EN BANC
ALEJANDRO ESTRADA,
Complainant,
A.M.
No.
P-02-1651
(formerly OCA
I.P.I.
No. 00-1021-P)
August 4, 2003
-versus-
SOLEDAD S.
ESCRITOR,
Respondent.
D E C I S I O N
PUNO,
J.:chanroblesvirtuallawlibrary
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.cralaw:red
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]chanrobles virtual law library
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:chanrobles virtual law library
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.cralaw:red
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.cralaw:red
x x
x
x x
x
x x x
Undersigned submits
to the just, humane and fair discretion of the Court with verification
from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch x
x x 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]chanrobles virtual law library
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.cralaw:red
Q: What is that document?
A: Declaration of Pledge
of faithfulness.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
Q: And what does pledge
mean to you?chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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.chanrobles virtual law library
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 x
x
x 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.cralaw:red
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.chanrobles virtual law library
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.cralaw:red
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.cralaw:red
Keeping in mind the
basic principles presented, the respondent as a Minister of Jehovah
God,
should be able to approach the matter in a balanced way, neither
underestimating
nor overestimating the validation offered by the political state. She
always
gives primary concern to God's view of the union. Along with this,
every
effort should be made to set a fine example of faithfulness and
devotion
to one's mate, thus, keeping the marriage "honorable among all." Such
course
will bring God's blessing and result to the honor and praise of the
author
of marriage, Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought
to the attention of the investigating judge that complainant's
Memorandum
came from Judge Caoibes' chambers[21]
whom she claims was merely using petitioner to malign her.cralaw:red
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]chanrobles virtual law library
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.cralaw:red
(b) The following shall
be grounds for disciplinary action:
x x
x
x x
x
x x x
(5) Disgraceful and
immoral conduct; x x x
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.cralaw:red
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]chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.cralaw:red
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]chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.cralaw:red
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
x x x 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]chanrobles virtual law library
When the representatives
of the American states met in Philadelphia in 1787 to draft the
constitutional
foundation of the new republic, the theocratic state which had
flourished
intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely
gone. The prevailing church-state relationship in Europe was
Erastianism
embodied in the system of jurisdictionalism whereby one faith was
favored
as the official-state-supported religion, but other faiths were
permitted
to exist with freedom in various degrees. No nation had yet adopted as
the basis of its church-state relations the principle of the mutual
independence
of religion and government and the concomitant principle that neither
might
be used as an engine to further the policies of the other, although the
principle was in its seminal form in the arguments of some dissident
minorities
and intellectual leaders of the Renaissance. The religious wars of 16th
and 17th century Europe were a thing of the past by the time America
declared
its independence from the Old World, but their memory was still vivid
in
the minds of the Constitutional Fathers as expressed by the United
States
Supreme Court, viz:
The centuries immediately
before and contemporaneous with the colonization of America had been
filled
with turmoil, civil strife, and persecution generated in large part by
established sects determined to maintain their absolute political and
religious
supremacy. With the power of government supporting them, at various
times
and places, Catholics had persecuted Protestants, Protestants had
persecuted
Catholics, Protestant sects had persecuted other protestant sects,
Catholics
of one shade of belief had persecuted Catholics of another shade of
belief,
and all of these had from time to time persecuted Jews. In efforts to
force
loyalty to whatever religious group happened to be on top and in league
with the government of a particular time and place, men and women had
been
fined, cast in jail, cruelly tortured, and killed. Among the offenses
for
which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established
churches,
non-attendance of those churches, expressions of non-belief in their
doctrines,
and failure to pay taxes and tithes to support them.[61]
In 1784, James Madison
captured in this statement the entire history of church-state relations
in Europe up to the time the United States Constitution was adopted,
viz:
Torrents of blood have
been spilt in the world in vain attempts of the secular arm to
extinguish
religious discord, by proscribing all differences in religious
opinions.
62
In sum, this history
shows two salient features: First, with minor exceptions, the history
of
church-state relationships was characterized by persecution,
oppression,
hatred, bloodshed, and war, all in the name of the God of Love and of
the
Prince of Peace. Second, likewise with minor exceptions, this history
witnessed
the unscrupulous use of religion by secular powers to promote secular
purposes
and policies, and the willing acceptance of that role by the vanguards
of religion in exchange for the favors and mundane benefits conferred
by
ambitious princes and emperors in exchange for religion's invaluable
service.
This was the context in which the unique experiment of the principle of
religious freedom and separation of church and state saw its birth in
American
constitutional democracy and in human history. 63
V. Factors Contributing
to the Adoption of the American Religion Clauses
Settlers fleeing from
religious persecution in Europe, primarily in Anglican-dominated
England,
established many of the American colonies. British thought pervaded
these
colonies as the immigrants brought with them their religious and
political
ideas from England and English books and pamphlets largely provided
their
cultural fare.[64]
But although these settlers escaped from Europe to be freed from
bondage
of laws which compelled them to support and attend government favored
churches,
some of these settlers themselves transplanted into American soil the
oppressive
practices they escaped from. The charters granted by the English Crown
to the individuals and companies designated to make the laws which
would
control the destinies of the. colonials authorized them to erect
religious
establishments, which all, whether believers or not, were required to
support
or attend.[65]
At one time, six of the colonies established a state religion. Other
colonies,
however, such as Rhode Island and Delaware tolerated a high degree of
religious
diversity. Still others, which 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.chanrobles virtual law library
First, the practical
factors. England's policy of opening the gates of the American colonies
to different faiths resulted in the multiplicity of sects in the
colonies.
With an Erastian justification, English lords chose to forego
protecting
what was considered to be the true and eternal church of a particular
time
in order to encourage trade and commerce. The colonies were large
financial
investments which would be profitable only if people would settle
there.
It would be difficult to engage in trade with persons one seeks to
destroy
for religious belief, thus tolerance was a necessity. This tended to
distract
the colonies from their preoccupations over their religion and its
exclusiveness,
encouraging them "to think less of the Church and more of the State and
of commerce."[68]
The diversity brought about by the colonies' open gates encouraged
religious
freedom and non-establishment in several ways. First, as there were too
many dissenting sects to abolish, there was no alternative but to learn
to live together. Secondly, because of the daily exposure to different
religions, the passionate conviction in the exclusive rightness of
one's
religion, which impels persecution for the sake of one's religion,
waned.
Finally, because of the great diversity of the sects, religious
uniformity
was not possible, and without such uniformity, establishment could not
survive.[69]
But while there was
a multiplicity of denomination, paradoxically, there was a scarcity of
adherents. Only about four percent of the entire population of the
country
had a church affiliation at the time the republic was founded.[70]
This might be attributed to the drifting to the American colonies of
the
skepticism that characterized European Enlightenment.[71]
Economic considerations might have also been a factor. The
individualism
of the American colonist, manifested in the multiplicity of sects, also
resulted in much unaffiliated religion which treated religion as a
personal
non-institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who
were
not connected with any church were not likely to persecute others for
similar
independence nor accede to compulsory taxation to support a church to
which
they did not belong.[72]
However, for those who
were affiliated to churches, the colonial policy regarding their
worship
generally followed the tenor of the English Act of Toleration of 1689.
In England, this Act conferred on Protestant dissenters the right to
hold
public services subject to registration of their ministers and planes
of
worship.[73]
Although the toleration accorded to Protestant dissenters who qualified
under its terms was only a modest advance in religious freedom, it
nevertheless
was of some influence to the American experiment.[74]
Even then, for practical considerations, concessions had to be made to
other dissenting churches to ensure their cooperation in the War of
Independence
which thus had a unifying effect on the colonies.cralaw:red
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
x
x x 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 x
x
x 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]chanrobles virtual law library
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.chanrobles virtual law library
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 malting permanent the establishment's loss of
its
exclusive status and its power to tax its members; but those who voted
for it did so in the hope that a general assessment bill would be
passed.
Without the latter, the establishment would not survive. Thus, a bill
was
introduced in 1779 requiring every person to enroll his name with the
county
cleric and indicate which "society for the purpose of Religious
Worship"
he wished to support. On the basis of this list, collections were to be
made by the sheriff and turned over to the clergymen and teachers
designated
by the religious congregation. The assessment of any person who failed
to enroll in any society was to be divided proportionately among the
societies.[94]
The bill evoked strong opposition.cralaw:red
In 1784, another bill,
entitled "Bill Establishing a Provision for Teachers of the Christian
Religion"
was introduced requiring all persons "to pay a moderate tax or
contribution
annually for the support of the Christian religion, or of same
Christian
church, denomination or communion of Christians, or for some form of
Christian
worship."[95]
This likewise aroused the same opposition to the 1779 bill. The most
telling
blow against the 1784 bill was the monumental "Memorial and
Remonstrance
against Religious Assessments" written by Madison and widely
distributed
before the reconvening of legislature in the fall of 1785.[96]
It stressed natural rights, the government's lack of jurisdiction over
the domain of religion, and the social contract as the ideological
basis
of separation while also citing practical considerations such as loss
of
population through migration. He wrote, viz:
Because we hold it for
a 'fundamental and undeniable truth,' that religion, or the duty which
we owe to our creator, and the manner of discharging it, can be
directed
only by reason and conviction, not by force or violence. The religion,
then, of every man, must be left to the conviction and conscience of
every
man; and it is the right of every man to exercise it as these may
dictate.
This right is, in its nature, an unalienable right. It is unalienable,
because the opinions of men, depending only on the evidence
contemplated
in their own minds, cannot follow the dictates of other men; it is
unalienable,
also, because what is here a right towards men, is a duty towards the
creator.
It is the duty of every man to render the creator such homage, and such
only as he believes to be acceptable to him; this duty is precedent,
both
in order of time and degree of obligation, to the claims of civil
society.
Before any man can be considered as a member of civil society, he must
be considered as a subject of the governor of the universe; and if a
member
of civil society, who enters into any subordinate association, must
always
do it with a reservation of his duty to the general authority, much
more
must every man who becomes a member of any particular civil society do
it with the saving his allegiance to the universal sovereign.[97]
(Emphases supplied.)
Madison articulated
in the Memorial the widely held beliefs in 1785 as indicated by the
great
number of signatures appended to the Memorial. The assessment bill was
speedily defeated.chanrobles virtual law library
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;
x x
x
x x
x
x x x
Be it therefore enacted
by the General Assembly. That no man shall be compelled to frequent or
support any religious worship, place or ministry whatsoever, nor shall
be enforced, restrained, molested or burdened in his body or goods, nor
shall otherwise suffer on account of his religious opinions or beliefs,
but that all men shall be free to profess, and by argument to maintain,
their opinions in matters of religion, and that the same shall in no
wise
diminish, enlarge or affect their civil capacities.[98]
(Emphases supplied.)
This statute forbade
any kind of taxation in support of religion and effectually ended any
thought
of a general or particular establishment in Virginia.[99]
But the passage of this law was obtained not only because of the
influence
of the great leaders in Virginia but also because of substantial
popular
support coming mainly from the two great dissenting sects, namely the
Presbyterians
and the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious to
pull
down the existing state church as they realized that it was impossible
for them to be elevated to that privileged position. Apart from these
expediential
considerations, however, many of the Presbyterians were sincere
advocates
of separation[100]
grounded on rational, secular arguments and to the language of natural
religion.[101]
Influenced by Roger Williams, the Baptists, on the other hand, assumed
that religion was essentially a matter of concern of the individual and
his God, i.e., subjective, spiritual and supernatural, having no
relation
with the social order.[102]
To them, the Holy Ghost was sufficient to maintain and direct the
Church
without governmental assistance and state-supported religion was
contrary
to the spirit of the Gospel.[103]
Thus, separation was necessary.[104]
Jefferson's religious freedom statute was a milestone in the history of
religious freedom. The United States Supreme Court has not just once
acknowledged
that the provisions of the First Amendment of the U.S. Constitution had
the same objectives and intended to afford the same protection against
government interference with religious liberty as the Virginia Statute
of Religious Liberty.chanrobles virtual law library
Even in the absence
of the religion clauses, the principle that government had no power to
legislate in the area of religion by restricting its free exercise or
establishing
it was implicit in the Constitution of 1787. This could be deduced from
the prohibition of any religious test for federal office in Article VI
of the Constitution and the assumed lack of power of Congress to act on
any subject not expressly mentioned in the Constitution.[105]
However, omission of an express guaranty of religious freedom and other
natural rights nearly prevented the ratification of the Constitution.[106]
In the ratifying conventions of almost every state, some objection was
expressed to the absence of a restriction on the Federal Government as
regards legislation on religion.[107]
Thus, in 1791, this restriction was made explicit with the adoption of
the religion clauses in the First Amendment as they are worded to this
day, with the first part usually referred to as the Establishment
Clause
and the second part, the Free Exercise Clause, viz:
Congress shall make
no law respecting an establishment of religion or prohibiting the free
exercise thereof.
