to secure a license and pay a license
fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of
religious beliefs "as the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." Thus, in American Bible Society, the "clear and present danger" rule was laid down but it was not
clearly applied.

In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the
Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the
registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that
the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which
American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a central feature of the VAT system.
Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free
Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of
religious materials by a religious organization." In the Court’s resolution of the motion for reconsideration of
the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar
to any other economic imposition that might make the right to disseminate religious doctrines costly.

Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time
involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this
case, petitioners were members of the Jehovah’s Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in
all public schools. In violation of the Order, petitioner’s children refused to salute the Philippine flag, sing the
national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under
the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz:

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

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

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

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

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

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

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

It stated in categorical terms, viz:

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

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to
determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when a law of general applicability (in this
case the Department Order) incidentally burdens the exercise of one’s religion, one’s right to religious freedom
cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v.
Secretary of Education, et al.325

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.326 In this
unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a
member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to
Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting from the application and coverage of a closed shop agreement employees belonging to any religious
sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the
union after Republic Act No. 3350 took effect. The union notified the company of Victoriano’s resignation,
which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and
the union from dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the
obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to
the first issue, the Court ruled, viz:

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

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

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

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

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

The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that
prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and
indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain
persons of a burden imposed by union security agreements which Congress itself also imposed through the
Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule
that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption."333

A close look at Victoriano would show that the Court mentioned several tests in determining when religious
freedom may be validly limited. First, the Court mentioned the test of "immediate and grave danger to the
security and welfare of the community" and "infringement of religious freedom only to the smallest extent
necessary" to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by
a general law which has for its purpose and effect the advancement of the state’s secular goals, provided that
there is no other means by which the state can accomplish this purpose without imposing such burden. Third,
the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict
with religious exercise, unless a compelling state interest intervenes.

It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the
importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by
another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the
"compelling state interest" test was employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no
"compelling state interest" to strike it down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the "compelling state interest" test was
not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees,
members of the South Carolina Employment Commission, a government agency, who propounded the state
interest to justify overriding Sherbert’s claim of religious freedom. The U.S. Supreme Court, considering
Sherbert’s and the Commission’s arguments, found that the state interest was not sufficiently compelling to
prevail over Sherbert’s free exercise claim. This situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow
Victoriano’s exercise of religion. Thus, the government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from
the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum,
although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the
Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion
Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor
Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336

Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were
walking to St. Jude Church within the Malacanang security area to pray for "an end to violence" when they
were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they
came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The
Court was divided on the issue. The slim majority of six recognized their freedom of religion but noted their
absence of good faith and concluded that they were using their religious liberty to express their opposition to
the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on
matters of religion, viz:

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

The Court reiterated the Gerona ruling, viz:

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

. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If
the exercise of said religious belief clashes with the established institutions of society and with the law, then
the former must yield and give way to the latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth
functioning of the executive branch of the government, which petitioners’ mass action would certainly
disrupt"338 and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went
back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions
of society and the law.

Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a
test in religious freedom cases. His dissent stated in relevant part, viz:

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

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

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

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee’s dissent was taken involved
the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a
permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to
hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was
used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions’ right
to assemble and petition the government for redress of grievances.340

In 1993, the issue on the Jehovah’s Witnesses’ participation in the flag ceremony again came before the Court
in Ebralinag v. The Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling
after three decades. Similar to Gerona, this case involved several Jehovah’s Witnesses who were expelled from
school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time
transported the "grave and imminent danger" test laid down in Justice Teehankee’s dissent in German, viz:

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

The Court added, viz:

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

Barnette also found its way to the opinion, viz:

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

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

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

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

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

The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior
restraint of religious worship with overtones of the right to free speech and assembly, was transported to
Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony "is alien to
the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their rights to free speech and the free exercise of religious profession and worship;" the Court then stated in a
footnote that the "flag salute, singing the national anthem and reciting the patriotic pledge are all forms of
utterances."346

The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General’s
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public
respondents was that "(t)he State’s compelling interests being pursued by the DEC’s lawful regulations in
question do not warrant exemption of the school children of the Jehovah’s Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions."347 The Court, however, referred to
the test only towards the end of the decision and did not even mention what the Solicitor General argued as the
compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to
override petitioners’ religious freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et
al.348 Although there was a dissent with respect to the applicability of the "clear and present danger" test in this
case, the majority opinion in unequivocal terms applied the "clear and present danger" test to religious speech.
This case involved the television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon
petitioner Iglesia ni Cristo’s submission of the VTR tapes of some of its episodes, respondent Board of Review
for Motion Pictures and Television classified these as "X" or not for public viewing on the ground that they
"offend and constitute an attack against other religions which is expressly prohibited by law." Invoking
religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion
in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the
Board’s power to review the Iglesia television show, the Court was emphatic about the preferred status of
religious freedom. Quoting Justice Cruz’ commentary on the constitution, the Court held that freedom to
believe is absolute but freedom to act on one’s belief, where it affects the public, is subject to the authority of
the state. The commentary quoted Justice Frankfurter’s dissent in Barnette which was quoted in Gerona, viz:
"(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It
gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."349 Nevertheless, the Court was quick to add the
criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring
about the "clear and present danger of some substantive evil which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding interest of public health, public morals, or public welfare."350

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints
on speech, including religious speech and the x-rating was a suppression of petitioner’s freedom of speech as
much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized
that the different religions may criticize one another and their tenets may collide, but the Establishment Clause
prohibits the state from protecting any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society
case and the test of "immediate and grave danger" with "infringement only to the smallest extent necessary to
avoid danger" in Victoriano and pointed out that the reviewing board failed to apply the "clear and present
danger" test. Applying the test, the Court noted, viz:

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

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

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test
to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked
to seek exemption from compliance with a law that burdens one’s religious exercise. It also reiterated the
"clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano,
but this time clearly justifying its applicability and showing how the test was applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to
religious freedom, but carving out an exception or upholding an exception to accommodate religious
exercise where it is justified.353

2. Establishment Clause

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

The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution.
In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the issuance and sale of
postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on
the ground that the constitutional prohibition against the use of public money for religious purposes has been
violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No.
4052358 which appropriated a sum for the cost of plates and printing of postage stamps with new designs and
authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the
Government." The printing and issuance of the postage stamps in question appears to have been approved by
authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and
the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of
the stamps, viz:

The prohibition herein expressed is a direct corollary of the principle of separation of church and state.
Without the necessity of adverting to the historical background of this principle in our country, it is sufficient
to say that our history, not to speak of the history of mankind, has taught us that the union of church and state
is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country
we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest,
in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It
should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion
and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that
binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the
preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him
who guides the destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious
sects and denominations. . .359

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked
with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic
Church, was not the aim and purpose of the Government. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental results, more or less religious in character, if
the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360 (emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government
action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a
particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation
of church and state was not at issue as the controversy was over who should have custody of a saint’s image, it
nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay
ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron
saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the
barrio fiesta is a socio-religious affair, the celebration of which is an "ingrained tradition in rural communities"
that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing
illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and
display of his image bought with funds obtained through solicitation from the barrio residents. The Court
pointed out that the image of the patron saint was "purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the barrio residents." Citing the Aglipay ruling, the
Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which has some religious
tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship
and banning the use of public money or property.

Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion
clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After protracted deliberation, the Court was
sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective and considered the law a religious
test offensive of the constitution. They were Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr.,
Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution."
Citing Torcaso v. Watkins,363 the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved
was the validity of a provision in the Maryland Constitution prescribing that ‘no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in
the existence of God ***.’ Such a constitutional requirement was assailed as contrary to the First Amendment
of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed
in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise.
As emphatically declared by Justice Black: ‘this Maryland religious test for public office unconstitutionally
invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here
being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express
constitutional mandate.364

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo,
Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law
as a safeguard against the constant threat of union of church and state that has marked Philippine history.
Justice Makasiar stated: "To allow an ecclesiastic to head the executive department of a municipality is to
permit the erosion of the principle of separation of Church and State and thus open the floodgates for the
violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared
respondent priest ineligible for the office of municipal mayor.

Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier
v. Court of Appeals365 is the leading case. The issue therein was the right of control over certain properties of
the Philippine Independent Church, the resolution of which necessitated the determination of who was the
legitimate bishop of the church. The Court cited American Jurisprudence,366 viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in
conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have
the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their
procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the
constitution and the law of the church. . .367

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly
elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,368 declared that the rule in property controversies within religious congregations strictly
independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that
the rules for resolving such controversies should be those of any voluntary association. If the congregation
adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities
within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the
Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary
differences raised, viz:

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration
alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom
and rule of a church and having reference to the power of excluding from the church those allegedly unworthy
of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.369

VIII. Free Exercise Clause vis-à-vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise
Clause and the Establishment Clause in their application. There is a natural antagonism between a command
not to establish religion and a command not to inhibit its practice; this tension between the religion clauses
often leaves the courts with a choice between competing values in religion cases.370
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the
Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or
appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing
five justices gave importance to the Establishment Clause in stating that the principle of separation of church
and state justified the prohibition.

Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently
exemptions from a law of general applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to support of the religion in violation of
the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:

In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in
South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious
differences, and does not represent that involvement of religious with secular institutions which it is the object
of the Establishment Clause to forestall.371 (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free exercise as in
the Walz case where the appellant argued that the exemption granted to religious organizations, in effect,
required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that
the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by
"sparing the exercise of religion from the burden of property taxation levied on private profit institutions."
Justice Burger wrote, viz:

(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.372

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to
religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We
ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the
constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that
is imposed by union security agreements.373 (emphasis supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless
upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices, conceivably violative of the
Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also
protected by the First Amendment."

How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question
for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause
and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review
all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail
over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free
exercise claim must be given an edge not only because of abundant historical evidence in the colonial and
early national period of the United States that the free exercise principle long antedated any broad-based
support of disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizen’s free exercise of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility to the religion that in that case
cannot be freely exercised.374 American professor of constitutional law, Laurence Tribe, similarly suggests that
the free exercise principle "should be dominant in any conflict with the anti-establishment principle." This
dominance would be the result of commitment to religious tolerance instead of "thwarting at all costs even the
faintest appearance of establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding
regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of
religion. To adequately meet the demands of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has
been the approach followed by the Philippine Court.376

IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from
the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the delegates of the 1934
Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the
phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its
historical background, nature, extent and limitations. At that time, there were not too many religion clause
cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947
Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the
expanding reach of government regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this
increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case
law, at other times modifying it, and still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs separation while the second employs
benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S.
religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the
1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction
between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable
streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court in Everson supports the 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.1âwphi1 It is a cardinal rule in constitutional construction that
the constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and
harmonized in a manner that will give to all of them full force and effect.377 From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the
religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the
constitution.378

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935
Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in
Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious, charitable, or educational purposes shall be exempt from
taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar
exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the
Philippine government during the Commonwealth period.379 The original draft of the Constitution placed this
provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed
by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption
even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the
rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary for
facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also
guaranteed by exempting them from taxation."380 The amendment was readily approved with 83 affirmative
votes against 15 negative votes.381

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case
of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by
stating that church property was not singled out but was exempt along with property owned by non-profit,
quasi-public corporations because the state upheld the secular policy "that considers these groups as beneficial
and stabilizing influences in community life and finds this classification useful, desirable, and in the public
interest." The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by
property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of
benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church
property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under
the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of
the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence
towards religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

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

The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not
contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or dignitary as such…382

In the deliberations of this draft provision, an amendment was proposed to strike down everything after
"church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution on the subject
of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to
restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the
national penitentiary and the Auditor General upheld its validity on the basis of a similar United States
practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations
similar to the Jones Law.384 To settle the question on the constitutionality of payment of salaries of religious
officers in certain government institutions and to avoid the feared situation where the enumerated government
institutions could not employ religious officials with compensation, the exception in the 1935 provision was
introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed
out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme
Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of
Texas’ payment of prison chaplains’ salaries as reasonably necessary to permit inmates to practice their
religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning
legislative sessions with prayers offered by legislative chaplains retained at taxpayers’ expense. The
constitutional provision exempting religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine
jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and
state, the provision at the same time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause,
the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5,
viz:

. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the town where a public
school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour
three times a week, in the school building, to those public-school pupils whose parents or guardians desire it
and express their desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the issue of religious
instruction in public schools. The first held that the teaching of religion in public schools should be prohibited
as this was a violation of the principle of separation of church and state and the prohibition against the use of
public funds for religious purposes. The second favored the proposed optional religious instruction as
authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction
in the public schools was sufficient proof that religious instruction was not and would not be a source of
religious discord in the schools.386 The third wanted religion to be included as a course in the curriculum of the
public schools but would only be taken by pupils at the option of their parents or guardians. After several
rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of
religion in public schools, despite the opposition to the provision on the ground of separation of church and
state.387 As in the provisions on church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional religious instruction in public
schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school premises. The constitutional
provision on optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality
approach which does not allow such accommodation of religion.

Finally, to make certain the Constitution’s benevolence to religion, the Filipino people "implored (ing) the aid
of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity
the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors of the constitution as
to the evil sought to be prevented and the objects sought to be accomplished by the provisions
thereof."388 There was no debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice
Laurel noted that when the Filipino people implored the aid of Divine Providence, "(t)hey thereby manifested
their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and
nations."389 The 1935 Constitution’s religion clauses, understood alongside the other provisions on religion in
the Constitution, indubitably shows not hostility, but benevolence, to religion.390

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par.
3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively for religious or charitable purposes.
Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar
provision on salaries of religious officials employed in the enumerated government institutions. Article XIII,
Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in
Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may
be provided by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973
counterpart, however, made explicit in the constitution that the religious instruction in public elementary and
high schools shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to
them and the government." With the adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General
Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he separation of church and
state shall be inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of
Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church
and State of the 1971 Constitutional Convention, the question arose as to whether the "absolute" separation of
Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as
between one religion and another but even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committee’s answer was that it did not seem so. Citing the Aglipay case where Justice
Laurel recognized the "elevating influence of religion in human society" and the Filipinos’ imploring of Divine
Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one
religion over another, but may aid all religions equally or the cause of religion in general.391 Among the
position papers submitted to the Committee on Church on State was a background paper for reconsideration of
the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution
is not hostile to religion and in fact recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent
neutrality. While the Committee introduced the provision on separation of church and state in the General
Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the
1935 Constitution even in the absence of a similar provision.393

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was
retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for religious purposes and the salaries of
religious officers serving in the enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public
money for purposes which might have religious connections but which would benefit the public generally.
Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the
government directly, such expense would be constitutional even if it results to an incidental benefit to religion.
With that explanation, Commissioner Bacani no longer pursued his proposal.394

The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV,
Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted
"within the regular class hours" and "without additional cost to the government". There were protracted
debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as
wear and tear, electricity, janitorial services,395 and when during the day instruction would be conducted.396 In
deliberating on the phrase "within the regular class hours," Commissioner Aquino expressed her reservations
to this proposal as this would violate the time-honored principle of separation of church and state. She cited the
McCullom case where religious instruction during regular school hours was stricken down as unconstitutional
and also cited what she considered the most liberal interpretation of separation of church and state in Surach v.
Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied,
viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of
religion, because if it were not necessary to make this exception for purposes of allowing religious instruction,
then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American practices.397 (emphasis supplied)

"(W)ithin regular class hours" was approved.

The provision on the separation of church and state was retained but placed under the Principles in the
Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence ‘The separation of Church and State is
inviolable,’ is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing
to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are
based not on the statement of separation of church and state but on the non-establishment clause in the Bill of
Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was
considerable debate on whether to use "Almighty God" which Commissioner Bacani said was more reflective
of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God.399 "God of History", "Lord of History" and
"God" were also proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and 1971
Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion;400 its wall of
separation is not a wall of hostility or indifference.401

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of
religious officers in government institutions, optional religious instruction and the preamble all reveal without
doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable
wall of separation between the church and state.402 The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider inadvertent burden on religious exercise
protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an
approach that looks further than the secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and
the elevating influence of religion in society; at the same time, it acknowledges that government must pursue
its secular goals. In pursuing these goals, however, government might adopt laws or actions of general
applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for
accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in
the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses.
The case at bar involves this first type of accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it
does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices
and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that
the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the
Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the
Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal
formulation that can eliminate the difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence
should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from
which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority, however small- not only for a majority,
however large- but for each of us" to the greatest extent possible within flexible constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine
jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court
not only stressed the "elevating influence of religion in human society" but acknowledged the Constitutional
provisions on exemption from tax of church property, salary of religious officers in government institutions,
and optional religious instruction as well as the provisions of the Administrative Code making Thursday and
Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized
the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but
also acknowledged that government participation in long-standing traditions which have acquired a social
character - "the barrio fiesta is a socio-religious affair" - does not offend the Establishment Clause. In
Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who
prohibited their members from joining unions upon the justification that the exemption was not a violation of
the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag,
members of the Jehovah’s Witnesses were exempt from saluting the flag as required by law, on the basis not of
a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has
departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine
religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation.
Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the
U.S. Supreme Court in Everson.404 While the religion clauses are a unique American experiment which
understandably came about as a result of America’s English background and colonization, the life that these
clauses have taken in this jurisdiction is the Philippines’ own experiment, reflective of the Filipinos’ own
national soul, history and tradition. After all, "the life of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent
neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the
line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members
of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their
exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would
erode order in the state and foment anarchy, eventually destroying the very state its members established to
protect their freedoms. The very purpose of the social contract by which people establish the state is for the
state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural
right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free
exercise could be used to countenance actions that would undo the constitutional order that guarantees free
exercise.405
The all important question then is the test that should be used in ascertaining the limits of the exercise of
religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with
the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it
violates the established institutions of society and law. The Victoriano case mentioned the "immediate and
grave danger" test as well as the doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of American
Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or "grave and
immediate danger" test involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom
will not prevail over established institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where
the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects
on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the
most inalienable and sacred of all human rights", in the words of Jefferson.406 This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty,407 thus the Filipinos
implore the "aid of Almighty God in order to build a just and humane society and establish a government." As
held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow
the state to batter religion, especially the less powerful ones until they are destroyed.408 In determining which
shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide.409 The
"compelling state interest" serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct,
i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of
"disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In these cases, there
was not one dissent to the majority’s ruling that their conduct was immoral. The respondents themselves did
not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit
the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and
the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or
offense to the moral sensibilities of the community in which the respondent and the partner live and work, and
the government employee is capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees administratively liable for "disgraceful and
immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation
that the norms of morality with respect to illicit relations have shifted towards leniency from the time these
precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to
deviate from these rulings that such illicit relationship constitutes "disgraceful and immoral conduct"
punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like
the respondents in the above-cited cases, could be held administratively liable. However, there is a
distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent
invokes religious freedom since her religion, the Jehovah’s Witnesses, has, after thorough investigation,
allowed her conjugal arrangement with Quilapio based on the church’s religious beliefs and practices. This
distinguishing factor compels the Court to apply the religious clauses to the case at bar.

Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme.
Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality
than on the religion clauses in deciding the instant case. A discussion on morality is in order.

At base, morality refers to, in Socrates’ words, "how we ought to live" and why. Any definition of morality
beyond Socrates’ simple formulation is bound to offend one or another of the many rival theories regarding
what it means to live morally.413 The answer to the question of how we ought to live necessarily considers that
man does not live in isolation, but in society. Devlin posits that a society is held together by a community of
ideas, made up not only of political ideas but also of ideas about the manner its members should behave and
govern their lives. The latter are their morals; they constitute the public morality. Each member of society has
ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common
thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its
price.414 This design is parallel with the social contract in the realm of politics: people give up a portion of their
liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental
agreement such as by revolution destroys the old order and creates a new one.415 Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the manner a society’s members should behave
and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral
code by law as it does to preserve its government and other essential institutions.416 From these propositions of
Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of
this diversity, there should nevertheless be a "fundamental agreement about good and evil" that will govern
how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come to
an agreement; his position also allows for change of morality from time to time which may be brought about
by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their
constitution in establishing and maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be amended from time to time.
Hart’s argument propounded in Mr. Justice Vitug’s separate opinion that, "Devlin’s view of people living in a
single society as having common moral foundation (is) overly simplistic" because "societies have always been
diverse" fails to recognize the necessity of Devlin’s proposition in a democracy. Without fundamental
agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the
existence and progress of society.

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to
the public square where people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance.417 Thus, when
public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom
"not only for a minority, however small- not only for a majority, however large- but for each of us" -- the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives
room for accommodation carries out this promise, provided the compelling interests of the state are not eroded
for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States and the Philippines to accommodate
those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it
blocks the judicial recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness
and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over a period of
time."421 Occasionally though, a disproportionate political influence might cause a law to be enacted at odds
with public morality or legislature might fail to repeal laws embodying outdated traditional moral
views.422 Law has also been defined as "something men create in their best moments to protect themselves in
their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial pronouncements
are subject to modification and reversal to better reflect the public morals of a society at a given time. After all,
"the life of the law...has been experience," in the words of Justice Holmes. This is not to say though that law is
all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does
not meet the higher moral standards set by society for him to be called a morally upright person.424 Law also
serves as "a helpful starting point for thinking about a proper or ideal public morality for a society"425 in pursuit
of moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We
held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the
moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society. This disapprobation is inevitable
to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of
all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the
method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards
of behavior or moral principles which society requires to be observed and these form the bases of criminal law.
Their breach is an offense not only against the person injured but against society as a whole.428 Thus, even if all
involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public
morals and the public interest in the moral order.429 Mr. Justice Vitug expresses concern on this point in his
separate opinion. He observes that certain immoral acts which appear private and not harmful to society such
as sexual congress "between a man and a prostitute, though consensual and private, and with no injured third
party, remains illegal in this country." His opinion asks whether these laws on private morality are justified or
they constitute impingement on one’s freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondent’s conduct, which constitutes concubinage,430 is private in the
sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is
that the legislature has taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised
in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal
spouse, does not alter or negate the crime unlike in rape431 where consent of the supposed victim negates the
crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the
action,432 but does not alter the legislature’s characterization of the act as a moral disapprobation punishable by
law. The separate opinion states that, "(t)he ponencia has taken pains to distinguish between secular and
private morality, and reached the conclusion that the law, as an instrument of the secular State should only
concern itself with secular morality." The Court does not draw this distinction in the case at bar. The
distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one hand, and religious morality on the other,
which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in
Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are
not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing
with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form
of damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice,
give everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commission’s comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe
adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to
provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The
answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles
which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed
rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which
cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with
impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be
defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil
Code.433 (emphases supplied)
The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality
proceeds from a person’s "views of his relations to His Creator and to the obligations they impose of reverence
to His being and character and obedience to His Will," in accordance with this Court’s definition of religion in
American Bible Society citing Davis. Religion also dictates "how we ought to live" for the nature of religion is
not just to know, but often, to act in accordance with man’s "views of his relations to His Creator."434 But the
Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the
other, and implies the affirmative "establishment" of a civil order for the resolution of public moral disputes.
This agreement on a secular mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced by religious truce.435

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers436 , or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil
Code,438 or "moral character" in the Constitution,439 the distinction between public and secular morality on the
one hand, and religious morality, on the other, should be kept in mind.440 The morality referred to in the law is
public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral disputes may be resolved only
on grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or
endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not
support the policy. As a result, government will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.442

In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven.443 Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but
upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down
for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious
nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution’s
religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strives to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated
by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.

Mr. Justice Vitug’s separate opinion embraces the benevolent neutrality approach when it states that in
deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their
rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for
which they are enacted would, a departure be justified." In religion clause parlance, the separate opinion holds
that laws of general applicability governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and
the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as
upholding the sanctity of marriage and the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and practice (which the separate opinion holds should
be respected on the ground of freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the
union binding and honorable before God and men, is required by the Free Exercise Clause. The separate
opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous
marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly
examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at
bar would also require a similar discussion of these values and presentation of evidence before the OCA by the
state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional
religious belief and practice regarding marriage.

The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the
one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. More concretely, should the Court declare respondent’s
conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public
morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long
as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the
Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where
it is presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances, public morality is not offended or
that upholding her religious freedom is an interest higher than upholding public morality thus her conduct
should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor
that other churches which do not allow respondent’s conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and therefore members of these churches
are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious
beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church…are unquestionably ecclesiastical matters which are
outside the province of the civil courts."444 But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious clauses, the social contract and the
constitutional order are designed in such a way that when religious belief flows into speech and conduct that
step out of the religious sphere and overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests
of the state. The state’s inroad on religion exercise in excess of this constitutional design is prohibited by the
religion clauses; the Old World, European and American history narrated above bears out the wisdom of this
proscription.

Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held administratively liable. The line is not easy
to draw for it is like "a line that divides land and sea, a coastline of irregularities and indentations."445 But the
case at bar does not require us to comprehensively delineate between those immoral acts for which one may be
held administratively liable and those to which administrative liability does not attach. We need not concern
ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are
immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy
grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or
different jurisdictions have different standards of morality as discussed by the dissents and separate opinions,
although these observations and propositions are true and correct. It is certainly a fallacious argument that
because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," then
the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation
that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular
jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral
absolutes such as respect for life and truth-telling, without which no society will survive. Only one conduct is
in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court
must focus its attention upon the sole conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago
groped for standards of morality and stated that the "ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards" but did not articulate how these standards are to be
ascertained. Instead, it held that, "(f)or those in the service of the Government, provisions of law and court
precedents . . . have to be considered." It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondent’s conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a "disgraceful and immoral conduct" for maintaining
illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence,
respondent’s conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent
do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases
cannot therefore serve as precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v. United States446 in laying down the standard of
morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be determined by
respondent’s concept of morality. The law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it condemns." The Mann Act under consideration in
the Cleveland case declares as an offense the transportation in interstate commerce of "any woman or girl for
the purpose of prostitution or debauchery, or for any other immoral purpose."447 The resolution of that case
hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner
Mormons’ act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the
purpose of aiding another member of their Mormon church in such a project, was covered by the phrase
"immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons’ practice of
polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations
of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world,"450 and thus punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of
the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do not apply in the Philippines
where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah’s Witnesses
under the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some
other law. We cannot summarily conclude therefore that her conduct is likewise so "odious" and "barbaric" as
to be immoral and punishable by law.

While positing the view that the resolution of the case at bar lies more on determining the applicable moral
standards and less on religious freedom, Mme. Justice Ynares-Santiago’s dissent nevertheless discussed
respondent’s plea of religious freedom and disposed of this defense by stating that "(a) clear and present
danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free
exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of
morality, good order, and discipline in the judiciary." However, the foregoing discussion has shown that the
"clear and present danger" test that is usually employed in cases involving freedom of expression is not
appropriate to the case at bar which involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The Reynolds ruling,
however, was reached with a strict neutrality approach, which is not the approach contemplated by the
Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting
the religion clauses.

In the same vein, Mr. Justice Carpio’s dissent which employs strict neutrality does not reflect the constitutional
intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that
respondent should be held administratively liable not for "disgraceful and immoral conduct" but "conduct
prejudicial to the best interest of the service" as she is a necessary co-accused of her partner in concubinage.
The dissent stresses that being a court employee, her open violation of the law is prejudicial to the
administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to
defend herself against the charge of "conduct prejudicial to the best interest of the service." In addition, there is
no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes
that respondent’s plea of religious freedom cannot prevail without so much as employing a test that would
balance respondent’s religious freedom and the state’s interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a
framework, the Court cannot simply reject respondent’s plea of religious freedom without even subjecting it to
the "compelling state interest" test that would balance her freedom with the paramount interests of the state.
The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided
before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not
contemplated by our constitution.

Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451 cited in Mr. Justice
Carpio’s dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge
of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with
whom he had three children because "it (was) not ‘immoral’ by Muslim standards for Judge Malik to marry a
second time while his first marriage (existed)." Putting the quoted portion in its proper context would readily
show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the
portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy ‘shall not apply to a person married x x x under Muslim Law,’ it is not ‘immoral’ by Muslim standards
for Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that the
Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the
general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment
Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No.
1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged
Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim
standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for
treating respondent’s conduct as an exception to the prevailing jurisprudence on illicit relations of civil
servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondent’s claim of religious freedom to
the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining the possibility that
respondent’s claim to religious freedom would warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondent’s right to religious freedom has been burdened.
There is no doubt that choosing between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and keeping her religious practice and
family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that
Sherbert’s religious exercise was burdened as the denial of unemployment benefits "forces her to choose
between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept work, on the other hand." The burden on respondent in the case
at bar is even greater as the price she has to pay for her employment is not only her religious precept but also
her family which, by the Declaration Pledging Faithfulness, stands "honorable before God and men."

The second step is to ascertain respondent’s sincerity in her religious belief. Respondent appears to be sincere
in her religious belief and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid
punishment for immorality. She did not secure the Declaration only after entering the judiciary where the
moral standards are strict and defined, much less only after an administrative case for immorality was filed
against her. The Declaration was issued to her by her congregation after ten years of living together with her
partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on
the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural
basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members under respondent’s circumstances
"honorable before God and men." It is also worthy of notice that the Report and Recommendation of the
investigating judge annexed letters453 of the OCA to the respondent regarding her request to be exempt from
attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony.
The OCA’s letters were not submitted by respondent as evidence but annexed by the investigating judge in
explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court
Administrator and Deputy Court Administrator had different positions regarding respondent’s request for
exemption from the flag ceremony on the ground of the Jehovah’s Witnesses’ contrary belief and practice.
Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah’s
Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing member of the
Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless,
should the government, thru the Solicitor General, want to further question the respondent’s sincerity and the
centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been
represented in the case at bar from its incipience until this point.

In any event, even if the Court deems sufficient respondent’s evidence on the sincerity of her religious belief
and its centrality in her faith, the case at bar cannot still be decided using the "compelling state interest" test.
The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should
discharge in the Court’s use of the "compelling state interest" test. We note that the OCA found respondent’s
defense of religious freedom unavailing in the face of the Court’s ruling in Dicdican v. Fernan, et al., viz:

It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the
personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined
to adhere to the exacting standards of morality and decency in their professional and private conduct in order
to preserve the good name and integrity of the courts of justice.

It is apparent from the OCA’s reliance upon this ruling that the state interest it upholds is the preservation of
the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency.
However, there is nothing in the OCA’s memorandum to the Court that demonstrates how this interest is so
compelling that it should override respondent’s plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive to respondent’s religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest
of the state. The burden of evidence should be discharged by the proper agency of the government which is the
Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given
the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent’s
stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free
exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free
Exercise Clause, the Court’s action would be an unconstitutional encroachment of her right to religious
freedom.454 We cannot therefore simply take a passing look at respondent’s claim of religious freedom, but
must instead apply the "compelling state interest" test. The government must be heard on the issue as it has not
been given an opportunity to discharge its burden of demonstrating the state’s compelling interest which can
override respondent’s religious belief and practice. To repeat, this is a case of first impression where we are
applying the "compelling state interest" test in a case involving purely religious conduct. The careful
application of the test is indispensable as how we will decide the case will make a decisive difference in the
life of the respondent who stands not only before the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor
General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity
and centrality of respondent’s claimed religious belief and practice; (b) to present evidence on the state’s
"compelling interest" to override respondent’s religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondent’s religious freedom. The rehearing
should be concluded thirty (30) days from the Office of the Court Administrator’s receipt of this Decision.

SO ORDERED.
Case digest

Alejandro Estrada v. Soledad S. Escritor, A.M. No. P-02-1651. August 4, 2003

Facts: Complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., requesting for an investigation of
rumors that respondent Soledad Escritor, court interpreter, is living with a man not her husband. They
allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her
partner. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act
that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might
appear that the court condones her act.

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998. She admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as
the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991
a "Declaration of Pledging Faithfulness," insofar as the congregation is concerned, there is nothing immoral
about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in
the congregation.

Issue: Whether or not respondent should be found guilty of the administrative charge of "gross and immoral
conduct."

Held: Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the
same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits.
Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests. It still
remains to be seen if respondent is entitled to such doctrine as the state has not been afforded the chance has
demonstrate the compelling state interest of prohibiting the act of respondent, thus the case is remanded to the
RTC.

Benevolent neutrality is inconsistent with the Free Exercise Clause as far as it prohibits such exercise given a
compelling state interest. It is the respondent’s stance that the respondent’s conjugal arrangement is not
immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and
punish her conduct where it is protected by the Free Exercise Clause, the Court’s action would be an
unconstitutional encroachment of her right to religious freedom. The Court cannot therefore simply take a
passing look at respondent’s claim of religious freedom, but must instead apply the “compelling state interest”
test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden
of demonstrating the state’s compelling interest which can override respondent’s religious belief and practice.

Full case
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
 DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female.
(Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the
bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once,
then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was
a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman
"Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made
by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex
reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first
name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as
SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio
and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in
his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body,
he consulted several doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27,
2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.
Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his
name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of
general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office
of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition
was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé,
Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:
 Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose of making his birth records compatible with his present
sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the
principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt,
thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be
trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would bring the much-
awaited happiness on the part of the petitioner and her [fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite
due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from
"Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in
the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the
trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the
Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-
105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by
the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose of making his birth records compatible with his
present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil
registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A
change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048
provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except
for clerical or typographical errors and change of first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for
change of first name to the city or municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the
remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name
or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and
he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his
first name compatible with the sex he thought he transformed himself into through surgery. However, a change
of name does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name
on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of
his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as
a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not
within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue
was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the
Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was
concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to
the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records: Provided, however, That no correction
must involve the change of nationality, age, status or sex of the petitioner. (emphasis
supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of
Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in
the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
 natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to
replace something with something else of the same kind or with something that serves as a substitute."26 The
birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first
name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization
and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of
filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch
upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws.
In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent
in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or
his being married or not. The comprehensive term status… include such matters as the beginning and
end of legal personality, capacity to have rights in general, family relations, and its various aspects,
such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity
and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special
laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to
petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall
be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the
birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour
of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the
 father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was
born; and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of
birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by
error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined
as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction
between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that
has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday
understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-known meaning are presumed to have been used in that
sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is
something alterable through surgery or something that allows a post-operative male-to-female transsexual to be
included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth
certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of
Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity.
It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences.
First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual
marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract
of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of
a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).
Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship
in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of
entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it
has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as
having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or
on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written
word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of
public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Case Digest
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
Facts: On November 26, 2002, Silverio field a petition for the change of his first name “Rommel Jacinto” to
“Mely” and his sex from male to female in his birth certificate in the RTC of Manila, Branch 8, for reason of
his sex reassignment. He alleged that he is a male transsexual, he is anatomically male but thinks and acts like
a female. The Regional Trial Court ruled in favor of him, explaining that it is consonance with the principle of
justice and equality.

The Republic, through the OSG, filed a petition for certiorari in the Court of Appeals alleging that there is no
law allowing change of name by reason of sex alteration. Petitioner filed a reconsideration but was denied.
Hence, this petition.

Issue: WON change in name and sex in birth certificate are allowed by reason of sex reassignment.

Held: No. A change of name is a privilege and not a right. It may be allowed in cases where the name is
ridiculous, tainted with dishonor, or difficult to pronounce or write; a nickname is habitually used; or if the
change will avoid confusion. The petitioner’s basis of the change of his name is that he intends his first name
compatible with the sex he thought he transformed himself into thru surgery. The Court says that his true name
does not prejudice him at all, and no law allows the change of entry in the birth certificate as to sex on the
ground of sex reassignment. The Court denied the petition.

Full case
[G.R. NO. 166676, September 12, 2008]
REPUBLIC OF THE PHILIPPINES, Petitioner, v.
JENNIFER B. CAGANDAHAN, Respondent.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a
reversal of the Decision1 dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan,
Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries in Cagandahan's birth certificate: (1) the name
"Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth
Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted
possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral
hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has
small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped
growing and she has no breast or menstrual development. She then alleged that for all interests and
appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth
certificate be corrected such that her gender be changed from female to male and her first name be changed
from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and
authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondent's condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her female organs did not develop
normally and she has two sex organs - female and male. He testified that this condition is very rare, that
respondent's uterus is not fully developed because of lack of female hormones, and that she has no monthly
period. He further testified that respondent's condition is permanent and recommended the change of gender
because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would
be advantageous to her.

The RTC granted respondent's petition in a Decision dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for].
Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his
petition. It was medically proven that petitioner's body produces male hormones, and first his body as well as
his action and feelings are that of a male. He has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner's school records, voter's registry, baptismal certificate, and other pertinent
records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER"
IN THE BIRTH CERTIFICATE, WHILE RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE"4
Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth
certificate of respondent to change her sex or gender, from female to male, on the ground of her medical
condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of
Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of
the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation
or correction of entries under Section 3, Rule 108 of the Rules of Court, respondent's petition before the
court a quo did not implead the local civil registrar.5 The OSG further contends respondent's petition is fatally
defective since it failed to state that respondent is a bona fide resident of the province where the petition was
filed for at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the
Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate
and respondent's claimed medical condition known as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar
was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or
processes in the course of the proceedings,8 respondent is actually a male person and hence his birth certificate
has to be corrected to reflect his true sex/gender,9 change of sex or gender is allowed under Rule 108,10 and
respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME

SECTION 1. Venue. - A person desiring to change his name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations
Court].

SEC. 2. Contents of petition. - A petition for change of name shall be signed and verified by the person
desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three
(3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.

SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a
copy of the order be published before the hearing at least once a week for three (3) successive weeks in some
newspaper of general circulation published in the province, as the court shall deem best. The date set for the
hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last
publication of the notice.

SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has
been published as directed and that the allegations of the petition are true, the court shall, if proper and
reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in
accordance with the prayer of the petition.

SEC. 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be furnished the
civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter
the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY

SECTION 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the
civil status of persons which has been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in
the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name.

SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.

SEC. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. - The court in which the proceedings is brought may make orders expediting
the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties
pending such proceedings.

SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the
Rules of Court because respondent's petition did not implead the local civil registrar. Section 3, Rule 108
provides that the civil registrar and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a
proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final
determination of the case can be had.12 Unless all possible indispensable parties were duly notified of the
proceedings, the same shall be considered as falling much too short of the requirements of the rules.13 The
corresponding petition should also implead as respondents the civil registrar and all other persons who may
have or may claim to have any interest that would be affected thereby.14 Respondent, however, invokes Section
6,15 Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their
objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it.
We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition
to the local civil registrar.

The determination of a person's sex appearing in his birth certificate is a legal issue and the court must look to
the statutes. In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.
Together with Article 37616 of the Civil Code, this provision was amended by Republic Act No. 904817 in so
far as clerical or typographical errors are involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies
only to substantial changes and corrections in entries in the civil register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of
Court.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil
register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination
of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that
occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male
characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A
newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal
structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows
older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate
at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions21 that involve intersex anatomy. During the twentieth century, medicine
adopted the term "intersexuality" to apply to human beings who cannot be classified as either male or
female.22 The term is now of widespread use. According to Wikipedia, intersexuality "is the state of a living
thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An organism with intersex may have biological
characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals
have been expected to conform to either a male or female gender role.23 Since the rise of modern medical
science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia
surgically modified to resemble either male or female genitals.24 More commonly, an intersex individual is
considered as suffering from a "disorder" which is almost always recommended to be treated, whether by
surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the
category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. "It has been suggested that there is some middle
ground between the sexes, a `no-man's land' for those individuals who are neither truly `male' nor truly
`female'"25 The current state of Philippine statutes apparently compels that a person be classified either as a
male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally
negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the

subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor
consistently and categorically male) composition. Respondent has female (XX) chromosomes. However,
respondent's body system naturally produces high levels of male hormones (androgen). As a result, respondent
has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor
in his gender classification would be what the individual, like respondent, having reached the age of majority,
with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his
body produces high levels of male hormones (androgen) there is preponderant biological support for
considering him as being male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere
with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong medication,26 to force his body into the
categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in
respondent's development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately
private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment
to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not
choosing to undergo treatment in order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human species. Respondent is the one who has to live with his
intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him
should belong the primordial choice of what courses of action to take along the path of his sexual development
and maturation. In the absence of evidence that respondent is an "incompetent">27 and in the absence of
evidence to show that classifying respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his
personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect respondent's congenital condition and his mature
decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent
deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this
case.

As for respondent's change of name under Rule 103, this Court has held that a change of name is not a matter
of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that
will follow.28 The trial court's grant of respondent's change of name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering the consequence that respondent's change of name merely
recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform
with the change of the entry in his birth certificate from female to male.

WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12, 2005 of the Regional
Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Case digest
Republic v. Cagandahan, 565 SCRA 72, 2008

Facts: Jennifer Cagandahan was registered as a female in her Certificate of Live Birth. During her childhood
years, she suffered from clitoral hypertrophy and was later on diagnosed that her ovarian structures had
minimized. She likewise has no breast nor menstruation. Subsequently, she was diagnosed of having
Congenital Adrenal Hyperplasia (CAH), a condition where those afflicted possess secondary male
characteristics because of too much secretion of male hormones, androgen. According to her, for all interests
and appearances as well as in mind and emotion, she has become a male person. She filed a petition at
Regional Trial Court Branch 33 in Siniloan, Laguna for Correction of Entries in her Birth Certificate such that
her gender or sex be changed to male and her first name be changed to Jeff.

Issue: Whether or not correction of entries in her birth certificate should be granted.
Held: The Court considered the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. Supreme Court is of the view that where the person
is biologically or naturally intersex the determining factor in his gender classification would be what the
individual, having reached the age of majority, with good reason thinks of his/her sex. As in this case,
respondent, thinks of himself as a male and considering that his body produces high levels of male hormones,
there is preponderant biological support for considering him as being a male. Sexual development in cases of
intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.

Supreme Court: " In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition
and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect
how respondent deals with his unordinary state and thus help make his life easier, considering the unique
circumstances in this case."

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
LIBERTY D. ALBIOS, Respondent.
DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the September 29,
2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April 25,
2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC). declaring the marriage of Daniel Lee Fringer
(Fringer) and respondent Liberty Albios (A/bios) as void from the beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I. Calo of the
Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate of Marriage
with Register No. 2004-1588.3
On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage with
Fringer. She alleged that immediately after their marriage, they separated and never lived as husband and wife
because they never really had any intention of entering into a married state or complying with any of their
essential marital obligations. She described their marriage as one made in jest and, therefore, null and void ab
initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed a motion
to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant Provincial Prosecutor to
conduct an investigation and determine the existence of a collusion. On October 2, 2007, the Assistant
Prosecutor complied and reported that she could not make a determination for failure of both parties to appear
at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the hearing
despite being duly notified of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of which
reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty Albios
and Daniel Lee Fringer as void from the very beginning. As a necessary consequence of this pronouncement,
petitioner shall cease using the surname of respondent as she never acquired any right over it and so as to avoid
a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence to the
testimony of Albios, it stated that she contracted Fringer to enter into a marriage to enable her to acquire
American citizenship; that in consideration thereof, she agreed to pay him the sum of $2,000.00; that after the
ceremony, the parties went their separate ways; that Fringer returned to the United States and never again
communicated with her; and that, in turn, she did not pay him the $2,000.00 because he never processed her
petition for citizenship. The RTC, thus, ruled that when marriage was entered into for a purpose other than the
establishment of a conjugal and family life, such was a farce and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a motion
for reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the motion for want of
merit. It explained that the marriage was declared void because the parties failed to freely give their consent to
the marriage as they had no intention to be legally bound by it and used it only as a means to acquire American
citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that the
essential requisite of consent was lacking. The CA stated that the parties clearly did not understand the nature
and consequence of getting married and that their case was similar to a marriage in jest. It further explained
that the parties never intended to enter into the marriage contract and never intended to live as husband and
wife or build a family. It concluded that their purpose was primarily for personal gain, that is, for Albios to
obtain foreign citizenship, and for Fringer, the consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A MARRIAGE

CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST,
HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for Fringer to be
paid $2,000.00, both parties freely gave their consent to the marriage, as they knowingly and willingly entered
into that marriage and knew the benefits and consequences of being bound by it. According to the OSG,
consent should be distinguished from motive, the latter being inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest. The parties
here intentionally consented to enter into a real and valid marriage, for if it were otherwise, the purpose of
Albios to acquire American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her marriage was
similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole purpose of
acquiring American citizenship in consideration of $2,000.00, void ab initio on the ground of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for the
purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of marriage
fraud for the sole purpose of availing of particular benefits. In the United States, marriages where a couple
marries only to achieve a particular purpose or acquire specific benefits, have been referred to as "limited
purpose" marriages.11 A common limited purpose marriage is one entered into solely for the legitimization of a
child.12 Another, which is the subject of the present case, is for immigration purposes. Immigration law is
usually concerned with the intention of the couple at the time of their marriage,13 and it attempts to filter out
those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established the principal test for
determining the presence of marriage fraud in immigration cases. It ruled that a "marriage is a sham if the bride
and groom did not intend to establish a life together at the time they were married. "This standard was
modified with the passage of the Immigration Marriage Fraud Amendment of 1986 (IMFA), which now
requires the couple to instead demonstrate that the marriage was not "entered into for the purpose of evading
the immigration laws of the United States." The focus, thus, shifted from determining the intention to establish
a life together, to determining the intention of evading immigration laws. 16 It must be noted, however, that this
standard is used purely for immigration purposes and, therefore, does not purport to rule on the legal validity
or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited purpose of
immigration is also legally void and in existent. The early cases on limited purpose marriages in the United
States made no definitive ruling. In 1946, the notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the country, the
parties had agreed to marry but not to live together and to obtain a divorce within six months. The Court,
through Judge Learned Hand, ruled that a marriage to convert temporary into permanent permission to stay in
the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to every
contract; and no matter what forms or ceremonies the parties may go through indicating the contrary, they do
not contract if they do not in fact assent, which may always be proved. x x x Marriage is no exception to this
rule: a marriage in jest is not a marriage at all. x x x It is quite true that a marriage without subsequent
consummation will be valid; but if the spouses agree to a marriage only for the sake of representing it as such
to the outside world and with the understanding that they will put an end to it as soon as it has served its
purpose to deceive, they have never really agreed to be married at all. They must assent to enter into the
relation as it is ordinarily understood, and it is not ordinarily understood as merely a pretence, or cover, to
deceive others.18

(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines, 19 which declared as valid a
marriage entered into solely for the husband to gain entry to the United States, stating that a valid marriage
could not be avoided "merely because the marriage was entered into for a limited purpose." 20 The 1980
immigration case of Matter of McKee,21 further recognized that a fraudulent or sham marriage was intrinsically
different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as problematic.
The problem being that in order to obtain an immigration benefit, a legal marriage is first necessary. 22 At
present, United States courts have generally denied annulments involving" limited purpose" marriages where a
couple married only to achieve a particular purpose, and have upheld such marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into for a
purpose other than the establishment of a conjugal and family life, such was a farce and should not be
recognized from its inception. In its resolution denying the OSG’s motion for reconsideration, the RTC went
on to explain that the marriage was declared void because the parties failed to freely give their consent to the
marriage as they had no intention to be legally bound by it and used it only as a means for the respondent to
acquire American citizenship. Agreeing with the RTC, the CA ruled that the essential requisite of consent was
lacking. It held that the parties clearly did not understand the nature and consequence of getting married. As in
the Rubenstein case, the CA found the marriage to be similar to a marriage in jest considering that the parties
only entered into the marriage for the acquisition of American citizenship in exchange of $2,000.00. They
never intended to enter into a marriage contract and never intended to live as husband and wife or build a
family.
The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of consent. Under Article 2
of the Family Code, consent is an essential requisite of marriage. Article 4 of the same Code provides that the
absence of any essential requisite shall render a marriage void ab initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence of a
solemnizing officer. A "freely given" consent requires that the contracting parties willingly and deliberately
enter into the marriage. Consent must be real in the sense that it is not vitiated nor rendered defective by any of
the vices of consent under Articles45 and 46 of the Family Code, such as fraud, force, intimidation, and undue
influence.24 Consent must also be conscious or intelligent, in that the parties must be capable of intelligently
understanding the nature of, and both the beneficial or unfavorable consequences of their act. 25 Their
understanding should not be affected by insanity, intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real consent
because it was not vitiated nor rendered defective by any vice of consent. Their consent was also conscious and
intelligent as they understood the nature and the beneficial and inconvenient consequences of their marriage, as
nothing impaired their ability to do so. That their consent was freely given is best evidenced by their conscious
purpose of acquiring American citizenship through marriage. Such plainly demonstrates that they willingly and
deliberately contracted the marriage. There was a clear intention to enter into a real and valid marriage so as to
fully comply with the requirements of an application for citizenship. There was a full and complete
understanding of the legal tie that would be created between them, since it was that precise legal tie which was
necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as akin to a marriage
by way of jest. A marriage in jest is a pretended marriage, legal in form but entered into as a joke, with no real
intention of entering into the actual marriage status, and with a clear understanding that the parties would not
be bound. The ceremony is not followed by any conduct indicating a purpose to enter into such a relation. 27 It
is a pretended marriage not intended to be real and with no intention to create any legal ties whatsoever, hence,
the absence of any genuine consent. Marriages in jest are void ab initio, not for vitiated, defective, or
unintelligent consent, but for a complete absence of consent. There is no genuine consent because the parties
have absolutely no intention of being bound in any way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios and Fringer had an undeniable
1âwphi1

intention to be bound in order to create the very bond necessary to allow the respondent to acquire American
citizenship. Only a genuine consent to be married would allow them to further their objective, considering that
only a valid marriage can properly support an application for citizenship. There was, thus, an apparent
intention to enter into the actual marriage status and to create a legal tie, albeit for a limited purpose. Genuine
consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a conjugal
and family life. The possibility that the parties in a marriage might have no real intention to establish a life
together is, however, insufficient to nullify a marriage freely entered into in accordance with law. The same
Article 1 provides that the nature, consequences, and incidents of marriage are governed by law and not subject
to stipulation. A marriage may, thus, only be declared void or voidable under the grounds provided by law.
There is no law that declares a marriage void if it is entered into for purposes other than what the Constitution
or law declares, such as the acquisition of foreign citizenship. Therefore, so long as all the essential and formal
requisites prescribed by law are present, and it is not void or voidable under the grounds provided by law, it
shall be declared valid.28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind
of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their
right to privacy and would raise serious constitutional questions.29 The right to marital privacy allows married
couples to structure their marriages in almost any way they see fit, to live together or live apart, to have
children or no children, to love one another or not, and so on.30 Thus, marriages entered into for other purposes,
limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply
with all the legal requisites,31 are equally valid. Love, though the ideal consideration in a marriage contract, is
not the only valid cause for marriage. Other considerations, not precluded by law, may validly support a
marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for dishonest purposes, It
cannot declare the marriage void. Hence, though the respondent’s marriage may be considered a sham or
fraudulent for the purposes of immigration, it is not void ab initio and continues to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the Family
Code. Only the circumstances listed under Article 46 of the same Code may constitute fraud, namely, (1) non-
disclosure of a previous conv1ctwn involving moral turpitude; (2) concealment by the wife of a pregnancy by
another man; (3) concealment of a sexually transmitted disease; and (4) concealment of drug addiction,
alcoholism, or homosexuality. No other misrepresentation or deceit shall constitute fraud as a ground for an
action to annul a marriage. Entering into a marriage for the sole purpose of evading immigration laws does not
qualify under any of the listed circumstances. Furthermore, under Article 47 (3), the ground of fraud may only
be brought by the injured or innocent party. In the present case, there is no injured party because Albios and
Fringer both conspired to enter into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with Fringer to
be declared void would only further trivialize this inviolable institution. The Court cannot declare such a
marriage void in the event the parties fail to qualify for immigration benefits, after they have availed of its
benefits, or simply have no further use for it. These unscrupulous individuals cannot be allowed to use the
courts as instruments in their fraudulent schemes. Albios already misused a judicial institution to enter into a
marriage of convenience; she should not be allowed to again abuse it to get herself out of an inconvenient
situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the foundation of the
family and shall be protected by the State.32 It must, therefore, be safeguarded from the whims and caprices of
the contracting parties. This Court cannot leave the impression that marriage may easily be entered into when
it suits the needs of the parties, and just as easily nullified when no longer needed.
WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals in CA-
G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of merit.
SO ORDERED.
Case digest

Republic v. Albios, 707 SCRA 584, 2013

Facts: Respondent Libert Albios married Daniel Lee Fringer, an American citizen. She later on filed a
petition to nullify their marriage. She alleged that immediately after their marriage, they separated and
never lived as husband and wife because they never really had any intention of entering into a married
state or complying with any of their essential marital obligations. She said that she contracted Fringer to
enter into a marriage to enable her to acquire American citizenship; that in consideration thereof, she
agreed to pay him the sum of $2,000.00; that after the ceremony, the parties went their separate ways; that
Fringer returned to the United States and never again communicated with her; and that, in turn, she did
not pay him the $2,000.00 because he never processed her petition for citizenship. She described their
marriage as one made in jest and, therefore, null and void ab initio.

The RTC ruled in her favor.

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into for a
purpose other than the establishment of a conjugal and family life, such was a farce and should not be
recognized from its inception. In its resolution denying the OSG’s motion for reconsideration, the RTC
went on to explain that the marriage was declared void because the parties failed to freely give their
consent to the marriage as they had no intention to be legally bound by it and used it only as a means for
the respondent to acquire American citizenship.

Not in conformity, the OSG filed an appeal before the CA. The CA, however, upheld the RTC decision.

Agreeing with the RTC, the CA ruled that the essential requisite of consent was lacking. It held that the
parties clearly did not understand the nature and consequence of getting married. As in the Rubenstein
case, the CA found the marriage to be similar to a marriage in jest considering that the parties only
entered into the marriage for the acquisition of American citizenship in exchange of $2,000.00. They
never intended to enter into a marriage contract and never intended to live as husband and wife or build a
family.

The OSG then elevate the case to the Supreme Court

Issue: Whether or not the marriage of Albios and Fringer be declared null and void.

Ruling: No, respondent’s marriage is not void.

The court said:

“Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real consent
because it was not vitiated nor rendered defective by any vice of consent. Their consent was also
conscious and intelligent as they understood the nature and the beneficial and inconvenient consequences
of their marriage, as nothing impaired their ability to do so. That their consent was freely given is best
evidenced by their conscious purpose of acquiring American citizenship through marriage. Such plainly
demonstrates that they willingly and deliberately contracted the marriage. There was a clear intention to
enter into a real and valid marriage so as to fully comply with the requirements of an application for
citizenship. There was a full and complete understanding of the legal tie that would be created between
them, since it was that precise legal tie which was necessary to accomplish their goal.”

The court also explained that “There is no law that declares a marriage void if it is entered into for
purposes other than what the Constitution or law declares, such as the acquisition of foreign citizenship.
Therefore, so long as all the essential and formal requisites prescribed by law are present, and it is not
void or voidable under the grounds provided by law, it shall be declared valid.”

“No less than our Constitution declares that marriage, as an in violable social institution, is the foundation
of the family and shall be protected by the State. It must, therefore, be safeguarded from the whims and
caprices of the contracting parties. This Court cannot leave the impression that marriage may easily be
entered into when it suits the needs of the parties, and just as easily nullified when no longer needed.”
Full Case

A.M. No. MTJ-96-1088. July 19, 1996

RODOLFO G. NAVARRO, complainant,

Vs
JUDGE HERNANDO C. DOMAGTOY, respondent.
ROMERO, J.:

The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte,
Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by respondent
Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct
as well as inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan
and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and
Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds
office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del
Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa,
which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located
some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte.
In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office
and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's
"lackey," is overly concerned with his actuations both as judge and as a private person. The same person
had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on
September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge
Hernando C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from his act of having
solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F.
Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey,
Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost seven
years. With respect to the second charge, he maintains that in solemnizing the marriage between Sumaylo
and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage
may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction”; and
that Article 8 thereof applies to the case in question.
The complaint was not referred, as is usual, for investigation, since the pleadings submitted were
considered sufficient for a resolution of the case.
Since the countercharges of sinister motives and fraud on the part of complainant have not been
sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's answer
thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that
Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by
respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio
Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of
Basey, Samar. The affidavit was not issued by the latter judge, as claimed by respondent judge, but
merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to
have been civilly married to Ida D. Peñaranda in September 1983; that after thirteen years of cohabitation
and having borne five children, Ida Peñaranda left the conjugal dwelling in Valencia, Bukidnon and that
she has not returned nor been heard of for almost seven years, thereby giving rise to the presumption that
she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida
Peñaranda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do
not agree.
Article 41 of the Family Code expressly provides:

"A marriage contracted by any person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the circumstances set forth in the
provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse." (Emphasis added.)

There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and
simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a
summary proceeding for the declaration of presumptive death is necessary in order to contract a
subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family
Code to discourage subsequent marriages where it is not proven that the previous marriage has been
dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions
of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his
first wife's presumptive death. Absent this judicial declaration, he remains married to Ida
Peñaranda. Whether wittingly, or unwittingly, it was manifest error on the part of respondent judge to
have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has
resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The
following marriage shall be void from the beginning: (4) Those bigamous x x x marriages not falling
under Article 41."
The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction,
covered by Articles 7 and 8 of the Family Code, thus:

"Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;

xxx xxx xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be,
and not elsewhere, except in cases of marriages contracted on the point of death or in remote places
in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in
writing in which case the marriage may be solemnized at a house or place designated by them in a
sworn statement to that effect."

Respondent judge points to Article 8 and its exceptions as the justifications for his having
solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's
jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judge's chambers
or courtroom only in the following instances: (1) at the point of death, (2) in remote places in accordance
with Article 29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is
no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover,
the written request presented addressed to the respondent judge was made by only one party, Gemma del
Rosario.
More importantly, the elementary principle underlying this provision is the authority of the
solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of the
solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent
member of the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers
only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing
officer as provided in the preceding provision. Non-compliance herewith will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized
to do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or
a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the
venue, as long as the requisites of the law are complied with. However, judges who are appointed to
specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability.
Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he
was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del
Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced
authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil
law.
 Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal
principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting
us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least, proficient in the law
they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be conversant with basic legal principles
like the ones involved in instant case. It is not too much to expect them to know and apply the law
intelligently. Otherwise, the system of justice rests on a shaky foundation indeed, compounded by the
errors committed by those not learned in the law. While magistrates may at times make mistakes in
judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there
being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.
The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month
suspension and a stern warning that a repetition of the same or similar acts will be dealt with more
severely. Considering that one of the marriages in question resulted in a bigamous union and therefore
void, and the other lacked the necessary authority of respondent judge, the Court adopts said
recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a
deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby
SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the
same or similar acts will be dealt with more severely.
SO ORDERED.
Case Digest

RODOLFO G. NAVARRO vs. JUDGE HERNANDO C. DOMAGTOY

A.M. No. MTJ-96-1088
July 19, 1996
ROMERO, J.:

Facts: On September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan
and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.
It is also alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and
Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge
holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos,
Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the
municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of
Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa,
Surigao del Norte.

Respondent judge now seeks exculpation from his act of having solemnized the marriage between
Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating that he
merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, which on the
other hand was just acknowledged and not a issued by the latter, confirming the fact that Mr.
Tagadan and his first wife have not seen each other for almost seven years because the wife, Ida
Penarada left the conjugal dwelling after 13 years of cohabitation thereby giving rise to the
presumption the she is dead. With respect to the second charge, he maintains that in solemnizing
the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the
Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of
the judiciary within the court's jurisdiction”; and that Article 8 thereof applies to the case in
question.

Issue: Whether or not there is a need for the declaration of presumptive death in order to contract a
subsequent marriage

Whether or not the judge is correct in solemnizing the marriage outside the court’s jurisdiction

Ruling: For the purpose of contracting the subsequent marriage under Art. 41, the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of the absent spouse.

In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of
his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida
Peñaranda. Whether wittingly, or unwittingly, it was manifest error on the part of respondent
judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of
the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family
Code, "The following marriage shall be void from the beginning: (4) Those bigamous marriages
not falling under Article 41."

The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there
being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.

On the second issue, Art. 8 of the Family Code provides for the exception where the marriage can
be solemnized outside the court’s jurisdiction namely (1) at the point of death, (2) in remote
 places in accordance with Article 29 or (3) upon request of both parties in writing in a sworn
statement to this effect. In the case at bar, there is no pretense that either Sumaylo or del Rosario
was at the point of death or in a remote place. Moreover, the written request presented addressed
to the respondent judge was made by only one party, Gemma del Rosario.

Respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not
clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del
Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced
authority, respondent judge again demonstrated a lack of understanding of the basic principles of
civil law.

Respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months
and given a stern warning that a repetition of the same or similar acts will be dealt with more
severely.

Full Case

Beso vs Judge Daguman 323 SCRA 566

A.M. No. MTJ-99-1211. January 28, 2000

ZENAIDA S. BESO, complainant,

vs
Judge JUAN DAGUMAN, MCTC, Sta. Margarita-Tarangan-Pagsanjan, Samar, respondent.

YNARES-SANTIAGO, J.:
In this administrative complaint, respondent Judge stands charged with Neglect of Duty and Abuse of
Authority. In a Complaint-Affidavit dated December 12, 1997, Zenaida S. Beso charged Judge Juan J.
Daguman, Jr. with solemnizing marriage outside of his jurisdiction and of negligence in not retaining a
copy and not registering the marriage contract with the office of the Local Civil Registrar alleging –

"a. That on August 28, 1997, I and my fiancee (sic) BERNARDITO A. YMAN got
married and our marriage was solemnized by judge (sic) Juan Daguman in his residence
in J.P.R. Subdivision in Calbayog City, Samar; xxx

b. That the ceremony was attended by PACIFICO MAGHACOT who acted as our
principal sponsor and spouses RAMON DEAN and TERESITA DEAN; xxx

c. That after our wedding, my husband BERNARDITO YMAN abandoned me without

any reason at all;

d. That I smell something fishy; so what I did was I went to Calbayog City and wrote the
City Civil Registrar to inquire regarding my Marriage Contract;

e. That to my surprise, I was informed by the Local Civil Registrar of Calbayog City that
my marriage was not registered; xxx

f. That upon advisement of the Local Civil Registrar, I wrote Judge Juan Daguman, to
inquire;

g. That to my second surprise, I was informed by Judge Daguman that all the copies of
the Marriage Contract were taken by Oloy (Bernardito A. Yman);

h. That no copy was retained by Judge Daguman;

i. That I believe that the respondent judge committed acts prejudicial to my interest such
as:

1. Solemnizing our marriage outside his jurisdiction;

2. Negligence in not retaining a copy and not registering our marriage before the
office of the Local Civil Registrar."

The Affidavit-Complaint was thereafter referred to respondent Judge for comment.

In his Comment, respondent Judge averred that:

1. The civil marriage of complainant Zenaida Beso and Bernardito Yman had to be
solemnized by respondent in Calbayog City though outside his territory as municipal
Judge of Sta. Margarita, Samar due to the following and pressing circumstances:

1.1. On August 28, 1997 respondent was physically indisposed and unable to
report to his station in Sta. Margarita. In the forenoon of that date, without prior
appointment, complainant Beso and Mr. Yman unexpectedly came to the
residence of respondent in said City, urgently requesting the celebration of their
 marriage right then and there, first, because complainants said she must leave that
same day to be able to fly from Manila for abroad as scheduled; second, that for
the parties to go to another town for the marriage would be expensive and would
entail serious problems of finding a solemnizing officer and another pair of
witnesses or sponsors, while in fact former Undersecretary Pacifico
Maghacot, Sangguniang Panglunsod [member] Ramon Dean were already with
them as sponsors; third, if they failed to get married on August 28, 1997,
complainant would be out of the country for a long period and their marriage
license would lapse and necessitate another publication of notice; fourth, if the
parties go beyond their plans for the scheduled marriage, complainant feared it
would complicate her employment abroad; and, last, all other alternatives as to
date and venue of marriage were considered impracticable by the parties;

1.2. The contracting parties were ready with the desired cocuments (sic) for a
valid marriage, which respondent found all in order.

1.3. Complainant bride is an accredited Filipino overseas worker, who,

respondent realized, deserved more than ordinary official attention under present
Government policy.

2. At the time respondent solemnized the marriage in question, he believed in good faith
that by so doing he was leaning on the side of liberality of the law so that it may be not be
too expensive and complicated for citizens to get married.

3. Another point brought up in the complaint was the failure of registration of the
duplicate and triplicate copies of the marriage certificate, which failure was also
occasioned by the following circumstances beyond the control of respondent:

3.1. After handing to the husband the first copy of the marriage certificate,
respondent left the three remaining copies on top of the desk in his private office
where the marriage ceremonies were held, intending later to register the duplicate
and triplicate copies and to keep the forth (sic) in his office.