VI. Religion
Clauses
in the United States: Concept, Jurisprudence, Standards
With the widespread
agreement regarding the value of the First Amendment religion clauses
comes
an equally broad disagreement as to what these clauses specifically
require,
permit and forbid. No agreement has been reached by those who hive
studied
the religion clauses as regards its exact meaning and the paucity of
records
in Congress renders it difficult to ascertain its meaning.[108]
Consequently, the jurisprudence in this area is volatile and fraught
with
inconsistencies whether within a Court decision or across decisions.cralaw:red
One source of difficulty
is the difference in the context in which the First Amendment was
adopted
and in which it is applied today. In the 1780s, religion played a
primary
role in social life, i.e., family responsibilities, education, health
care,
poor relief; and other aspects of social life with significant moral
dimension
— while government played a supportive and indirect role by maintaining
conditions in which these activities may be carried out by religious or
religiously-motivated associations. Today, government plays this
primary
role and religion plays the supportive role.[109]
Government runs even family planning, sex education, adoption and
foster
care programs.[110]
Stated otherwise and with some exaggeration, "(w)hereas two centuries
ago,
in matters of social life which have a significant moral dimension,
government
was the handmaid of religion, today religion, in its social
responsibilities,
as contrasted with personal faith and collective worship, is the
handmaid
of government."[111]
With government regulation of individual conduct having become more
pervasive,
inevitably some of those regulations would reach conduct that for some
individuals are religious. As a result, increasingly, there may be
inadvertent
collisions between purely secular government actions and religion
clause
values.[112]
Parallel to this expansion
of government has been the expansion of religious organizations in
population,
physical institutions, types of activities undertaken, and sheer
variety
of denominations, sects and cults. Churches run daycare centers,
retirement
homes, hospitals, schools at all levels, research centers, settlement
houses,
halfway houses for prisoners, sports facilities, theme parks,
publishing
houses and mass media programs. In these activities, religious
organizations
complement and compete with commercial enterprises, thus blurring the
line
between many types of activities undertaken by religious groups and
secular
activities. Churches have also concerned themselves with social and
political
issues as a necessary outgrowth of religious faith as witnessed in
pastoral
letters on war and peace, economic justice, and human life, or in
ringing
affirmations for racial equality on religious foundations. Inevitably,
these developments have brought about substantial entanglement of
religion
and government. Likewise, the growth in population density, mobility
and
diversity has significantly changed the environment in which religious
organizations and activities exist and the laws affecting them are
made.
It is no longer easy for individuals to live solely among their own
kind
or to shelter their children from exposure to competing values. The
result
is disagreement over what laws should require, permit or prohibit;[113]
and agreement that if the rights of believers as well as non-believers
are all to be respected and given their just due, a rigid, wooden
interpretation
of the religion clauses that is blind to societal and political
realities
must be avoided.[114]
Religion cases arise
from different circumstances. The more obvious ones arise from a
government
action which purposely aids or inhibits religion. These cases are
easier
to resolve as, in general, these actions are plainly unconstitutional.
Still, this kind of cases poses difficulty in ascertaining proof of
intent
to aid or inhibit religion.[115]
The more difficult religion clause cases involve government action with
a secular purpose and general applicability which incidentally or
inadvertently
aids or burdens religious exercise. In Free Exercise Clause cases,
these
government actions are referred to as those with "burdensome effect" on
religious exercise even if the government action is not religiously
motivated.[116]
Ideally, the legislature would recognize the religions and their
practices
and would consider them, when practical, in enacting laws of general
application.
But when the legislature fails to do so, religions that are threatened
and burdened turn to the courts for protection.[117]
Most of these free exercise claims brought to the Court are for
exemption,
not invalidation of the facially neutral law that has a "burdensome"
effect.[118]
With the change in political
and social context and the increasing inadvertent collisions between
law
and religious exercise, the definition of religion for purposes of
interpreting
the religion clauses has also been modified to suit current realities.
Defining religion is a difficult task for even theologians,
philosophers
and moralists cannot agree on a comprehensive definition. Nevertheless,
courts must define religion for constitutional and other legal purposes.[119]
It was in the 1890 case of Davis v. Beason[120]
that the United States Supreme Court first had occasion to define
religion,
viz.:
The term
'religion'
has reference to one's views of his relations to his Creator, and to
the
obligations they impose of reverence for his being and character, and
of
obedience to his will. It is often confounded with the cultus or form
of
worship of a particular sect, but is distinguishable from the latter.
The
First Amendment to the Constitution, in declaring that Congress shall
make
no law respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the jurisdiction
of the United States to entertain such notions respecting his relations
to his Maker and the duties they impose as may be approved by his
judgment
and conscience, and to exhibit his sentiments in such form of worship
as
he may think proper, not injurious to the equal rights of others, and
to
prohibit legislation for the support of any religious tenets, or the
modes
of worship of any sect.[121]
The definition was
clearly
theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated
in United States v. Ballard[122]
that the free exercise of religion "embraces the right to maintain
theories
of life and of death and of the hereafter which are rank heresy to
followers
of the orthodox faiths."[123]
By the 1960s, American pluralism in religion had flourished to include
non-theistic creeds from Asia such as Buddhism and Taoism.[124]
In 1961, the Court, in Torcaso v. Watkins,[125]
expanded the term "religion" to non-theistic beliefs such as Buddhism,
Taoism, Ethical Culture, and Secular Humanism. Four years later, the
Court
faced a definitional problem in United States v. Seeger[126]
which involved four men who claimed "conscientious objector" status in
refusing to serve in the Vietnam War. One of the four, Seeger, was not
a member of any organized religion opposed to war, but when
specifically
asked about his belief in a Supreme Being, Seeger stated that "you
could
call (it) a belief in a Supreme Being or God. These just do not happen
to be the words that I use." Forest Peter, another one of the four
claimed
that after considerable meditation and reflection "on values derived
from
the Western religious and philosophical tradition," he determined that
it would be "a violation of his moral code to take human life and that
he considered this belief superior to any obligation to the state." The
Court avoided a constitutional question by broadly interpreting not the
Free Exercise Clause; but the statutory definition of religion in the
Universal
Military Training and Service Act of 1940 which exempt from combat
anyone
"who, by reason of religious training and belief, is conscientiously
opposed
to participation in war in any form." Speaking for the Court, Justice
Clark
ruled, viz:chanrobles virtual law library
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 all[138]
because history has shown that religious fervor conjoined with state
power
is likely to tolerate far less religious disagreement and disobedience
from those who hold different beliefs than an enlightened secular state.[139]
In the words of the U.S. Supreme Court, the two clauses are
interrelated,
viz: "(t)he structure of our government has, for the preservation of
civil
liberty, rescued the temporal institutions from religious interference.
On the other hand, it has secured religious liberty from the invasion
of
the civil authority."[140]
In upholding religious
liberty as the end goal in religious clause cases, the line the court
draws
to ensure that government does not establish and instead remains
neutral
toward religion is not absolutely straight. Chief Justice Burger
explains,
viz:
The course of constitutional
neutrality in this area cannot be an absolutely straight line; rigidity
could well defeat the basic purpose of these provisions, which is to
insure
that no religion be sponsored or favored, none commanded and none
inhibited.[141]
(Emphasis supplied.)
Consequently, U.S. jurisprudence
has produced two identifiably different,[142]
even opposing, strains of jurisprudence on the religion clauses:
separation
(in the form of strict separation or the tamer version of strict
neutrality
or separation) and benevolent neutrality or accommodation. A view of
the
landscape of U.S. religion clause cases would be useful in
understanding
these two strains, the scope of protection of each clause, and the
tests
used in religious clause cases. Most of these cases are cited as
authorities
in Philippine religion clause cases.
A. Free Exercise
Clause
The Court first interpreted
the Free Exercise Clause in the 1878 case of Reynolds v. United States.[143]
This landmark case involved Reynolds, a Mormon who proved that it was
his
religious duty to have several wives and that the failure to practice
polygamy
by male members of his religion when circumstances would permit would
be
punished with damnation in the life to come. Reynolds' act of
contracting
a second marriage violated Section 5352, Revised Statutes prohibiting
and
penalizing bigamy, for which he was convicted. The Court affirmed
Reynolds'
conviction, using what in jurisprudence would be called the
belief-action
test which allows absolute protection to belief but not to action. It
cited
Jefferson's Bill Establishing Religious Freedom which, according to the
Court, declares "the true distinction between what properly belongs to
the Church and what to the State."[144]
The bill, making a distinction between belief and action, states in
relevant
part, viz:
That to
suffer
the civil magistrate to intrude his powers into the field of opinion,
and
to restrain the profession or propagation of principles on supposition
of their ill tendency, is a dangerous fallacy which at once destroys
all
religious liberty; that it is time enough for the rightful purposes of
civil government for its officers to interfere when principles break
out
into overt acts against peace and good order.[145]
(Emphasis supplied.)
The Court then held,
viz:
Congress
was
deprived of all legislative power over mere opinion, but was left free
to reach actions which were in violation of social duties or subversive
of good order x x xchanrobles virtual law library
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
beliefs[151]
and proscribes government from questioning a person's beliefs or
imposing
penalties or disabilities based solely on those beliefs. The Clause
extends
protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152]
a unanimous Court struck down a state law requiring as a qualification
for public office an oath declaring belief in the existence of God. The
protection also allows courts to look into the good faith of a person
in
his belief, but prohibits inquiry into the truth of a person's
religious
beliefs. As held in United States v. Ballard,[153]
"heresy 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
x
x x In every case, the power to regulate must
be
so exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom.[156]
(Emphasis supplied.)chanrobles virtual law library
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 as to the exercise of religion and no matter how insignificant
was the government's non-religious regulatory interest so long as the
government
is proscribing action and not belief. Thus, the Court abandoned the
simplistic
belief-action distinction and instead recognized the
deliberate-inadvertent
distinction, i.e., the distinction between deliberate state
interference
of religious exercise for religious reasons which was plainly
unconstitutional
and government's inadvertent interference with religion in pursuing
some
secular objective.[162]
In the 1940 case of Minersville School District v. Gobitis,[163]
the Court upheld a local school board requirement that all public
school
students participate in a daily flag salute program, including the
Jehovah's
Witnesses who were forced to salute the American flag in violation of
their
religious training, which considered flag salute to be worship of a
"graven
image." The Court recognized that the general requirement of compulsory
flag salute inadvertently burdened the Jehovah Witnesses' practice of
their
religion, but justified the government regulation as an appropriate
means
of attaining national unity, which was the "basis of national
security."
Thus, although the Court was already aware of the
deliberate-inadvertent
distinction in government interference with religion, it continued to
hold
that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference,
no
matter how trivial the state's non-religious objectives, and no matter
how many alternative approaches were available to the state to pursue
its
objectives with less impact on religion, so long as government was
acting
in pursuit of a secular objective.cralaw:red
Three years later, the
Gobitis decision was overturned in West Virginia v. Barnette[164]
which involved a similar set of facts and issue. The Court recognized
that
saluting the flag, in connection with the pledges, was a form of
utterance
and the flag salute program was a compulsion of students to declare a
belief.