3.2. After a few days following the wedding, respondent gathered all the papers
relating to the said marriage but notwithstanding diligent search in the premises
and private files, all the three last copies of the certificate were missing.
Promptly, respondent invited by subpoena xxx Mr. Yman to shed light on the
missing documents and he said he saw complainant Beso put the copies of the
marriage certificate in her bag during the wedding party. Unfortunately, it was
too late to contact complainant for a confirmation of Mr. Yman’s claim.

3.3. Considering the futility of contracting complainant now that she is out of the
country, a reasonable conclusion can be drawn on the basis of the established
facts so far in this dispute. If we believe the claim of complainant that after
August 28, 1997 marriage her husband, Mr. Yman, abandoned her without any
reason xxx but that said husband admitted "he had another girl by the name of
LITA DANGUYAN" xxx it seems reasonably clear who of the two marriage
contracting parties probably absconded with the missing copies of the marriage
certificate.
 3.4. Under the facts above stated, respondent has no other recourse but to protect
the public interest by trying all possible means to recover custody of the missing
documents in some amicable way during the expected hearing of the above
mentioned civil case in the City of Marikina, failing to do which said respondent
would confer with the Civil Registrar General for possible registration of
reconstituted copies of said documents.

The Office of the Court Administrator (OCA) in an evaluation report dated August 11, 1998 found that
respondent Judge "… committed non-feasance in office" and recommended that he be fined Five
Thousand Pesos (P5,000.00) with a warning that the commission of the same or future acts will be dealt
with more severely pointing out that:

"As presiding judge of the MCTC Sta. Margarita Tarangnan-Pagsanjan, Samar, the
authority to solemnize marriage is only limited to those municipalities under his
jurisdiction. Clearly, Calbayog City is no longer within his area of jurisdiction.

Additionally, there are only three instances, as provided by Article 8 of the Family Code,
wherein a marriage may be solemnized by a judge outside his chamber[s] or at a place
other than his sala, to wit:

(1) when either or both of the contracting parties is at the point of death;

(2) when the residence of either party is located in a remote place;

(3) where both of the parties request the solemnizing officer in writing in
which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.

The foregoing circumstances are unavailing in the instant case.

Moreover, as solemnizing officer, respondent Judge neglected his duty when he failed to
register the marriage of complainant to Bernardito Yman.

Such duty is entrusted upon him pursuant to Article 23 of the Family Code which
provides:

"It shall be the duty of the person solemnizing the marriage to furnish either of
the contracting parties the original of the marriage certificate referred to in
Article 6 and to send the duplicate and triplicate copies of the certificates not
later than fifteen days after the marriage, to the local civil registrar of the place
where the marriage was solemnized. xxx" (underscoring ours)

It is clearly evident from the foregoing that not only has the respondent Judge committed
non-feasance in office, he also undermined the very foundation of marriage which is the
basic social institution in our society whose nature, consequences and incidents are
governed by law. Granting that respondent Judge indeed failed to locate the duplicate and
triplicate copies of the marriage certificate, he should have exerted more effort to locate
or reconstitute the same. As a holder of such a sensitive position, he is expected to be
conscientious in handling official documents. His imputation that the missing copies of
 the marriage certificate were taken by Bernardito Yman is based merely on conjectures
and does not deserve consideration for being devoid of proof."

After a careful and thorough examination of the evidence, the Court finds the evaluation report of the
OCA well-taken.

Jimenez v. Republic underscores the importance of marriage as a social institution thus: "[M]arriage in
this country is an institution in which the community is deeply interested. The state has surrounded it with
safeguards to maintain its purity, continuity and permanence. The security and stability of the state are
largely dependent upon it. It is the interest and duty of each and every member of the community to
prevent the bringing about of a condition that would shake its foundation and ultimately lead to its
destruction."

With regard to the solemnization of marriage, Article 7 of the Family Code provides, among others, that –

"ART. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court’s jurisdiction; xxx" (Italics
ours)

In relation thereto, Article 8 of the same statute mandates that:

ART. 8. The marriage shall be solemnized publicly in the chambers of the judge or in
open court, in the church, chapel or temple, or in the office of the consul-general, consul
or vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted at the point of death or in remote places in accordance with Article 29 of this
Code, or where both parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a sworn
statement to that effect." (Italics ours)

As the above-quoted provision clearly states, a marriage can be held outside the judge’s chambers or
courtroom only in the following instances: 1.] at the point of death; 2.] in remote places in accordance
with Article 29, or 3.] upon the request of both parties in writing in a sworn statement to this effect.

In this case, there is no pretense that either complainant Beso or her fiance Yman was at the point of death
or in a remote place. Neither was there a sworn written request made by the contracting parties to
respondent Judge that the marriage be solemnized outside his chambers or at a place other than his sala.
What, in fact, appears on record is that respondent Judge was prompted more by urgency to solemnize the
marriage of Beso and Yman because complainant was "[a]n overseas worker, who, respondent realized
deserved more than ordinary official attention under present Government policy." Respondent Judge
further avers that in solemnizing the marriage in question, "[h]e believed in good faith that by doing so he
was leaning on the side of liberality of the law so that it may not be too expensive and complicated for
citizens to get married."

A person presiding over a court of law must not only apply the law but must also live and abide by it and
render justice at all times without resorting to shortcuts clearly uncalled for. A judge is not only bound by
oath toapply the law; he must also be conscientious and thorough in doing so. Certainly, judges, by the
very delicate nature of their office should be more circumspect in the performance of their duties.
If at all, the reasons proffered by respondent Judge to justify his hurried solemnization of the marriage in
this case only tends to degrade the revered position enjoyed by marriage in the hierarchy of social
institutions in the country. They also betray respondent’s cavalier proclivity on its significance in our
culture which is more disposed towards an extended period of engagement prior to marriage and frowns
upon hasty, ill-advised and ill-timed marital unions.

An elementary regard for the sacredness of laws – let alone that enacted in order to preserve so sacrosanct
an inviolable social institution as marriage – and the stability of judicial doctrines laid down by superior
authority should have given respondent judge pause and made him more vigilant in the exercise of his
authority and the performance of his duties as a solemnizing officer. A judge is, furthermore, presumed to
know the constitutional limits of the authority or jurisdiction of his court. Thus respondent Judge should
be reminded that –

A priest, who is commissioned and allowed by his ordinary to marry the faithful, is
authorized to do so only within the area of the diocese or place allowed by his Bishop. An
appellate court justice or a Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the venue, as long as the requisites of
the law are complied with. However, Judges who are appointed to specific jurisdictions
may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court’s jurisdiction, there is a resultant irregularity in
the formal requisite laid down in Article 3, which while it may not affect the validity of
the marriage, may subject the officiating official to administrative liability.

Considering that respondent Judge’s jurisdiction covers the municipality of Sta. Margarita-Tarangan-
Pagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in the City of
Calbayog.

Furthermore, from the nature of marriage, aside from the mandate that a judge should exercise extra care
in the exercise of his authority and the performance of his duties in its solemnization, he is likewise
commanded to observe extra precautions to ensure that the event is properly documented in accordance
with Article 23 of the Family Code which states in no uncertain terms that –

ART. 23. - It shall be the duty of the person solemnizing the marriage to furnish either of
the contracting parties, the original of the marriage contract referred to in Article 6 and
to send the duplicate and triplicate copies of the certificate not later than fifteen days
after the marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing
officer transmitting copies of the marriage certificate. The solemnizing officer shall
retain in his file the quadruplicate copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting party regarding the
solemnization of the marriage in a place other than those mentioned in Article 8. (Italics
supplied)

In view of the foregoing, we agree with the evaluation of the OCA that respondent Judge was less than
conscientious in handling official documents. A judge is charged with exercising extra care in ensuring
that the records of the cases and official documents in his custody are intact. There is no justification for
missing records save fortuitous events. However, the records show that the loss was occasioned by
carelessness on respondent Judge’s part. This Court reiterates that judges must adopt a system of record
management and organize their dockets in order to bolster the prompt and efficient dispatch of
business. It is, in fact, incumbent upon him to devise an efficient recording and filing system in his court
because he is after all the one directly responsible for the proper discharge of his official functions.

In the evaluation report, the OCA recommended that respondent Judge be fined Five Thousand Pesos
(P5,000.00) and warned that a repetition of the same or similar acts will be dealt with more severely. This
Court adopts the recommendation of the OCA.

WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Five Thousand Pesos
(P5,000.00) and STERNLY WARNED that a repetition of the same or similar infractions will be dealt
with more severely.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
Case Digest

ZENAIDA S. BESO vs. Judge JUAN DAGUMAN

A.M. No. MTJ-99-1211
January 28, 2000
YNARES-SANTIAGO, J.:

Facts: Zenaida S. Beso charged Judge Juan J. Daguman, Jr. of Sta. Margarita Municipal Trial Court, with
solemnizing marriage outside of his jurisdiction and not registering the marriage contract with the
office of the Local Civil Registrar. On the other hand, the respondent claimed that he solemnized
the marriage of Zenaida S. Beso and Bernardito Yman in Calbayog City Samar due to the
urgency of the situation, that Beso, on August 28, 1997, the day of the marriage, said that he will
be leaving the country for job purposes and considering her to be an Overseas Filipino Worker
and that if not solemnized that day, their marriage license would lapse because she will be
working abroad for a long period. Thus, this would necessitate spouses for a new marriage
license. The necessary documents that was supposedly to be forwarded by him to the Local Civil
Registrar was missing and claimed to be taken by someone. The Office of the Court
administration held that the respondent Judge committed non-feasance in office and was fined
PHP 5,000 with stern warning.

Issues: Whether or not the respondent can validly solemnized the marriage of the complainant outside
the court’s jurisdiction

Whether or not the respondent committed negligence by not retaining a copy and not registering
the complainant’s marriage before the office of the Local Civil Regitrar.

Ruling: No. the judge solemnized the marriage outside of his jurisdiction. Article 7 of the Family Code
provides that the marriage be solemnized by, “any incumbent member of the judiciary with the
court’s jurisdiction”. In relation thereto, according to Article 8 of the Family Code, there are only
three instances with which a judge may solemnize a marriage outside of his jurisdiction: (1)
When either or both the contracting parties is at the point of death; (2) When the residence of
either party is located in a remote place; (3) Where both of the parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a house or place designated by
them in a sworn statement to that effect.

In this case, none of the three instances is present.

Yes. The judge committed negligence. Pursuant to Article 23 of the Family Code, such duty to
register the marriage is the respondent’s duty. The same article provides, “it shall be the duty of
the person solemnizing the marriage… to send the duplicate and triplicate copies of the certificate
not later than 15 days after the marriage, to the local civil registrar of the place where the
marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the
solemnizing officer transmitting the copies of the certificate. The solemnizing officer shall retain
in his file the quadruplicate copy of the marriage certificate, the original of the marriage license,
and in proper cases, the affidavit of the contracting party regarding the solemnization of the
marriage in the place other than those mentioned in Article 8.”

The recommendation of the OCA stands.

Full Case

Arañes vs Occiano 380 SCRA 402

A.M. No. MTJ-02-1390 April 11, 2002

MERCEDITA MATA ARAÑES, petitioner,

vs.
JUDGE SALVADOR M. OCCIANO, respondent.
PUNO, J.:

Petitioner Mercedita Mata Arañes charges respondent judge with Gross Ignorance of the Law via a sworn
Letter-Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal Trial Court of
Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000, respondent judge solemnized her
marriage to her late groom Dominador B. Orobia without the requisite marriage license and at Nabua,
Camarines Sur which is outside his territorial jurisdiction.

They lived together as husband and wife on the strength of this marriage until her husband passed away.
However, since the marriage was a nullity, petitioner's right to inherit the "vast properties" left by Orobia
was not recognized. She was likewise deprived of receiving the pensions of Orobia, a retired Commodore
of the Philippine Navy.

Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical
misrepresentations which allegedly caused her so much hardships, embarrassment and sufferings.

On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court
Administrator Zenaida N. Elepaño for appropriate action. On 8 June 2001, the Office of the Court
Administrator required respondent judge to comment.

In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan
Arroyo on 15 February 2000 to solemnize the marriage of the parties on 17 February 2000. Having been
assured that all the documents to the marriage were complete, he agreed to solemnize the marriage in his
sala at the Municipal Trial Court of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo
informed him that Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan
which is located almost 25 kilometers from his residence in Nabua. Arroyo then requested if respondent
judge could solemnize the marriage in Nabua, to which request he acceded.

Respondent judge further avers that before he started the ceremony, he carefully examined the documents
submitted to him by petitioner. When he discovered that the parties did not possess the requisite marriage
license, he refused to solemnize the marriage and suggested its resetting to another date. However, due to
the earnest pleas of the parties, the influx of visitors, and the delivery of provisions for the occasion, he
proceeded to solemnize the marriage out of human compassion. He also feared that if he reset the
wedding, it might aggravate the physical condition of Orobia who just suffered from a stroke. After the
solemnization, he reiterated the necessity for the marriage license and admonished the parties that their
failure to give it would render the marriage void. Petitioner and Orobia assured respondent judge that they
would give the license to him in the afternoon of that same day. When they failed to comply, respondent
judge followed it up with Arroyo but the latter only gave him the same reassurance that the marriage
license would be delivered to his sala at the Municipal Trial Court of Balatan, Camarines Sur.

Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite
the absence of a marriage license. He attributes the hardships and embarrassment suffered by the
petitioner as due to her own fault and negligence.

On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office
of the Court Administrator. She attested that respondent judge initially refused to solemnize her marriage
due to the want of a duly issued marriage license and that it was because of her prodding and reassurances
that he eventually solemnized the same. She confessed that she filed this administrative case out of rage.
However, after reading the Comment filed by respondent judge, she realized her own shortcomings and is
now bothered by her conscience.
Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for
Marriage License on 5 January 2000. It was stamped in this Application that the marriage license shall be
issued on 17 January 2000. However, neither petitioner nor Orobia claimed it.

It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of
such marriage that allegedly took place on 17 February 2000. Likewise, the Office of the Local Civil
Registrar of Nabua, Camarines Sur issued another Certification dated 7 May 2001 that it cannot issue a
true copy of the Marriage Contract of the parties since it has no record of their marriage.

On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with
the Office of the Local Civil Registrar of Nabua, Camarines Sur for the issuance of her marriage license.
Respondent judge wrote the Local Civil Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001,
a Clerk of said office, Grace T. Escobal, informed respondent judge that their office cannot issue the
marriage license due to the failure of Orobia to submit the Death Certificate of his previous spouse.

The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000,
found the respondent judge guilty of solemnizing a marriage without a duly issued marriage license and
for doing so outside his territorial jurisdiction. A fine of P5,000.00 was recommended to be imposed on
respondent judge.

We agree.

Under the Judiciary Reorganization Act of 1980, or B.P. 129, the authority of the regional trial court
judges and judges of inferior courts to solemnize marriages is confined to their territorial jurisdiction as
defined by the Supreme Court.

The case at bar is not without precedent. In Navarro vs. Domagtoy,1 respondent judge held office and had
jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he
solemnized a wedding at his residence in the municipality of Dapa, Surigao del Norte which did not fall
within the jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that:

"A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to
do so only within the area or diocese or place allowed by his Bishop. An appellate court Justice or a
Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the
venue, as long as the requisites of the law are complied with. However, judges who are appointed to
specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability."2 (Emphasis supplied.)

In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing
a marriage outside his jurisdiction constitutes gross ignorance of the law. We further held that:

"The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they
are sworn to apply, more than the ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be conversant with basic legal principles
like the ones involved in the instant case. x x x While magistrates may at times make mistakes in
judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly prejudiced the status of married persons."3

In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan,
Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur
therefore is contrary to law and subjects him to administrative liability. His act may not amount to gross
ignorance of the law for he allegedly solemnized the marriage out of human compassion but nonetheless,
he cannot avoid liability for violating the law on marriage.

Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage
license. InPeople vs. Lara,4 we held that a marriage which preceded the issuance of the marriage license is
void, and that the subsequent issuance of such license cannot render valid or even add an iota of validity
to the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing
officer the authority to solemnize a marriage. Respondent judge did not possess such authority when he
solemnized the marriage of petitioner. In this respect, respondent judge acted in gross ignorance of the
law.

Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court
has consistently held in a catena of cases that the withdrawal of the complaint does not necessarily have
the legal effect of exonerating respondent from disciplinary action. Otherwise, the prompt and fair
administration of justice, as well as the discipline of court personnel, would be undermined.5 Disciplinary
actions of this nature do not involve purely private or personal matters. They can not be made to depend
upon the will of every complainant who may, for one reason or another, condone a detestable act. We
cannot be bound by the unilateral act of a complainant in a matter which involves the Court's
constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the
trust character of a public office and impair the integrity and dignity of this Court as a disciplining
authority.6

WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of
Balatan, Camarines Sur, is fined P5,000.00 pesos with a STERN WARNING that a repetition of the same
or similar offense in the future will be dealt with more severely.

SO ORDERED.
Case Digest
MERCEDITA MATA ARAÑES vs. JUDGE SALVADOR M. OCCIANO
A.M. No. MTJ-02-1390
April 11, 2002
PUNO, J.:

Facts: Petitioner Mercedita Mata Arañes charges respondent judge with Gross Ignorance of the Law via a
sworn Letter-Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal
Trial Court of Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000, respondent
judge solemnized her marriage to her late groom Dominador B. Orobia without the requisite
marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdiction.

His husband died and because the marriage was a nullity, her right to inherit the properties of
Orobia was not recognized as well as her right to receive the pensions of her husband from the
Philippine Navy. Now petitioner prays for sanctions to be imposed upon respondent judge due to
the hardships and embarrassment caused by the same. On the comment of respondent Judge, he
averred that he first refused to solemnized the marriage because it was outside the court’s
jurisdiction and that there was no valid marriage license but because of human compassion,
pleadings of the parties, the influx of visitors, and the delivery of provisions for the occasion, and
the difficulty of Orobia to go in the court sala for the marriage, he proceeded to solemnize the
marriage out of human compassion. Respondent judge then was reassured that the marriage
license will be at his sala but no marriage license came.

Upon reading the comment of the respondent Judge, Aranes filed an affidavit of desistance
because she realized her shortcomings and was bothered by her conscience.

Issue: Whether or not the marriage is valid

Ruling: The Office of the Court Administrator, in its Report and Recommendation dated 15 November
2000, found the respondent judge guilty of solemnizing a marriage without a duly issued
marriage license and for doing so outside his territorial jurisdiction. A fine of P5,000.00 was
recommended to be imposed on respondent judge.

In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of
Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua,
Camarines Sur therefore is contrary to law and subjects him to administrative liability. His act
may not amount to gross ignorance of the law for he allegedly solemnized the marriage out of
human compassion but nonetheless, he cannot avoid liability for violating the law on marriage.

Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner.
This Court has consistently held in a catena of cases that the withdrawal of the complaint does not
necessarily have the legal effect of exonerating respondent from disciplinary action. Otherwise,
the prompt and fair administration of justice, as well as the discipline of court personnel, would
be undermined. Disciplinary actions of this nature do not involve purely private or personal
matters. They can not be made to depend upon the will of every complainant who may, for one
reason or another, condone a detestable act. We cannot be bound by the unilateral act of a
complainant in a matter which involves the Court’s constitutional power to discipline judges.
Otherwise, that power may be put to naught, undermine the trust character of a public office and
impair the integrity and dignity of this Court as a disciplining authority.
 The marriage is null and void.

Full Case

Cosca vs Palaypayon Jr. 237 SCRA 249

A.M. No. MTJ-92-721 September 30, 1994

JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and APOLLO A.

VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B. ESMERALDA-BAROY,
Clerk of Court II, both of the Municipal Trial Court of Tinambac, Camarines Sur, respondents.
PER CURIAM, J.:

Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo, and Apollo Villamora, are
Stenographer I, Interpreter I, Clerk II, and Process Server, respectively, of the Municipal Trial Court of
Tinambac, Camarines Sur. Respondents Judge Lucio P. Palaypayon, Jr. and Nelia B. Esmeralda-Baroy
are respectively the Presiding Judge and Clerk of Court II of the same court.

In an administrative complaint filed with the Office of the Court Administrator on October 5, 1992,
herein respondents were charged with the following offenses, to wit: (1) illegal solemnization of
marriage; (2) falsification of the monthly reports of cases; (3) bribery in consideration of an appointment
in the court; (4) non-issuance of receipt for cash bond received; (5) infidelity in the custody of detained
prisoners; and (6) requiring payment of filing fees from exempted entities.

Pursuant to a resolution issued by this Court respondents filed their respective Comments. A Reply to
Answers of Respondents was filed by complainants. The case was thereafter referred to Executive Judge
David C. Naval of the Regional Trial Court, Naga City, for investigation report and recommendation. The
case was however transferred to First Assistant Executive Judge Antonio N. Gerona when Judge Naval
inhibited himself for the reason that his wife is a cousin of respondent Judge Palaypayon, Jr.

The contending versions of the parties regarding the factual antecedents of this administrative matter, as
culled from the records thereof, are set out under each particular charge against respondents.

1. Illegal solemnization of marriage

Complainants allege that respondent judge solemnized marriages even without the requisite marriage
license. Thus, the following couples were able to get married by the simple expedient of paying the
marriage fees to respondent Baroy, despite the absence of a marriage license, viz.: Alano P. Abellano and
Nelly Edralin, Francisco Selpo and Julieta Carrido, Eddie Terrobias and Maria Gacer, Renato Gamay and
Maricris Belga, Arsenio Sabater and Margarita Nacario, and Sammy Bocaya and Gina Bismonte. As a
consequence, their marriage contracts (Exhibits B, C, D, F, G, and A, respectively) did not reflect any
marriage license number. In addition, respondent judge did not sign their marriage contracts and did not
indicate the date of solemnization, the reason being that he allegedly had to wait for the marriage license
to be submitted by the parties which was usually several days after the ceremony. Indubitably, the
marriage contracts were not filed with the local civil registrar. Complainant Ramon Sambo, who prepares
the marriage contracts, called the attention of respondents to the lack of marriage licenses and its effect on
the marriages involved, but the latter opted to proceed with the celebration of said marriages.

Respondent Nelia Baroy claims that when she was appointed Clerk of Court II, the employees of the
court were already hostile to her, especially complainant Ramon Sambo who told her that he was filing a
protest against her appointment. She avers that it was only lately when she discovered that the court had a
marriage Register which is in the custody of Sambo; that it was Sambo who failed to furnish the parties
copies of the marriage contract and to register these with the local civil registrar; and that apparently
Sambo kept these marriage contracts in preparation for this administrative case. Complainant Sambo,
however, claims that all file copies of the marriage contracts were kept by respondent Baroy, but the latter
insists that she had instructed Sambo to follow up the submission by the contracting parties of their
marriage licenses as part of his duties but he failed to do so.

Respondent Judge Palaypayon, Jr. contends that the marriage between Alano P. Abellano and Nelly
Edralin falls under Article 34 of the Civil Code, hence it is exempt from the marriage license requirement;
that he gave strict instructions to complainant Sambo to furnish the couple a copy of the marriage contract
and to file the same with the civil registrar, but the latter failed to do so; that in order to solve the
problem, the spouses subsequently formalized their marriage by securing a marriage license and
executing their marriage contract, a copy of which was filed with the civil registrar; that the other five
marriages alluded to in the administrative complaint were not illegally solemnized because the marriage
contracts were not signed by him and they did not contain the date and place of marriage; that copies of
these marriage contracts are in the custody of complainant Sambo; that the alleged marriage of Francisco
Selpo and Julieta Carrido, Eddie Terrobias and Maria Emma Gaor, Renato Gamay and Maricris Belga,
and of Arsenio Sabater and Margarita Nacario were not celebrated by him since he refused to solemnize
them in the absence of a marriage license; that the marriage of Samy Bocaya and Gina Bismonte was
celebrated even without the requisite license due to the insistence of the parties in order to avoid
embarrassment to their guests but that, at any rate, he did not sign their marriage contract which remains
unsigned up to the present.

2. Falsification of monthly report for July, 1991 regarding the number of marriages
solemnized and the number of documents notarized.

It is alleged that respondent judge made it appear that he solemnized seven (7) marriages in the month of
July, 1992, when in truth he did not do so or at most those marriages were null and void; that respondents
likewise made it appear that they have notarized only six (6) documents for July, 1992, but the Notarial
Register will show that there were one hundred thirteen (113) documents which were notarized during
that month; and that respondents reported a notarial fee of only P18.50 for each document, although in
fact they collected P20.00 therefor and failed to account for the difference.

Respondent Baroy contends, however, that the marriage registry where all marriages celebrated by
respondent judge are entered is under the exclusive control and custody of complainant Ramon Sambo,
hence he is the only one who should be held responsible for the entries made therein; that the reported
marriages are merely based on the payments made as solemnization fees which are in the custody of
respondent Baroy. She further avers that it is Sambo who is likewise the custodian of the Notarial
Register; that she cannot be held accountable for whatever alleged difference there is in the notarial fees
because she is liable only for those payments tendered to her by Sambo himself; that the notarial fees she
collects are duly covered by receipts; that of the P20.00 charged, P18.50 is remitted directly to the
Supreme Court as part of the Judiciary Development Fund and P150 goes to the general fund of the
Supreme Court which is paid to the Municipal Treasurer of Tinambac, Camarines Sur. Respondent
theorizes that the discrepancies in the monthly report were manipulated by complainant Sambo
considering that he is the one in charge of the preparation of the monthly report.

Respondent Judge Palaypayon avers that the erroneous number of marriages celebrated was intentionally
placed by complainant Sambo; that the number of marriages solemnized should not be based on
solemnization fees paid for that month since not all the marriages paid for are solemnized in the same
month. He claims that there were actually only six (6) documents notarized in the month of July, 1992
which tallied with the official receipts issued by the clerk of court; that it is Sambo who should be held
accountable for any unreceipted payment for notarial fees because he is the one in charge of the Notarial
Register; and that this case filed by complainant Sambo is merely in retaliation for his failure to be
appointed as the clerk of court. Furthermore, respondent judge contends that he is not the one supervising
or preparing the monthly report, and that he merely has the ministerial duty to sign the same.

3. Bribery in consideration of an appointment in the court

Complainants allege that because of the retirement of the clerk of court, respondent judge forwarded to
the Supreme Court the applications of Rodel Abogado, Ramon Sambo, and Jessell Abiog. However, they
were surprised when respondent Baroy reported for duty as clerk of court on October 21, 1991. They later
found out that respondent Baroy was the one appointed because she gave a brand-new air-conditioning
unit to respondent judge.

Respondent Baroy claims that when she was still in Naga City she purchased an air-conditioning unit but
when she was appointed clerk of court she had to transfer to Tinambac and, since she no longer needed
the air conditioner, she decided to sell the same to respondent judge. The installation and use thereof by
the latter in his office was with the consent of the Mayor of Tinambac.

Respondent judge contends that he endorsed all the applications for the position of clerk of court to the
Supreme Court which has the sole authority over such appointments and that he had no hand in the
appointment of respondent Baroy. He contends that the air-conditioning unit was bought from his
co-respondent on installment basis on May 29, 1992, eight (8) months after Baroy had been appointed
clerk of court. He claims that he would not be that naive to exhibit to the public as item which could not
be defended as a matter of honor and prestige.

4. Cash bond issued without a receipt

It is alleged that in Criminal Case No. 5438, entitled "People vs. Mendeza, et al., "bondswoman Januaria
Dacara was allowed by respondent judge to change her property bond to cash bond; that she paid the
amount of P1,000.00 but was never issued a receipt therefor nor was it made to appear in the records that
the bond has been paid; that despite the lapse of two years, the money was never returned to the
bondswoman; and that it has not been shown that the money was turned over to the Municipal Treasurer
of Tinambac.

Respondent Baroy counters that the cash bond was deposited with the former clerk of court, then turned
over to the acting clerk of court and, later, given to her under a corresponding receipt; that the cash bond
is deposited with the bank; and that should the bondswoman desire to withdraw the same, she should
follow the proper procedure therefor.

Respondent judge contends that Criminal Case No. 5438 was achieved for failure of the bondsman to
deliver the body of the accused in court despite notice; and that he has nothing to do with the payment of
the cash bond as this is the duty of the clerk of court.

5. Infidelity in the custody of prisoners

Complainants contend that respondent judge usually got detention prisoners to work in his house, one of
whom was Alex Alano, who is accused in Criminal Case No. 5647 for violation of the Dangerous Drugs
Act; that while Alano was in the custody of respondent judge, the former escaped and was never
recaptured; that in order to conceal this fact, the case was archived pursuant to an order issued by
respondent judge dated April 6, 1992.

Respondent judge denied the accusation and claims that he never employed detention prisoners and that
he has adequate household help; and that he had to order the case archived because it had been pending
for more than six (6) months and the accused therein remained at large.

6. Unlawful collection of docket fees

Finally, respondents are charged with collecting docket fees from the Rural Bank of Tinambac,
Camarines Sur, Inc. although such entity is exempt by law from the payment of said fees, and that while
the corresponding receipt was issued, respondent Baroy failed to remit the amount to the Supreme Court
and, instead, she deposited the same in her personal account.

Respondents Baroy contends that it was Judge-Designate Felimon Montenegro (because respondent judge
was on sick leave) who instructed her to demand payment of docket fees from said rural bank; that the
bank issued a check for P800.00; that she was not allowed by the Philippine National Bank to encash the
check and, instead, was instructed to deposit the same in any bank account for clearing; that respondent
deposited the same in her account; and that after the check was cleared, she remitted P400.00 to the
Supreme Court and the other P400.00 was paid to the Municipal Treasurer of Tinambac.

On the basis of the foregoing contentions, First Vice-Executive Judge Antonio N. Gerona prepared and
submitted to us his Report and Recommendations dated May 20, 1994, together with the administrative
matter. We have perspicaciously reviewed the same and we are favorably impressed by the thorough and
exhaustive presentation and analysis of the facts and evidence in said report. We commend the
investigating judge for his industry and perspicacity reflected by his findings in said report which, being
amply substantiated by the evidence and supported by logical illations, we hereby approve and hereunder
reproduce at length the material portions thereof.

xxx xxx xxx

The first charge against the respondents is illegal solemnization of marriage. Judge
Palaypayon is charged with having solemnized without a marriage license the marriage of
Sammy Bocaya and Gina Besmonte (Exh. A). Alano Abellano and Nelly Edralin (Exh.
B), Francisco Selpo and Julieta Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor
(Exh. D), Renato Gamay and Maricris Belga (Exh. F) and Arsenio Sabater and Margarita
Nacario (Exh. G).

In all these aforementioned marriages, the blank space in the marriage contracts to show
the number of the marriage was solemnized as required by Article 22 of the Family Code
were not filled up. While the contracting parties and their witnesses signed their marriage
contracts, Judge Palaypayon did not affix his signature in the marriage contracts, except
that of Abellano and Edralin when Judge Palaypayon signed their marriage certificate as
he claims that he solemnized this marriage under Article 34 of the Family Code of the
Philippines. In said marriages the contracting parties were not furnished a copy of their
marriage contract and the Local Civil Registrar was not sent either a copy of the marriage
certificate as required by Article 23 of the Family Code.

The marriage of Bocaya and Besmonte is shown to have been solemnized by Judge
Palaypayon without a marriage license. The testimonies of Bocay himself and Pompeo
Ariola, one of the witnesses of the marriage of Bocaya and Besmonte, and the
photographs taken when Judge Palaypayon solemnized their marriage (Exhs. K-3 to K-9)
sufficiently show that Judge Palaypayon really solemnized their marriage. Bocaya
declared that they were advised by Judge Palaypayon to return after ten (10) days after
their marriage was solemnized and bring with them their marriage license. In the
meantime, they already started living together as husband and wife believing that the
formal requisites of marriage were complied with.

Judge Palaypayon denied that he solemnized the marriage of Bocaya and Besmonte
because the parties allegedly did not have a marriage license. He declared that in fact he
did not sign the marriage certificate, there was no date stated on it and both the parties
and the Local Civil Registrar did not have a copy of the marriage certificate.

With respect to the photographs which show that he solemnized the marriage of Bocaya
and Besmonte, Judge Palaypayon explains that they merely show as if he was
solemnizing the marriage. It was actually a simulated solemnization of marriage and not a
real one. This happened because of the pleading of the mother of one of the contracting
parties that he consent to be photographed to show that as if he was solemnizing the
marriage as he was told that the food for the wedding reception was already prepared,
visitors were already invited and the place of the parties where the reception would be
held was more than twenty (20) kilometers away from the poblacion of Tinambac.

The denial made by Judge Palaypayon is difficult to believe. The fact alone that he did
not sign the marriage certificate or contract, the same did not bear a date and the parties
and the Local Civil Registrar were not furnished a copy of the marriage certificate, do not
by themselves show that he did not solemnize the marriage. His uncorroborated
testimony cannot prevail over the testimony of Bocaya and Ariola who also declared,
among others, that Bocaya and his bride were advised by Judge Palaypayon to return
after ten (10) days with their marriage license and whose credibility had not been
impeached.

The pictures taken also from the start of the wedding ceremony up to the signing of the
marriage certificate in front of Judge Palaypayon and on his table (Exhs. K-3, K-3-a, K-
3-b, K-3-c, K-4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot possibly be just to
show a simulated solemnization of marriage. One or two pictures may convince a person
of the explanation of Judge Palaypayon, but not all those pictures.

Besides, as a judge it is very difficult to believe that Judge Palaypayon would allows
himself to be photographed as if he was solemnizing a marriage on a mere pleading of a
person whom he did not even know for the alleged reasons given. It would be highly
improper and unbecoming of him to allow himself to be used as an instrument of deceit
by making it appear that Bocaya and Besmonte were married by him when in truth and in
fact he did not solemnize their marriage.

With respect to the marriage of Abellano and Edralin (Exh. B), Judge Palaypayon
admitted that he solemnized their marriage, but he claims that it was under Article 34 of
the Family Code, so a marriage license was not required. The contracting parties here
executed a joint affidavit that they have been living together as husband and wife for
almost six (6) years already (Exh. 12; Exh. AA).

In their marriage contract which did not bear any date either when it was solemnized, it
was stated that Abellano was only eighteen (18) years, two (2) months and seven (7) days
old. If he and Edralin had been living together as husband and wife for almost six (6)
years already before they got married as they stated in their joint affidavit, Abellano must
ha(ve) been less than thirteen (13) years old when he started living with Edralin as his
wife and this is hard to believe. Judge Palaypayon should ha(ve) been aware of this when
he solemnized their marriage as it was his duty to ascertain the qualification of the
contracting parties who might ha(ve) executed a false joint affidavit in order to have an
instant marriage by avoiding the marriage license requirement.
On May 23, 1992, however, after this case was already filed, Judge Palaypayon married
again Abellano and Edralin, this time with a marriage license (Exh. BB). The explanation
given by Judge Palaypayon why he solemnized the marriage of the same couple for the
second time is that he did not consider the first marriage he solemnized under Article 34
of the Family Code as (a) marriage at all because complainant Ramon Sambo did not
follow his instruction that the date should be placed in the marriage certificate to show
when he solemnized the marriage and that the contracting parties were not furnished a
copy of their marriage certificate.

This act of Judge Palaypayon of solemnizing the marriage of Abellano and Edralin for
the second time with a marriage license already only gave rise to the suspicion that the
first time he solemnized the marriage it was only made to appear that it was solemnized
under exceptional character as there was not marriage license and Judge Palaypayon had
already signed the marriage certificate. If it was true that he solemnized the first marriage
under exceptional character where a marriage license was not required, why did he
already require the parties to have a marriage license when he solemnized their marriage
for the second time?

The explanation of Judge Palaypayon that the first marriage of Abellano and Edralin was
not a marriage at all as the marriage certificate did not state the date when the marriage
was solemnized and that the contracting parties were not furnished a copy of their
marriage certificate, is not well taken as they are not any of those grounds under
Article(s) 35, 36, 37 and 38 of the Family Code which declare a marriage void from the
beginning. Even if no one, however, received a copy of the marriage certificate, the
marriage is still valid (Jones vs. H(o)rtiguela, 64 Phil. 179). Judge Palaypayon cannot just
absolve himself from responsibility by blaming his personnel. They are not the
guardian(s) of his official function and under Article 23 of the Family Code it is his duty
to furnish the contracting parties (a) copy of their marriage contract.

With respect to the marriage of Francisco Selpo and Julieta Carrido (Exh. C), and
Arsenio Sabater and Margarita Nacario (Exh. G), Selpo and Carrido and Sabater and
Nacarcio executed joint affidavits that Judge Palaypayon did not solemnize their
marriage (Exh. 13-A and Exh. 1). Both Carrido and Nacario testified for the respondents
that actually Judge Palaypayon did not solemnize their marriage as they did not have a
marriage license. On cross-examination, however, both admitted that they did not know
who prepared their affidavits. They were just told, Carrido by a certain Charito
Palaypayon, and Nacario by a certain Kagawad Encinas, to just go to the Municipal
building and sign their joint affidavits there which were already prepared before the
Municipal Mayor of Tinambac, Camarines Sur.

With respect to the marriage of Renato Gamay and Maricris Belga (Exh. f), their
marriage contract was signed by them and by their two (2) witnesses, Atty. Elmer Brioso
and respondent Baroy (Exhs. F-1 and F-2). Like the other aforementioned marriages, the
solemnization fee was also paid as shown by a receipt dated June 7, 1992 and signed by
respondent Baroy (Exh. F-4).

Judge Palaypayon also denied having solemnized the marriage of Gamay and Belga
allegedly because there was no marriage license. On her part, respondent Baroy at first
denied that the marriage was solemnized. When she was asked, however, why did she
sign the marriage contract as a witness she answered that she thought the marriage was
already solemnized (TSN, p. 14; 10-28-93).

Respondent Baroy was, and is, the clerk of court of Judge Palaypayon. She signed the
marriage contract of Gamay and Belga as one of the two principal sponsors. Yet, she
wanted to give the impression that she did not even know that the marriage was
solemnized by Judge Palaypayon. This is found very difficult to believe.

Judge Palaypayon made the same denial of having solemnized also the marriage of
Terrobias and Gaor (Exh. D). The contracting parties and their witnesses also signed the
marriage contract and paid the solemnization fee, but Judge Palaypayon allegedly did not
solemnize their marriage due to lack of marriage license. Judge Palaypayon submitted the
affidavit of William Medina, Vice-Mayor of Tinambac, to corroborate his testimony
(Exh. 14). Medina, however, did not testify in this case and so his affidavit has no
probative value.

Judge Palaypayon testified that his procedure and practice have been that before the
contracting parties and their witnesses enter his chamber in order to get married, he
already required complainant Ramon Sambo to whom he assigned the task of preparing
the marriage contract, to already let the parties and their witnesses sign their marriage
contracts, as what happened to Gamay and Belga, and Terrobias and Gaor, among others.
His purpose was to save his precious time as he has been solemnizing marriages at the
rate of three (3) to four (4) times everyday (TSN, p. 12;
2-1-94).

This alleged practice and procedure, if true, is highly improper and irregular, if not
illegal, because the contracting parties are supposed to be first asked by the solemnizing
officer and declare that they take each other as husband and wife before the solemnizing
officer in the presence of at least two (2) witnesses before they are supposed to sign their
marriage contracts (Art. 6, Family Code).

The uncorroborated testimony, however, of Judge Palaypayon as to his alleged practice

and procedure before solemnizing a marriage, is not true as shown by the picture taken
during the wedding of Bocaya and Besmonte (Exhs. K-3 to K-9) and by the testimony of
respondent Baroy herself who declared that the practice of Judge Palaypayon ha(s) been
to let the contracting parties and their witnesses sign the marriage contract only after
Judge Palaypayon has solemnized their marriage (TSN, p. 53;
10-28-93).

Judge Palaypayon did not present any evidence to show also that he was really
solemnizing three (3) to four (4) marriages everyday. On the contrary his monthly report
of cases for July, 1992 shows that his court had only twenty-seven (27) pending cases and
he solemnized only seven (7) marriages for the whole month (Exh. E). His monthly
report of cases for September, 1992 shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).

In this first charge of having illegally solemnized marriages, respondent Judge

Palaypayon has presented and marked in evidence several marriage contracts of other
persons, affidavits of persons and certification issued by the Local Civil Registrar (Exhs.
12-B to 12-H). These persons who executed affidavits, however, did not testify in this
case. Besides, the marriage contracts and certification mentioned are immaterial as Judge
Palaypayon is not charged of having solemnized these marriages illegally also. He is not
charged that the marriages he solemnized were all illegal.

The second charge against herein respondents, that of having falsified the monthly report
of cases submitted to the Supreme Court and not stating in the monthly report the actual
number of documents notarized and issuing the corresponding receipts of the notarial
fees, have been sufficiently proven by the complainants insofar as the monthly report of
cases for July and September, 1992 are concerned.

The monthly report of cases of the MTC of Tinambac, Camarines Sur for July, 1992 both
signed by the respondents, show that for said month there were six (6) documents
notarized by Judge Palaypayon in his capacity as Ex-Officio Notary Public (Exhs. H to
H-1-b). The notarial register of the MTC of Tinambac, Camarines Sur, however, shows
that there were actually one hundred thirteen (113) documents notarized by Judge
Palaypayon for the said month (Exhs. Q to Q-45).

Judge Palaypayon claims that there was no falsification of the monthly report of cases for
July, 1992 because there were only six (6) notarized documents that were paid (for) as
shown by official receipts. He did not, however, present evidence of the alleged official
receipts showing that the notarial fee for the six (6) documetns were paid. Besides, the
monthly report of cases with respect to the number of documents notarized should not be
based on how many notarized documents were paid of the notarial fees, but the number
of documents placed or recorded in the notarial register.

Judge Palaypayon admitted that he was not personally verifying and checking anymore
the correctness of the monthly reports because he relies on his co-respondent who is the
Clerk of Court and whom he has assumed to have checked and verified the records. He
merely signs the monthly report when it is already signed by respondent Baroy.

The explanation of Judge Palaypayon is not well taken because he is required to have
close supervision in the preparation of the monthly report of cases of which he certifies as
to their correctness. As a judge he is personally responsible for the proper discharge of
his functions (The Phil. Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In
Nidera vs. Lazaro, 174 SCRA 581, it was held that "A judge cannot take refuge behind
the inefficiency or mismanagement of his court personnel."

On the part of respondent Baroy, she puts the blame of the falsification of the monthly
report of cases on complainant Sambo whom she allegedly assigned to prepare not only
the monthly report of cases, but the preparation and custody of marriage contracts,
notarized documents and the notarial register. By her own admission she has assigned to
complainant Sambo duties she was supposed to perform, yet according to her she never
bother(ed) to check the notarial register of the court to find out the number of documents
notarized in a month (TSN, p. 30; 11-23-93).

Assuming that respondent Baroy assigned the preparation of the monthly report of cases
to Sambo, which was denied by the latter as he claims that he only typed the monthly
report based on the data given to him by her, still it is her duty to verify and check
whether the report is correct.
The explanation of respondent Baroy that Sambo was the one in custody of marriage
contracts, notarized documents and notarial register, among other things, is not
acceptable not only because as clerk of court she was supposed to be in custody, control
and supervision of all court records including documents and other properties of the court
(p. 32, Manual for Clerks of Court), but she herself admitted that from January, 1992 she
was already in full control of all the records of the court including receipts (TSN, p. 11;
11-23-93).

The evidence adduced in this cases in connection with the charge of falsification,
however, also shows that respondent Baroy did not account for what happened to the
notarial fees received for those documents notarized during the month of July and
September, 1992. The evidence adduced in this case also sufficiently show that she
received cash bond deposits and she did not deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary receipts for said cash bond deposits.

For July, 1992 there were only six (6) documents reported to have been notarized by
Judge Palaypayon although the documents notarized for said month were actually one
hundred thirteen (113) as recorded in the notarial register. For September, 1992, there
were only five (5) documents reported as notarized for that month, though the notarial
register show(s) that there were fifty-six (56) documents actually notarized. The fee for
each document notarized as appearing in the notarial register was P18.50. Respondent
Baroy and Sambo declared that what was actually being charged was P20.00. Respondent
Baroy declared that P18.50 went to the Supreme Court and P1.50 was being turned over
to the Municipal Treasurer.

Baroy, however, did not present any evidence to show that she really sent to the Supreme
Court the notarial fees of P18.50 for each document notarized and to the Municipal
Treasurer the additional notarial fee of P1.50. This should be fully accounted for
considering that Baroy herself declared that some notarial fees were allowed by her at her
own discretion to be paid later. Similarly, the solemnization fees have not been accounted
for by Baroy considering that she admitted that even (i)n those instances where the
marriages were not solemnized due to lack of marriage license the solemnization fees
were not returned anymore, unless the contracting parties made a demand for their return.
Judge Palaypayon declared that he did not know of any instance when solemnization fee
was returned when the marriage was not solemnized due to lack of marriage license.

Respondent Baroy also claims that Ramon Sambo did not turn over to her some of the
notarial fees. This is difficult to believe. It was not only because Sambo vehemently
denied it, but the minutes of the conference of the personnel of the MTC of Tinambac
dated January 20, 1992 shows that on that date Baroy informed the personnel of the court
that she was taking over the functions she assigned to Sambo, particularly the collection
of legal fees (Exh. 7). The notarial fees she claims that Sambo did not turn over to her
were for those documents notarized (i)n July and September, 1992 already. Besides there
never was any demand she made for Sambo to turn over some notarial fees supposedly in
his possession. Neither was there any memorandum she issued on this matter, in spite of
the fact that she has been holding meetings and issuing memoranda to the personnel of
the court (Exhs. V, W, FF, FF-1, FF-2, FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and
8-S).
It is admitted by respondent Baroy that on October 29, 1991 a cash bond deposit of a
certain Dacara in the amount of One Thousand (P1,000.00) Pesos was turned over to her
after she assumed office and for this cash bond she issued only a temporary receipt (Exh.
Y). She did not deposit this cash bond in any bank or to the Municipal Treasurer. She just
kept it in her own cash box on the alleged ground that the parties in that case where the
cash bond was deposited informed her that they would settle the case amicably.

Respondent Baroy declared that she finally deposited the aforementioned cash bond of
One Thousand (P1,000.00) Pesos with the Land Bank of the Philippines (LBP) in
February, 1993, after this administrative case was already filed (TSN, pp. 27-28; 12-22-
93). The Pass Book, however, shows that actually Baroy opened an account with the
LBP, Naga Branch, only on March 26, 1993 when she deposited an amount of Two
Thousand (P2,000.00) Pesos (Exhs. 8 to 8-1-a). She claims that One Thousand
(P1,000.000) Pesos of the initial deposit was the cash bond of Dacara. If it were true, it
was only after keeping to herself the cash bond of One Thousand (P1,000.00) Pesos for
around one year and five months when she finally deposited it because of the filing of
this case.

On April 29, 1993, or only one month and two days after she finally deposited the One
Thousand (P1,000.00) Pesos cash bond of Dacara, she withdrew it from the bank without
any authority or order from the court. It was only on July 23, 1993, or after almost three
(3) months after she withdrew it, when she redeposited said cash bond (TSN, p. 6; 1-4-
94).

The evidence presented in this case also show that on February 28, 1993 respondent
Baroy received also a cash bond of Three Thousand (P3,000.00) Pesos from a certain
Alfredo Seprones in Crim. Case No. 5180. For this cash bond deposit, respondent Baroy
issued only an annumbered temporary receipt (Exh. X and X-1). Again Baroy just kept
this Three Thousand (P3,000.00) Pesos cash bond to herself. She did not deposit it either
(in) a bank or (with) the Municipal Treasurer. Her explanation was that the parties in
Crim. Case No. 5180 informed her that they would settle the case amicably. It was on
April 26, 1993, or almost two months later when Judge Palaypayon issued an order for
the release of said cash bond (Exh. 7).

Respondent Baroy also admitted that since she assumed office on October 21, 1991 she
used to issue temporary receipt only for cash bond deposits and other payments and
collections she received. She further admitted that some of these temporary receipts she
issued she failed to place the number of the receipts such as that receipt marked Exhibit X
(TSN, p. 35; 11-23-93). Baroy claims that she did not know that she had to use the
official receipts of the Supreme Court. It was only from February, 1993, after this case
was already filed, when she only started issuing official receipts.

The next charge against the respondents is that in order to be appointed Clerk of Court,
Baroy gave Judge Palaypayon an air conditioner as a gift. The evidence adduced with
respect to this charge, show that on August 24, 1991 Baroy bought an air conditioner for
the sum of Seventeen Thousand Six Hundred (P17,600.00) Pesos (Exhs. I and I-1). The
same was paid partly in cash and in check (Exhs. I-2 and I-3). When the air conditioner
was brought to court in order to be installed in the chamber of Judge Palaypayon, it was
still placed in the same box when it was bought and was not used yet.
The respondents claim that Baroy sold it to Judge Palaypayon for Twenty Thousand
(P20,00.00) Pesos on installment basis with a down payment of Five Thousand
(P5,000.00) Pesos and as proof thereof the respondents presented a typewritten receipt
dated May 29, 1993 (Exh. 22). The receipt was signed by both respondents and by the
Municipal Mayor of Tinambac, Camarines Sur and another person as witness.

The alleged sale between respondents is not beyond suspicion. It was bought by Baroy at
a time when she was applying for the vacant position of Clerk of Court (to) which she
was eventually appointed in October, 1991. From the time she bought the air conditioner
on August 24, 1991 until it was installed in the office of Judge Palaypayon it was not
used yet. The sale to Judge Palaypayon was only evidenced by a mere typewritten receipt
dated May 29, 1992 when this case was already filed. The receipt could have been easily
prepared. The Municipal Mayor of Tinambac who signed in the receipt as a witness did
not testify in this case. The sale is between the Clerk of Court and the Judge of the same
court. All these circumstances give rise to suspicion of at least impropriety. Judges
should avoid such action as would subject (them) to suspicion and (their) conduct should
be free from the appearance of impropriety (Jaagueta vs. Boncasos, 60 SCRA 27).

With respect to the charge that Judge Palaypayon received a cash bond deposit of One
Thousand (P1,000.00) Pesos from Januaria Dacara without issuing a receipt, Dacara
executed an affidavit regarding this charge that Judge Palaypayon did not give her a
receipt for the P1,000.00 cash bond she deposited (Exh. N). Her affidavit, however, has
no probative value as she did not show that this cash bond of P1,000.00 found its way
into the hands of respondent Baroy who issued only a temporary receipt for it and this has
been discussed earlier.

Another charge against Judge Palaypayon is the getting of detention prisoners to work in
his house and one of them escaped while in his custody and was never found again. To
hide this fact, the case against said accused was ordered archived by Judge Palaypayon.
The evidence adduced with respect to this particular charge, show that in Crim. Case No.
5647 entitled People vs. Stephen Kalaw, Alex Alano and Allan Adupe, accused Alex
Alano and Allan Adupe were arrested on April 12, 1991 and placed in the municipal jail
of Tinambac, Camarines Sur (Exhs. 0, 0-1, 0-2 and 0-3; Exh. 25). The evidence presented
that Alex Alano was taken by Judge Palaypayon from the municipal jail where said
accused was confined and that he escaped while in custody of Judge Palaypayon is solely
testimonial, particularly that of David Ortiz, a former utility worker of the MTC of
Tinambac.

Herein investigator finds said evidence not sufficient. The complainants should have
presented records from the police of Tinambac to show that Judge Palaypayon took out
from the municipal jail Alex Alano where he was under detention and said accused
escaped while in the custody of Judge Palaypayon.

The order, however, of Judge Palaypayon dated April 6, 1992 in Crim. Case No. 5047
archiving said case appears to be without basis. The order states: "this case was filed on
April 12, 1991 and the records show that the warrant of arrest (was) issued against the
accused, but up to this moment there is no return of service for the warrant of arrest
issued against said accused" (Exh. 0-4). The records of said case, however, show that in
fact there was a return of the service of the warrant of arrest dated April 12, 1991
showing that Alano and Adupe were arrested (Exh. 0-3).
Judge Palaypayon explained that his order dated April 6, 1992 archiving Crim. Case No.
5047 referred only to one of the accused who remained at large. The explanation cannot
be accepted because the two other accused, Alano and Adupe, were arrested. Judge
Palaypayon should have issued an order for the arrest of Adupe who allegedly jumped
bail, but Alano was supposed to be confined in the municipal jail if his claim is true that
he did not take custody of Alano.

The explanation also of Judge Palaypayon why he ordered the case archived was because
he heard from the police that Alano escaped. This explanation is not acceptable either. He
should ha(ve) set the case and if the police failed to bring to court Alano, the former
should have been required to explain in writing why Alano was not brought to court. If
the explanation was that Alano escaped from jail, he should have issued an order for his
arrest. It is only later on when he could not be arrested when the case should have been
ordered archived. The order archiving this case for the reason that he only heard that
Alano escaped is another circumstance which gave rise to a suspicion that Alano might
have really escaped while in his custody only that the complainants could not present
records or other documentary evidence to prove the same.

The last charge against the respondents is that they collected filing fees on collection
cases filed by the Rural Bank of Tinambac, Camarines Sur which was supposed to be
exempted in paying filing fees under existing laws and that the filing fees received was
deposited by respondent Baroy in her personal account in the bank. The evidence
presented show that on February 4, 1992 the Rural Bank of Tinambac filed ten (10) civil
cases for collection against farmers and it paid the total amount of Four Hundred
(P400.00) Pesos representing filing fees. The complainants cited Section 14 of Republic
Act 720, as amended, which exempts Rural Banks (from) the payment of filing fees on
collection of sums of money cases filed against farmers on loans they obtained.

Judge Palaypayon, however, had nothing to do with the payment of the filing fees of the
Rural Bank of Tinambac as it was respondent Baroy who received them and besides, on
February 4, 1992, he was on sick leave. On her part Baroy claims that the bank paid
voluntarily the filing fees. The records, however, shows that respondent Baroy sent a
letter to the manager of the bank dated January 28, 1992 to the effect that if the bank
would not pay she would submit all Rural Bank cases for dismissal (Annex 6, comment
by respondent Baroy).

Respondent Baroy should have checked whether the Rural Bank of Tinambac was really
exempt from the payment of filing fees pursuant to Republic Act 720, as amended,
instead of threatening the bank to have its cases be submitted to the court in order to have
them dismissed. Here the payment of the filing fees was made on February 4, 1992, but
the Four Hundred (P400.00) Pesos was only turned over to the Municipal Treasurer on
March 12, 1992. Here, there is an undue delay again in complying with her obligation as
accountable officer.

In view of the foregoing findings that the evidence presented by the complainants
sufficiently show that respondent Judge Lucio P. Palaypayon, Jr. had solemnized
marriages, particularly that of Sammy Bocaya and Gina Besmonte, without a marriage
license, and that it having been shown that he did not comply with his duty in closely
supervising his clerk of court in the preparation of the monthly report of cases being
submitted to the Supreme Court, particularly for the months of July and September, 1992
where it has been proven that the reports for said two (2) months were falsified with
respect to the number of documents notarized, it is respectfully recommended that he be
imposed a fine of TEN THOUSAND (P10,000.00) PESOS with a warning that the same
or similar offenses will be more severely dealt with.

The fact that Judge Palaypayon did not sign the marriage contracts or certificates of those
marriages he solemnized without a marriage license, there were no dates placed in the
marriage contracts to show when they were solemnized, the contracting parties were not
furnished their marriage contracts and the Local Civil Registrar was not being sent any
copy of the marriage contract, will not absolve him from liability. By solemnizing alone a
marriage without a marriage license he as the solemnizing officer is the one responsible
for the irregularity in not complying (with) the formal requ(i)sites of marriage and under
Article 4(3) of the Family Code of the Philippines, he shall be civilly, criminally and
administratively liable.

Judge Palaypayon is likewise liable for his negligence or failure to comply with his duty
of closely supervising his clerk of court in the performance of the latter's duties and
functions, particularly the preparation of the monthly report of cases (Bendesula vs. Laya,
58 SCRA 16). His explanation that he only signed the monthly report of cases only when
his clerk of court already signed the same, cannot be accepted. It is his duty to closely
supervise her, to check and verify the records if the monthly reports prepared by his clerk
of court do not contain false statements. It was held that "A judge cannot take refuge
behind the inefficiency or incompetence of court personnel (Nidua vs. Lazaro, 174 SCRA
158).

In view also of the foregoing finding that respondent Nelia Esmeralda-Baroy, the clerk of
court of the Municipal Trial Court of Tinambac, Camarines Sur, has been found to have
falsified the monthly report of cases for the months of July and September, 1992 with
respect to the number of documents notarized, for having failed to account (for) the
notarial fees she received for said two (2) months period; for having failed to account
(for) the solemnization fees of those marriages allegedly not solemnized, but the
solemnization fees were not returned; for unauthorized issuance of temporary receipts,
some of which were issued unnumbered; for receiving the cash bond of Dacara on
October 29, 1991 in the amount of One Thousand (P1,000.00) Pesos for which she issued
only a temporary receipt (Exh. Y) and for depositing it with the Land Bank of the
Philippines only on March 26, 1993, or after one year and five months in her possession
and after this case was already filed; for withdrawing said cash bond of One Thousand
(P1,000.00) Pesos on April 29, 1993 without any court order or authority and
redepositing it only on July 23, 1993; for receiving a cash bond of Three Thousand
(P3,000.00) Pesos from Alfredo Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an unnumbered temporary receipt (Exhs. X and
X-1) and for not depositing it with a bank or with the Municipal Treasurer until it was
ordered released; and for requiring the Rural Bank of Tinambac, Camarines Sur to pay
filing fees on February 4, 1992 for collection cases filed against farmers in the amount of
Four Hundred (P400.00) Pesos, but turning over said amount to the Municipal Treasurer
only on March 12, 1992, it is respectfully recommended that said respondent clerk of
court Nelia Esmeralda-Baroy be dismissed from the service.

It is provided that "Withdrawal of court deposits shall be by the clerk of court who shall
issue official receipt to the provincial, city or municipal treasurer for the amount
 withdrawn. Court deposits cannot be withdrawn except by order of the court, . . . ."
(Revised Manual of Instructions for Treasurers, Sec. 183, 184 and 626; p. 127, Manual
for Clerks of Court). A circular also provides that the Clerks of Court shall immediately
issue an official receipt upon receipt of deposits from party litigants and thereafter
deposit intact the collection with the municipal, city or provincial treasurer and their
deposits, can only be withdrawn upon proper receipt and order of the Court (DOJ
Circular No. 52, 26 April 1968; p. 136, Manual for Clerks of Court). Supreme Court
Memorandum Circular No. 5, 25 November 1982, also provides that "all collections of
funds of fiduciary character including rental deposits, shall be deposited immediately by
the clerk of court concerned upon receipt thereof with City, Municipal or Provincial
Treasurer where his court is located" and that "no withdrawal of any of such deposits
shall be made except upon lawful order of the court exercising jurisdiction over the
subject matter.

Respondent Baroy had either failed to comply with the foregoing circulars, or
deliberately disregarded, or even intentionally violated them. By her conduct, she
demonstrated her callous unconcern for the obligations and responsibility of her duties
and functions as a clerk of court and accountable officer. The gross neglect of her duties
shown by her constitute(s) a serious misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of Court, MTCC, Branch
I, Batangas City; A.M. No. P-90-414; August 9, 1993, it was held that "The clerk of court
is not authorized to keep funds in his/her custody; monies received by him/her shall be
deposited immediately upon receipt thereof with the City, Municipal or Provincial
Treasurer. Supreme Court Circular Nos. 5 dated November 25, 1982 and 5-A dated
December 3, 1982. Respondent Hiam's failure to remit the cash bail bonds and fine she
collected constitutes serious misconduct and her misappropriation of said funds
constitutes dishonesty. "Respondent Norma Hiam was found guilty of dishonesty and
serious misconduct prejudicial to the best interest of the service and (the Court) ordered
her immediate dismissal (from) the service.

xxx xxx xxx

We here emphasize once again our adjuration that the conduct and behavior of everyone connected with
an office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be
circumscribed with the heavy burden of responsibility. His conduct, at all times, must not only be
characterized by propriety and decorum but, above all else, must be beyond suspicion. Every employee
should be an example of integrity, uprightness and honesty. Integrity in a judicial office is more than a
virtue, it is a necessity. It applies, without qualification as to rank or position, from the judge to the least
of its personnel, they being standard-bearers of the exacting norms of ethics and morality imposed upon a
Court of justice.

On the charge regarding illegal marriages the Family Code pertinently provides that the formal requisites
of marriage are, inter alia, a valid marriage license except in the cases provided for
therein. Complementarily, it declares that the absence of any of the essential or formal requisites shall
generally render the marriage void ab initio and that, while an irregularity in the formal requisites shall
not affect the validity of the marriage, the party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable.

The civil aspect is addressed to the contracting parties and those affected by the illegal marriages, and
what we are providing for herein pertains to the administrative liability of respondents, all without
prejudice to their criminal responsibility. The Revised Penal Code provides that "(p)riests or ministers of
any religious denomination or sect, or civil authorities who shall perform or authorize any illegal
marriage ceremony shall be punished in accordance with the provisions of the Marriage Law." This is of
course, within the province of the prosecutorial agencies of the Government.

The recommendation with respect to the administrative sanction to be imposed on respondent judge
should, therefore, be modified. For one, with respect to the charge of illegal solemnization of marriages, it
does appear that he had not taken to heart, but actually trifled with, the law's concern for the institution of
marriage and the legal effects flowing from civil status. This, and his undeniable participation in the other
offenses charged as hereinbefore narrated in detail, approximate such serious degree of misconduct and of
gross negligence in the performance of judicial duties as to ineludibly require a higher penalty.

WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on respondent Judge Lucio P.
Palaypayon. Jr., with a stern warning that any repetition of the same or similar offenses in the future will
definitely be severely dealt with. Respondent Nelia Esmeralda-Baroy is hereby DISMISSED from the
service, with forfeiture of all retirement benefits and with prejudice to employment in any branch, agency
or instrumentality of the Government, including government-owned or controlled corporations.

Let copies of this decision be spread on their records and furnished to the Office of the Ombudsman for
appropriate action.

SO ORDERED.

Case Digest
JUVY N. COSCA vs. HON. LUCIO P. PALAYPAYON, JR.
A.M. No. MTJ-92-721 September 30, 1994
237 SCRA 249
PER CURIAM, J.:

Facts: The following are the complainants: Juvy N. Cosca (Stenographer 1), Edmundo B. Peralta
(Interpreter 1), Ramon C. Sambo (Clerk II) and Apollo Villamora (Process Server). Respondents
are Judge Lucio Palaypayon Jr., the presiding judge, and Nelia B. Esmeralda-Baroy, clerk of
court II. All work in MTC-Tinambac, Camarines Sur.

Complainants alleged that Palaypayon solemnized marriages even without the requisite of a
marriage license. Hence, the following couples were able to get married just by paying the
marriage fees to respondent Baroy: Alano P. Abellano & Nelly Edralin; Francisco Selpo & Julieta
Carrido; Eddie Terrobias & Maria Gacer; Renato Gamay & Maricris Belga; Arsenio Sabater &
Margarita Nacario; Sammy Bocaya & Gina Bismonte. As a consequence, the marriage contracts
of the following couples did not reflect any marriage license number. In addition, Palaypayon did
not sign the marriage contracts and did not indicate the date of solemnization reasoning out that
he allegedly had to wait for the marriage license to be submitted by the parties which happens
usually several days after the marriage ceremony.

Palaypayon contends that marriage between Abellano & Edralin falls under Article 34 of the
Civil Code thus exempted from the marriage license requirement. According to him, he gave
 strict instructions to complainant Sambo to furnish the couple copy of the marriage contract and
to file the same with the civil registrar but the latter failed to do so. In order to solve the problem,
the spouses subsequently formalized the marriage by securing a marriage license and executing
their marriage contract, a copy of which was then filed with the civil registrar. The other five
marriages were not illegally solemnized because Palaypayon did not sign their marriage contracts
and the date and place of marriage are not included. It was alleged that copies of these marriage
contracts are in the custody of complainant Sambo. The alleged marriage of Selpo & Carrido,
Terrobias & Gacer, Gamay & Belga, Sabater & Nacario were not celebrated by him since he
refused to solemnize them in the absence of a marriage license and that the marriage of Bocaya &
Bismonte was celebrated even without the requisite license due to the insistence of the parties to
avoid embarrassment with the guests which he again did not sign the marriage contract.

An illegal solemnization of marriage was charged against the respondents.

Issue: Whether or not the marriage solemnized by Judge Palaypayon were valid.

Held: Bocaya & Besmonte’s marriage was solemnized without a marriage license along with the other
couples. The testimonies of Bocay and Pompeo Ariola including the photographs taken showed
that it was really Judge Palaypayon who solemnized their marriage. Bocaya declared that they
were advised by judge to return after 10 days after the solemnization and bring with them their
marriage license. They already started living together as husband and wife even without the
formal requisite. With respect to the photographs, judge explained that it was a simulated
solemnization of marriage and not a real one. However, considering that there were pictures from
the start of the wedding ceremony up to the signing of the marriage certificates in front of him.
The court held that it is hard to believe that it was simulated.