The Court ruled that "compulsory unification of opinions leads only to
the unanimity of the graveyard" and exempt the students who were
members
of the Jehovah's Witnesses from saluting the flag. A close scrutiny of
the case, however, would show that it was decided not on the issue of
religious
conduct as the Court said, "(n)or does the issue as we see it turn on
one's
possession of particular religious views or the sincerity with which
they
are held. While religion supplies appellees' motive for enduring the
discomforts
of making the issue in this case, many citizens who do not share these
religious views hold such a compulsory rite to infringe constitutional
liberty of the individual."[165]
(Emphasis supplied.) The Court pronounced, however, that, "freedoms of
speech and of press, of assembly, and of worship x x x 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]chanrobles virtual law library
Nearly a century after
Reynolds employed the belief-action test, the Warren Court began the
modern
free exercise jurisprudence.[168]
A two-part balancing test was established in Braunfeld v. Brown[169]
where the Court considered the constitutionality of applying Sunday
closing
laws to Orthodox Jews whose beliefs required them to observe another
day
as the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a
severe
burden on Sabattarian retailers. He noted, however, that since the
burden
was the indirect effect of a law with a secular purpose, it would
violate
the Free Exercise Clause only if there were alternative ways of
achieving
the state's interest. He employed a two-part balancing test of validity
where the first step was for plaintiff to show that the regulation
placed
a real burden on his religious exercise. Next, the burden would be
upheld
only if the state showed that it was pursuing an overriding secular
goal
by the means which imposed the least burden on religious practices.[170]
The Court found that the state had an overriding secular interest in
setting
aside a single day for rest, recreation and tranquillity and there was
no alternative means of pursuing this interest but to require Sunday as
a uniform rest day.cralaw:red
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 regulatex x x' 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]chanrobles virtual law library
Throughout the 1970s
and
1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. In Thomas v. Review Board[177]
and Hobbie v. Unemployment Appeals Division,[178]
for example, the Court reiterated the exemption doctrine and held that
in the absence of a compelling justification, a state could not
withhold
unemployment compensation from an employee who resigned or was
discharged
due to unwillingness to depart from religious practices and beliefs
that
conflicted with job requirements. But not every governmental refusal to
allow an exemption from a regulation which burdens a sincerely held
religious
belief has been invalidated, even though strict or heightened scrutiny
is applied. In United States v. Lee,[179]
for instance, the Court using strict scrutiny and referring to Thomas,
upheld the federal government's refusal to exempt Amish employers who
requested
for exemption from paying social security taxes on wages on the ground
of religious beliefs. The Court held that "(b)ecause the broad public
interest
in maintaining a sound tax stem is of such a high order, religious
belief
in conflict with the payment of taxes affords no basis for resisting
the
tax."[180]
It reasoned that unlike in Sherbert, an exemption would significantly
impair
government's achievement of its objective — "the fiscal' vitality of
the
social security system;" mandatory participation is indispensable to
attain
this objective. The Court noted that if an exemption were made, it
would
be hard to justify not allowing a similar exemption from general
federal
taxes where the taxpayer argues that his religious beliefs require him
to reduce or eliminate his payments so that he will not contribute to
the
government's war-related activities, for example.
The strict scrutiny
and compelling state interest test significantly increased the degree
of
protection afforded to religiously motivated conduct. While not
affording
absolute immunity to religious activity, a compelling secular
justification
was necessary to uphold public policies that collided with religious
practices.
Although the members of the Court often disagreed over which
governmental
interests should be considered compelling, thereby producing dissenting
and separate opinions in religious conduct cases, this general test
established
a strong presumption in favor of the free exercise of religion.[181]
Heightened scrutiny
was also used in the 1972 case of Wisconsin v. Yoder[182]
where the Court upheld the religious practice of the Old Order Amish
faith
over the state's compulsory high school attendance law. The Amish
parents
in this case did not permit secular education of their children beyond
the eighth grade. Chief Justice Burger, writing for the majority, held,
viz:
It follows
that in order for Wisconsin to compel school attendance beyond the
eighth
grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State
does not deny the free exercise of religious belief by its requirement,
or that there is a state interest of sufficient magnitude to override
the
interest claiming protection under the Free Exercise Clause. Long
before
there was general acknowledgment of the need for universal education,
the
Religion Clauses had specially and firmly fixed the right of free
exercise
of religious beliefs, and buttressing this fundamental right was an
equally
firm, even if less explicit, prohibition against the establishment of
any
religion. The values underlying these two provisions relating to
religion
have been zealously protected, sometimes even at the expense of other
interests
of admittedly high social importance x
x
x
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 x
x
x
x x
x our decisions have rejected the idea that religiously grounded
conduct
is always outside the protection of the Free Exercise Clause. It is
true
that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or the
Federal
government in the exercise of its delegated powers x x x
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 applicabilityx x x 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 compartmentsx
x x[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 x x
x
is x x x
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.cralaw:red
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 x x xchanrobles virtual law library
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." x
x
x 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," x x x contradicts both
constitutional
tradition and common sense.cralaw:red
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
x x x and x x x (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
x
x x 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.cralaw:red
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]chanrobles virtual law library
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.cralaw:red
After Smith came Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah[193]
which was ruled consistent with the Smith doctrine. This case involved
animal sacrifice of the Santeria, a blend of Roman Catholicism and West
African religions brought to the Carribean by East African slaves. An
ordinance
made it a crime to "unnecessarily kill, torment, torture, or mutilate
an
animal in public or private ritual or ceremony not for the primary
purpose
of food consumption." The ordinance came as a response to the local
concern
over the sacrificial practices of the Santeria. Justice Kennedy,
writing
for the majority, carefully pointed out that the questioned ordinance
was
not a generally applicable criminal prohibition, but instead singled
out
practitioners of the Santeria in that it forbade animal slaughter only
insofar as it took place within the context of religious rituals.cralaw:red
It may be seen from
the foregoing cases that under the Free Exercise Clause, religious
belief
is absolutely protected, religious speech and proselytizing are highly
protected but subject to restraints applicable to non religious speech,
and unconventional religious practice receives less protection;
nevertheless
conduct, even if its violates a law, could be accorded protection as
shown
in Wisconsin.[194]
B. Establishment
Clause
The Court's first encounter
with the Establishment Clause was in the 1947 case of Everson v. Board
of Education.[195]
Prior cases had made passing reference to the Establishment Clause[196]
and raised establishment questions but were decided on other grounds.[197]
It was in the Everson case that the U.S. Supreme Court adopted
Jefferson's
metaphor of "a wall of separation between church and state" as
encapsulating
the meaning of the Establishment Clause. The often and loosely used
phrase
"separation of church and state" does not appear in the U.S.
Constitution.
It became part of U.S. jurisprudence when the Court in the 1878 case of
Reynolds v. United States[198]
quoted Jefferson's famous letter of 1802 to the Danbury Baptist
Association
in narrating the history of the religion clauses, viz:
Believing
with
you that religion is a matter which lies solely between man and his
God;
that he owes account to none other for his faith or his worship; that
the
legislative powers of the Government reach actions only, and not
opinions,
I contemplate with sovereign reverence that act of the whole American
people
which declared that their Legislature should 'make no law respecting an
establishment of religion or prohibiting the free exercise thereof,'
thus
building a wall of separation between Church and State.[199]
(Emphasis supplied.)
Chief Justice Waite,
speaking
for the majority, then added, "(c)oming as this does from an
acknowledged
leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus
secured."[200]
The interpretation of
the Establishment Clause has in large part been in cases involving
education,
notably state aid to private religious schools and prayer in public
schools.[201]
In Everson v. Board of Education, for example, the issue was whether a
New Jersey local school board could reimburse parents for expenses
incurred
in transporting their children to and from Catholic schools. The
reimbursement
was part of a general program under which all parents of children in
public
schools and nonprofit private schools, regardless of religion, were
entitled
to reimbursement for transportation costs. Justice Hugo Black, writing
for a sharply divided Court, justified the reimbursements on the child
benefit theory, i.e., that the school board was merely furthering the
state's
legitimate interest in getting children "regardless of their religion,
safely and expeditiously to and from accredited schools." The Court,
after
narrating the history of the First Amendment in Virginia, interpreted
the
Establishment Clause, viz:
The
'establishment
of religion' clause of the First Amendment means at least this: Neither
a state nor the Federal Government can set up a church. Neither can
pass
laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or
remain
away from church against his will or force him to profess a belief or
disbelief
in any religion. No person can be punished for entertaining or
professing
religious beliefs or disbeliefs, for church attendance or
non-attendance.
No tax in any amount, large or small, can be levied to support any
religious
activities or institutions, whatever they may be called, or whatever
form
they may adopt to teach or practice religion. Neither a state nor the
Federal
Government can, openly or secretly participate in the affairs of any
religious
organizations or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was intended to erect
"a
wall of separation between Church and State."[202]chanrobles virtual law library
The Court then ended
the
opinion, viz:
The First
Amendment
has erected a wall between church and state. That wall must be kept
high
and impregnable. We could not approve the slightest breach. New Jersey
has not breached it here.[203]
By 1971, the Court
integrated
the different elements of the Court's Establishment Clause
jurisprudence
that evolved in the 1950s and 1960s and laid down a three-pronged test
in Lemon v. Kurtzman[204]
in determining the constitutionality of policies challenged under the
Establishment
Clause. This case involved a Pennsylvania statutory program providing
publicly
funded reimbursement for the cost of teachers' salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island statute
providing salary supplements to teachers in parochial schools. The
Lemon
test requires a challenged policy to meet the following criteria to
pass
scrutiny under the Establishment Clause. "First, the statute must have
a secular legislative purpose; second, its primary or principal effect
must be one that neither advances nor inhibits religion (Board of
Education
v. Allen, 392 US 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])"[205]
(Emphasis supplied.) Using this test, the Court held that the
Pennsylvania
statutory program and Rhode Island statute were unconstitutional as
fostering
excessive entanglement between government and religion.
The most controversial
of the education cases involving the Establishment Clause are the
school
prayer decisions. "Few decisions of the modern Supreme Court have been
criticized more intensely than the school prayer decisions of the early
1960s."[206]
In the 1962 case of Engel v. Vitale,[207]
the Court invalidated a New York Board of Regents policy that
established
the voluntary recitation of a brief generic prayer by children in the
public
schools at the start of each school day. The majority opinion written
by
Justice Black stated that "in this country it is no part of the
business
of government to compose official prayers for any group of the American
people to recite as part of a religious program carried on by
government."
In fact, history shows that this very practice of establishing
governmentally
composed prayers for religious services was one of the reasons that
caused
many of the early colonists to leave England and seek religious freedom
in America. The Court called to mind that the first and most immediate
purpose of the Establishment Clause rested on the belief that a union
of
government and religion tends to destroy government and to degrade
religion.
The following year, the Engel decision was reinforced in Abington
School
District v. Schempp[208]
and Murray v. Curlett[209]
where the Court struck down the practice of Bible reading and the
recitation
of the Lord's prayer in the Pennsylvania and Maryland schools. The
Court
held that to withstand the strictures of the Establishment Clause, a
statute
must have a secular legislative purpose and a primary effect that
neither
advances nor inhibits religion. It reiterated, viz:
The
wholesome
'neutrality' of which this Court's cases speak thus stems from a
recognition
of the teachings of history that powerful sects or groups might bring
about
a fusion of governmental and religious functions or a concert or
dependency
of one upon the other to the end that official support of the State of
Federal Government would be placed behind the tenets of one or of all
orthodoxies.
This the Establishment Clause prohibits. And a further reason for
neutrality
is found in the Free Exercise Clause, which recognizes the value of
religious
training, teaching and observance and, more particularly, the right of
every person to freely choose his own course with reference thereto,
free
of any compulsion from the state.[210]
The school prayer
decisions
drew furious reactions. Religious leaders and conservative members of
Congress
and resolutions passed by several state legislatures condemned these
decisions.[211]
On several occasions, constitutional amendments have been introduced in
Congress to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case
of Wallace v. Jaffree[212]
where the Court struck down an Alabama law that required public school
students to observe a moment of silence "for the purpose of meditation
or voluntary prayer" at the start of each school day.
Religious instruction
in public schools has also pressed the Court to interpret the
Establishment
Clause. Optional religious instruction within public school premises
and
instructional time were declared offensive of the Establishment Clause
in the 1948 case of McCollum v. Board of Education,[213]
decided just a year after the seminal Everson case. In this case,
interested
members of the Jewish, Roman Catholic and a few Protestant faiths
obtained
permission from the Board of Education to offer classes in religious
instruction
to public school students in grades four to nine, Religion classes were
attended by pupils whose parents signed printed cards requesting that
their
children be permitted to attend. The classes were taught in three
separate
groups by Protestant teachers, Catholic priests and a Jewish rabbi and
were held weekly from thirty to forty minutes during regular class
hours
in the regular classrooms of the school building. The religious
teachers
were employed at no expense to the school authorities but they were
subject
to the approval and supervision of the superintendent of schools.
Students
who did not choose to take religious instruction were required to leave
their classrooms and go to some other place in the school building for
their secular studies while those who were released from their secular
study for religious instruction were required to attend the religious
classes.
The Court held that the use of tax-supported property for religious
instruction
and the close cooperation between the school authorities and the
religious
council in promoting religious education amounted to a prohibited use
of
tax-established and tax-supported public school system to aid religious
groups spread their faith. The Court rejected the claim that the
Establishment
Clause only prohibited government preference of one religion over
another
and not an impartial governmental assistance of all religions. In
Zorach
v. Clauson,[214]
however, the Court upheld released time programs allowing students in
public
schools to leave campus upon parental permission to attend religious
services
while other students attended study hall. Justice Douglas, the writer
of
the opinion, stressed that "(t)he First Amendment does not require that
in every and all respects there shall be a separation of Church and
State."
The Court distinguished Zorach from McCollum, viz:chanrobles virtual law library
In the
McCollum
case the classrooms were used for religious instruction and the force
of
the public school was used to promote that instructionx x x
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
acknowledgment
of beliefs widely held among the people of this country. As Justice
Douglas
observed, "(w)e are a religious people whose institutions presuppose a
Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])[219]
(Emphasis supplied.)
Some view the Marsh
ruling as a mere aberration .as the Court would "inevitably be
embarrassed
if it were to attempt to strike down a practice that occurs in nearly
every
legislature in the United States, including the U.S. Congress."[220]
That Marsh was not an aberration is suggested by subsequent cases. In
the
1984 case of Lynch v. Donnelly,[221]
the Court upheld a city-sponsored nativity scene in Rhode Island. By a
5-4 decision, the majority opinion hardly employed the Lemon test and
again
relied on history and the fact that the creche had become a "neutral
harbinger
of the holiday season" for many, rather than a symbol of Christianity.cralaw:red
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
x x x 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:chanrobles virtual law library
few
concepts
are more deeply embedded in the fabric of our national life, beginning
with pre-Revolutionary colonial times, than for the government to
exercise
x x x 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 (x x x 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 x x x 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 Indiansx x x 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.)chanrobles virtual law library
To succinctly and
poignantly
illustrate the historical basis of benevolent neutrality that gives
room
for accommodation, less than twenty-four hours after Congress adopted
the
First Amendment's prohibition on laws respecting an establishment of
religion,
Congress decided to express its thanks to God Almighty for the many
blessings
enjoyed by the nation with a resolution in favor of a presidential
proclamation
declaring a national day of Thanksgiving and Prayer. Only two members
of
Congress opposed the resolution, one on the ground that the move was a
"mimicking of European customs, where they made a mere mockery of
thanksgivings",
the other on establishment clause concerns. Nevertheless, the salutary
effect of thanksgivings throughout Western history was acknowledged and
the motion was passed without further recorded discussion.[231]
Thus, accommodationists also go back to the framers to ascertain the
meaning
of the First Amendment, but prefer to focus on acts rather than words.
Contrary to the claim of separationists that rationalism pervaded
America
in the late 19th century and that America was less specifically
Christian
during those years than at any other time before or since,[232]
accommodationists claim that American citizens at the time "of the
Constitution's
origins were a remarkably religious people in particularly Christian
terms.[233]
The two streams of jurisprudence
— separationist or accommodationist — are anchored on a different
reading
of the "wall of separation." The strict separationist view holds that
Jefferson
meant the "wall of separation" to protect the state from the church.
Jefferson
was a man of the Enlightenment Era of the eighteenth century,
characterized
by the rationalism and anticlericalism of that philosophic bent.[234]
He has often been regarded as espousing Deism or the rationalistic
belief
in a natural religion and natural law divorced from its medieval
connection
with divine law, and instead adhering to a secular belief in a
universal
harmony.[235]
Thus, according to this Jeffersonian view, the Establishment Clause
being
meant to protect the state from the church, the state's hostility
towards
religion allows no interaction between the two.[236]
In fact, when Jefferson became President, he refused to proclaim fast
or
thanksgiving days on the ground that these are religious exercises and
the Constitution prohibited the government from intermeddling with
religion.[237]
This approach erects an absolute barrier to formal interdependence of
religion
and state. Religious institutions could not receive aid, whether direct
or indirect, from the state. Nor could the state adjust its secular
programs
to alleviate burdens the programs placed on believers.[238]
Only the complete separation of religion from politics would eliminate
the formal influence of religious institutions and provide for a free
choice
among political views thus a strict "wall of separation" is necessary.[239]
Strict separation faces difficulties, however, as it is 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."[242]
(Emphasis supplied.) 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
x x x 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]chanrobles virtual law library
The separationist
approach,
whether strict or tame, is caught in a dilemma because while the
Jeffersonian
wall of separation "captures the spirit of the American ideal of
church-state
separation", in real life church and state are not and cannot be
totally
separate.[249]
This is all the more true in contemporary times when both the
government
and religion are growing and expanding their spheres of involvement and
activity, resulting in the intersection of government and religion at
many
points.[250]
Consequently, the Court
has also decided cases employing benevolent neutrality. Benevolent
neutrality
which gives room for accommodation is buttressed by a different view of
the "wall of separation" associated with Williams, founder of the Rhode
Island colony. In Mark DeWolfe Howe's classic, The Garden and the
Wilderness,
he asserts that to the extent the Founders had a wall of separation in
mind, it was unlike the Jeffersonian wall that is meant to protect the
state from the church; instead, the wall is meant to protect the church
from the state,[251]
i.e., the "garden" of the church must be walled in for its own
protection
from the "wilderness" of the world[252]
with its potential for corrupting those values so necessary to
religious
commitment.[253]
Howe called this the "theological" or "evangelical" rationale for
church-state
separation while the wall espoused by "enlightened" statesmen such as
Jefferson
and Madison, was a "political" rationale seeking to protect politics
from
intrusions by the church.[254]
But it has been asserted that this contrast between the Williams and
Jeffersonian
positions is more accurately described as a difference in kinds or
styles
of religious thinking, not as a conflict between "religious" and
"secular
(political)"; the religious style was biblical and evangelical in
character
while the secular style was grounded in natural religion, more generic
and philosophical in its religious orientation.[255]
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:
x
x
x when they have opened a gap in the hedge or wall of separation
between
the garden of the church and the wilderness of the world, God hath ever
broke down the wall itself, removed the candlestick, and made his
garden
a wilderness, as this day. And that therefore if He will err please to
restore His garden and paradise again, it must of necessity be walled
in
peculiarly unto Himself from the world x x x[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:chanrobles virtual law library
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.cralaw:red
x x
x
x x
x
x x x
We are a religious people
whose institutions presuppose a Supreme Being. We guarantee the freedom
to worship as one chooses x x x 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 x x x 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 carburetorx x x
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 x
x
x 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 x x x 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]chanrobles virtual law library
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]chanrobles virtual law library
Benevolent neutrality
gives room for different kinds of accommodation: those which are
constitutionally
compelled, i.e., required by the Free Exercise Clause; and those which
are discretionary or legislative, i.e., and those not required by the
Free
Exercise Clause but nonetheless permitted by the Establishment Clause.[273]
Some Justices of the Supreme Court have also used the term
accommodation
to describe government actions that acknowledge or express prevailing
religious
sentiments of-the community such as display of a religious symbol on
public
property or the delivery of a prayer at public ceremonial events.[274]
Stated otherwise, using benevolent neutrality as a standard could
result
to three situations of accommodation: those where accommodation is
required,
those where it is permissible, and those where it is prohibited. In the
first situation, accommodation is required to preserve free exercise
protections
and not unconstitutionally infringe on religious liberty or create
penalties
for religious freedom. Contrary to the Smith declaration that free
exercise
exemptions are "intentional government advancement", these exemptions
merely
relieve the prohibition on the free exercise thus allowing the burdened
religious adherent to be left alone. The state must create exceptions
to
laws of general applicability when these laws threaten religious
convictions
or practices in the absence of a compelling state interest.[275]
By allowing such exemptions, the Free Exercise Clause does not give
believers
the right or privilege to choose for themselves to override
socially-prescribed
decision; it allows them to obey spiritual rather than temporal
authority[276]
for those who seriously involve the Free Exercise Clause claim to be
fulfilling
a solemn duty. Religious freedom is a matter less of rights than
duties;
more precisely, it is a matter of rights derived from duties. To deny a
person or a community the right to act upon such a duty can be
justified
only by appeal to a yet more compelling duty. Of course, those denied
will
usually not find the reason for the denial compelling. "Because they
may
turn out to be right about the duty in question, and because, even if
they
are wrong, religion bears witness to that which transcends the
political
order, such denials should be rare and painfully reluctant."[277]
The Yoder case is an
example where the Court held that the state must accommodate the
religious
beliefs of the Amish who objected to enrolling their children in high
school
as required by law. The Sherbert case is another example where the
Court
held that the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.[278]
In these cases of "burdensome effect", the modern approach of the Court
has been to apply strict scrutiny, i.e., to declare the burden as
permissible,
the Court requires the state to demonstrate that the regulation which
burdens
the religious exercise pursues a particularly important or compelling
government
goal through the least restrictive means. If the state's objective
could
be served as well or almost as well by granting an exemption to those
whose
religious beliefs are burdened by the regulation, such an exemption
must
be given.[279]
This approach of the Court on "burdensome effect" was only applied
since
the 1960s. Prior to this time, the Court took the separationist view
that
as long as the state was acting in pursuit of non-religious ends and
regulating
conduct rather than pure religious beliefs, the Free Exercise Clause
did
not pose a hindrance such as in Reynolds.[280]
In the second situation where accommodation is permissible, the state
may,
but is not required to, accommodate religious interests. The Walz case
illustrates this situation where the Court upheld the constitutionality
of tax exemption given by New York to church properties, but did not
rule
that the state was required to provide tax exemptions. The Court
declared
that "(t)he limits of permissible state accommodation to religion are
by
no means co-extensive with the noninterference mandated by the Free
Exercise
Clause.[281]
The Court held that New York could have an interest in encouraging
religious
values and avoiding threats to those values through the burden of
property
taxes. Other 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.chanrobles virtual law library
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]chanrobles virtual law library
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 tranquillity existed. As a whole, in
carrying
out the compelling state interest test, the Court should give careful
attention
to context, both religious and regulatory, to achieve refined judgment.[292]
In sum, as shown by
U.S. jurisprudence on religion clause cases, the competing values of
secular
government and religious freedom create tensions that make
constitutional
law on the subject of religious liberty unsettled, mirroring the
evolving
views of a dynamic society.[293]
VII. Religion
Clauses
in the Philippines
A. History
Before our country fell
under American rule, the blanket of Catholicism covered the
archipelago.
There was a union of church and state and Catholicism was the state
religion
under the Spanish Constitution of 1876. Civil authorities exercised
religious
functions and the friars exercised civil powers.[294]
Catholics alone enjoyed the right of engaging in public ceremonies of
worship.[295]
Although the Spanish Constitution itself was not extended to the
Philippines,
Catholicism was also the established church in our country under the
Spanish
rule. Catholicism was in fact protected by the Spanish Penal Code of
1884
which was in effect in the Philippines. Some of the offenses in chapter
six of the Penal Code entitled "Crimes against Religion and Worship"
referred
to crimes against the state religion.[296]
The coming of the Americans to our country, however, changed this
state-church
scheme for with the advent of this regime, the unique American
experiment
of "separation of church and state" was transported to Philippine soil.cralaw:red
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 x x x 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]chanrobles virtual law library
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.cralaw:red
In U.S. v. Balcorta,[301]
the Court stated that the Philippine Bill of 1902 "caused the complete
separation of church and state, and the abolition of all special
privileges
and all restrictions theretofore conferred or imposed upon any
particular
religious sect."[302]
The Jones Law of 1916
carried the same provision, but expanded it with a restriction against
using public money or property for religious purposes, viz:
That no law
shall be made respecting an establishment of religion or prohibiting
the
free exercise thereof, and that the free exercise and enjoyment of
religious
profession and worship without discrimination or preference, shall
forever
be allowed; and no religious test shall be required for the exercise of
civil or political rights. No public money or property shall ever be
appropriated,
applied, donated, or used, directly or indirectly, for the use,
benefit,
or support of any sect, church, denomination, sectarian institution; or
system of religion, or for the use, benefit or support of any priest,
preacher,
minister, or other religious teachers or dignitary as such.