On the other hand, Judge Palaypayon admitted that he solemnized marriage between Abellano &
Edralin and claimed it was under Article 34 of the Civil Code so the marriage license was
dispensed with considering that the contracting parties executed a joint affidavit that they have
been living together as husband and wife for almost 6 years already. However, it was shown in
the marriage contract that Abellano was only 18 yrs 2months and 7 days old. If he and Edralin
had been living together for 6 years already before they got married as what is stated in the joint
affidavit, Abellano must have been less than 13 years old when they started living together which
is hard to believe. Palaypayon should have been aware, as it is his duty to ascertain the
qualification of the contracting parties who might have executed a false joint affidavit in order to
avoid the marriage license requirement.

Article 4 of the Family Code pertinently provides that “in the absence of any of the essential or
formal requisites shall render the marriage void ab initio whereas an irregularity in the formal
requisite shall not affect the validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally, and administratively liable.
Full Case

Republic vs Court of Appeals 236 SCRA 257

G.R. No. 103047 September 2, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.

PUNO, J.:

The case at bench originated from a petition filed by private respondent Angelina M. Castro in the
Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her marriage to Edwin F.
Cardenas. 1 As ground therefor, Castro claims that no marriage license was ever issued to them prior to
the solemnization of their marriage.

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he was declared in
default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony
performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was celebrated
without the knowledge of Castro's parents. Defendant Cardenas personally attended to the processing of
the documents required for the celebration of the marriage, including the procurement of the marriage,
license. In fact, the marriage contract itself states that marriage license no. 3196182 was issued in the
name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.

The couple did not immediately live together as husband and wife since the marriage was unknown to
Castro's parents. Thus, it was only in March 1971, when Castro discovered she was pregnant, that the
couple decided to live together. However, their cohabitation lasted only for four (4) months. Thereafter,
the couple parted ways. On October 19, 1971, Castro gave birth. The baby was adopted by Castro's
brother, with the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put in order her
marital status before leaving for the States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar,
regarding the possible annulment of her marriage. Through her lawyer's efforts, they discovered that there
was no marriage license issued to Cardenas prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig, Metro
Manila. It reads:

February 20, 1987

TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO who were
allegedly married in the Pasay City Court on June 21, 1970 under an alleged (s)upportive marriage
license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located as said license
no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio.

(Sgd) CENONA D. QUINTOS

Senior Civil Registry Officer

Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970 in order to
apply for a license. Neither did she sign any application therefor. She affixed her signature only on the
marriage contract on June 24, 1970 in Pasay City.

The trial court denied the petition. 2 It held that the above certification was inadequate to establish the
alleged non-issuance of a marriage license prior to the celebration of the marriage between the parties. It
ruled that the "inability of the certifying official to locate the marriage license is not conclusive to show
that there was no marriage license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted that the
certification from the local civil registrar sufficiently established the absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial court. 3 It declared the
marriage between the contracting parties null and void and directed the Civil Registrar of Pasig to cancel
the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when it ruled that the
certification issued by the civil registrar that marriage license no. 3196182 was not in their record
adequately proved that no such license was ever issued. Petitioner also faults the respondent court for
relying on the self-serving and uncorroborated testimony of private respondent Castro that she had no part
in the procurement of the subject marriage license. Petitioner thus insists that the certification and the
uncorroborated testimony of private respondent are insufficient to overthrow the legal presumption
regarding the validity of a marriage.

Petitioner also points that in declaring the marriage between the parties as null and void, respondent
appellate court disregarded the presumption that the solemnizing officer, Judge Pablo M. Malvar,
regularly performed his duties when he attested in the marriage contract that marriage license no.
3196182 was duly presented to him before the solemnization of the subject marriage.
The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and testimonial evidence
presented by private respondent are sufficient to establish that no marriage license was issued by the Civil
Registrar of Pasig prior to the celebration of the marriage of private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing marital relations
was the New Civil Code. The law 4 provides that no marriage shall be solemnized without a marriage
license first issued by a local civil registrar. Being one of the essential requisites of a valid marriage,
absence of a license would render the marriage void ab initio. 5

Petitioner posits that the certification of the local civil registrar of due search and inability to find a record
or entry to the effect that marriage license no. 3196182 was issued to the parties is not adequate to prove
its non-issuance.

We hold otherwise. The presentation of such certification in court is sanctioned by Section 29, Rule 132
of the Rules of Court, viz.:

Sec. 29. Proof of lack of record. — A written statement signed by an officer having custody of an official
record or by his deputy, that after diligent search, no record or entry of a specified tenor is found to exist
in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that
the records of his office contain no such record or entry.

The above Rule authorized the custodian of documents to certify that despite diligent search, a particular
document does not exist in his office or that a particular entry of a specified tenor was not to be found in a
register. As custodians of public documents, civil registrars are public officers charged with the
duty, inter alia, of maintaining a register book where they are required to enter all applications for
marriage licenses, including the names of the applicants, the date the marriage license was issued and
such other relevant data. 6

The certification of "due search and inability to find" issued by the civil registrar of Pasig enjoys
probative value, he being the officer charged under the law to keep a record of all data relative to the
issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to Section
29, Rule 132 of the Rules of Court, a certificate of "due search and inability to find" sufficiently proved
that his office did not issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her petition is, in itself,
not a ground to deny her petition. The failure to offer any other witness to corroborate her testimony is
mainly due to the peculiar circumstances of the case. It will be remembered that the subject marriage was
a civil ceremony performed by a judge of a city court. The subject marriage is one of those commonly
known as a "secret marriage" — a legally non-existent phrase but ordinarily used to refer to a civil
marriage celebrated without the knowledge of the relatives and/or friends of either or both of the
contracting parties. The records show that the marriage between Castro and Cardenas was initially
unknown to the parents of the former.
Surely, the fact that only private respondent Castro testified during the trial cannot be held against her.
Her husband, Edwin F. Cardenas, was duly served with notice of the proceedings and a copy of the
petition. Despite receipt thereof, he chose to ignore the same. For failure to answer, he was properly
declared in default. Private respondent cannot be faulted for her husband's lack of interest to participate in
the proceedings. There was absolutely no evidence on record to show that there was collusion between
private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage between the
contracting parties is null and void for lack of a marriage license does not discount the fact that indeed, a
spurious marriage license, purporting to be issued by the civil registrar of Pasig, may have been presented
by Cardenas to the solemnizing officer.

In fine, we hold that, under the circumstances of the case, the documentary and testimonial evidence
presented by private respondent Castro sufficiently established the absence of the subject marriage
license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error committed
by respondent appellate court.

SO ORDERED.
Case Digest
REPUBLIC vs. COURT OF APPEALS
G.R. No. 103047 September 2, 1994
236 SCRA 257
PUNO, J.

Facts: Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony without the
knowledge of the former’s parents. All the documents required for the celebration of the marriage
which includes procurement of marriage license, was attended by Cardenas. It was stated in the
marriage contract that marriage license no. 3196182 was issued. The cohabitation of Castro and
Cardenas lasted only for four (4) months after which they parted ways.

Castro sought the advice of a lawyer for a possible annulment of her marriage with Cardenas
before leaving for the States to follow her daughter who was adopted by her brother with the
consent of Cardenas. The Civil Registrar of Pasig issued a certification stating that Castro and
Cardenas were allegedly married in the Pasay Court on June 21, 1970 under an alleged marriage
license no. 3196182 which was allegedly issued on June 20, 1970 but such cannot be located
since it does not appear in their records. It was then that she found out that there was no marriage
license issued prior to the celebration of her marriage with Cardenas.

Castro filed a petition seeking a judicial declaration of nullity of her marriage with Edwin
Cardenas. The Regional Trial Court denied her petition. It ruled that “inability of the certifying
official to locate the marriage license is not conclusive to show that there was no marriage license
issued.”

Castro appealed to respondent appellate court contending that the certification from the local civil
registrar sufficiently established the absence of a marriage license. The respondent appellate court
reversed the ruling of the trial court declaring that the marriage between the contracting parties is
null and void and directed the Civil Registrar of Pasig to cancel the marriage contract.

However, the Republic of the Philippines, the petitioner herein, brought a petition for review on
certiorari which alleged that the certification and the uncorroborated testimony of Castro are not
sufficient to overthrow the legal presumption regarding the validity of a marriage.

Issue: Whether or not the documentary and testimonial evidence presented by private respondent are
sufficient to establish that no marriage license was issued prior to the celebration of marriage.

Ruling: Yes. The Court ruled that the certification of "due search and inability to find" issued by the civil
registrar of Pasig enjoys probative value, he being the officer charged under the law to keep a
record of all data relative to the issuance of a marriage license.

Unaccompanied by any circumstance of suspicion and pursuant to Section 29, Rule 132 of the
Rules of Court, a certificate of "due search and inability to find" sufficiently proved that his office
did not issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her petition is, in
itself, not aground to deny her petition. The failure to offer any other witness to corroborate her
testimony is mainly due to the peculiar circumstances of the case.

The finding of the appellate court that the marriage between the contracting parties is null and
void for lack of a marriage license does not discount the fact that indeed, a spurious marriage
 license, purporting to be issued by the civil registrar of Pasig, may have been presented by
Cardenas to the solemnizing officer.

It was held that under the circumstances of the case, the documentary and testimonial evidence
presented by private respondent Castro sufficiently established the absence of the
subject marriage license.

Therefore, the petition is DENIED there being no showing of any reversible error committed by
respondent appellate court.

Moreno vs Moreno 246 SCRA 120

A.M. No. MTJ-94-963 July 14, 1995

Full Case

MARILOU NAMA MORENO, complainant,

vs.
JUDGE JOSE C. BERNABE, Metropolitan Trial Court, Branch 72, Pasig, Metro Manila, respondent.

KAPUNAN, J.:
The responsibility of a Judge is indeed heavy. As the incarnation of law and justice, it is his sworn duty to
lead by example, to be the example. But how can he inspire the people to live by the law if he himself
fails to do so?

Marilou Nama Moreno filed this complaint against Judge Jose C. Bernabe of the Metropolitan Trial
Court, Branch 72, Pasig, Metro Manila for grave misconduct and gross ignorance of the law.

Complainant alleges that on October 4, 1993, she and Marcelo Moreno were married before respondent
Judge Bernabe. She avers that Respondent Judge assured her that the marriage contract will be released
ten (10) days after October 4, 1993. Complainant then visited the office of the Respondent Judge on
October 15, 1993 only to find out that she could not get the marriage contract because the Office of the
Local Civil Registrar failed to issue a marriage license. She claims that Respondent Judge connived with
the relatives of Marcelo Moreno to deceive her.

In his comment, Respondent denied that he conspired with the relatives of Marcelo Moreno to solemnize
the marriage for the purpose of deceiving the complainant.

Respondent contends:

1. That the Local Civil Registrar of Pasig has actually prepared the marriage license but it was not
released due to the subsequent objection of the father of Marcelo Moreno;

2. That he did not violate the law nor did he have the slightest intention to violate the law when he, in
good faith, solemnized the marriage, as he was moved only by a desire to help a begging and pleading
complainant who wanted some kind of assurance or security due to her pregnant condition;

3. That in order to pacify complainant, Marcelo Moreno requested him to perform the marriage
ceremony, with the express assurance that "the marriage license was definitely forthcoming since the
necessary documents were complete;"

4. That the contracting parties were not known to him; and

5. That both parties, particularly the complainant, were fully apprised of the effects of a marriage
performed without the required marriage license.

In a Resolution dated August 10, 1994, we referred this matter for investigation, report and
recommendation to Executive Judge Martin Villarama, Jr., of the Regional Trial Court of Pasig, Metro
Manila, Branch 156.

In his Memorandum of October 11, 1994, Judge Villarama, Jr. recommended the dismissal of the
complaint against Respondent for failure of complainant to appear on any of the scheduled hearings and
on the basis of a "Sinumpaang Salaysay" executed on behalf of complainant who has left for Singapore
by her elder sister Sherlita N. Bendanillo expressly withdrawing her complaint against Respondent.

Judge Villarama, however, also recommended that the Respondent be issued a stern warning "in view of
the fact on record that he indeed solemnized a marriage without the requisite marriage license. . . ."

On November 7, 1994, we referred the aforementioned Memorandum to the Office of the Court
Administrator for evaluation, report and recommendation.
In its Memorandum dated January 17, 1995, the Office of the Court Administrator stated:

Careful study of the records reveal that indeed respondent Judge displayed his ignorance
of the law when he solemnized the marriage without a marriage license. As a judge, he is
presumed to be aware of the existence of Article 3(2) of the Family Code of the
Philippines (E.O. 209, as amended by E.O. 227), which provides that one of the formal
requisites of a marriage is a valid marriage license. Absence of said requisite will make
the marriage void from the beginning (Article 35 , the Family Code of the Philippines).
Judges are enjoined to show more than just a cursory acquaintance of the law and other
established rules.

It recommended that Respondent be held liable for misconduct for solemnizing a marriage without a
marriage license and that the appropriate administrative sanctions be imposed against him.

We concur with the findings and recommendation of the Office of the Court Administrator.

Respondent, by his own admission that he solemnized the marriage between complainant and Marcelo
Moreno without the required marriage license, has dismally failed to live up to his commitment to be the
"embodiment of competence, integrity and independence" and to his promise to be "faithful to the law."

Respondent cannot hide behind his claim of good faith and Christian motives which, at most, would serve
only to mitigate his liability but not exonerate him completely. Good intentions could never justify
violation of the law.

Must we always repeat our reminder in Uy v. Dizon Capulong and several other cases that —

. . . the judge is the visible representation of law and justice from whom the people draw
their will and awareness to obey the law. For the judge to return that regard, the latter
must be the first to abide by the law and weave an example for the others to follow. The
judge should be studiously careful to avoid even the slightest infraction of the law. To
fulfill this mission, the judge should keep abreast of the law, the rulings and doctrines of
this Court. If the judge is already aware of them, the latter should not deliberately refrain
from applying them; otherwise such omission can never be excused.

And have we not frequently stressed that:

. . .judges should endeavor to maintain at all times the confidence and high respect
accorded to those who wield the gavel of justice. Circular No. 13, dated July 1, 1987,
enjoins judges "to conduct themselves strictly in accordance with the mandate of existing
laws and the Code of Judicial Conduct that they be exemplars in their communities and
the living personification of justice and the Rule of Law. . . .

A case in point, a definite precedent and a clear basis in determining the liability of Respondent in the
instant case is Cosca, et al. v. Palaypayon, Jr.,
et a1. where Judge Palaypayon, Jr. was duly fined and sternly warned for, among others, solemnizing
marriages without licenses. We declared:

. . . the conduct and behavior of everyone connected with an office charged with the
dispensation of justice, from the presiding judge to the lowliest clerk, should be
circumscribed with the heavy burden of responsibility. His conduct, at all times, must not
 only be characterized by propriety and decorum but, above all else, must be beyond
suspicion. Every employee should be an example of integrity, uprightness and honesty.
Integrity in a judicial office is more than a virtue, it is a necessity. It applies, without
qualification as to rank or position, from the judge to the least of its personnel, they being
standard-bearers of the exacting norms of ethics and morality imposed upon a Court of
justice.

On the charge regarding illegal marriages the Family Code pertinently provides that the
formal requisites of marriage are, inter alia, a valid marriage license except in the cases
provided for therein. Complementarily, it declares that the absence of any of the essential
or formal requisites shall generally render the marriage void ab initio and that, while an
irregularity in the formal requisites shall not affect the validity of the marriage, the party
or parties responsible for the irregularity shall be civilly, criminally and administratively
liable.

The civil aspect is addressed to the contracting parties and those affected by the illegal
marriages, and what we are providing for herein pertains to the administrative liability of
respondents, all without prejudice to their criminal responsibility. The Revised Penal
Code provides that "[p]riests or ministers of any religious denomination or sect, or civil
authorities who shall perform or authorize any illegal marriage ceremony shall be
punished in accordance with the provisions of the Marriage Law." This is of course,
within the province of the prosecutorial agencies of the Government.

Finally, on the alleged withdrawal of the complaint against Respondent, we reiterate our ruling in Imbing
v. Tiongson:

The fact that complainant has lost interest in prosecuting the administrative case against
herein respondent judge will not necessarily warrant a dismissal thereof. Once charges
have been filed, the Supreme Court may not be divested of its jurisdiction to investigate
and ascertain the truth of the matter alleged in the complaint. The Court has an interest in
the conduct of members of the Judiciary and in improving the delivery of justice to the
people, and its efforts in that direction may not be derailed by the complainant's
desistance from further prosecuting the case he or she initiated.

To condition administrative actions upon the will of every complainant, who may, for
one reason or another, condone a detestable act, is to strip this Court of its supervisory
power to discipline erring members of the Judiciary. Definitely, personal interests are not
material or controlling. What is involved here is a matter of public interest considering
that respondent is no ordinary citizen but an officer of the court whose personal behavior
not only upon the bench and in the performance of judicial duties, but also in his
everyday life, should be beyond reproach.

WHEREFORE, PREMISES CONSIDERED, Respondent is hereby ordered to pay a fine of P10,000.00

and is STERNLY WARNED that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Quiason, JJ., concur.

Case Digest
MARILOU NAMA MORENO vs. JUDGE JOSE C. BERNABE
A.M. No. MTJ-94-963 July 14, 1995
246 SCRA 120
KAPUNAN, J

Facts: Marilou Nama Moreno and Marcelo Moreno were married before the respondent Judge Jose
Bernabe on October 4, 1993 but did not process the papers for the marriage contract because the
Office of the Local Civil Registrar failed to issue a marriage license. The complainant at that time
was pregnant and begged to the judge to have her and her husband to be married by him. The
complainant then filed a complaint allegedly for deceiving her that the marriage is valid.

Respondent denied that he conspired with the relatives of Marcelo Moreno to solemnize the
marriage for the purpose of deceiving the complainant and that he did not violate the law nor did
he have the slightest intention to violate the law when he, in good faith, solemnized the marriage,
as he was moved only by a desire to help a begging and pleading complainant who wanted some
kind of assurance or security due to her pregnant condition.

Issue: Whether or not that a Judge who held a wedding without issuing a marriage contract should be
held liable even if the complaint had “expressly” withdrawn by the complainant.

Held: Even with the withdrawal of the complainant against the respondent the Supreme Court
insisted that it should still be dealt with accordingly as the accused was a member of the
judiciary and a conduct of a higher level were expected. The judge displayed ignorance of the
law which is unacceptable for his position and is therefore fined with 10, 000.00 pesos and is
sternly warned that a repetition of a similar act should be punished severely.

ALCANTARA VS. ALCANTARA 531 SCRA 446

Alcantara vs Alcantara 531 SCRA 446
G.R. No. 167746 August 28, 2007

Full Case
RESTITUTO M. ALCANTARA
-versus-
ROSITA A. ALCANTARA and HON. COURT OF APPEALS, Respondents.

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari filed by petitioner Restituto Alcantara assailing
the Decision of the Court of Appeals dated 30 September 2004 in CA-G.R. CV No. 66724 denying
petitioners appeal and affirming the decision of the Regional Trial Court (RTC) of Makati City, Branch
143, in Civil Case No. 97-1325 dated 14 February 2000, dismissing his petition for annulment of
marriage.

The antecedent facts are:

A petition for annulment of marriage was filed by petitioner against respondent Rosita A. Alcantara
alleging that on 8 December 1982 he and respondent, without securing the required marriage license,
went to the ManilaCity Hall for the purpose of looking for a person who could arrange a marriage for
them.They met a person who, for a fee, arranged their wedding before a certain Rev. Aquilino Navarro, a
Minister of the Gospel of the CDCC BR Chapel.They got married on the same day, 8 December
1982.Petitioner and respondent went through another marriage ceremony at the San Jose de Manuguit
Church in Tondo, Manila, on 26 March 1983.The marriage was likewise celebrated without the parties
securing a marriage license.The alleged marriage license, procured in Carmona, Cavite, appearing on the
marriage contract, is a sham, as neither party was a resident of Carmona, and they never went to Carmona
to apply for a license with the local civil registrar of the said place.On 14 October 1985, respondent gave
birth to their child Rose Ann Alcantara.In 1988, they parted ways and lived separate lives.Petitioner
prayed that after due hearing, judgment be issued declaring their marriage void and ordering the Civil
Registrar to cancel the corresponding marriage contract and its entry on file.

Answering petitioners petition for annulment of marriage, respondent asserts the validity of their marriage
and maintains that there was a marriage license issued as evidenced by a certification from the Office of
the Civil Registry of Carmona, Cavite. Contrary to petitioners representation, respondent gave birth to
their first child named Rose Ann Alcantara on 14 October 1985 and to another daughter named Rachel
Ann Alcantara on 27 October 1992. Petitioner has a mistress with whom he has three children.Petitioner
only filed the annulment of their marriage to evade prosecution for concubinage.Respondent, in fact, has
filed a case for concubinage against petitioner before the MetropolitanTrialCourtofMandaluyongCity,
Branch 60.Respondent prays that the petition for annulment of marriage be denied for lack of merit.

On 14 February 2000, the RTC of Makati City, Branch 143, rendered its Decision disposing as follows:
The foregoing considered, judgment is rendered as follows:
1. The Petition is dismissed for lack of merit;
2. Petitioner is ordered to pay respondent the sum of twenty thousand pesos (P20,000.00) per month as
support for their two (2) children on the first five (5) days of each month; and
3. To pay the costs.
As earlier stated, the Court of Appeals rendered its Decision dismissing the petitioners appeal.His Motion
for Reconsideration was likewise denied in a resolution of the Court of Appeals dated 6 April 2005.

The Court of Appeals held that the marriage license of the parties is presumed to be regularly issued and
petitioner had not presented any evidence to overcome the presumption.Moreover, the parties marriage
contract being a public document is a prima facie proof of the questioned marriage under Section 44,
Rule 130 of the Rules of Court.
In his Petition before this Court, petitioner raises the following issues for resolution:
a. The Honorable Court of Appeals committed a reversible error when it ruled that the Petition for
Annulment has no legal and factual basis despite the evidence on record that there was no marriage
license at the precise moment of the solemnization of the marriage.
b. The Honorable Court of Appeals committed a reversible error when it gave weight to the Marriage
License No. 7054133 despite the fact that the same was not identified and offered as evidence during the
trial, and was not the Marriage license number appearing on the face of the marriage contract.
c. The Honorable Court of Appeals committed a reversible error when it failed to apply the ruling laid
down by this Honorable Court in the case of Sy vs. Court of Appeals.(G.R. No. 127263, 12 April 2000
[330 SCRA 550]).
d. The Honorable Court of Appeals committed a reversible error when it failed to relax the observance of
procedural rules to protect and promote the substantial rights of the party litigants.

We deny the petition.

Petitioner submits that at the precise time that his marriage with the respondent was celebrated, there was
no marriage license because he and respondent just went to the ManilaCity Hall and dealt with a fixer
who arranged everything for them.The wedding took place at the stairs in ManilaCity Hall and not in
CDCC BR Chapel where Rev. Aquilino Navarro who solemnized the marriage belongs. He and
respondent did not go to Carmona, Cavite, to apply for a marriage license.Assuming a marriage license
from Carmona, Cavite, was issued to them, neither he nor the respondent was a resident of the place. The
certification of the Municipal Civil Registrar of Carmona, Cavite, cannot be given weight because the
certification states that Marriage License number 7054133 was issued in favor of Mr. Restituto Alcantara
and Miss Rosita Almario but their marriage contract bears the number 7054033 for their marriage license
number.
The marriage involved herein having been solemnized on 8 December 1982, or prior to the effectivity of
the Family Code, the applicable law to determine its validity is the Civil Code which was the law in effect
at the time of its celebration.

A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, the absence of
which renders the marriage void ab initio pursuant to Article 80(3) in relation to Article 58 of the same
Code.

Article 53 of the Civil Code which was the law applicable at the time of the marriage of the parties states:
Art. 53.No marriage shall be solemnized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2)Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character.
The requirement and issuance of a marriage license is the States demonstration of its involvement and
participation in every marriage, in the maintenance of which the general public is interested.

Petitioner cannot insist on the absence of a marriage license to impugn the validity of his marriage. The
cases where the court considered the absence of a marriage license as a ground for considering the
marriage void are clear-cut.
In Republic of the Philippines v. Court of Appeals, the Local Civil Registrar issued a certification of due
search and inability to find a record or entry to the effect that Marriage License No. 3196182 was issued
to the parties. The Court held that the certification of due search and inability to find a record or entry as
to the purported marriage license, issued by the Civil Registrar of Pasig, enjoys probative value, he being
the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.
Based on said certification, the Court held that there is absence of a marriage license that would render
the marriage void ab initio.
In Cario v. Cario, the Court considered the marriage of therein petitioner Susan Nicdao and the deceased
Santiago S. Carino as void ab initio.The records reveal that the marriage contract of petitioner and the
deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan,
Metro Manila, their office has no record of such marriage license. The court held that the certification
issued by the local civil registrar is adequate to prove the non-issuance of the marriage license. Their
marriage having been solemnized without the necessary marriage license and not being one of the
marriages exempt from the marriage license requirement, the marriage of the petitioner and the deceased
is undoubtedly void ab initio.

In Sy v. Court of Appeals, the marriage license was issued on 17 September 1974, almost one year after
the ceremony took place on 15 November 1973.The Court held that the ineluctable conclusion is that the
marriage was indeed contracted without a marriage license.
In all these cases, there was clearly an absence of a marriage license which rendered the marriage void.

Clearly, from these cases, it can be deduced that to be considered void on the ground of absence of a
marriage license, the law requires that the absence of such marriage license must be apparent on the
marriage contract, or at the very least, supported by a certification from the local civil registrar that no
such marriage license was issued to the parties.In this case, the marriage contract between the petitioner
and respondent reflects a marriage license number.A certification to this effect was also issued by the
local civil registrar of Carmona, Cavite. The certification moreover is precise in that it specifically
identified the parties to whom the marriage license was issued, namely Restituto Alcantara and Rosita
Almario, further validating the fact that a license was in fact issued to the parties herein.

The certification of Municipal Civil Registrar Macrino L. Diaz of Carmona, Cavite, reads:
This is to certify that as per the registry Records of Marriage filed in this office, Marriage License No.
7054133 was issued in favor of Mr. Restituto Alcantara and Miss Rosita Almario on December 8, 1982.

This Certification is being issued upon the request of Mrs. Rosita A. Alcantara for whatever legal purpose
or intents it may serve.

This certification enjoys the presumption that official duty has been regularly performed and the issuance
of the marriage license was done in the regular conduct of official business. The presumption of regularity
of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty.
However, the presumption prevails until it is overcome by no less than clear and convincing evidence to
the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable
intendment will be made in support of the presumption and, in case of doubt as to an officers act being
lawful or unlawful, construction should be in favor of its lawfulness. Significantly, apart from these,
petitioner, by counsel, admitted that a marriage license was, indeed, issued in Carmona, Cavite.

Petitioner, in a faint attempt to demolish the probative value of the marriage license, claims that neither he
nor respondent is a resident of Carmona, Cavite. Even then, we still hold that there is no sufficient basis
to annul petitioner and respondents marriage. Issuance of a marriage license in a city or municipality, not
the residence of either of the contracting parties, and issuance of a marriage license despite the absence of
publication or prior to the completion of the 10-day period for publication are considered mere
irregularities that do not affect the validity of the marriage. An irregularity in any of the formal requisites
of marriage does not affect its validity but the party or parties responsible for the irregularity are civilly,
criminally and administratively liable.

Again, petitioner harps on the discrepancy between the marriage license number in the certification of the
Municipal Civil Registrar, which states that the marriage license issued to the parties is No. 7054133,
while the marriage contract states that the marriage license number of the parties is number
7054033.Once more, this argument fails to sway us.It is not impossible to assume that the same is a mere
a typographical error, as a closer scrutiny of the marriage contract reveals the overlapping of the numbers
0 and 1, such that the marriage license may read either as 7054133 or 7054033. It therefore does not
detract from our conclusion regarding the existence and issuance of said marriage license to the parties.

Under the principle that he who comes to court must come with clean hands, petitioner cannot pretend
that he was not responsible or a party to the marriage celebration which he now insists took place without
the requisite marriage license. Petitioner admitted that the civil marriage took place because he initiated it.
Petitioner is an educated person. He is a mechanical engineer by profession. He knowingly and
voluntarily went to the Manila City Hall and likewise, knowingly and voluntarily, went through a
marriage ceremony. He cannot benefit from his action and be allowed to extricate himself from the
marriage bond at his mere say-so when the situation is no longer palatable to his taste or suited to his
lifestyle. We cannot countenance such effrontery. His attempt to make a mockery of the institution of
marriage betrays his bad faith.
Petitioner and respondent went through a marriage ceremony twice in a span of less than one year
utilizing the same marriage license. There is no claim that he went through the second wedding ceremony
in church under duress or with a gun to his head. Everything was executed without nary a whimper on the
part of the petitioner.
In fact, for the second wedding of petitioner and respondent, they presented to the San Jose de Manuguit
Church the marriage contract executed during the previous wedding ceremony before the Manila City
Hall. This is confirmed in petitioners testimony as follows

WITNESS
As I remember your honor, they asked us to get the necessary document prior to the wedding.
COURT
What particular document did the church asked you to produce? I am referring to the San Jose de
Manuguit church.
WITNESS
I dont remember your honor.
COURT
Were you asked by the church to present a Marriage License?
WITNESS
I think they asked us for documents and I said we have already a Marriage Contract and I dont
know if it is good enough for the marriage and they accepted it your honor.
COURT
In other words, you represented to the San Jose de Manuguit church that you have with you
already a Marriage Contract?
WITNESS
Yes your honor.
COURT
That is why the San Jose de Manuguit church copied the same marriage License in the Marriage
Contract issued which Marriage License is Number 7054033.
WITNESS
Yes your honor.

The logical conclusion is that petitioner was amenable and a willing participant to all that took place at
that time. Obviously, the church ceremony was confirmatory of their civil marriage, thereby cleansing
whatever irregularity or defect attended the civil wedding.
Likewise, the issue raised by petitioner — that they appeared before a fixer who arranged everything for
them and who facilitated the ceremony before a certain Rev. Aquilino Navarro, a Minister of the Gospel
of the CDCC Br Chapel — will not strengthen his posture. The authority of the officer or clergyman
shown to have performed a marriage ceremony will be presumed in the absence of any showing to the
contrary. Moreover, the solemnizing officer is not duty-bound to investigate whether or not a marriage
license has been duly and regularly issued by the local civil registrar. All the solemnizing officer needs to
know is that the license has been issued by the competent official, and it may be presumed from the
issuance of the license that said official has fulfilled the duty to ascertain whether the contracting parties
had fulfilled the requirements of law.

Semper praesumitur pro matrimonio. The presumption is always in favor of the validity of the marriage.
Every intendment of the law or fact leans toward the validity of the marriage bonds. The Courts look
upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the presumption is
of great weight.
Wherefore, premises considered, the instant Petition is Denied for lack of merit. The decision of the
Court of Appeals dated 30 September 2004 affirming the decision of the Regional Trial Court, Branch
143 of Makati City, dated 14 February 2000, are AFFIRMED. Costs against petitioner.

SO ORDERED.
Case Digest

Alcantara vs Alcantara
G.R. No. 167746
August 28, 2007
J. Chico-Nazario

Facts: Restituto filed a petition for annulment of marriage against Rosita alleging that on 8 Dec 1982 he
and Rosita, without securing the required marriage license, went to the Manila City Hall for the
purpose of looking for a “fixer” who could arrange a marriage for them before a certain Rev.
Navarro. They got married on the same day. Restituto and Rosita went through another marriage
ceremony in Tondo, Manila, on 26 March 1983. The marriage was again celebrated without the
parties securing a marriage license. The alleged marriage license, procured in Carmona, Cavite,
appearing on the marriage contract, is a sham, as neither party was a resident of Carmona, and
they never went to Carmona to apply for a license with the local civil registrar of the said place.
In 1988, they parted ways and lived separate lives. Petitioner prayed that after due hearing,
judgment be issued declaring their marriage void and ordering the Civil Registrar to cancel the
corresponding marriage contract and its entry on file. Rosita however asserts the validity of
their marriage and maintains that there was a marriage license issued as evidenced by a
certification from the Office of the Civil Registry of Carmona, Cavite.

Restituto has a mistress with whom he has three children. Restituto only filed the annulment of
their marriage to evade prosecution for concubinage. Rosita, in fact, has filed a case for
concubinage against Restituto.

Issue: Whether or not their marriage is valid.