This was followed by
the
Philippine Independence Law or Tydings- McDuffie Law of 1934 which
guaranteed
independence to the Philippines and authorized the drafting of a
Philippine
constitution. It enjoined Filipinos to include freedom of religion in
drafting
their constitution preparatory to the grant of independence. The law
prescribed
that "(a)bsolute toleration of religious sentiment shall be secured and
no inhabitant or religious organization 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:chanrobles virtual law library
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:
Section 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.cralaw:red
Considering the American
origin of the Philippine religion clauses and the intent to adopt the
historical
background, nature, extent and limitations of the First Amendment of
the
U.S. Constitution when it was included in the 1935 Bill of Rights, it
is
not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature,
extent
and limitations of these clauses. However, a close scrutiny of these
cases
would also reveal that while U.S. jurisprudence on religion clauses
flows
into two main streams of interpretation — separation and benevolent
neutrality
— the well-spring of Philippine jurisprudence on this subject is for
the
most part, benevolent neutrality which gives room for accommodation.
B.
Jurisprudence
In revisiting the landscape
of Philippine jurisprudence on the religion clauses, we begin with the
definition of "religion". "Religion" is derived from the Middle English
religioun, from Old French religion, from Latin religio, vaguely
referring
to a "bond between man and the gods."[308]
This pre-Christian term for the cult and rituals of pagan Rome was
first
Christianized in the Latin translation of the Bible.[309]
While the U.S. Supreme Court has had to take up the challenge of
defining
the parameters and contours of "religion" to determine whether a
non-theistic
belief or act is covered by the religion clauses, this Court has not
been
confronted with the same issue. In Philippine jurisprudence, religion,
for purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310]
involving the Establishment Clause, defined "religion" as a "profession
of faith to an active power that binds and elevates man to his
Creator."
Twenty years later, the Court cited the Aglipay definition in American
Bible Society v. City of Manila,[311]
a case involving the Free Exercise clause. The latter also cited the
American
case of Davis in defining religion, viz: "(i)t has reference to one's
views
of his relations to His Creator and to the obligations they impose of
reverence
to His being and character and obedience to His Will." The Beason
definition,
however, has been expanded in U.S. Jurisprudence to include
non-theistic
beliefs.chanrobles virtual law library
1. Free
Exercise
Clause
Freedom of choice guarantees
the liberty of the religious conscience and prohibits any degree of
compulsion
or burden, whether direct or indirect, in the practice of one's
religion.
The Free Exercise Clause principally guarantees voluntarism, although
the
Establishment Clause also assures voluntarism by placing the burden of
the advancement of religious groups on their intrinsic merits and not
on
the support of the state.[312]
In interpreting the
Free Exercise Clause, the realm of belief poses no difficulty. The
early
case of Gerona v. Secretary of Education[313]
is instructive on the matter, viz:
The realm
of
belief and creed is infinite and limitless bounded only by one's
imagination
and thought. So is the freedom of belief, including religious belief,
limitless
and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of 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.cralaw:red
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.cralaw:red
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:
x x x 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.[320]
(Emphasis supplied.)
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]chanrobles virtual law library
It stated in categorical
terms, viz:
The freedom
of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and
non-discriminatory
laws, rules and regulations promulgated by competent authority.[324]
Thus, the religious
freedom
doctrines one can derive from Gerona are: (1) it is incumbent upon the
Court to determine whether a certain ritual is religious or not; (2)
religious
freedom will not be upheld if it clashes with the established
institutions
of society and with the law such that when a law of general
applicability
(in this case the Department Order) incidentally burdens the exercise
of
one's religion, one's right to religious freedom cannot justify
exemption
from compliance with the law. The Gerona ruling was reiterated in
Balbuna,
et al. v. Secretary of Education, et al.[325]
Fifteen years after
Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326]
In this unanimously decided en banc case, Victoriano was a member of
the
Iglesia ni Cristo which prohibits the affiliation of its members with
any
labor organization. He worked in the Elizalde Rope Factory, Inc. and
was
member of the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing closed
shop arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting
from the application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of their
members
with any labor organization. Victoriano resigned from the union after
Republic
Act No. 3350 took effect. The union notified the company of
Victoriano's
resignation, which in turn notified Victoriano that unless he could
make
a satisfactory arrangement with the union, the company would be
constrained
to dismiss him from the service. Victoriano sought to enjoin the
company
and the union from dismissing him. The court having granted the
injunction,
the union came to this Court on questions of law, among which was
whether
Republic Act No. 3350 was unconstitutional for impairing the obligation
of contracts and for granting an exemption offensive of the
Establishment
Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although
not unlimited, is a fundamental personal right and liberty (Schneider
v.
Irgington, 308 U.S. 147, 161, 84 L. ed. 155, 164, 60 S.Ct. 146) and has
a preferred position in the hierarchy of values. Contractual rights,
therefore,
must yield to freedom of religion. It is only where unavoidably
necessary
to prevent an immediate and grave danger to the security and welfare of
the community that infringement of religious freedom may be justified,
and only to the smallest extent necessary.[327]
(Emphasis supplied.)
As regards the Establishment
Clause issue, the Court after citing the constitutional provision on
establishment
and free exercise of religion, declared, viz:
The
constitutional
provisions not only prohibits legislation for the support of any
religious
tenets or the modes of worship of any sect, thus forestalling
compulsion
by law of the acceptance of any creed or the practice of any form of 01
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures
the free exercise of one's chosen form of religion within limits of
utmost
amplitude. It has been said that the religion clauses of the
Constitution
are all designed to protect the broadest possible liberty of
conscience,
to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with
the
liberty of others and with the common good. (footnote omitted). Any
legislation
whose effect or purpose is to impede the observance of one or all
religions,
or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect.
(Sherbert
v. Verner», 374 U.S. 398, 10 L. ed. 2d 965, 83 S. Ct. 1970) But
if
the state regulates conduct by enacting, within its power, a general
law
which has for its purpose and effect to advance the state's secular
goals,
the statute is valid despite its indirect burden on religious
observance,
unless the state can accomplish its purpose without imposing such
burden.
(Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan
v. Maryland, 366 U.S. 420, 444-5 and 449)[328]
(Emphasis supplied.)chanrobles virtual law library
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 agreementsx x x 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 x x x eliminating to a
certain
extent economic insecurity due to unemployment.[331]
The Court stressed that
"(a)lthough the exemption may benefit those who are members of
religious
sects that prohibit their members from joining labor unions, the
benefit
upon the religious sects is merely incidental and indirect.[332]
In enacting Republic Act No. 3350, Congress merely relieved the
exercise
of religion by certain persons of a burden imposed by union security
agreements
which Congress itself also imposed through the Industrial Peace Act.
The
Court concluded the issue of exemption by citing Sherbert which laid
down
the rule that when general laws conflict with scruples of conscience,
exemptions
ought to be granted unless some "compelling state interest" intervenes.
The Court then abruptly added that "(i)n the instant case, We see no
compelling
state interest to withhold exemption."[333]
A close look at Victoriano
would show that the Court mentioned several tests in determining when
religious
freedom may be validly limited. First, the Court mentioned the test of
"immediate and grave danger to the security and welfare of the
community"
and "infringement of religious freedom only to the smallest extent
necessary"
to justify limitation of religious freedom. Second, religious exercise
may be indirectly burdened by a general law which has for its purpose
acid
effect the advancement of the state's secular goals, provided that
there
is no other means by which the state can accomplish this purpose
without
imposing such burden. Third, the Court referred to the "compelling
state
interest" test which grants exemptions when general laws conflict with
religious exercise, unless a compelling state interest intervenes.cralaw:red
It is worth noting,
however, that the first two tests were mentioned only for the purpose
of
highlighting the importance of the protection of religious freedom as
the
secular purpose of Republic Act No. 3350. Upholding religious freedom
was
a secular purpose insofar as it relieved the burden on religious
freedom
caused by another law, i.e, the Industrial Peace Act providing for
union
shop agreements. The first two tests were only mentioned in Victoriano
but were not applied by the Court to the facts and issues of the case.
The third, the "compelling state interest" test was employed by the
Court
to determine whether the exemption provided by Republic Act No. 3350
was
not unconstitutional. It upheld the exemption, stating that there was
no
"compelling state interest" to strike it down. However, after careful
consideration
of the Sherbert case from which Victoriano borrowed this test, the
inevitable
conclusion is that the "compelling state interest" test was not
appropriate
and could not find application in the Victoriano case. In Sherbert,
appellant
Sherbert invoked religious freedom in seeking exemption from the
provisions
of the South Carolina Unemployment Compensation Act which disqualified
her from claiming unemployment benefits. It was the appellees, members
of the South Carolina Employment Commission, a government agency, who
propounded
the state interest to justify overriding Sherbert's claim of religious
freedom. The U.S. Supreme Court, considering Sherbert's and the
Commission's
arguments, found that the state interest was not sufficiently
compelling
to prevail over Sherbert's free exercise claim. This situation did not
obtain in the Victoriano case where it was the government itself,
through
Congress, which provided the exemption in Republic Act No. 3350 to
allow
Victoriano's exercise of religion. Thus, the government could not argue
against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek
exemption
from the questioned law to allow the free exercise of religion as the
law
in fact provides such an exemption. In sum, although Victoriano
involved
a religious belief and conduct, it did not involve a free exercise
issue
where the Free Exercise Clause is invoked to exempt him from the burden
imposed by a law on his religious freedom.chanrobles virtual law library
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 Malacañang 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:
x
x
x 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:
x
x
x But between the freedom of belief and the exercise of said belief,
there
is quite a stretch of road to travel. If the exercise of said religious
belief clashes with the established institutions of society and with
the
law, then the former must yield and give way to the latter. The
government
steps in and either restrains said exercise or even prosecutes the one
exercising it. (Emphasis supplied.)chanrobles virtual law library
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.cralaw:red
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]chanrobles virtual law library
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:chanrobles virtual law library
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)'chanrobles virtual law library
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.cralaw:red
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.cralaw:red
Three years after Ebralinag,
the Court decided the 1996 case of Iglesia ni Cristo v. Court of
Appeals,
et al.[348]
Although there was a dissent with respect to the applicability of the
"clear
and present danger" test in this case, the majority opinion in
unequivocal
terms applied the "clear and present danger" test to religious speech.
This case involved the television program, "Ang Iglesia ni Cristo,"
regularly
aired over the television. Upon petitioner Iglesia ni Cristo's
submission
of the VTR tapes of some of its episodes, respondent Board of Review
for
Motion Pictures and Television classified these as "X" or not for
public
viewing on the ground that they "offend and constitute an attack
against
other religions which is expressly prohibited by law." Involving
religious
freedom, petitioner alleged that the Board acted without jurisdiction
or
with grave abuse of discretion in requiring it to submit the VTR tapes
of its television program and x-rating them. While upholding the
Board's
power to review the Iglesia television show, the Court was emphatic
about
the preferred status of religious freedom. Quoting Justice Cruz'
commentary
on the constitution, the Court held 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]chanrobles virtual law library
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.cralaw:red
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:
x
x
x 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]chanrobles virtual law library
The neutrality principle
was applied in the first significant non-establishment case under the
1935
Constitution. In the 1937 case of Aglipay v. Ruiz,[357]
the Philippine Independent Church challenged the issuance and sale of
postage
stamps commemorating the Thirty-Third International Eucharistic
Congress
of the Catholic Church on the ground that the constitutional
prohibition
against the use of public money for religious purposes has been
violated.
It appears that the Director of Posts issued the questioned stamps
under
the provisions of Act No. 4052[358]
which appropriated a sum for the cost of plates and printing of postage
stamps with new designs and authorized the Director of Posts to dispose
of the sum in a manner and frequency "advantageous to the Government."
The printing and issuance of the postage stamps in question appears to
have been approved by authority of the President. Justice Laurel,
speaking
for the Court, took pains explaining religious freedom and the role of
religion in society, and in conclusion, found no constitutional
infirmity
in the issuance and sale of the stamps, viz:
The
prohibition
herein expressed is a direct corollary of the principle of separation
of
church and state. Without the necessity of adverting to the historical
background of this principle in our country, it is sufficient to say
that
our history, not to speak of the history of, mankind, has taught us
that
the union of church and state is prejudicial to both, for occasions,
might
arise when the state will use the church, and the church the state, as
a weapon in the furtherance of their respective ends and aimsx
x
x It is almost trite to say now that in this country we enjoy "both
religious
and civil freedom. All the officers of the Government, from the highest
to the lowest, in taking their bath to support and defend the
Constitution,
bind themselves to recognize and respect the constitutional guarantee
of
religious freedom; with its inherent limitations and recognized
implications.
It should be stated that what is guaranteed by our Constitution is
religious
liberty, not mere toleration.
Religious freedom,
however,
as a constitutional mandate is not an inhibition of profound reverence
for religion and is not a denial of its influence in human affairs.
Religion
as a profession of faith to an active power that binds and elevates man
to his Creator is recognized. And, in so far as it instills into the
minds
the purest principles of morality, its influence is deeply felt and
highly
appreciated. When the Filipino people, in the preamble of their
Constitution,
implored "the aid of Divine Providence, in order to establish a
government
that shall embody their ideals, conserve and develop the patrimony of
the
nation, promote the general welfare, any secure to themselves and their
posterity the blessings of independence under a regime of justice,
liberty
and democracy," they thereby manifested their intense religious nature
and placed unfaltering reliance upon Him who guides the destinies of
men
and nations. The elevating influence of religion in human society is
recognized
here as elsewhere. In fact, certain general concessions are
indiscriminately
accorded to religious sects and denominations x x x[359]
x x
x
x x
x
x x xchanrobles virtual law library
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.cralaw:red
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 x x x' 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.chanrobles virtual law library
Another type of cases
interpreting the establishment clause deals with intramural religious
disputes.
Fonacier v. Court of Appeals[365]
is the leading case. The issue therein was the right of control over
certain
properties of the Philippine Independent Church, the resolution of
which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,[366]
viz:
Where,
however,
a decision of an ecclesiastical court plainly violates the law it
professes
to administer, or is in conflict with the law of the land, it will not
be followed by the civil courts x x x 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 churchx x x[367]
The Court then ruled
that
petitioner Fonacier was legitimately ousted and respondent de los Reyes
was the duly elected head of the Church, based on their internal laws.
To finally dispose of the property issue, the Court, citing Watson v.
Jones,[368]
declared that the rule in property controversies within religious
congregations
strictly independent of any other superior ecclesiastical association
(such
as the Philippine Independent Church) is that the rules for resolving
such
controversies should be those of any voluntary association. If the
congregation
adopts the majority rule then the majority should prevail; if it adopts
adherence to duly constituted authorities within the congregation, then
that should be followed. Applying these rules, Fonacier lost the case.
While the Court exercised jurisdiction over the case, it nevertheless
refused
to touch doctrinal and disciplinary differences raised, viz:
The
amendments
of the constitution, restatement of articles of religion and
abandonment
of faith or abjuration alleged by appellant, having to do with faith,
practice,
doctrine, form of worship, ecclesiastical law, custom and rule of a
church
and having reference to the power of excluding from the church those
allegedly
unworthy of membership, are unquestionably ecclesiastical matters which
are outside the province of the civil courts.[369] VIII. Free
Exercise
Clause, vis-a-vis Establishment Clause
In both Philippine and
U.S. jurisdiction, it is recognized that there is a tension between the
Free Exercise Clause and the Establishment Clause in their application.
There is a natural antagonism between a command not to establish
religion
and a command not to inhibit its practice; this tension between the
religion
clauses often leaves the courts with a choice between competing values
in religion cases.[370]chanrobles virtual law library
One set of facts, for
instance, can be differently viewed from the Establishment Clause
perspective
and the Free Exercise Clause point of view, and decided in opposite
directions.
In Pamil, the majority gave more weight to the religious liberty of the
priest in holding that the prohibition of ecclesiastics to assume
elective
or appointive government positions was violative of the Free Exercise
Clause.
On the other hand, the prevailing five justifies gave importance to the
Establishment Clause in stating that the principle of separation of
church
and state justified the prohibition.cralaw:red
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, as been the approach
followed
by the Philippine Court.[376]
IX. Philippine
Religion Clauses: Nature, Purpose, Tests Based on Philippine and
American
Religion Clause History, Law and Jurisprudence
The history of the religion
clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution. The religion
clauses in the First Amendment were contained in every organic Act of
the
Philippines under the American regime. When the delegates of the 1934
Constitutional
Convention adopted a Bill of Rights in the 1935 Constitution, they
purposely
retained the phraseology of the religion clauses in the First Amendment
as contained in the Jones Law in order to adopt its historical
background,
nature, extent and limitations. At that time, there were not too many
religion
clause cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case. The Free
Exercise
Clause cases were also scarce then. Over the years, however, with the
expanding
reach of government regulation to a whole gamut of human actions and
the
growing plurality and activities of religions, the number of religion
clause
cases in the U.S. exponentially increased. With this increase came an
expansion
of the interpretation of the religion clauses, at times reinforcing
prevailing
case law, at other times modifying it, and still at other times
creating
contradictions so that two main streams of jurisprudence had become
identifiable.
The first stream employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change
in the landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the 1973
Constitution
and later, the 1987 Constitution. Philippine jurisprudence and
commentaries
on the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the
two
streams of U.S. jurisprudence. One might simply conclude that the
Philippine
Constitutions and jurisprudence also inherited the disarray of U.S.
religion
clause jurisprudence and the two identifiable streams; thus, when a
religion
clause case comes before the Court, a separationist approach or a
benevolent
neutrality approach might be adopted and each will have U.S.
authorities
to support it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports the
separationist
approach, Philippine jurisprudence should also follow this approach in
light of the Philippine religion clauses' history. As a result, in a
case
where the party claims religious liberty in the face of a general law
that
inadvertently burdens his religious exercise, he faces an almost
insurmountable
wall in convincing the Court that the wall of separation would not be
breached
if the Court grants him an exemption. These conclusions, however, are
not
and were never warranted by the 1987, 1973 and 1935 Constitutions as
shown
by other provisions on religion in all three constitutions. It is a
cardinal
rule in constitutional construction that the constitution must be
interpreted
as a whole and apparently conflicting provisions should be reconciled
and
harmonized in a manner that will give to all of them full :force and
effect.[377]
From this construction, it will be ascertained that the intent of the
framers
was to adopt a benevolent neutrality approach in interpreting the
religious
clauses in the Philippine constitutions, and the enforcement of this
intent
is the goal of construing the constitution.[378]
We first apply the hermeneutical
scalpel to dissect the 1935 Constitution. At the same time that the
1935
Constitution provided for an Establishment Clause, it also provided for
tax exemption of church property in Article VI, Section 22, par. 3(b),
viz:
(3)
Cemeteries,
churches, and parsonages or convents, appurtenant thereto, and all
lands,
buildings, and improvements used exclusively for religious, charitable,
or educational purposes shall be exempt from taxation.
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 x x
x[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:chanrobles virtual law library
x
x
x Optional religious instruction shall be maintained in the public
schools
as now authorized by law x x x
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 x x x
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]chanrobles virtual law library
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:
x
x
x 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:
x
x
x 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]chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.cralaw:red
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 x x x has
been
experience."chanrobles virtual law library
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.cralaw:red
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. Alejo[411]
and the 1999 case of Maguad v. De Guzman,[412]
are similar to the case at bar — i.e., the complainant is a mere
stranger
and the legal wife has not registered any objection to the illicit
relation,
there is no proof of scandal or offense to the moral sensibilities of
the
community in which the respondent and the partner live and work, and
the
government employee is capacitated to marry while the partner is not
capacitated
but has long been separated in fact. Still, the, Court found the
government
employees administratively liable for "disgraceful and immoral conduct"
and only considered the foregoing circumstances to mitigate the
penalty.
Respondent Escritor does not claim that there is error in the settled
jurisprudence
that an illicit relation constitutes disgraceful and immoral conduct
for
which a government employee is held liable. Nor is there an allegation
that the norms of morality with respect to illicit relations have
shifted
towards leniency from the time these precedent cases were decided. The
Court finds that there is no such error or shift, thus we find no
reason
to deviate from these rulings that such illicit relationship
constitutes
"disgraceful and immoral conduct" punishable under the Civil Service
Law.
Respondent having admitted the alleged immoral conduct, she, like the
respondents
in the above-cited cases, could be held administratively liable.
However,
there is a distinguishing factor that sets the case at bar apart from
the
cited precedents, i.e., as a defense, respondent involves religious
freedom
since her religion, the Jehovah's Witnesses, has, after thorough
investigation,
allowed her conjugal arrangement with Quilapio based on the church's
religious
beliefs and practices. This distinguishing factor compels the Court to
apply the religious clauses to the case at bar.chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.chanrobles virtual law library
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 x
x
x 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.cralaw:red
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 allx 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 rape[431]
where consent of the supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in concubinage negates the
prosecution
of the action,[432]
but does not alter the legislature's characterization of the act as a
moral
disapprobation punishable by law. The separate opinion states that,
"(t)he
ponencia has taken pains to distinguish between secular and private
morality,
and reached the conclusion that the law, as an instrument of the
secular
State should only concern itself with secular morality." The Court does
not draw 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.chanrobles virtual law library
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.
x
x
x
x x
x
x x x
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.cralaw:red
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.cralaw:red
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.cralaw:red
A provision similar
to the one under consideration is embodied in article 826 of the German
Civil Code.[433]
(Emphases supplied.)chanrobles virtual law library
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.cralaw:red
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 x x x 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.chanrobles virtual law library
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 x
x
x are unquestionably ecclesiastical matters which bare outside the
province
of the civil courts."[444]
But while the state, including the Court, accords such deference to
religious
belief and exercise which enjoy protection under the religious 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.cralaw:red
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.cralaw:red
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 x x x 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.chanrobles virtual law library
Mme. Justice Ynares-Santiago's
dissent also cites Cleveland v. United States[446]
in laying down the standard of morality, viz: "(w)hether an act is
immoral
within the meaning of the statute is not to be determined by
respondent's
concept of morality. The law provides the standard; the offense is
complete
if respondent intended to perform, and did in fact perform, the act
which
it condemns." The Mann Act under consideration in the Cleveland case
declares
as an offense the transportation in interstate commerce of "any woman
or
girl for the purpose of prostitution or debauchery, or for any other
immoral
purpose."[447]
The resolution of that case hinged on the interpretation of the phrase
"immoral purpose." The U.S. Supreme Court held that the petitioner
Mormons'
act of transporting at least one plural wife whether for the purpose of
cohabiting with her, or for the purpose of aiding another member of
their
Mormon church in such a project, was covered by the phrase "immoral
purpose."
In so ruling, the Court relied on Reynolds which held that the Mormons'
practice of polygamy, in spite of their defense of religious freedom,
was
"odious among the northern and western nations of Europe,"[448]
"a return to barbarism,"[449]
"contrary to the spirit of Christianity and of the civilization which
Christianity
has produced in the Western world,"[450]
and thus punishable by law.cralaw:red
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.cralaw:red
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.chanrobles virtual law library
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.cralaw:red
Neither is Sulu Islamic
Association of Masjid Lambayong v. Judge Nabdar J. Malik[451]
cited in Mr. Justice Carpio's dissent decisive of the immorality issue
in the case at bar. In that case, the Court dismissed the charge of
immorality
against a Tausug judge for engaging in an adulterous relationship with
another woman with whom he had three children because "it (was) not
'immoral'
by Muslim standards for Judge Malik to marry a second time while his
first
marriage (existed)." Putting the quoted portion in its proper context
would
readily show that the Sulu Islamic case does not provide a precedent to
the case at bar. Immediately prior to the portion quoted by the
dissent,
the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides
that the penal laws relative to the crime of bigamy 'shall not apply to
a person married 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.chanrobles virtual law library
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.cralaw:red
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 letters[453]
of the OCA to the respondent regarding her request to be exempt from
attending
the flag ceremony after Circular No. 62-2001 was issued requiring
attendance
in the flag ceremony. The OCA's letters were not submitted by
respondent
as evidence but annexed by the investigating judge in explaining that
he
was caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had
different
positions regarding respondent's request for exemption from the flag
ceremony
on the ground of the Jehovah's Witnesses' contrary belief and practice.