Ruling: The requirement and issuance of a marriage license is the State’s demonstration of its
involvement and participation in every marriage, in the maintenance of which the general public
is interested. Petitioner cannot insist on the absence of a marriage license to impugn the validity
of his marriage. The cases where the court considered the absence of a marriage license as a
ground for considering the marriage void are clear-cut. In this case, the marriage contract between
the petitioner and respondent reflects a marriage license number. A certification to this effect
was also issued by the local civil registrar of Carmona, Cavite. The certification moreover is
precise in that it specifically identified the parties to whom the marriage license was issued,
namely Restituto Alcantara and Rosita Almario, further validating the fact that a license was in
fact issued to the parties herein.Petitioner, in a faint attempt to demolish the probative value of
the marriage license, claims that neither he nor respondent is a resident of Carmona, Cavite.
Even then, we still hold that there is no sufficient basis to annul petitioner and respondent’s
marriage. Issuance of a marriage license in a city or municipality, not the residence of either of
the contracting parties, and issuance of a marriage license despite the absence of publication or
prior to the completion of the 10-day period for publication are considered mere irregularities that
do not affect the validity of the marriage. An irregularity in any of the formal requisites of
marriage does not affect its validity but the party or parties responsible for the irregularity are
civilly, criminally and administratively liable. Semper praesumitur pro matrimonio. The
presumption is always in favor of the validity of the marriage. Every intendment of the law or
fact leans toward the validity of the marriage bonds. The Courts look upon this presumption with
great favor. It is not to be lightly repelled; on the contrary, the presumption is of great weight.
Niñal vs Bayadog 328 SCRA 122
G.R. No. 133778 March 14, 2000

Full Case

ENGRACE NIÑAL for Herself and as Guardian ad Litem of the minors BABYLINE NIÑAL, INGRID
NIÑAL, ARCHIE NIÑAL & PEPITO NIÑAL, JR., petitioners,
vs.
NORMA BAYADOG, respondent.

YNARES-SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his
death?

Pepito Niñal was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8
months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without
any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986
stating that they had lived together as husband and wife for at least five years and were thus exempt from
securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father's
death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging
that the said marriage was void for lack of a marriage license. The case was filed under the assumption
that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma
filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among
the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code.

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the
petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following
issues:

(1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration
of the nullity of marriage of their deceased father, Pepito G. Niñal, with her specially so when at
the time of the filing of this instant suit, their father Pepito G. Niñal is already dead;

(2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and
void ab initio;

(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after
it was dissolved due to their father's death.

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their
father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code
which enumerates the time and the persons who could initiate an action for annulment of
marriage. Hence, this petition for review with this Court grounded on a pure question of law.

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the
allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which
produces no legal effect under Section 3, Rule 7, of the 1997 Rules. However, upon motion of
petitioners, this Court reconsidered the dismissal and reinstated the petition for review.

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the
time of their celebration. A valid marriage license is a requisite of marriage under Article 53 of the Civil
Code, the absence of which renders the marriage void ab initio pursuant to Article 80(3) in relation to
Article 58. The requirement and issuance of marriage license is the State's demonstration of its
involvement and participation in every marriage, in the maintenance of which the general public is
interested. This interest proceeds from the constitutional mandate that the State recognizes the sanctity of
family life and of affording protection to the family as a basic "autonomous social
institution." Specifically, the Constitution considers marriage as an "inviolable social institution," and is
the foundation of family life which shall be protected by the State. This is why the Family Code
considers marriage as "a special contract of permanent union" and case law considers it "not just an
adventure but a lifetime commitment."

However, there are several instances recognized by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in Article 76, referring to the marriage of a man and a
woman who have lived together and exclusively with each other as husband and wife for a continuous
and unbroken period of at least five years before the marriage. The rationale why no license is required in
such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant's
name for a marriage license. The publicity attending the marriage license may discourage such persons
from legitimizing their status. To preserve peace in the family, avoid the peeping and suspicious eye of
public exposure and contain the source of gossip arising from the publication of their names, the law
deemed it wise to preserve their privacy and exempt them from that requirement.

There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without
any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of
majority, and, being unmarried, have lived together as husband and wife for at least five years, and that
we now desire to marry each other." The only issue that needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year
period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation
wherein both parties are capacitated to marry each other during the entire five-year continuous period or
should it be a cohabitation wherein both parties have lived together and exclusively with each other as
husband and wife during the entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have either disappeared or intervened
sometime during the cohabitation period?

Working on the assumption that Pepito and Norma have lived together as husband and wife for five years
without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is the special contract of marriage to validate the union.
In other words, the five-year common-law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of the marriage.
This 5-year period should be the years immediately before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity — meaning no third party was involved at anytime
within the 5 years and continuity — that is unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were capacitated to marry each other during
the entire five years, then the law would be sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same footing with those who lived faithfully with
their spouse. Marriage being a special relationship must be respected as such and its requirements must be
strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the law. The parties should not be afforded any excuse
to not comply with every single requirement and later use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should be no exemption from securing a marriage license
unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be united in matrimony and that
anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to
the local civil registrar. The Civil Code provides:

Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. . . .
 Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining persons under oath. . . .

This is reiterated in the Family Code thus:

Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof. . . .

Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought
to his attention, he shall note down the particulars thereof and his findings thereon in the
application for a marriage license. . . .

This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of
multiple marriages by the same person during the same period. Thus, any marriage subsequently
contracted during the lifetime of the first spouse shall be illegal and void, subject only to the exception in
cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of two or more marriages and the having of extramarital
affairs are considered felonies, i.e., bigamy and concubinage and adultery. The law sanctions monogamy.

In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with
each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's
first marriage was dissolved to the time of his marriage with respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and
respondent had started living with each other that has already lasted for five years, the fact remains that
their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the
nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the
marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with
respondent. It is immaterial that when they lived with each other, Pepito had already been separated in
fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the
filial companionship between the spouses cannot make any cohabitation by either spouse with any third
party as being one as "husband and wife".

Having determined that the second marriage involved in this case is not covered by the exception to the
requirement of a marriage license, it is void ab initio because of the absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to declare their
father's marriage void after his death?

Contrary to respondent judge's ruling, Article 47 of the Family Code cannot be applied even by analogy
to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied
upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime before the
death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file
an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage
that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is
considered as having never to have taken place and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified.
A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage
can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either
party but voidable marriages can be assailed only during the lifetime of the parties and not after death of
either, in which case the parties and their offspring will be left as if the marriage had been perfectly
valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where
the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party
may attack a void marriage. Void marriages have no legal effects except those declared by law
concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual
joint contribution, and its effect on the children born to such void marriages as provided in Article 50 in
relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the
property regime governing voidable marriages is generally conjugal partnership and the children
conceived before its annulment are legitimate.

Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond
between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there
was a marriage bond that was dissolved between the two. It should be noted that their marriage was void
hence it is deemed as if it never existed at all and the death of either extinguished nothing.

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the
nullity of a marriage. "A void marriage does not require a judicial decree to restore the parties to their
original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary,
yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient
that the nullity of the marriage should be ascertained and declared by the decree of a court of competent
jurisdiction." "Under ordinary circumstances, the effect of a void marriage, so far as concerns the
conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore,
being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of
marriage may be material, either direct or collateral, in any civil court between any parties at any time,
whether before or after the death of either or both the husband and the wife, and upon mere proof of the
facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is
not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted
during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is
made good ab initio. But Article 40 of the Family Code expressly provides that there must be a judicial
declaration of the nullity of a previous marriage, though void, before a party can enter into a second
marriage and such absolute nullity can be based only on a final judgment to that effect. For the same
reason, the law makes either the action or defense for the declaration of absolute nullity of marriage
imprescriptible. Corollarily, if the death of either party would extinguish the cause of action or the
ground for defense, then the same cannot be considered imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an
absolute nullity.1âwphi1 For other purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal
case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted
to question the same so long as it is essential to the determination of the case. This is without prejudice to
any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is
necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment
declaring such previous marriage void" in Article 40 of the Family Code connotes that such final
judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City,
Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is
ordered REINSTATED.1âwphi1.nêt

SO ORDERED.
Case Digest
ENGRACE NIÑAL vs. NORMA BAYADOG
G.R. No. 133778 March 14, 2000
328 SCRA 122
YNARES-SANTIAGO, J.

Facts: Pepito Ninal was married with Teodulfa Bellones on September 26, 1974. They had 3 children—
Babyline Niñal, Ingrid Niñal, Archie Niñal and Pepito Niñal Jr.—the petitioners. Due to the shot
inflicted by Pepito to Teodulfa, the latter died on April 24, 1985. 1 year and 8 months later on
December 11, 1986, Pepito and Norma Badayog got married without any marriage licence. They
instituted an affidavit stating that they had lived together for at least 5 years exempting from
securing the marriage license. Pepito died in a car accident on February 19, 1997. After his
death, petitioners filed a petition for declaration of nullity of the marriage of Pepito and Norma
alleging that said marriage was void for lack of marriage license.

Issues: Whether or not the second marriage of Pepito was void.

Whether or not the heirs of the deceased may file for the declaration of the nullity of Pepito’s
marriage and even after his death.

Ruling:Yes, the second marriage of Pepito was void for absence of marriage licence.

Yes, the heirs of the deceased may file for the declaration of the nullity of Pepito’s marriage. The
marriage will be disregarded or treated as non-existent by the courts upon mere proof of facts
even after the latter’s death.

Even though Pepito and Norma instituted an affidavit and claimed that they cohabit for at least 5
years, the marriage would not be valid because from the time of Pepito’s first marriage was
dissolved to the time of his marriage with Norma, only about 20 months had elapsed. Pepito and
his first wife may had separated in fact, and thereafter both Pepito and Norma had started living
with each other that has already lasted for five years, the fact remains that their five-year period
cohabitation was not the cohabitation contemplated by law. Hence, his marriage to Norma is still
void.

Void marriages are deemed to have not taken place and cannot be the source of rights. It can be
questioned even after the death of one of the parties and any proper interested party may attack a
void marriage.

Full Case
HERMINIA BORJA-MANZANO, petitioner,
vs.
JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent.

DAVIDE, JR., C.J.:

The solemnization of a marriage between two contracting parties who were both bound by a prior existing
marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez,
Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges
respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of
the Court Administrator on 12 May 1999.

Complainant avers that she was the lawful wife of the late David Manzano, having been married to him
on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City. Four children were
born out of that marriage. On 22 March 1993, however, her husband contracted another marriage with
one Luzviminda Payao before respondent Judge. When respondent Judge solemnized said marriage, he
knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that
both contracting parties were "separated."

Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage
between Manzano and Payao he did not know that Manzano was legally married. What he knew was that
the two had been living together as husband and wife for seven years already without the benefit of
marriage, as manifested in their joint affidavit. According to him, had he known that the late Manzano
was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be
charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being
designed merely to harass him.

After an evaluation of the Complaint and the Comment, the Court Administrator recommended that
respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000,
with a warning that a repetition of the same or similar act would be dealt with more severely.

On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the
case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative.

For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint
and setting aside his earlier Comment. He therein invites the attention of the Court to two separate
affidavits of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff
upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that
they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective
marriages had been marked by constant quarrels, they had both left their families and had never cohabited
or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those
affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family
Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment to marry each other.
 The contracting parties shall state the foregoing facts in an affidavit before any person authorized
by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained
the qualifications of the contracting parties and found no legal impediment to the marriage.

For this provision on legal ratification of marital cohabitation to apply, the following requisites must
concur:

1. The man and woman must have been living together as husband and wife for at least five years
before the marriage;

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of
marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years
[and are without legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage.

Not all of these requirements are present in the case at bar. It is significant to note that in their separate
affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and
Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage
contract, it was indicated that both were "separated."

Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment,
which would make the subsequent marriage null and void. In fact, in his Comment, he stated that had he
known that the late Manzano was married he would have discouraged him from contracting another
marriage. And respondent Judge cannot deny knowledge of Manzano’s and Payao’s subsisting previous
marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to
before him.

The fact that Manzano and Payao had been living apart from their respective spouses for a long time
already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of
legal separation to live separately from each other, but in such a case the marriage bonds are not severed.
Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to
remarry. This holds true all the more when the separation is merely de facto, as in the case at bar.

Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda
Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free
and voluntary cohabitation with another person for at least five years does not severe the tie of a
subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who
are legally capacitated to marry each other is merely a ground for exemption from marriage license. It
could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the
impediment of a prior existing marriage.

Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and
bigamous marriage. The maxim "ignorance of the law excuses no one" has special application to
judges, who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence,
integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal
principles. And when the law transgressed is simple and elementary, the failure to know it constitutes
gross ignorance of the law.

ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the
MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is
increased to P20,000.

SO ORDERED.
Case Digest
HERMINIA BORJA-MANZANO vs. JUDGE ROQUE R. SANCHEZ, MTC
A.M. No. MTJ-00-1329 March 8, 2001
354 SCRA 1
DAVIDE, JR., C.J.

FACTS: Complainant, HerminiaBorja-Manzano charges respondent Judge Roque R. Sanchez through

sworn Complaint-Affidavit filed with the Office of the Court Administrator on May 12, 1999,
with gross ignorance of the law by solemnizing a marriage between her husband and another
woman, who were both bound to prior existing marriage.

HerminiaBorja-Manzano affirms that she is the lawful wife of David Manzano, having been
married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan
City.Four children were born out of that marriage.However, her husband contracted another
marriage to LuzvimindaPayao on March 22, 1993 before Judge Roque R. Sanchez, who then
knew or must know that such marriage is void or bigamous since both contracting parties were
separated as stated in their marriage contract.

ISSUE: Whether or not the respondent Judge is guilty.

RULING: Yes. The Respondent Judge demonstrated gross ignorance of the law when he solemnized a
void and bigamous marriage. Under Article 34 of Family Code, the requisites enumerated in the
provision on legal ratification of marital cohabitation to apply are not all present. It is clearly
stated in the affidavits executed by both David Manzano and Luzviminda Payao the fact of their
prior existing marriage and both were “separated.” Marital cohabitation for a long period of time
is a mere exemption from marriage license. Just like separation, free and voluntary cohabitation
with another person for at least five years does not severe the tie of a subsisting previous
marriage.The solemnizing officer knew and ought to know that a subsisting previous marriage is
a diriment impediment, which would make the subsequent marriage null and void. Clearly,
respondent Judge demonstrated gross ignorance of the law when he solemnized a void and
bigamous marriage.

The Court Administrator recommended that respondent be found guilty of gross ignorance of the
law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar
act would be dealt with more severely. The recommendation of the Court Administrator is
adopted with modification that the fine of P2,000 is increased to P20,000.

Full case
A.M. No. MTJ-07-1691 April 2, 2013
(Formerly A.M. No. 07-7-04-SC)
OFFICE OF THE COURT ADMINISTRATOR, Petitioner,
vs.
JUDGE ANATALIO S. NECESSARIO, Branch 2; JUDGE GIL R. ACOSTA, Branch 3; JUDGE
ROSABELLA M. TORMIS, Branch 4; and JUDGE EDGEMELO C. ROSALES, Branch 8; all of
MTCC-Cebu ·City; CELESTE P. RETUYA, Clerk III, MTCC Branch 6, Cebu City; CORAZON P.
RETUYA, Court Stenographer, MTCC, Branch 6, Cebu City; RHONA F. RODRIGUEZ,
Administrative Officer I, Office of the Clerk of Court, Regional Trial Court (RTC) Cebu City; EMMA
D. VALENCIA, Court Stenographer III, RTC, Branch 18, Cebu City; MARILOU CABANEZ, Court
Stenographer, MTCC, Branch 4, Cebu City; DESIDERIO S. ARANAS, Process Server, MTCC, Branch
3, Cebu City; REBECCA ALESNA, Court Interpreter, MTCC, Branch 1, Cebu City; and HELEN
MONGGAYA, Court Stenographer, MTCC, Branch 4, Cebu City. Respondents.
*PERLAS-BERNABE

DECISION

PER CURIAM:

This Court has long held that "[the] administration of justice is circumscribed with a heavy burden of
responsibility. It requires that everyone involved in its dispensation ― from the presiding judge to the lowliest
clerk ― live up to the strictest standards of competence, honesty, and integrity in the public service."1

THE CASE

This is an administrative case that stemmed from the 6 July 2007 Memorandum of the Office of the Court
Administrator (OCA).2 The judicial audit team created by the OCA reported alleged irregularities in the
solemnization of marriages in several branches of the Municipal Trial Court in Cities (MTCC) and Regional
Trial Court (RTC) in Cebu City.3 Certain package fees were offered to interested parties by "fixers" or
"facilitators" for instant marriages.4

THE FACTS

On 3 July 2007, Atty. Rullyn Garcia, Region 7 Judicial Supervisor, proceeded to Cebu City and headed the
audit team created by OCA in investigating Branches 2, 3, 4, and 8 of the MTCC in Cebu City.5 A female and
male lawyer of the audit team went undercover as a couple looking to get married. They went to the Palace of
Justice and were directed by the guard on duty to go to Branch 4 and look for a certain "Meloy". The male
lawyer feared that he would be recognized by other court personnel, specifically the Clerk of Court of Branch
4 who was a former law school classmate. The two lawyers then agreed that only the female lawyer would go
inside and inquire about the marriage application process. Inside Branch 4, a woman named Helen approached
and assisted the female lawyer. When the female lawyer asked if the marriage process could be rushed, Helen
assured the lawyer that the marriage could be solemnized the next day, but the marriage certificate would only
be dated the day the marriage license becomes available. Helen also guaranteed the regularity of the process
for a fee of three thousand pesos (₱3,000) only.6

In its 10 July 2007 Resolution, this Court treated the Memorandum dated 6 July 2007 of the judicial audit team
as a formal administrative complaint and directed Judge Anatalio S. Necessario, Judge Gil R. Acosta, Judge
Rosabella M. Tormis, and Judge Edgemelo C. Rosales to submit their respective comments.7 The Court also
suspended the judges pending resolution of the cases against them.8

On 24 August 2007, the OCA through Senior Deputy Court Administrator Zenaida N. Elepaño submitted its
Memorandum dated 29 August 20079 and Supplemental Report.10 Six hundred forty-three (643) marriage
certificates were examined by the judicial audit team.11 The team reported that out of the 643 marriage
certificates examined, 280 marriages were solemnized under Article 3412 of the Family Code.13 The logbooks of
the MTCC Branches indicate a higher number of solemnized marriages than the number of marriage
certificates in the courts’ custody.14 There is also an unusual number of marriage licenses obtained from the
local civil registrars of the towns of Barili and Liloan, Cebu.15 There were even marriages solemnized at 9 a.m.
with marriage licenses obtained on the same day.16 The town of Barili, Cebu is more than sixty (60) kilometers
away from Cebu City and entails a travel time of almost two (2) hours.17 Liloan, Cebu, on the other hand, is
more than ten (10) kilometers away from Cebu City.18

The judicial audit team, after tape-recording interviews with other court and government personnel, also
reported the following:

1) Celeste P. Retuya admitted that she assisted couples who wanted to get married by checking whether their
documents were complete and referred them to Judges Tormis, Necessario, and Rosales afterwards;19

2) Corazon P. Retuya referred couples who wanted to get married to Judge Necessario. There were also
"assistants" who would go over the couples’ documents before these couples would be referred to Judge
Necessario. Retuya also narrated several anomalies involving foreign nationals and their acquisition of
marriage licenses from the local civil registrar of Barili, Cebu despite the fact that parties were not residents of
Barili. Those anomalous marriages were solemnized by Judge Tormis;20

3) Rhona F. Rodriguez assisted couples and referred them to any of the available judges. She admitted that
after the payment of the solemnization fee of three hundred pesos (₱300), a different amount, as agreed upon
by the parties and the judge, was paid to the latter.21 She admitted that she accepted four thousand pesos
(₱4,000) for facilitating the irregular marriage of Moreil Baranggan Sebial and Maricel Albater although she
gave the payment to a certain "Mang Boy";22

4) Emma D. Valencia admitted that she assisted couples seeking to get married and that most of the marriage
licenses were obtained from the local civil registrar of Barili and Liloan, Cebu because the registrars in those
towns were not strict about couples’ attendance in the family planning seminar. She also admitted that couples
gave her food while the judge received five hundred pesos (₱500) if the marriage was solemnized inside the
chambers. Foreigners were said to have given twice the said amount. The judge accepted one thousand five
hundred pesos (₱1,500) for gasoline expenses if the marriage was celebrated outside the chambers;23

5) Marilou Cabañez admitted that she assisted couples and referred them to Judges Tormis, Necessario, or
Rosales. However, she denied receiving any amount from these couples. She told the audit team that during the
8th, 18th, and 28th of the month, seven (7) to eight (8) couples would go directly to Judge Rosabella M.
Tormis for a fifteen-minute marriage solemnization;24

6) Desiderio S. Aranas admitted that he started assisting couples in 2003. He told the investigating team that
Judge Gil Acosta would talk to couples wishing to get married without a license. He would produce a joint
affidavit of cohabitation form on which he or the clerk of court would type the entries. The judge would then
receive an envelope containing money from the couple. Aranas also confirmed the existence of "open-dated"
marriage certificates;25

7) Antonio Flores, Branch 9 Process Server of RTC Cebu City, told the investigating team that couples looked
for Judge Geraldine Faith A. Econg, Presiding Judge, Regional Trial Court, Branch 9, Cebu City, "para menos
ang bayad."26 The excess of three hundred pesos (₱300) that couples paid to Judge Econg as solemnization fee
went to a certain "sinking fund" of Branch 9;27

8) Rebecca L. Alesna admitted that she usually referred couples to Judges Necessario or Tormis. Couples who
wanted to get married under Article 34 of the Family Code were advised to buy a pro-forma affidavit of joint
cohabitation for ten pesos (₱10);28
9) Arvin Oca, Branch 1 Process Server of the MTCC of Cebu City, admitted that he referred couples to Branch
2, Clerk of Court, Harrish Co. Oca declared that on 28 June 2007, he accompanied a couple to the chambers of
Judge Necessario.29 He informed the judge that the couple only had birth certificates.30 The respondent judge
then inquired about their ages and asked them if they had been previously married then proceeded to solemnize
the marriage;31 and

10) Filomena C. Lopez, local civil registrar of Barili, Cebu, declared that she does not scrutinize marriage
applications.32 Couples who are non-Barili residents are able to obtain marriage licenses from her Barili office
because these couples have relatives residing in Barili, Cebu.33 She also added that while couples still need to
submit a certificate of attendance in the family planning seminar, they may attend it before or after the filing of
the application for marriage license.34

Affidavits of private persons were also attached to the records. Jacqui Lou Baguio-Manera was a resident of
Panagdait, Mabolo, Cebu and on 21 May 2007, she and her then fiancé wanted to set a marriage date.35 Her
younger sister who was married in a civil wedding last year gave her the number of a certain "Meloy". After
talking to Meloy on the phone, the wedding was scheduled at 2 p.m. on 23 May 2007 and the couple were
asked to bring their birth certificates. No marriage license was required from them. Meloy asked for a fee of
one thousand five hundred pesos (₱1,500). According to Baguio-Manera, their marriage certificate was
marked as "No marriage license was necessary, the marriage being solemnized under Art. 34 of Executive
Order No. 209". Their marriage was solemnized that day by Judge Rosabella M. Tormis. Baguio-Manera
claimed that they did not understand what that statement meant at that time. However, in her affidavit, she
declared that the situation premised under Article 34 did not apply to her and her fiancé.

Mary Anne Flores-Patoc was a resident of Barrio Luz, Cebu City. In her 5 July 2007 affidavit, she recounted
how she and her boyfriend went to the Provincial Capitol to get married in February 2006. While logging in at
the entrance, they were offered assistance by the guards for a fee of one thousand five hundred pesos (₱1,500).
The guard also offered to become "Ninong" or a witness to the wedding. The couple became suspicious and
did not push through with the civil wedding at that time.

On 27 November 2007, the Court En Banc issued a resolution: a) requiring Judges Anatalio S. Necessario, Gil
R. Acosta, Rosabella M. Tormis, and Edgemelo C. Rosales of the MTCC, Branches 2, 3, 4, and 8, respectively,
of Cebu City, to comment on the findings of the 14 August 2007 Supplemental Report of the OCA, within
fifteen (15) days from notice; b) directing the Process Servicing Unit to furnish the judges with a copy of the
Supplemental Report; c) requiring the court personnel listed below to show cause within fifteen (15) days from
notice why no disciplinary action should be taken against them for their alleged grave misconduct and
dishonesty and impleading them in this administrative matter:

1) Celeste P. Retuya, Clerk III, MTCC, Branch 6, Cebu City;

2) Corazon P. Retuya, Court Stenographer, MTCC, Branch 6, Cebu City;

3) Rhona F. Rodriguez, Administrative Officer I, Office of the Clerk of Court, RTC, Cebu City;

4) Emma D. Valencia, Court Stenographer III, RTC, Branch 18, Cebu City;

5) Marilou Cabañez, Court Stenographer, MTCC, Branch 4, Cebu City;

6) Desiderio S. Aranas, Process Server, MTCC, Branch 3, Cebu City;

7) Rebecca Alesna, Court Interpreter, MTCC, Branch 1, Cebu City;

8) Helen Mongaya,Court Stenographer, MTCC, Branch 4, Cebu City.

The Court in the same resolution also: a) ordered the referral to the Office of the Deputy Ombudsman for the
Visayas for appropriate action on the administrative matter involving the violation of the law on marriage by
Ms. Filomena C. Lopez, Local Civil Registrar of Barili, Cebu, and one Ms. Veronica S. Longakit, former
Local Civil Registrar of Liloan, Cebu; b) directed the Process Serving Unit to furnish the Office of the Deputy
Ombudsman for the Visayas with a copy of the Supplemental Report of the OCA; and c) required Judge
Geraldine Faith A. Econg, RTC, Branch 9, Cebu City, to comment within fifteen (15) days from notice on the
statement of staff member Antonio Flores saying that Branch 9’s court personnel received an amount in excess
of the ₱300 solemnization fee paid by couples whose marriages were solemnized by her. This amount goes to
the court’s "sinking fund".36

In their Comments and/or Answers to the Memorandum dated 5 July 2007 of the OCA and its Supplemental
Report,37 the respondent judges argued the following:

Judge Anatalio S. Necessario relies on the presumption of regularity regarding the documents presented to him
by contracting parties.38 He claims that marriages he solemnized under Article 34 of the Family Code had the
required affidavit of cohabitation. He claims that pro forma affidavits of cohabitation have been used by other
judges even before he became a judge.39 He avers that he ascertains the ages of the parties, their relationship,
and the existence of an impediment to marry.40 He also asks the parties searching questions and clarifies
whether they understood the contents of the affidavit and the legal consequences of its execution.41 The judge
also denies knowledge of the payment of solemnization fees in batches.42 In addition, he argues that it was a
process server who was in-charge of recording marriages on the logbook, keeping the marriage certificates,
and reporting the total number of marriages monthly.43

Judge Gil R. Acosta argues that the law only requires a marriage license and that he is not required to inquire
whether the license was obtained from a location where one of the parties is an actual resident.44 The judge
believes that it is not his duty to verify the signature on the marriage license to determine its authenticity
because he relies on the presumption of regularity of public documents.45 The judge also outlines his own
procedure in solemnizing marriages which involves: first, the determination whether the solemnization fee was
paid; second, the presentation of the affidavit of cohabitation and birth certificates to ascertain identity and age
of the parties; third, if one of the parties is a foreigner, the judge asks for a certificate of legal capacity to
marry, passport picture, date of arrival, and divorce papers when the party is divorced; fourth, he then asks the
parties and their witnesses questions regarding cohabitation and interviews the children of the parties, if any.46

Judge Rosabella M. Tormis denies the charges brought by the OCA. She calls the actions of the judicial audit
team during the investigation an "entrapment".47 She also claims that there is nothing wrong with solemnizing
marriages on the date of the issuance of the marriage license and with the fact that the issued marriage license
was obtained from a place where neither of the parties resided.48 As to the pro forma affidavits of cohabitation,
she argues that she cannot be faulted for accepting it as genuine as she and the other judges are not handwriting
experts.49 The affidavits also enjoy the presumption of regularity.50 Judge Tormis also discredits the affidavit of
Baguio-Manera as hearsay.51 The respondent said that when Baguio-Manera and her husband were confronted
with the affidavit they executed, they affirmed the veracity of the statements, particularly the fact that they
have been living together for five years.52 The judge also attributes the irregularity in the number of marriages
solemnized in her sala to the filing clerks.53

Judge Edgemelo C. Rosales denies violating the law on marriage.54 He maintains that it is the local civil
registrar who evaluates the documents submitted by the parties, and he presumes the regularity of the license
issued.55 It is only when there is no marriage license given that he ascertains the qualifications of the parties
and the lack of legal impediment to marry.56 As to the affidavits of cohabitation, the judge believes there is
nothing wrong with the fact that these are pro forma. He states that marriage certificates are required with the
marriage license attached or the affidavit of cohabitation only and the other documents fall under the
responsibility of the local civil registrar. He surmises that if the marriage certificate did not come with the
marriage license or affidavit of cohabitation, the missing document might have been inadvertently detached,
and it can be checked with the proper local civil registrar. As to the payment of the docket fee, he contends that
it should be paid after the solemnization of the marriage and not before because judges will be pre-empted
from ascertaining the qualifications of the couple. Besides, the task of collecting the fee belongs to the Clerk of
Court.57 The judge also argues that solemnization of marriage is not a judicial duty.58

On 12 November 2007, Judges Tormis and Rosales filed a Memorandum of Law with Plea for Early
Resolution, Lifting of Suspension and Dismissal of Case.59 This Court in a Resolution dated 11 December 2007
lifted the suspension of the respondent judges but prohibited them from solemnizing marriages until further
ordered.60

On 7 December 2007, Judges Tormis and Rosales filed a Motion for Early Resolution with Waiver of Formal
and/or Further Investigation and Motion to Dismiss.61 In a Resolution dated 15 January 2008, the Court noted
the motion and granted the prayer of Judges Tormis and Rosales for the payment of their unpaid salaries,
allowances and all other economic benefits from 9 July 2007.62

THE REPORT AND RECOMMENDATION OF THE OCA

In its Memorandum dated 15 June 2010,63 the OCA recommended the dismissal of the respondent judges and
some court employees, and the suspension or admonition of others. The OCA summarized the liabilities of the
respondents, to wit:

JUDGE ANATALIO S. NECESSARIO is guilty of gross inefficiency or neglect of duty for solemnizing
marriages with questionable documents and wherein one of the contracting parties is a foreigner who
submitted a mere affidavit of his capacity to marry in lieu of the required certificate from his embassy. He is
also guilty of gross ignorance of the law for solemnizing marriages under Article 34 of the Family Code
wherein one or both of the contracting parties were minors during the cohabitation.

xxx

JUDGE GIL R. ACOSTA is guilty of gross inefficiency or neglect of duty for failure to make sure that the
solemnization fee has been paid. He is also guilty of gross ignorance of the law for solemnizing marriages
under Article 34 of the Family Code wherein one or both of the contracting parties were minors during the
cohabitation.

JUDGE EDGEMELO C. ROSALES is guilty of gross inefficiency or neglect of duty for solemnizing
marriages with questionable documents, for failure to make sure that the solemnization fee has been paid and
for solemnizing marriages wherein one of the contracting parties is a foreigner who submitted a mere affidavit
of his capacity to marry in lieu of the required certificate from his embassy. He is also guilty of gross
ignorance of the law for solemnizing a marriage without the requisite marriage license.

JUDGE ROSEBELLA M. TORMIS is guilty of gross inefficiency or neglect of duty for solemnizing
marriages with questionable documents, for failure to make sure that the solemnization fee has been paid, for
solemnizing marriages wherein one of the contracting parties is a foreigner who submitted a mere affidavit of
his capacity to marry in lieu of the required certificate from the embassy and for solemnizing a marriage with
an expired license.

xxx
HELEN MONGGAYA is guilty of grave misconduct for violating Section 2, Canon I of the Code of Conduct
for Court Personnel that prohibits court personnel from soliciting or accepting any gift, favor or benefit based
on any or explicit or implicit understanding that such gift, favor or benefit shall influence their official actions
and for giving false information for the purpose of perpetrating an irregular marriage.

RHONA RODRIGUEZ is guilty of gross misconduct for violating Section 2, Canon I of the Code of Conduct
for Court Personnel and for inducing Maricel Albater to falsify the application for marriage license by
instructing her to indicate her residence as Barili, Cebu.