Respondent's request for exemption from the flag ceremony shows her
sincerity
in practicing the Jehovah's Witnesses' beliefs and not using them
merely
to escape punishment. She is a practicing member of the Jehovah's
Witnesses
and the Jehovah ministers testified that she is a member in good
standing.
Nevertheless, should the government, thru the Solicitor General, want
to
further question the respondent's sincerity and the centrality of her
practice
in her faith, it should be given the opportunity to do so. The
government
has not been represented in the case at bar from its incipience until
this
point.cralaw:red
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.chanrobles virtual law library
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.cralaw:red
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.cralaw:red
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.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., Austria-Martinez,
Corona, Azcuna and Tinga, JJ.,
concur.
Panganiban,
Carpio-Morales
and Callejo, Sr., JJ., concur
in Carpio's
dissenting opinion.
Carpio,
J., dissenting opinion.
Ynares-Santiago,
J., dissenting opinion.
Vitug,
J., separate opinion.
Bellosillo,
J., separate opinion.
Quisumbing and
Sandoval-Gutierrez,
JJ., on official leave.
____________________________
Endnotes:
[1]
Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in
Weber,
P., Equal Separation (1990), p. 17.
[2]
Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p.
668.chanrobles virtual law library
[3]
Smith, S., "The Rise and Fall of Religious Freedom in Constitutional
Discourse,"
University of Pennsylvania Law Review, vol. 140(1), November 1991, pp.
149-150.
[4]
Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S.
398,
p. 416 (1963).
[5]
Rollo, pp. 5-6.
[6]
Id. at 8.chanrobles virtual law library
[7]
Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
[8]
Id. at 101.chanrobles virtual law library
[9]
Id. at 100; Exhibit 3, Certificate of Death.
[10]
Id. at 10; Exhibit 1.
[11]
Id. at 11; Exhibit 2.
[12]
Id. at 27-33.
[13]
Id. at 37.chanrobles virtual law library
[14]
Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
[15]
Id. at 156-160, TSN, May 29, 2002, pp. 5-9.chanrobles virtual law library
[16]
Citing biblical passages, this article addresses the question, "Does
the
validity of a marriage depend entirely upon its recognition by civil
authorities
and does their validation determine how Jehovah God, the author of
marriage,
views the union?" It traces the origins of marriage to the time of the
Hebrews when marriage was a family or tribal affair. With the forming
of
Israel as a nation, God gave a law containing provisions on marriage,
but
there was no requirement for a license to be obtained from the
priesthood
nor that a priest or a representative from government be present in the
marriage to validate it. Instead, as long as God's law was adhered to,
the, marriage was valid and honorable within the community where the
couple
lived. In later Bible times, marriages came to be registered, but only
after the marriage had been officiated, thereby making the government
only
a record-keeper of the fact of marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was
likewise
chiefly a family affair and there was no requirement of license from
the
religious or civil authority to make it valid and honorable. It was
conformity
to God's law that was necessary for the marriage to be viewed as
honorable
within the congregation. Later, however, the civil authorities came to
have more prominence in determining the validity of a marriage while
the
role of the congregation waned. Christians cannot turn their back on
this
reality in desiring to make their marriage honorable "among all", i.e.,
in the sight of God and men. However, the view of civil authorities
regarding
the validity of marriage is relative and sometimes even contradictory
to
the standards set by the Bible. For example, in some lands, polygamy is
approved while the Bible says that a man should only have one wife.
Likewise,
some countries allow divorce for the slightest reasons while others do
not allow divorce. The Bible, on the other hand, states that there is
only
one ground for divorce, namely, fornication, and those divorcing for
this
reason become free to marry.chanrobles virtual law library
To obtain a balanced view of civil authority (or Caesars' authority in
Biblical terms) regarding marriage, it is well to understand the
interest
of civil governments in marriage. The government is concerned with the
practical aspects of marriage such as property rights and weakening
genetic
effects on children born to blood relatives, and not with the religious
or moral aspects of marriage. Caesar's authority is to provide legal
recognition
and accompanying protection of marital rights in court systems, thus a
Christian desiring this recognition and rights must adhere to Caesar's
requirements. However, God is not bound by Caesar's decisions and the
Christian
"should rightly give conscientious consideration to Caesar's marriage
and
divorce provisions but will always give greatest consideration to the
Supreme
Authority, Jehovah God (Acts 4:19; Rom. 13:105) x x x Thus
the Christian appreciates that, even though Caesar's rulings of
themselves
are not what finally determine the validity of his marriage in God's
eyes,
this does not thereby exempt him from the Scriptural injunction: 'Let
marriage
be honorable among all.' (Heb. 13:4) He is obligated to do
conscientiously
whatever is within the power to see that his marriage is accorded such
honor by all." Those who wish to be baptized members of the Christian
congregation
but do not have legal recognition of their marital union should do all
that is possible to obtain such recognition, thereby removing any doubt
as to the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition.
For instance, in countries where divorce is not allowed even on the
Scriptural
ground of fornication, either because of the dominance of one religion
or other reasons, a man might have left his unfaithful wife and lives
with
another woman with whom he has a family. He may later learn the truth
of
God's Word and desire to be baptized as a disciple of God's Son, but he
cannot obtain divorce and remarry as the national laws do not allow
these.
He might go to a land which permits divorce and remarry under the laws
of that land and add honor to his union, but upon returning to his
homeland,
the law therein might not recognize the union. If this option is not
available
to that man, he should obtain a legal separation from his estranged
mate
or resort to other legal remedies, then "make a written statement to
the
local congregation pledging faithfulness to his present mate and
declaring
his agreement to obtain a legal marriage certificate if the estranged
legal
wife should die or if other circumstances should make possible the
obtaining
of such registration. If his present mate likewise seeks baptism, she
would
also make such a signed statement." (p. 182) In some cases, a person
might
have initiated the process of divorce where the law allows it, but it
may
take a long period to finally obtain it. If upon learning Bible truth,
the person wants to be baptized, his baptism should not be delayed by
the
pending divorce proceedings that would make his present union honorable
for "Bible examples indicate that unnecessary delay in taking the step
of baptism is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16)."
Such person should then provide the congregation with a statement
pledging
faithfulness, thereby establishing his determination to maintain his
current
union in honor while he exerts effort to obtain legal recognition of
the
union. Similarly, in the case of an already baptized Christian whose
spouse
proves unfaithful and whose national laws do not recognize the
God-given
right to divorce an adulterous mate and remarry, he should submit clear
evidence to the elders of the congregation of the mate's infidelity. If
in the future he decides to take another mate, he can do this in an
honorable
way by signing declarations pledging faithfulness where they also
promise
to seek legal recognition of their union where it is feasible. This
declaration
will be viewed by the congregation as "a putting of oneself on record
before
God and man that the signer will be just as faithful to his or her
existing
marital relationship as he or she would be if the union were one
validated
by civil authorities. Such declaration is viewed as no less binding
than
one made before a marriage officer representing a 'Caesar' government
of
the world x x x It could contain a statement such as the
following:chanroblesvirtuallawlibrarychanrobles virtual law library
I ________________________________, do here declare that I have
accepted
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 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 makes this possible I promise to legalize
this
union."chanrobles virtual law library
The declaration is signed by the declarant and by two others as
witnesses
and the date of declaration is indicated therein. A copy of the
declaration
is kept by the persons involved, by the congregation to which they
belong,
and by the branch office of the Watch Tower Society in that area. It is
also beneficial to announce to the congregation that a declaration was
made for their awareness that conscientious steps are being undertaken
to uphold the honorableness of the marriage relationship. It must be
realized,
however, that if the declarant is unable to obtain recognition from the
civil authorities, even if he makes that declaration, "whatever
consequences
result to him as far as the world outside is concerned are his sole
responsibility
and must be faced by him." (p. 184) For instance, should there be
inheritance
or property issues arising from an earlier marriage, he cannot seek
legal
protection with regard to his new, unrecognized union.chanrobles virtual law library
[17]
Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp.
12-32.
[18]
Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit
6.
[19]
Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
[20]
Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo, pp.
109-110,
"Maintaining Marriage Before God and Men", pp. 184-185.
[21]
Rollo, p, 240; Respondent's Memorandum, p. 2.
[22]
Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p.
3.
[23]
Id. at 4.chanrobles virtual law library
[24]
Memorandum by Deputy Court Administrator Christopher Lock dated August
28, 2002, p. 6.
[25]
A.M. No. P-96-1231, February 12, 1997.
[26]
Memorandum by Deputy Court Administrator Christopher Lock dated August
28, 2002, p. 7.
[27]
Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
[28]
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry
Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 22.
[29]
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry
Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 29.
[30]
Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and
Evolution
of Religion (1923), pp. 68, 206.
[31]
Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp.
512-528.
[32]
Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World
(1931),
p. 47.
[33]
Pfeffer, L., supra, p. 4.chanrobles virtual law library
[34]
Pfeffer, L., supra, p. 5, citing, Against Apion, Book II, paragraph 17,
in Complete Works of Josephus, p. 500.
[35]
Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.chanrobles virtual law library
[36]
It may also be said that Moses actually used the concept of a single
all
powerful God as a means of unifying the Hebrews and establishing them
as
a nation, rather than vice versa. What is important to note, however,
is
that the monotheism which served as foundation of Christianity of
western
civilization with its consequences in church-state relations was
established
by Moses of the Bible, not the Moses of history. Pfeffer, L., supra, p.
5.chanrobles virtual law library
[37]
Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty
(1949),
p. 24.
[38]
Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[39]
Pfeffer, L., supra, p. 7.chanrobles virtual law library
[40]
Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of
Religions
(1934), p. 108.
[41]
Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[42]
Pfeffer, L., supra, p. 13.chanrobles virtual law library
[43]
Pfeffer, L., supra, p. 13, citing Walker, W., A History of the
Christian
Church (1940), p. 108.
[44]
Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45]
Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, "Charles the
Great," 14th ed., V, p. 258.
[46]
Pfeffer, L., supra, p. 22.chanrobles virtual law library
[47]
Pfeffer, L., supra, p. 23.chanrobles virtual law library
[48]
Greene, E., Religion and the State (1941), p. 8.
[49]
Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A.,
Luther's
Primary Works (1885), pp. 194-185.
[50]
Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in
Christianity,"
in Essays on Freedom and Power (1949), p. 103.
[51]
Pfeffer, L., supra, pp. 24-25.
[52]
Pfeffer, L., supra, p. 26, citing Stokes, 1, p. 100.
[53]
Greene, E., supra, p. 9.chanrobles virtual law library
[54]
Pfeffer, L., supra, p. 26, citing Stokes, 1, p. 113.
[55]
Pfeffer, L., supra, p. 26.chanrobles virtual law library
[56]
Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York),
Church
and State in England (1950), p. 93.
[57]
Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions (1949),
pp.
674-675 and Garbett, C., pp. 61-62.
[58]
Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional
Documents,
130-135.
[59]
Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences,
XIII,
p. 243.
[60]
Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[61]
Everson v. Board of Education of the Township of Ewing, et al., 330
U.S.
1 (1947), pp. 8-9.
[62]
Pfeffer, L., supra, p. 30, citing Religious News Service, October 31,
1950.
[63]
Pfeffer, L., supra, p. 30.chanrobles virtual law library
[64]
Beth, L., American Theory of Church and State (1958), p. 3.
[65]
Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66]
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[67]
Pfeffer, L., supra, pp. 92-93.
[68]
Pfeffer, L., supra, p. 96.chanrobles virtual law library
[69]
Pfeffer, L., supra, p. 95.
[70]
Another estimate of church membership in 1775 is that in none of the
colonies
was membership in excess of 35 percent of the population. (Beth, L.,
American
Theory of Church and State [1958], p. /3.)
[71]
Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial
Policy
Making, Second Edition ('1980), p. 1276.
[72]
Pfeffer, L., supra, pp. 96.chanrobles virtual law library
[73]
Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[74]
Pfeffer, L., supra, p. 93.
[75]
Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing
Cobb,
S.H., The Rise of Religious Liberty in America (1902), p. 485.