DESIDERIO ARANAS and REBECCA ALESNA are guilty of conduct prejudicial to the best interest of the
service for providing couples who are to be married under Article 34 of the Family Code with the required
affidavit of cohabitation.

CELESTE RETUYA, EMMA VALENCIA and REBECCA ALESNA are guilty of violating Section 2(b),
Canon III of the Code of Conduct for Court Personnel which prohibits court personnel from receiving tips or
other remuneration for assisting or attending to parties engaged in transactions or involved in actions or
proceedings with the Judiciary.64

The OCA, however, recommended the DISMISSAL of the complaints against Judge Geraldine Faith A.
Econg, Corazon P. Retuya, and Marilou Cabañez, for lack of merit.

THE ISSUE

The issue now before this Court is whether the judges and personnel of the MTCC and RTC in Cebu City are
guilty of gross ignorance of the law, gross neglect of duty or gross inefficiency and gross misconduct, and in
turn, warrant the most severe penalty of dismissal from service.

THE COURT’S RULING

The findings in the 2010 Memorandum of the Office of the Court Administrator are supported by the evidence
on record and applicable law and jurisprudence.

This Court has long held that court officials and employees are placed with a heavy burden and responsibility
of keeping the faith of the public.65 In Obañana, Jr. v. Ricafort, we said that:

Any impression of impropriety, misdeed or negligence in the performance of official functions must be
avoided. This Court shall not countenance any conduct, act or omission on the part of all those involved in the
administration of justice which would violate the norm of public accountability and diminish the faith of the
people in the Judiciary.66

The OCA described accurately the Palace of Justice in Cebu City as a hub of swift marriages. The respondent
judges and court personnel disregarded laws and procedure to the prejudice of the parties and the proper
administration of justice.

The OCA found that Judges Anatalio S. Necessario, Gil R. Acosta, Rosabella M. Tormis, and Edgemelo C.
Rosales are all guilty of gross inefficiency or neglect of duty when they solemnized marriages without
following the proper procedure laid down by law, particularly the Family Code of the Philippines and existing
jurisprudence. The OCA listed down aspects of the solemnization process which were disregarded by the
judges. The Court will now discuss the individual liabilities of the respondent judges and court personnel vis-à-
vis the evidence presented by the OCA against them.
Liability of Judge Anatalio S. Necessario

The OCA reported that Judge Necessario solemnized a total of one thousand one hundred twenty-three (1,123)
marriages from 2005 to 2007.67 However, only one hundred eighty-four (184) marriage certificates were
actually examined by the judicial audit team.68 Out of the 184 marriages, only seventy-nine (79) were
solemnized with a marriage license while one hundred five (105) were solemnized under Article 34 of the
Family Code. Out of the 79 marriages with license, forty-seven (47) of these licenses were issued by the Local
Civil Registrar of Liloan, Cebu. This translates to 42.93% of the marriages he solemnized with marriage
license coming from Liloan for over a period of years.69 There were also twenty-two (22) marriages solemnized
by the judge with incomplete documents such missing as marriage license, certificate of legal capacity to
marry, and the joint affidavit of cohabitation.70

Judge Necessario solemnized nine (9) marriages that had questionable supporting documents such as marriage
licenses.71 The OCA found that the place of residence of the contracting parties appearing in the supporting
documents differ from the place where they obtained their marriage license.72 The documents invited suspicion
because of erasures and superimpositions in the entries of residence.73 Likewise, in lieu of the required
certificate of legal capacity to marry, a mere affidavit was submitted by the parties.74 Variations in the
signatures of the contracting parties were also apparent in the documents.75

The respondent judge solemnized forty-three (43) marriages under Article 34 of the Family Code. These
marriages appeared dubious since the joint affidavit of cohabitation of the parties show minority of one or both
of them during cohabitation.76 For example, he solemnized on 14 May 2004 the marriage of 22-year-old Harol
D. Amorin and 19-year-old Dinalyn S. Paraiso who are residents of Lapu-Lapu City.77

There are also sixteen (16) marriage licenses with attached official receipts of the solemnization fee but the
corresponding marriage certificates cannot be found.78 The presence of the receipts implies that these marriages
were solemnized.

Liability of Judge Gil R. Acosta

Judge Acosta solemnized a total of eighty-seven (87) marriages from 2003 to 2007.79 However, the logbook
showed that he solemnized two hundred seventy-two (272) marriages while the monthly reports of cases
showed that he solemnized five hundred twelve (512) marriages over the same period. Out of the 87 marriages,
he solemnized seventy-five (75) under

Article 34 of the Family Code.80 This is equivalent to 86.21% of the marriages solemnized under Article 34 in a
four-year period.81

There were forty-one (41) marriage certificates signed by Judge Tormis or Judge Necessario as solemnizing
officers found in his custody.82 There were also ten (10) marriages under Article 34 of the Family Code where
one or both of the contracting parties were minors during cohabitation.83 To illustrate, respondent judge
solemnized on 4 May 2004 the marriage of Julieto W. Baga, 22 years old, and Esterlita P. Anlangit, 18 years
old.84

There were seventeen (17) marriages under Article 34 where neither of the contracting parties were residents
of Cebu City.85 The judge solemnized three (3) marriages without the foreign party’s required certificate of
legal capacity to marry.86 Lastly, there was no proof of payment of the solemnization fee in almost all of the
marriages the judge officiated.87

Liability of Judge Rosabella M. Tormis

Judge Tormis solemnized a total of one hundred eighty-one (181) marriages from 2003 to 2007 based on the
marriage certificates actually examined.88 However, the monthly report of cases showed that she solemnized
three hundred five (305) marriages instead for the years 2004 to 2007.89 The OCA report also noted that it was
only in July 2007 that her court started to use a logbook to keep track of marriages.90

Respondent judge solemnized thirty-seven (37) marriages with incomplete or missing documents such as the
marriage license, certificate of legal capacity to marry, and the joint affidavit of cohabitation.91 In several
instances, only affidavits were submitted by the foreign parties in lieu of the certificate of legal capacity to
marry.92

Judge Tormis solemnized thirteen (13) marriages despite the questionable character of the validity of the
required documents particularly the marriage license.93 The judicial audit team found numerous erasures and
superimpositions on entries with regard to the parties’ place of residence.94

In one instance, the judge solemnized the marriage of Rex Randy E. Cujardo and Anselma B. Laranio on 28
December 2006 despite the marriage license containing a rubberstamp mark saying, "THIS LICENSE
EXPIRES ON" and a handwritten note saying "12/28/06" under it.95

The judge solemnized a total of forty-seven (47) marriages under Article 34 of the Family Code wherein the
marriage requirements’ authenticity was doubtful due to the circumstances of the cohabitation of the parties
and the given address of the parties.96 These irregularities were evident in the case of 22-year-old John Rey R.
Tibalan and Ana Liza Secuya who were married on 25 May 2007. The residential address of the couple in the
marriage certificate is "Sitio Bamboo, Buhisan, Cebu City." However, there was an application for marriage
license attached to the marriage certificate showing that Secuya’s address is "F. Lopez Comp. Morga St., Cebu
City."97

Liability of Judge Edgemelo C. Rosales

Judge Rosales solemnized a total of one hundred twenty-one (121) marriages from 2006 to 2007 based on the
marriage certificates examined by the judicial audit team.98 However, only three (3) marriages were reported
for the same period.99 Out of the 121 marriages the judge solemnized, fifty-two (52) or 42.98% fall under
Article 34 of the Family Code.100 Thirty-eight

(38) marriage licenses out of the sixty-six (66) obtained or 57.57% were from the local civil registrar of Barili,
Cebu.101 Nineteen (19) or 28.79% were from the local civil registrar of Liloan, Cebu.102 Nine (9) or 13.64%
were from other local civil registrars.103

There were marriage documents found in his court such as marriage licenses, applications for marriage license,
certificates of legal capacity to contract marriage, affidavits in lieu of certificate of legal capacity to contract
marriage, joint affidavits of cohabitation, and other documents referring to the solemnization of one hundred
thirty-two (132) marriages, with no corresponding marriage certificates.104 He solemnized two marriages of
Buddy Gayland Weaver, an American citizen, to two different persons within nine (9) months.105 No copy of
the required certificate of legal capacity to contract marriage or the divorce decree was presented.106

The judge solemnized thirty-seven (37) marriages without or with incomplete supporting documents such as
the certificate of legal capacity to marry and the joint affidavit of cohabitation.107 He solemnized nine (9)
marriages under questionable circumstances such as the submission of an affidavit or affirmation of freedom to
marry in lieu of the certificate of legal capacity to marry, the discrepancies in the residence of the contracting
parties as appearing in the marriage documents, and the solemnization of the marriage on the same day the
marriage license was issued.108
Judge Rosales also solemnized forty-three (43) marriages with no proof that the solemnization fee of ₱300 was
paid.109 On the other hand, there were twenty-six (26) marriages whose solemnization fees were paid late.110

To summarize, the liabilities of the judges are the following:

First, Judges Necessario, Tormis and Rosales solemnized marriages even if the requirements submitted by the
couples were incomplete and of questionable character. Most of these documents showed visible signs of
tampering, erasures, corrections or superimpositions of entries related to the parties’ place of
residence.111 These included indistinguishable features such as the font, font size, and ink of the computer-
printed entries in the marriage certificate and marriage license.112 These actions of the respondent judges
constitute gross inefficiency. In Vega v. Asdala,113the Court held that inefficiency implies negligence,
incompetence, ignorance, and carelessness.

Second, the judges were also found guilty of neglect of duty regarding the payment of solemnization fees. The
Court, in Rodrigo-Ebron v. Adolfo,114 defined neglect of duty as the failure to give one’s attention to a task
expected of him and it is gross when, from the gravity of the offense or the frequency of instances, the offense
is so serious in its character as to endanger or threaten public welfare. The marriage documents examined by
the audit team show that corresponding official receipts for the solemnization fee were missing115 or payment
by batches was made for marriages performed on different dates.116 The OCA emphasizes that the payment of
the solemnization fee starts off the whole marriage application process and even puts a "stamp of regularity"
on the process.

Third, Judges Necessario, Tormis, and Rosales also solemnized marriages where a contracting party is a
foreigner who did not submit a certificate of legal capacity to marry from his or her embassy. What the
foreigners submitted were mere affidavits stating their capacity to marry. The irregularity in the certificates of
legal capacity that are required under Article 21 of the Family Code117 displayed the gross neglect of duty of
the judges. They should have been diligent in scrutinizing the documents required for the marriage license
issuance. Any irregularities would have been prevented in the qualifications of parties to contract marriage.118

Fourth, Judges Necessario, Acosta, and Tormis are likewise guilty of gross ignorance of the law under Article
34 of the Family Code119 with respect to the marriages they solemnized where legal impediments existed during
cohabitation such as the minority status of one party.120 The audit team cites in their Supplemental Report that
there were parties whose ages ranged from eighteen (18) to twenty-two (22) years old who were married by
mere submission of a pro forma joint affidavit of cohabitation.121 These affidavits were notarized by the
solemnizing judge himself or herself.122

Finally, positive testimonies were also given regarding the solemnization of marriages of some couples where
no marriage license was previously issued. The contracting parties were made to fill up the application for a
license on the same day the marriage was solemnized.123

The Court does not accept the arguments of the respondent judges that the ascertainment of the validity of the
marriage license is beyond the scope of the duty of a solemnizing officer especially when there are glaring
pieces of evidence that point to the contrary. As correctly observed by the OCA, the presumption of regularity
accorded to a marriage license disappears the moment the marriage documents do not appear regular on its
face.

In People v. Jansen,124 this Court held that:

…the solemnizing officer is not duty-bound to investigate whether or not a marriage license has been duly and
regularly issued by the local civil registrar. All the solemnizing officer needs to know is that the license has
been issued by the competent official, and it may be presumed from the issuance of the license that said
official has fulfilled the duty to ascertain whether the contracting parties had fulfilled the requirements of law.
However, this Court also said in Sevilla v. Cardenas,125 that "the presumption of regularity of official acts may
be rebutted by affirmative evidence of irregularity or failure to perform a duty." The visible superimpositions
on the marriage licenses should have alerted the solemnizing judges to the irregularity of the issuance.

It follows also that although Article 21 of the Family Code requires the submission of the certificate from the
embassy of the foreign party to the local registrar for acquiring a marriage license, the judges should have been
more diligent in reviewing the parties’ documents and qualifications. As noted by the OCA, the absence of the
required certificates coupled with the presence of mere affidavits should have aroused suspicion as to the
regularity of the marriage license issuance.

The judges’ gross ignorance of the law is also evident when they solemnized marriages under Article 34 of the
Family Code without the required qualifications and with the existence of legal impediments such as minority
of a party. Marriages of exceptional character such as those made under Article 34 are, doubtless, the
exceptions to the rule on the indispensability of the formal requisite of a marriage license.126 Under the rules of
statutory construction, exceptions as a general rule should be strictly but reasonably construed.127 The affidavits
of cohabitation should not be issued and accepted pro forma particularly in view of the settled rulings of the
Court on this matter. The five-year period of cohabitation should be one of a perfect union valid under the law
but rendered imperfect only by the absence of the marriage contract.128 The parties should have been
capacitated to marry each other during the entire period and not only at the time of the marriage.129

To elaborate further on the gravity of the acts and omissions of the respondents, the Family Code provides the
requisites for a valid marriage:

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the presence
of not less than two witnesses of legal age. (53a, 55a)

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except
as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.
(n)

The absence of a marriage license will clearly render a marriage void ab initio.130 The actions of the judges
have raised a very alarming issue regarding the validity of the marriages they solemnized since they did not
follow the proper procedure or check the required documents and qualifications. In Aranes v. Judge Salvador
Occiano,131 the Court said that a marriage solemnized without a marriage license is void and the subsequent
issuance of the license cannot render valid or add even an iota of validity to the marriage. It is the marriage
license that gives the solemnizing officer the authority to solemnize a marriage and the act of solemnizing the
marriage without a license constitutes gross ignorance of the law.

As held by this Court in Navarro v. Domagtoy:

The judiciary should be composed of persons who, if not experts are at least proficient in the law they are
sworn to apply, more than the ordinary layman. They should be skilled and competent in understanding and
applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in
the instant case. It is not too much to expect them to know and apply the law intelligently.132

It is important to note that the audit team found out that Judge Rosabella M. Tormis ordered Celerina Plaza, a
personal employee of the judge, to wait for couples outside the Hall of Justice and offer services.133 Crisanto
Dela Cerna also stated in his affidavit that Judge Tormis instructed him to get all marriage certificates and
bring them to her house when she found out about the judicial audit.134 In the language of the OCA, Judge
Tormis considered the solemnization of marriages not as a duty but as a business.135 The respondent judge was
suspended for six (6) months in A.M. No. MTJ-071-962 for repeatedly disregarding the directives of this Court
to furnish the complainant a copy of her comment. She was also fined the amount of five thousand pesos
(₱5,000) in A.M. Nos. 04-7-373-RTC and 04-7-374 RTC.136 She was reprimanded twice in A.M. No. MTJ-05-
1609 and in A.M. No. MTJ-001337.137 Finally, in the very recent case of Office of the Court Administrator v.
Hon. Rosabella M. Tormis and Mr. Reynaldo S. Teves, A.M. No. MTJ-12-1817, promulgated last 12 March
2013, Judge Tormis was found guilty of gross inefficiency, violation of Supreme Court rules, directives and
circulars and gross ignorance of the law by this Court. She was dismissed from service, with forfeiture of all
benefits and privileges, except accrued leave credits, if any, with prejudice to reemployment in any branch or
instrumentality of the government, including government-owned or controlled corporations.

The respondent judges violated Canons 2138 and 6139 of the Canons of Judicial Ethics which exact competence,
integrity and probity in the performance of their duties. This Court previously said that "Ignorance of the law is
a mark of incompetence, and where the law involved is elementary, ignorance thereof is considered as an
indication of lack of integrity."140 In connection with this, the administration of justice is considered a sacred
task and upon assumption to office, a judge ceases to be an ordinary mortal. He or she becomes the visible
representation of the law and more importantly of justice.141

The actuations of these judges are not only condemnable, it is outright shameful.

Liability of Other Court Personnel

The Court agrees with the recommendations of the OCA on the liability of the following employees:

Helen Mongaya, Court Interpreter of Judge Rosabella M. Tormis, MTCC, Branch 4, Cebu City, is guilty of
grave misconduct when she informed the female lawyer of the judicial audit team that she can facilitate the
marriage and the requirements on the same day of the lawyer’s visit.142

What Monggaya was proposing was an open-dated marriage in exchange for a fee of ₱3,000. Section 2, Canon
I of the Code of Conduct for Court Personnel prohibits court personnel from soliciting or accepting gifts, favor
or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their
official actions.

Mongaya’s claim that she was merely relating to the lady lawyer what she knew from other offices as the usual
practice143 is inexcusable. As found by the OCA in its Memorandum, "Monggaya deliberately gave false
information for the purpose of perpetrating an illegal scheme. This, in itself, constitutes grave
misconduct."144 Sec. 52, Rule IV of the Uniform Rules on

Administrative Cases in the Civil Service defines grave misconduct as "a grave offense that carries the extreme
penalty of dismissal from the service even on a first offense.

In Villaceran v. Rosete, this Court held that:

Court personnel, from the lowliest employee, are involved in the dispensation of justice; parties seeking
redress from the courts for grievances look upon court personnel, irrespective of rank or position, as part of the
Judiciary. In performing their duties and responsibilities, these court personnel serve as sentinels of justice and
any act of impropriety on their part immeasurably affects the honor and dignity of the Judiciary and the
people’s trust and confidence in this institution. Therefore, they are expected to act and behave in a manner
that should uphold the honor and dignity of the Judiciary, if only to maintain the people's confidence in the
Judiciary.145

Mongaya acted improperly and in a manner opposite of what is expected of court personnel. Her actions
placed doubts on the integrity of the courts.

Rhona Rodriguez, Administrative Officer I of the Office of the Clerk of Court of the MTCC, Cebu City, is
guilty of gross misconduct. She assisted the couple, Moreil Sebial and Maricel Albater, and demanded and
accepted ₱4,000 from them.146 The act was a violation of Section 2, Canon I of the Code of Conduct for Court
Personnel. As found by the OCA and adopted by this Court, Rodriguez induced Albater to falsify the
application for marriage license by instructing her to indicate her residence as Barili, Cebu.147 The claim that
she gave the amount to a certain Borces who was allegedly the real facilitator belies her participation in
facilitating the marriage. According to the OCA, when the couple went back for their marriage certificate, they
approached Rodriguez and not Borces.148 When Borces told Rodriguez that the marriage certificate had been
misplaced, it was Rodriguez who instructed Sebial to fill up another marriage certificate.149

This Court has held that improper solicitations prohibited by Section 2, Canon I of the Code of Conduct for
Court Personnel, merits a grave penalty.150 Such penalty can be dismissal from service.

Desiderio Aranas, Branch 3 Process Server, MTCC, Cebu City and Rebecca Alesna are guilty of conduct
prejudicial to the best of interest of the service. Aranas provided couples who were to be married under Article
34 of the Family Code with the required affidavit of cohabitation.151 On the other hand, Alesna refers such
couples to Aranas to acquire the said affidavit which according to Alesna costs ₱10. As aptly put by the OCA,
even if the amount involved in the transaction is minimal, the act of soliciting money still gives the public the
wrong impression that court personnel are making money out of judicial transactions.152

The Court said in Roque v. Grimaldo153 that acts of court personnel outside their official functions constitute
conduct prejudicial to the best interest of the service because these acts violate what is prescribed for court
personnel. The purpose of this is to maintain the integrity of the Court and free court personnel from suspicion
of any misconduct.

Celeste P. Retuya, Clerk III of Branch 6 of the MTCC, Cebu City, Emma Valencia, Stenographer III of Branch
18, RTC, Cebu City, and Rebecca Alesna, Court Interpreter of Branch 1, MTCC, Cebu City, admitted to the
audit team that they received food from couples they assisted.154 This is in violation of Section 2(b), Canon III
of the Code of Conduct for Court Personnel which prohibits court personnel from receiving tips or other
remuneration for assisting or attending to parties engaged in transactions or involved in actions or proceedings
with the Judiciary. As recommended by the OCA, they are admonished considering that this is their first
offense and the tips were of minimal value. In Reyes-Domingo v. Morales, this Court held that commission of
an administrative offense for the first time is an extenuating circumstance.155

The Court finds that there is insufficient evidence against Corazon P. Retuya. The OCA reports that Corazon
Retuya admitted initially that she received ₱5,000 from spouses Ichiro Kamiaya and Mary Grace Gabiana to
secure necessary documents.156 The information was volunteered by Corazon Retuya with no supporting sworn
statement from the couple. However, she denies this fact later on in her Comment.157 Finding the earlier
statement of Corazon Retuya as unclear and lacking support from evidence, the Court adopts the findings of
the OCA and decides to give her the benefit of the doubt.
The Court also finds insufficient evidence to support the claims against Marilou Cabañez. Cabañez was only
implicated in this case through the sworn statement of Jacqui Lou Baguio-Manera who attested that they paid a
certain "Meloy" ₱1,200 for the wedding under Article 34 of the Family through the assistance of
Cabañez.158 Cabañez denies that she was the one who assisted the couple and explained that it may have been
Celerina Plaza, the personal assistant of Judge Rosabella M. Tormis. Baguio-Manera got the nickname
"Meloy" not from Cabañez herself but from Baguio-Manera’s younger sister.159 When Baguio-Manera met the
said "Meloy" at the Hall of Justice, she did not obtain confirmation that the said "Meloy" is Cabañez. The
Court adopts the findings of the OCA that there is lack of positive identification of Cabañez and finds merit in
her denial.160

The Court accepts the recommendation of the OCA as to the dismissal of the case against Judge Geraldine
Faith A. Econg. The judge was only implicated through the statement of Process Server Antonio Flores about
an "alleged sinking fund". No evidence was presented as to the collection of an excess of the solemnization
fee. Neither was it proven that Judge Econg or her staff had knowledge of such fund.

WHEREFORE, the Court finds respondents:

1. Judge Anatalio S. Necessario, Presiding Judge, Municipal Trial Court in Cities, Branch 2, Cebu City,
GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED
FROM THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be
disqualified from reinstatement or appointment to any public office, including government-owned or -
controlled corporation;

2. Judge Gil R. Acosta, Presiding Judge, Municipal Trial Court in Cities, Branch 3, Cebu City, GUILTY of
gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED FROM
THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be
disqualified from reinstatement or appointment to any public office, including government-owned or -
controlled corporation;

3. Judge Rosabella M. Tormis, Presiding Judge, Municipal Trial Court in Cities, Branch 4, Cebu City,
GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that she would have
been DISMISSED FROM THE SERVICE with forfeiture of her retirement benefits, except leave credits, if
any, and disqualified from reinstatement or appointment to any public office, including government-owned or -
controlled corporation, had she not been previously dismissed from service in A.M. No. MTJ-12-1817
(Formerly A.M. No. 09-2-30-MTCC);

4. Judge Edgemelo C. Rosales, Presiding Judge, Municipal Trial Court in Cities, Branch 8, Cebu City,
GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED
FROM THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be
disqualified from reinstatement or appointment to any public office, including government-owned or -
controlled corporation;

5. Helen Mongaya, Court Interpreter, Municipal Trial Court in Cities, Branch 4, Cebu City, GUILTY of
violating Section 2, Canon I of the Code of Conduct for Court Personnel and that she be DISMISSED FROM
THE SERVICE with forfeiture of her retirement benefits, except leave credits, if any, and that she be
disqualified from reinstatement or appointment to any public office, including government-owned or -
controlled corporation;

6. Rhona F. Rodriguez, Administrative Officer I, Office of the Clerk of Court, Regional Trial Court, Cebu
City, GUILTY of gross misconduct for Section 2, Canon I of the Code of Conduct for Court Personnel and for
inducing Maricel Albater to falsify the application for marriage and that she be DISMISSED FROM THE
SERVICE with forfeiture of her retirement benefits, except leave credits, if any, and that she be disqualified
from reinstatement or appointment to any public office, including government-owned or -controlled
corporation;

7. Desiderio S. Aranas, Process Server, Municipal Trial Court in Cities, Branch 3, Cebu City, GUILTY of
conduct prejudicial to the best interest of the service and that he be SUSPENDED without pay for a period of
six (6) months with a warning that a similar offense shall be dealt with more severely;

8. Rebecca Alesna, Court Interpreter, Municipal Trial Court in Cities, Branch 1, Cebu City, GUILTY of
conduct prejudicial to the best interest of the service and of violating Section 2(b), Canon III of the Code of
Conduct for Court Personnel and that she be SUSPENDED without pay for a period of six (6) months with a
warning that a similar offense shall be dealt with more severely;

9. Celeste Retuya, Clerk III, Municipal Trial Court in Cities, Branch 6, Cebu City, and Emma Valencia,
Stenographer III, Regional Trial Court, Branch 18, Cebu City, GUILTY of conduct prejudicial to the best
interest of the service and of violating Section 2(b), Canon III of the Code of Conduct for Court Personnel and
that they be ADMONISHED with a warning that a similar offense shall be dealt with more severely;

The complaints against Judge Geraldine Faith A. Econg, Presiding Judge, Regional Trial Court, Branch 9,
Cebu City; Corazon P. Retuya, Court Stenographer, Municipal Trial Court in Cities, Branch 6, Cebu City; and
Marilou Cabañez, Court Stenographer, Municipal Trial Court in Cities, are DISMISSED for lack of merit.

The case against Judge Rosabella M. Tormis, including the sworn statements of Celerina Plaza and Crisanto
dela Cerna, should be REFERRED to the Office of the Bar Confidant for the purpose of initiating disbarment
proceedings against the judge.

The Honorable Mayors of Barili, Cebu and Liloan, Cebu, are to be furnished copies of the Supplemental
Report dated 14 August 2007 and are ADVISED to conduct an investigation with respect to the statements of
Filomena C. Lopez, Civil Registrar of Barili, Cebu, and Bonita I. Pilones, Civil Registrar of Liloan, Cebu,
regarding the processing of marriage licenses and to take the necessary action as the findings of the
investigation may warrant.

Let a copy of this Decision be included in the respondents’ files that are with the Office of the Bar Confidant
and distributed to all courts and to the Integrated Bar of the Philippines.

SO ORDERED
Case Digest

OFFICE OF THE COURT ADMINISTRATOR,

vs.JUDGE ANATALIO S. NECESSARIO

Facts: Due to an administrative case filed on July 6, 2007, the Office of the Court Administrator(OCA) formed
a judicial audit team that investigated on irregularities in the solemnization of marriages in several MTCs and
RTCs in Cebu. The OCA recommended the dismissal of the following judges and court employees generally
for gross neglect of duty due to the following circumstances: Judge Necessario - solemnized marriages with
questionable documents even where one of the contracting parties (foreigner) submitted an affidavit instead of
a certificate of legal capacity from his embassy; and under Art. 34 (one of the contracting parties was a minor
during cohabitation); Judge Acosta – failed to make sure that solemnization fee has been paid and also
solemnized a marriage under Art. 34 ; Judge Rosales – failed to make sure the solemnization fee has been paid
and solemnized marriage between foreigner who only submitted an affidavit; also solemnized a marriage
without the marriage license; Judge Tormis – solemnized marriages with questionable documents; failed to
make sure solemnization fee has been paid; solemnized marriage between foreigner who only submitted an
affidavit; solemnized marriage with expired marriage license. Helen Monggaya – violated Sec. 2, Canon 1 of
the Code of Conduct for Court Personnel – prohibition from soliciting any gifts and for giving false
information for the purpose of perpetrating an irregular marriage. Rhona Rodriguez – violated Sec. 2, Canon 1
by participating in the collection of an agreed upon additional fee to process the documents, and in one case,
received 4,000 pesos to facilitate an irregular marriage. Desiderio Aranas and Rebecca Alesna – provided
couples who are to be married under Art. 34 with the required affidavit of cohabitation even if one or both of
them were minors during cohabitation. Celeste Retuya, Emma Valencia, Rebecca Alesna – violated Sec. 2 (b),
Canon 3 of the Code of Conduct of Court Personnel because they received tips in assisting parties engaged in
the transactions with the Judiciary. Also, they effectively screened all documents before submitting them to the
judges. However, OCA recommended the dismissal of complaints against Judge Econg, Corazon Retuya and
Marilou Cabañez for lack of merit. Art. 34. No license shall be necessary for the marriage of a man and a
woman who have lived together as husband and wife for at least five years and without any legal impediment
to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person.

Issue: WON the Judges and personnel of Cebu MTCC and RTC are guilty of gross ignorance of the law, gross
neglect of duty, or gross inefficiency and gross misconduct

Held: YES . Judges Necessario, Acosta, Romis and Rosales are guilty of gross inefficiency or neglect of duty.

Neglect of duty, as defined in Rodrigo-Ebron vs. Adolfo, is the ―failure to give one’s attention to a
task expected of him and it is gross when, from the gravity of the offense or the frequency of instances, the
offense is so serious in its character as to endanger or threaten public welfare‖ .

This is reflected in the evidence submitted: Documents showed evidences of tampering, absence of
receipts to show that solemnization fees were paid, documents submitted by the parties showed irregularities,
testimonies were made regarding solemnization of marriages without licenses, among others. It was held that
the “actions of the judges have raised a very alarming issue regarding the validity of the marriages they
solemnized” as, for instance, absence of a marriage license would render a marriage void pursuant to Art. 4 of
the Family Code.

SC dismissed the argument of the respondents that it was beyond the scope of duty of the solemnizing
officer to check the validity of the marriage pursuant to People vs. Jansen.

The judges’ gross ignorance of the law is also evident when they solemnized marriages under Article
34 of the Family Code without the required qualifications and with the existence of legal impediments such as
minority of a party. Marriages of exceptional character such as those made under Article 34 are, doubtless, the
exceptions to the rule on the indispensability of the formal requisite of a marriage license. Under the rules of
statutory construction, exceptions as a general rule should be strictly but reasonably construed The affidavits of
cohabitation should not be issued and accepted pro forma particularly in view of the settled rulings of the
Court on this matter. The five-year period of cohabitation should be one of a perfect union valid under the law
but rendered imperfect only by the absence of the marriage contract. The parties should have been capacitated
to marry each other during the entire period and not only at the time of the marriage.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except
as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.
(n)

The absence of a marriage license will clearly render a marriage void ab initio.130 The actions of the judges
have raised a very alarming issue regarding the validity of the marriages they solemnized since they did not
follow the proper procedure or check the required documents and qualifications. In Aranes v. Judge Salvador
Occiano,131 the Court said that a marriage solemnized without a marriage license is void and the subsequent
issuance of the license cannot render valid or add even an iota of validity to the marriage. It is the marriage
license that gives the solemnizing officer the authority to solemnize a marriage and the act of solemnizing the
marriage without a license constitutes gross ignorance of the law.
Full case
G.R. No. 160172 February 13, 2008
REINEL ANTHONY B. DE CASTRO, petitioner,
vs.
ANNABELLE ASSIDAO-DE CASTRO, respondent.

DECISION

TINGA, J.:

This is a petition for review of the Decision1 of the Court of Appeals in CA-GR CV. No. 69166,2 declaring that
(1) Reianna Tricia A. De Castro is the legitimate child of the petitioner; and (2) that the marriage between
petitioner and respondent is valid until properly nullified by a competent court in a proceeding instituted for
that purpose.

The facts of the case, as culled from the records, follow.

Petitioner and respondent met and became sweethearts in 1991. They planned to get married, thus they applied
for a marriage license with the Office of the Civil Registrar of Pasig City in September 1994. They had their
first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter. When the couple
went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order to push
through with the plan, in lieu of a marriage license, they executed an affidavit dated 13 March 1995 stating that
they had been living together as husband and wife for at least five years. The couple got married on the same
date, with Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City, administering
the civil rites. Nevertheless, after the ceremony, petitioner and respondent went back to their respective homes
and did not live together as husband and wife.

On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro. Since the child’s
birth, respondent has been the one supporting her out of her income as a government dentist and from her
private practice.

On 4 June 1998, respondent filed a complaint for support against petitioner before the Regional Trial Court of
Pasig City (trial court.3 In her complaint, respondent alleged that she is married to petitioner and that the latter
has "reneged on his responsibility/obligation to financially support her "as his wife and Reinna Tricia as his
child."4

Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the
marriage was facilitated by a fake affidavit; and that he was merely prevailed upon by respondent to sign the
marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant
state; and that he was not able to get parental advice from his parents before he got married. He also averred
that they never lived together as husband and wife and that he has never seen nor acknowledged the child.

In its Decision dated 16 October 2000,5 the trial court ruled that the marriage between petitioner and
respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner
as the natural father of the child, and thus obliged to give her support. Petitioner elevated the case to the Court
of Appeals, arguing that the lower court committed grave abuse of discretion when, on the basis of mere belief
and conjecture, it ordered him to provide support to the child when the latter is not, and could not have been,
his own child.

The Court of Appeals denied the appeal. Prompted by the rule that a marriage is presumed to be subsisting
until a judicial declaration of nullity has been made, the appellate court declared that the child was born during
the subsistence and validity of the parties’ marriage. In addition, the Court of Appeals frowned upon
petitioner’s refusal to undergo DNA testing to prove the paternity and filiation, as well as his refusal to state
with certainty the last time he had carnal knowledge with respondent, saying that petitioner’s "forgetfulness
should not be used as a vehicle to relieve him of his obligation and reward him of his being
irresponsible."6 Moreover, the Court of Appeals noted the affidavit dated 7 April 1998 executed by petitioner,
wherein he voluntarily admitted that he is the legitimate father of the child.

The appellate court also ruled that since this case is an action for support, it was improper for the trial court to
declare the marriage of petitioner and respondent as null and void in the very same case. There was no
participation of the State, through the prosecuting attorney or fiscal, to see to it that there is no collusion
between the parties, as required by the Family Code in actions for declaration of nullity of a marriage. The
burden of proof to show that the marriage is void rests upon petitioner, but it is a matter that can be raised in an
action for declaration of nullity, and not in the instant proceedings. The proceedings before the trial court
should have been limited to the obligation of petitioner to support the child and his wife on the basis of the
marriage apparently and voluntarily entered into by petitioner and respondent.7 The dispositive portion of the
decision reads:

WHEREFORE, premises considered, the Decision dated 16 October 2000, of the Regional Trial
Court of Pasig City, National Capital Judicial Region, Brach 70, in JDRC No. 4626,
is AFFIRMED with the MODIFICATIONS (1) declaring Reianna Tricia A. De Castro, as the
legitimate child of the appellant and the appellee and (2) declaring the marriage on 13 March 1995
between the appellant and the appellee valid until properly annulled by a competent court in a
proceeding instituted for that purpose. Costs against the appellant.8

Petitioner filed a motion for reconsideration, but the motion was denied by the Court of Appeals.9 Hence this
petition.

Before us, petitioner contends that the trial court properly annulled his marriage with respondent because as
shown by the evidence and admissions of the parties, the marriage was celebrated without a marriage license.
He stresses that the affidavit they executed, in lieu of a marriage license, contained a false narration of facts,
the truth being that he and respondent never lived together as husband and wife. The false affidavit should
never be allowed or admitted as a substitute to fill the absence of a marriage license.10 Petitioner additionally
argues that there was no need for the appearance of a prosecuting attorney in this case because it is only an
ordinary action for support and not an action for annulment or declaration of absolute nullity of marriage. In
any case, petitioner argues that the trial court had jurisdiction to determine the invalidity of their marriage
since it was validly invoked as an affirmative defense in the instant action for support. Citing several
authorities,11 petitioner claims that a void marriage can be the subject of a collateral attack. Thus, there is no
necessity to institute another independent proceeding for the declaration of nullity of the marriage between the
parties. The refiling of another case for declaration of nullity where the same evidence and parties would be
presented would entail enormous expenses and anxieties, would be time-consuming for the parties, and would
increase the burden of the courts.12 Finally, petitioner claims that in view of the nullity of his marriage with
respondent and his vigorous denial of the child’s paternity and filiation, the Court of Appeals gravely erred in
declaring the child as his legitimate child.

In a resolution dated 16 February 2004, the Court required respondent and the Office of the Solicitor General
(OSG) to file their respective comments on the petition.13
In her Comment,14 respondent claims that the instant petition is a mere dilatory tactic to thwart the finality of
the decision of the Court of Appeals. Echoing the findings and rulings of the appellate court, she argues that
the legitimacy of their marriage cannot be attacked collaterally, but can only be repudiated or contested in a
direct suit specifically brought for that purpose. With regard to the filiation of her child, she pointed out that
compared to her candid and straightforward testimony, petitioner was uncertain, if not evasive in answering
questions about their sexual encounters. Moreover, she adds that despite the challenge from her and from the
trial court, petitioner strongly objected to being subjected to DNA testing to prove paternity and filiation.15

For its part, the OSG avers that the Court of Appeals erred in holding that it was improper for the trial court to
declare null and void the marriage of petitioner and respondent in the action for support. Citing the case
of Niñal v. Bayadog,16 it states that courts may pass upon the validity of a marriage in an action for support,
since the right to support from petitioner hinges on the existence of a valid marriage. Moreover, the evidence
presented during the proceedings in the trial court showed that the marriage between petitioner and respondent
was solemnized without a marriage license, and that their affidavit (of a man and woman who have lived
together and exclusively with each other as husband and wife for at least five years) was false. Thus, it
concludes the trial court correctly held that the marriage between petitioner and respondent is not valid.17 In
addition, the OSG agrees with the findings of the trial court that the child is an illegitimate child of petitioner
and thus entitled to support.18

Two key issues are presented before us. First, whether the trial court had the jurisdiction to determine the
validity of the marriage between petitioner and respondent in an action for support and second, whether the
child is the daughter of petitioner.

Anent the first issue, the Court holds that the trial court had jurisdiction to determine the validity of the
marriage between petitioner and respondent. The validity of a void marriage may be collaterally
attacked.19 Thus, in Niñal v. Bayadog, we held:

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage
an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy
or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to
question the same so long as it is essential to the determination of the case. This is without prejudice
to any issue that may arise in the case. When such need arises, a final judgment of declaration of
nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such
final judgment need not be obtained only for purpose of remarriage.20

Likewise, in Nicdao Cariño v. Yee Cariño,21 the Court ruled that it is clothed with sufficient authority to pass
upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating Niñal, we
held that the Court may pass upon the validity of a marriage even in a suit not directly instituted to question the
validity of said marriage, so long as it is essential to the determination of the case. However, evidence must be
adduced, testimonial or documentary, to prove the existence of grounds rendering such a marriage an absolute
nullity.22

Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage
void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable.23 In the
instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage
license when they contracted their marriage. Instead, they presented an affidavit stating that they had been
living together for more than five years.24 However, respondent herself in effect admitted the falsity of the
affidavit when she was asked during cross-examination, thus—

ATTY. CARPIO:
 Q But despite of (sic) the fact that you have not been living together as husband and wife for the
last five years on or before March 13, 1995, you signed the Affidavit, is that correct?

A Yes, sir.25

The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The
law dispenses with the marriage license requirement for a man and a woman who have lived together and
exclusively with each other as husband and wife for a continuous and unbroken period of at least five years
before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicant’s name for a marriage license.26 In the instant case, there was no "scandalous
cohabitation" to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and
respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap
of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a
marriage license renders their marriage void ab initio.

Anent the second issue, we find that the child is petitioner’s illegitimate daughter, and therefore entitled to
support.

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.27 Thus, one can prove illegitimate filiation through the record of birth appearing in the civil
register or a final judgment, an admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned, or the open and continuous possession of the status of a
legitimate child, or any other means allowed by the Rules of Court and special laws.28

The Certificate of Live Birth29 of the child lists petitioner as the father. In addition, petitioner, in an affidavit
waiving additional tax exemption in favor of respondent, admitted that he is the father of the child, thus
stating:

1. I am the legitimate father of REIANNA TRICIA A. DE CASTRO who was born on November 3,
1995 at Better Living, Parañaque, Metro Manila;30

We are likewise inclined to agree with the following findings of the trial court:

That Reinna Tricia is the child of the respondent with the petitioner is supported not only by the
testimony of the latter, but also by respondent’s own admission in the course of his testimony wherein
he conceded that petitioner was his former girlfriend. While they were sweethearts, he used to visit
petitioner at the latter’s house or clinic. At times, they would go to a motel to have sex. As a result of
their sexual dalliances, petitioner became pregnant which ultimately led to their marriage, though
invalid, as earlier ruled. While respondent claims that he was merely forced to undergo the marriage
ceremony, the pictures taken of the occasion reveal otherwise (Exhs. "B," "B-1," to "B-3," "C," "C-1"
and "C-2," "D," "D-1" and "D-2," "E," "E-1" and "E-2," "F," "F-1" and "F-2," "G," "G-1" and "G-2"
and "H," "H-1" to "H-3"). In one of the pictures (Exhs. "D," "D-1" and "D-2"), defendant is seen
putting the wedding ring on petitioner’s finger and in another picture (Exhs. "E," "E-1" and "E-2")
respondent is seen in the act of kissing the petitioner.31

WHEREFORE, the petition is granted in part. The assailed Decision and Resolution of the Court of Appeals
in CA-GR CV No. 69166 are SET ASIDE and the decision of the Regional Trial Court Branch 70 of Pasig
City in JDRC No. 4626 dated 16 October 2000 is hereby REINSTATED.

SO ORDERED.
Case Digest
G.R. No. 160172
REINEL ANTHONY B. DE CASTRO vs.
ANNABELLE ASSIDAO-DE CASTRO

Facts: Petitioner and respondent met and became sweethearts in 1991. They planned to get married, thus they
applied for a marriage license with the Office of the Civil Registrar of Pasig City in September 1994. They had
their first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter. When the
couple went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order
to push through with the plan, in lieu of a marriage license, they executed an affidavit dated 13 March 1995
stating that they had been living together as husband and wife for at least five years. The couple got married on
the same date, with Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City,
administering the civil rites. Nevertheless, after the ceremony, petitioner and respondent went back to their
respective homes and did not live together as husband and wife.

Issue: Whether or not the marriage between petitioner and respondent is valid.

Held: Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage
void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable. In the
instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage
license when they contracted their marriage. Instead, they presented an affidavit stating that they had been
living together for more than five years. However, respondent herself in effect admitted the falsity of the
affidavit when she was asked during cross-examination. The falsity of the affidavit cannot be considered as a
mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement
for a man and a woman who have lived together and exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid
exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of
persons outside a valid marriage due to the publication of every applicant’s name for a marriage license. In the
instant case, there was no "scandalous cohabitation" to protect; in fact, there was no cohabitation at all. The
false affidavit which petitioner and respondent executed so they could push through with the marriage has no
value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement.
Their failure to obtain and present a marriage license renders their marriage void ab initio.
Full case
G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.

DECISION

CHICO-NAZARIO, J.:

Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are Petitions for Review
under Rule 45 of the Rules of Court filed by the Republic of the Philippines and Felisa Tecson-Dayot (Felisa),
respectively, both challenging the Amended Decision1 of the Court of Appeals, dated 7 November 2006, in
CA-G.R. CV No. 68759, which declared the marriage between Jose Dayot (Jose) and Felisa void ab initio.

The records disclose that on 24 November 1986, Jose and Felisa were married at the Pasay City Hall. The
marriage was solemnized by Rev. Tomas V. Atienza.2 In lieu of a marriage license, Jose and Felisa executed a
sworn affidavit,3 also dated 24 November 1986, attesting that both of them had attained the age of maturity,
and that being unmarried, they had lived together as husband and wife for at least five years.

On 7 July 1993, Jose filed a Complaint4 for Annulment and/or Declaration of Nullity of Marriage with the
Regional Trial Court (RTC), Biñan, Laguna, Branch 25. He contended that his marriage with Felisa was a
sham, as no marriage ceremony was celebrated between the parties; that he did not execute the sworn affidavit
stating that he and Felisa had lived as husband and wife for at least five years; and that his consent to the
marriage was secured through fraud.

In his Complaint, Jose gave his version of the events which led to his filing of the same. According to Jose, he
was introduced to Felisa in 1986. Immediately thereafter, he came to live as a boarder in Felisa’s house, the
latter being his landlady. Some three weeks later, Felisa requested him to accompany her to the Pasay City
Hall, ostensibly so she could claim a package sent to her by her brother from Saudi Arabia. At the Pasay City
Hall, upon a pre-arranged signal from Felisa, a man bearing three folded pieces of paper approached them.
They were told that Jose needed to sign the papers so that the package could be released to Felisa. He initially
refused to do so. However, Felisa cajoled him, and told him that his refusal could get both of them killed by
her brother who had learned about their relationship. Reluctantly, he signed the pieces of paper, and gave them
to the man who immediately left. It was in February 1987 when he discovered that he had contracted marriage
with Felisa. He alleged that he saw a piece of paper lying on top of the table at the sala of Felisa’s house. When
he perused the same, he discovered that it was a copy of his marriage contract with Felisa. When he confronted
Felisa, the latter feigned ignorance.
In opposing the Complaint, Felisa denied Jose’s allegations and defended the validity of their marriage. She
declared that they had maintained their relationship as man and wife absent the legality of marriage in the early
part of 1980, but that she had deferred contracting marriage with him on account of their age difference.5 In her
pre-trial brief, Felisa expounded that while her marriage to Jose was subsisting, the latter contracted marriage
with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy
against Jose. Subsequently, she filed an administrative complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both employees of the National Statistics and Coordinating
Board.6 The Ombudsman found Jose administratively liable for disgraceful and immoral conduct, and meted
out to him the penalty of suspension from service for one year without emolument.7

On 26 July 2000, the RTC rendered a Decision8 dismissing the Complaint. It disposed:

WHEREFORE, after a careful evaluation and analysis of the evidence presented by both parties, this Court
finds and so holds that the [C]omplaint does not deserve a favorable consideration. Accordingly, the above-
entitled case is hereby ordered DISMISSED with costs against [Jose].9

The RTC ruled that from the testimonies and evidence presented, the marriage celebrated between Jose and
Felisa on 24 November 1986 was valid. It dismissed Jose’s version of the story as implausible, and rationalized
that:

Any person in his right frame of mind would easily suspect any attempt to make him or her sign a blank sheet
of paper. [Jose] could have already detected that something was amiss, unusual, as they were at Pasay City
Hall to get a package for [Felisa] but it [was] he who was made to sign the pieces of paper for the release of the
said package. Another indirect suggestion that could have put him on guard was the fact that, by his own
admission, [Felisa] told him that her brother would kill them if he will not sign the papers. And yet it took him,
more or less, three months to "discover" that the pieces of paper that he signed was [sic] purportedly the
marriage contract. [Jose] does not seem to be that ignorant, as perceived by this Court, to be "taken in for a
ride" by [Felisa.]

[Jose’s] claim that he did not consent to the marriage was belied by the fact that he acknowledged Felisa
Tecson as his wife when he wrote [Felisa’s] name in the duly notarized statement of assets and liabilities he
filled up on May 12, 1988, one year after he discovered the marriage contract he is now claiming to be sham
and false. [Jose], again, in his company I.D., wrote the name of [Felisa] as the person to be contacted in case of
emergency. This Court does not believe that the only reason why her name was written in his company I.D.
was because he was residing there then. This is just but a lame excuse because if he really considers her not his
lawfully wedded wife, he would have written instead the name of his sister.

When [Jose’s] sister was put into the witness stand, under oath, she testified that she signed her name
voluntarily as a witness to the marriage in the marriage certificate (T.S.N., page 25, November 29, 1996) and
she further testified that the signature appearing over the name of Jose Dayot was the signature of his [sic]
brother that he voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November 29, 1996),
and when she was asked by the Honorable Court if indeed she believed that Felisa Tecson was really chosen
by her brother she answered yes. The testimony of his sister all the more belied his claim that his consent was
procured through fraud.10

Moreover, on the matter of fraud, the RTC ruled that Jose’s action had prescribed. It cited Article 8711 of the
New Civil Code which requires that the action for annulment of marriage must be commenced by the injured
party within four years after the discovery of the fraud. Thus:

That granting even for the sake of argument that his consent was obtained by [Felisa] through fraud, trickery
and machinations, he could have filed an annulment or declaration of nullity of marriage at the earliest possible
opportunity, the time when he discovered the alleged sham and false marriage contract. [Jose] did not take any
action to void the marriage at the earliest instance. x x x.12

Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals. In a Decision dated
11 August 2005, the Court of Appeals found the appeal to be without merit. The dispositive portion of the
appellate court’s Decision reads:

WHEREFORE, the Decision appealed from is AFFIRMED.13

The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it was solemnized
prior to the effectivity of the Family Code. The appellate court observed that the circumstances constituting
fraud as a ground for annulment of marriage under Article 8614 of the Civil Code did not exist in the marriage
between the parties. Further, it ruled that the action for annulment of marriage on the ground of fraud was filed
beyond the prescriptive period provided by law. The Court of Appeals struck down Jose’s appeal in the
following manner:

Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving his consent to the
marriage, the action for the annulment thereof had already prescribed. Article 87 (4) and (5) of the Civil Code
provides that the action for annulment of marriage on the ground that the consent of a party was obtained by
fraud, force or intimidation must be commenced by said party within four (4) years after the discovery of the
fraud and within four (4) years from the time the force or intimidation ceased. Inasmuch as the fraud was
allegedly discovered by Jose in February, 1987 then he had only until February, 1991 within which to file an
action for annulment of marriage. However, it was only on July 7, 1993 that Jose filed the complaint for
annulment of his marriage to Felisa.15

Likewise, the Court of Appeals did not accept Jose’s assertion that his marriage to Felisa was void ab initio for
lack of a marriage license. It ruled that the marriage was solemnized under Article 7616 of the Civil Code as
one of exceptional character, with the parties executing an affidavit of marriage between man and woman who
have lived together as husband and wife for at least five years. The Court of Appeals concluded that the falsity
in the affidavit to the effect that Jose and Felisa had lived together as husband and wife for the period required
by Article 76 did not affect the validity of the marriage, seeing that the solemnizing officer was misled by the
statements contained therein. In this manner, the Court of Appeals gave credence to the good-faith reliance of
the solemnizing officer over the falsity of the affidavit. The appellate court further noted that on the dorsal side
of said affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he took steps to
ascertain the ages and other qualifications of the contracting parties and found no legal impediment to their
marriage. Finally, the Court of Appeals dismissed Jose’s argument that neither he nor Felisa was a member of
the sect to which Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article 5617 of the
Civil Code did not require that either one of the contracting parties to the marriage must belong to the
solemnizing officer’s church or religious sect. The prescription was established only in Article 718 of the
Family Code which does not govern the parties’ marriage.

Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration thereof.1avvphi1 His
central opposition was that the requisites for the proper application of the exemption from a marriage license
under Article 76 of the Civil Code were not fully attendant in the case at bar. In particular, Jose cited the legal
condition that the man and the woman must have been living together as husband and wife for at least five
years before the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed by him
and Felisa was false.

The Court of Appeals granted Jose’s Motion for Reconsideration and reversed itself. Accordingly, it rendered
an Amended Decision, dated 7 November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and another one entered
declaring the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio.

Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City.19

In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Niñal v. Bayadog,20 and
reasoned that:

In Niñal v. Bayadog, where the contracting parties to a marriage solemnized without a marriage license on the
basis of their affidavit that they had attained the age of majority, that being unmarried, they had lived together
for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows:

"x x x In other words, the five-year common-law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This
5-year period should be the years immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years
and continuity – that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any
distinction as to whether the parties were capacitated to marry each other during the entire five years, then the
law would be sanctioning immorality and encouraging parties to have common law relationships and placing
them on the same footing with those who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must be strictly observed. The presumption that a
man and a woman deporting themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse to not comply with every single
requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage.
There should be no exemption from securing a marriage license unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a license is required in order to notify the public that two
persons are about to be united in matrimony and that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages
of exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa
is not covered by the exception to the requirement of a marriage license, it is, therefore, void ab initio because
of the absence of a marriage license.21

Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court rendered a
Resolution22 dated 10 May 2007, denying Felisa’s motion.

Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Petition
for Review before this Court in G.R. No. 175581, praying that the Court of Appeals’ Amended Decision dated
7 November 2006 be reversed and set aside for lack of merit, and that the marriage between Jose and Felisa be
declared valid and subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474,
similarly assailing the appellate court’s Amended Decision. On 1 August 2007, this Court resolved to
consolidate the two Petitions in the interest of uniformity of the Court rulings in similar cases brought before it
for resolution.23

The Republic of the Philippines propounds the following arguments for the allowance of its Petition, to wit:

RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF HIS

MARRIAGE TO FELISA.
 II

RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD NOT
BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT.

III

RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE FOR

LACK OF MARRIAGE LICEN[S]E.24

Correlative to the above, Felisa submits that the Court of Appeals misapplied Niñal.25 She differentiates the
case at bar from Niñal by reasoning that one of the parties therein had an existing prior marriage, a
circumstance which does not obtain in her cohabitation with Jose. Finally, Felisa adduces that Jose only sought
the annulment of their marriage after a criminal case for bigamy and an administrative case had been filed
against him in order to avoid liability. Felisa surmises that the declaration of nullity of their marriage would
exonerate Jose from any liability.

For our resolution is the validity of the marriage between Jose and Felisa. To reach a considered ruling on the
issue, we shall jointly tackle the related arguments vented by petitioners Republic of the Philippines and Felisa.

The Republic of the Philippines asserts that several circumstances give rise to the presumption that a valid
marriage exists between Jose and Felisa. For her part, Felisa echoes the claim that any doubt should be
resolved in favor of the validity of the marriage by citing this Court’s ruling in Hernandez v. Court of
Appeals.26 To buttress its assertion, the Republic points to the affidavit executed by Jose and Felisa, dated 24
November 1986, attesting that they have lived together as husband and wife for at least five years, which they
used in lieu of a marriage license. It is the Republic’s position that the falsity of the statements in the affidavit
does not affect the validity of the marriage, as the essential and formal requisites were complied with; and the
solemnizing officer was not required to investigate as to whether the said affidavit was legally obtained. The
Republic opines that as a marriage under a license is not invalidated by the fact that the license was wrongfully
obtained, so must a marriage not be invalidated by the fact that the parties incorporated a fabricated statement
in their affidavit that they cohabited as husband and wife for at least five years. In addition, the Republic posits
that the parties’ marriage contract states that their marriage was solemnized under Article 76 of the Civil Code.
It also bears the signature of the parties and their witnesses, and must be considered a primary evidence of
marriage. To further fortify its Petition, the Republic adduces the following documents: (1) Jose’s notarized
Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisa’s name as his wife; (2)
Certification dated 25 July 1993 issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay City,
attesting that Jose and Felisa had lived together as husband and wife in said barangay; and (3) Jose’s company
ID card, dated 2 May 1988, indicating Felisa’s name as his wife.

The first assignment of error compels this Court to rule on the issue of the effect of a false affidavit under
Article 76 of the Civil Code. A survey of the prevailing rules is in order.

It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November 1986, prior to the
effectivity of the Family Code. Accordingly, the Civil Code governs their union. Article 53 of the Civil Code
spells out the essential requisites of marriage as a contract:

ART. 53. No marriage shall be solemnized unless all these requisites are complied with:

(1) Legal capacity of the contracting parties;

(2) Their consent, freely given;

 (3) Authority of the person performing the marriage; and

(4) A marriage license, except in a marriage of exceptional character. (Emphasis ours.)

Article 5827 makes explicit that no marriage shall be solemnized without a license first being issued by the
local civil registrar of the municipality where either contracting party habitually resides, save marriages of an
exceptional character authorized by the Civil Code, but not those under Article 75.28 Article 80(3)29 of the Civil
Code makes it clear that a marriage performed without the corresponding marriage license is void, this being
nothing more than the legitimate consequence flowing from the fact that the license is the essence of the
marriage contract.30 This is in stark contrast to the old Marriage Law,31 whereby the absence of a marriage
license did not make the marriage void. The rationale for the compulsory character of a marriage license under
the Civil Code is that it is the authority granted by the State to the contracting parties, after the proper
government official has inquired into their capacity to contract marriage.32

Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III, comprising
Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at the point of death during
peace or war, (2) marriages in remote places, (2) consular marriages,33 (3) ratification of marital cohabitation,
(4) religious ratification of a civil marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.34

The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil Code, which
provides:

ART. 76. No marriage license shall be necessary when a man and a woman who have attained the age of
majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to
marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also
state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties
and that he found no legal impediment to the marriage.

The reason for the law,35 as espoused by the Code Commission, is that the publicity attending a marriage
license may discourage such persons who have lived in a state of cohabitation from legalizing their status.36

It is not contested herein that the marriage of Jose and Felisa was performed without a marriage license. In lieu
thereof, they executed an affidavit declaring that "they have attained the age of maturity; that being unmarried,
they have lived together as husband and wife for at least five years; and that because of this union, they desire
to marry each other."37 One of the central issues in the Petition at bar is thus: whether the falsity of an affidavit
of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement,
effectively renders the marriage void ab initio for lack of a marriage license.

We answer in the affirmative.

Marriages of exceptional character are, doubtless, the exceptions to the rule on the indispensability of the
formal requisite of a marriage license. Under the rules of statutory construction, exceptions, as a general rule,
should be strictly38 but reasonably construed.39 They extend only so far as their language fairly warrants, and
all doubts should be resolved in favor of the general provisions rather than the exception.40 Where a general
rule is established by statute with exceptions, the court will not curtail the former or add to the latter by
implication.41 For the exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman
must have attained the age of majority, and that, being unmarried, they have lived together as husband and
wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with no other expediency but to read the law as it is
plainly written. The exception of a marriage license under Article 76 applies only to those who have lived
together as husband and wife for at least five years and desire to marry each other. The Civil Code, in no
ambiguous terms, places a minimum period requirement of five years of cohabitation. No other reading of the
law can be had, since the language of Article 76 is precise. The minimum requisite of five years of
cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article
76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory
requirement, but as one that partakes of a mandatory character. It is worthy to mention that Article 76 also
prescribes that the contracting parties shall state the requisite facts42 in an affidavit before any person
authorized by law to administer oaths; and that the official, priest or minister who solemnized the marriage
shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting
parties and that he found no legal impediment to the marriage.

It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed
their sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started living
together only in June 1986, or barely five months before the celebration of their marriage.43 The Court of
Appeals also noted Felisa’s testimony that Jose was introduced to her by her neighbor, Teresita Perwel,
sometime in February or March 1986 after the EDSA Revolution.44 The appellate court also cited Felisa’s own
testimony that it was only in June 1986 when Jose commenced to live in her house.45

Moreover, it is noteworthy that the question as to whether they satisfied the minimum five-year requisite is
factual in nature. A question of fact arises when there is a need to decide on the truth or falsehood of the
alleged facts.46 Under Rule 45, factual findings are ordinarily not subject to this Court’s review.47 It is already
well-settled that:

The general rule is that the findings of facts of the Court of Appeals are binding on this Court. A recognized
exception to this rule is when the Court of Appeals and the trial court, or in this case the administrative body,
make contradictory findings. However, the exception does not apply in every instance that the Court of
Appeals and the trial court or administrative body disagree. The factual findings of the Court of Appeals
remain conclusive on this Court if such findings are supported by the record or based on substantial evidence.48

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to exempt them
from the requirement of a marriage license, is beyond question.

We cannot accept the insistence of the Republic that the falsity of the statements in the parties’ affidavit will
not affect the validity of marriage, since all the essential and formal requisites were complied with. The
argument deserves scant merit. Patently, it cannot be denied that the marriage between Jose and Felisa was
celebrated without the formal requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal
requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as
to be excepted from the requirement of a marriage license.

Anent petitioners’ reliance on the presumption of marriage, this Court holds that the same finds no
applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it is with reference to
the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered
into a lawful contract of marriage.49 Restated more explicitly, persons dwelling together in apparent matrimony
are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact
married.50 The present case does not involve an apparent marriage to which the presumption still needs to be
applied. There is no question that Jose and Felisa actually entered into a contract of marriage on 24 November
1986, hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of
Marriage, which spawned the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code51 that every intendment of law or fact leans towards the
validity of marriage will not salvage the parties’ marriage, and extricate them from the effect of a violation of
the law. The marriage of Jose and Felisa was entered into without the requisite marriage license or compliance
with the stringent requirements of a marriage under exceptional circumstance. The solemnization of a marriage
without prior license is a clear violation of the law and would lead or could be used, at least, for the
perpetration of fraud against innocent and unwary parties, which was one of the evils that the law sought to
prevent by making a prior license a prerequisite for a valid marriage.52 The protection of marriage as a sacred
institution requires not just the defense of a true and genuine union but the exposure of an invalid one as
well.53 To permit a false affidavit to take the place of a marriage license is to allow an abject circumvention of
the law. If this Court is to protect the fabric of the institution of marriage, we must be wary of deceptive
schemes that violate the legal measures set forth in our laws.

Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not
invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a
fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is
flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one.
Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating
to the period of Jose and Felisa’s cohabitation, which would have qualified their marriage as an exception to
the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that
the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the
sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was
no affidavit at all.

In its second assignment of error, the Republic puts forth the argument that based on equity, Jose should be
denied relief because he perpetrated the fabrication, and cannot thereby profit from his wrongdoing. This is a
misplaced invocation. It must be stated that equity finds no room for application where there is a law.54 There
is a law on the ratification of marital cohabitation, which is set in precise terms under Article 76 of the Civil
Code. Nonetheless, the authorities are consistent that the declaration of nullity of the parties’ marriage is
without prejudice to their criminal liability.55

The Republic further avers in its third assignment of error that Jose is deemed estopped from assailing the
legality of his marriage for lack of a marriage license. It is claimed that Jose and Felisa had lived together from
1986 to 1990, notwithstanding Jose’s subsequent marriage to Rufina Pascual on 31 August 1990, and that it
took Jose seven years before he sought the declaration of nullity; hence, estoppel had set in.

This is erroneous. An action for nullity of marriage is imprescriptible.56 Jose and Felisa’s marriage was
celebrated sans a marriage license. No other conclusion can be reached except that it is void ab initio. In this
case, the right to impugn a void marriage does not prescribe, and may be raised any time.

Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law cohabitation
period under Article 76 means a five-year period computed back from the date of celebration of marriage, and
refers to a period of legal union had it not been for the absence of a marriage.57 It covers the years immediately
preceding the day of the marriage, characterized by exclusivity - meaning no third party was involved at any
time within the five years - and continuity that is unbroken.58

WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals, dated 7
November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void
ab initio, is AFFIRMED, without prejudice to their criminal liability, if any. No costs.

SO ORDERED.
Case Digest
G.R. No. 175581 March 28, 2008

FACTS: On November 24, 1986, Jose and Felisa were married in Pasay City through the execution of a
sworn affidavit attesting that both of them had attained the age of maturity and that being unmarried, they had
lived together as husband and wife for at least five years. Then Jose contracted marriage with a certain Rufina
Pascual on August 31, 1990. On June 3, 1993 Felisa filed an action for bigamy against Jose. Then on July 7,
1993, Jose filed a Complaint for Annulment and/or Declaration of Nullity of Marriage with the Regional Trial
Court (RTC), Biñan, Laguna. He contended that his marriage with Felisa was a sham, as no marriage
ceremony was celebrated between the parties; that he did not execute the sworn affidavit stating that he and
Felisa had lived as husband and wife for at least five years; and that his consent to the marriage was secured
through fraud. The RTC rendered a Decision dismissing the complaint for the ground that the testimonies and
evidence presented, the marriage celebrated between Jose and Felisa was valid. Jose filed an appeal from the
foregoing RTC Decision to the Court of Appeals the Court of Appeals did not accept Jose assertion that his
marriage to Felisa was void ab initio for lack of a marriage license. Jose filed a Motion for Reconsideration
thereof. His central opposition was that the requisites for the proper application of the exemption from a
marriage license under Article 34 of the New Civil Code were not fully attendant in the case at bar he cited the
legal condition that the man and the woman must have been living together as husband and wife for at least
five years before the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed by
him and Felisa was false.

ISSUE: Whether or not the marriage between Jose and Felisa is void ab initio?

RULING: Yes, it is void ab initio (void from the beginning) for lacking the requirements of valid marriage in
which the sworn affidavit that Felisa executed is merely a scrap of paper because they started living together
five months before the celebration of their marriage. That according to the five-year common-law cohabitation
period under Article 34 “No license shall be necessary for the marriage for a man and a woman who have
lived together as husband and wife for at least five years and without any legal impediments to marry each
other… “ it means that a five years period computed back from the date of celebration of marriage, and refers
to a period of legal union had it not been for the absence of a marriage. It covers the years immediately
preceding the day of the marriage, characterized by exclusivity, meaning no third party was involved at any
time within the five years and continuity that is unbroken.

The solemnization of a marriage without prior license is a clear violation of the law and would lead or could be
used, at least, for the perpetration of fraud against innocent and unwary parties.

The Court of Appeals granted Joses Motion for Reconsideration and reversed itself. Accordingly, it rendered
an Amended Decision that the marriage between Jose A. Dayot and Felisa C. Tecson is void ab initio.