[76]
Pfeffer., L., supra, p. 85.chanrobles virtual law library
[77]
Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
[78]
Pfeffer, L., supra, p. 87.
[79]
Pfeffer, L., supra, p. 86.
[80]
Pfeffer, L., supra, pp. 88-89.
[81]
Pfeffer, L., supra, p. 101.
[82]
Pfeffer, L., supra, p. 99.chanrobles virtual law library
[83]
Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
Government
(edited by C.B. Macpherson), pp. 8-10.
[84]
Pfeffer, L., supra, p. 102, citing Flumphrey, E.F., Nationalism and
Religion
in America, 1774-1789 (1924), pp. 368-369.
[85]
Pfeffer, L., supra, p. 103.chanrobles virtual law library
[86]
Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[87]
Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of
American
Civilization, I (1947), p. 449.
[88]
Drakeman, D., supra, p. 55.chanrobles virtual law library
[89]
Pfeffer, L., supra, p. 104, citing Laski, H.J., The American Democracy
(1948), p. 267.
[90]
Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by
Virginia
in Establishing Religious Liberty as a Foundation of the American
Government,
Papers of the American Historical Association, II, p. 26.chanrobles virtual law library
[91]
Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92]
Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American
Tradition
in Religion and Education (1950), pp. 46-47.
[93]
Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and
Religion
in America, 1774-1789 (1924), p. 379.
[94]
Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[95]
Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing
Eckenrode,
N.J., The Separation of Church and State in Virginia (1910), p. 86.
[96]
Beth, L., supra, p. 63.
[97]
Id. at 81-82.chanrobles virtual law library
[98]
Id. at 74-75.
[99]
Beth, L., supra, p. 63.
[100]
Id. at 63-65.chanrobles virtual law library
[101]
Smith, S., "The Rise and Fall of Religious Freedom in Constitutional
Discourse",
University of Pennsylvania Law Review, vol. 140(1), November 1991, p.
149,
160.
[102]
Id. at 63-65.chanrobles virtual law library
[103]
Smith, S., "The Rise and Fall of Religious Freedom in Constitutional
Discourse",
University of Pennsylvania Law Review, vol. 140(1), November 1991, p.
149,
160.
[104]
Beth, L., supra, pp. 63-65.
[105]
Id. at 69.chanrobles virtual law library
[106]
Drakeman, D., supra, p. 59.
[107]
Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer,
L.,
supra, p. 92, 125, citing Kohler, M.J., "The Fathers of the Republic
and
Constitutional Establishment of Religious Liberty" (1930), pp. 692-693.chanrobles virtual law library
[108]
Beth, L., supra, p. 71.chanrobles virtual law library
[109]
Berman, H., "Religious Freedom and the Challenge of the Modern State,"
Emory Law Journal, vol. 39, Winter ''1990-Fall 1990, pp. 151-152.
[110]
Monsma, S., "The Neutrality Principle and a Pluralist Concept of
Accommodation"
in Weber, P., Equal Separation (1990), p. 74.
[111]
Berman, H., supra, pp. 151-152.chanrobles virtual law library
[112]
McCoy, T., "A Coherent Methodology for First Amendment Speech and
Religion
Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p.
1335,
1340.
[113]
Weber, P., "Neutrality and first Amendment Interpretation" in Equal
Separation
(1990), pp. 5-7. See also Kauper, P., Religion and the Constitution
(1964),
p. 99.
[114]
Monsma, S., supra, p. 73.chanrobles virtual law library
[115]
See Carter, S., "The Resurrection of Religious Freedom," Harvard Law
Review
(1993), vol. 107(1), p. 118, 128-129.
[116]
Emanuel, S., Constitutional Law (1992), p. 633.
[117]
Carter, S., supra, p. 118, 140.
[118]
Sullivan, K., "Religion and Liberal Democracy," The University of
Chicago
Law Review (1992), vol. 59(1), p. 195, 214-215.
[119]
Kauper, P., Religion and the Constitution (1964), pp. 24-25.
[120]
133 U.S. 333 (1890).
[121]
133 U.S. 333 (1890), p. 342.
[122]
322 U.S. 78 (1944)
[123]
United States v. Ballard, 322 U.S. 78 (1944), p. 86.
[124]
Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law,
Second
Edition (1999), pp. 522-523.
[125]
367 U.S. 488 (1961).
[126]
380 U.S. 163 (1965).
[127]
Stephens, Jr., supra, p. 645.
[128]
Id. at 524.chanrobles virtual law library
[129]
Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of
Employment
Security, 489 U.S. 829 (1989).
[130]
McCoy, T., "A Coherent Methodology for First Amendment Speech and
Religion
Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p.
1335,
1336-1337.
[131]
Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in
Weber,
P., Equal Separation (1990), p. 20.
[132]
Kauper, P., supra, p. 13.chanrobles virtual law library
[133]
Neuhaus, R., "A New Order of Religious Freedom," The George Washington
Law Review (1992), vol. 60 (2), p. 620, 626-627.
[134]
McConnell, M., "Religious Freedom at a Crossroads," The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 168.
[135]
McCoy, T., supra, p, 1335, 1336-1337.chanrobles virtual law library
[136]
Neuhaus, R., "A New Order of Religious Freedom," The George Washington
Law Review (1992), vol. 60 (2), p. 620, 626-627.
[137]
Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for the
Future:
Overcoming the Pfefferian Inversion," in The First Amendment Religion
Liberty
Clauses and American Public Life, p. 183.
[138]
Carter, S., supra, p. 118, 134-135.chanrobles virtual law library
[139]
Lupu, I., "The Religion Clauses and Justice Brennan in Full,"
California
Law Review (1999), vol. 87(5), p. 1105, 1114.
[140]
Everson v. Board of Education, 330 US 1 (1946), p. 15.
[141]
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[142]
See McCoy, T., supra, p. 1335, 1336.chanrobles virtual law library
[143]
98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious
Liberty (1980), p. 49; Drakeman, Church-State Constitutional Issues
(1991),
p. 2.
[144]
Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
[145]
Id. at 163.
[146]
98 U.S. 145, 166.
[147]
McCoy, T., supra, p. 1335, 1344-45.
[148]
Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed.
(1986),
p. 1069.
[149]
136 U.S. 1 (1890).chanrobles virtual law library
[150]
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[151]
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[152]
367 U.S. 488 (1961).chanrobles virtual law library
[153]
322 U.S. 78, 86 (1944).
[154]
310 U.S. 296 (1940).
[155]
Id. at 310.chanrobles virtual law library
[156]
Id. at 303-304.
[157]
319 U.S. 157 (1943).
[158]
340 U.S. 268 (1951).
[159]
452 U.S. 640 (1981).
[160]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
[161]
133 U.S. 333, 345.
[162]
McCoy, T., supra, p. 1335, 1344-45.
[163]
310 U.S. 586 (1940).
[164]
319 U.S. 624 (1943).
[165]
Id. at 634.chanrobles virtual law library
[166]
Id. at 639.chanrobles virtual law library
[167]
McCoy, T., supra, p. 1335, 1345-46.
[168]
See Bloostein, M., "The 'Core'-'Periphery' Dichotomy in First Amendment
Free Exercise Clause Doctrine: Goldman v. Weinberger, Bowen v. Roy, and
O'Lone v. Estate of Shabbaz,z" Cornell Law Review, vol. 72 (4), p. 827,
828.
[169]
366 U.S. 599 (1961).
[170]
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[171]
374 U.S. 398 (1963).chanrobles virtual law library
[172]
Nowak, J., Rotunda, R., and Young,. J., supra, pp. 1072-1073.
[173]
Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
[174]
Id. at 406.chanrobles virtual law library
[175]
Lupu, I, supra, p. 1105, 1110.
[176]
McCoy, T., supra, p. 1335, 1346-1347.
[177]
450 U.S. 707 (1981).chanrobles virtual law library
[178]
480 U.S. 136 (1987).chanrobles virtual law library
[179]
455 U.S. 252 (1982).chanrobles virtual law library
[180]
United States v. Lee, 455 U.S. 252 (1982), p. 260.
[181]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
[182]
406 U.S. 205 (1972).
[183]
Id. at 214-215, 219-220.
[184]
494 U.S. 872 (1990).chanrobles virtual law library
[185]
McConnell, M., supra, p. 685, 726.
[186]
McCoy, T., supra, p. 1335, 1350-1351.
[187]
Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and
1191. See also Sullivan, K., "Religion and Liberal Democracy", The
University
of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[188]
McConnell, M., "Religious Freedom at a Crossroads", The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 139.
[189]
Sullivan, K., "Religion and Liberal Democracy," The University of
Chicago
Law Review (1992), vol. 59(1), p. 195, 216.
[190]
Carter, S., supra, p. 118.
[191]
Rosenzweig, S., "Restoring Religious Freedom to the Workplace: Title
VII,
RFRA and Religious Accommodation," University of Pennsylvania Law
Review
(1996), vol. 144(6), p. 2513, 2516.
[192]
138 L. Ed, 2d 624 (1994).
[193]
508 U.S. 520 (1993).
[194]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
[195]
330 U.S. 1 (1946).
[196]
Drakeman, D., supra, p. 4-6.
[197]
Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p.
53.
[198]
98 U.S. 164 (1878).
[199]
Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
[200]
Id. at 164.chanrobles virtual law library
[201]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
[202]
Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
[203]
Id. at 18.chanrobles virtual law library
[204]
403 U.S. 602 (1971).chanrobles virtual law library
[205]
Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
[206]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[207]
370 U.S. 421 (1962).chanrobles virtual law library
[208]
374 U.S. 203 (1963).
[209]
Id.chanrobles virtual law library
[210]
Id. at 222.chanrobles virtual law library
[211]
Witt, E. (ed.), supra, p. 93.
[212]
472 U.S. 38 (1985).chanrobles virtual law library
[213]
333 U.S. 203 (1948).
[214]
343 U.S. 306 (1952).
[215]
Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[216]
366 U.S. 420 (1961).
[217]
Id. at 451-452.chanrobles virtual law library
[218]
463 U.S. 783 (1983).
[219]
Marsh v. Chambers, 463 US 783 (1983).
[220]
Stephens, Jr., O.H and Scheb, II J.M., supra, pp. 540-541.
[221]
465 U.S. 668 (1984).
[222]
397 U.S. 664 (1970).
[223]
Id. at 673.
[224]
Id.
[225]
Id. at 676.
[226]
McConnell, M., "Religious Freedom at a Crossroads", The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 119-120.
[227]
Drakeman, D., supra, p. 51.
[228]
Id. at 53.
[229]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
[230]
Drakeman, supra, p. 52, citing Cord, R., Separation of Church and
State:
Historical Fact and Current Fiction. p. 50.
[231]
Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds.,
The Debates and Proceedings in the Congress of the United States,
Compiled
from Authentic Materials (Annala), vol. 1, pp. 949-950.
[232]
Beth, L., supra, p. 74.
[233]
Drakeman, supra, pp. 57, 82.
[234]
Buzzard, L., Ericsson, S., supra, p. 46.
[235]
Beth, L., supra, p. 72.
[236]
Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[237]
Beth, L., supra, p. 71.
[238]
The Constitution and Religion, p. 1541.
[239]
Id. at 1539.
[240]
Weber, P., "Neutrality and First Amendment Interpretation" in Equal
Separation
(1990), p. 3.
[241]
McConnell, M., "Religious Freedom at a Crossroads", The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 120.
[242]
Everson v. Board of Education, 330 U.S, 1 (1947), p. 18.
[243]
The Constitution and Religion, p. 1541, citing Kurland, Of Church and
State
and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[244]
Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion
and the Law (1962), p. 18.
[245]
Smith, S., "The Rise and Fall of Religious Freedom in Constitutional
Discourse,"
University of Pennsylvania Law Review, vol. 140(1), November 1991, p.
149,
186.
[246]
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[247]
Buzzard, L., Ericsson, S., supra, p. 60.
[248]
Kelley, D., supra, p. 1189.
[249]
Monsma, S., supra, p. 74.
[250]
Id. at 75.chanrobles virtual law library
[251]
Smith, S., supra, p. 149, 159.
[252]
Drakeman, supra, p. 54.chanrobles virtual law library
[253]
Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254]
Smith, S., supra, p. 149, 159.
[255]
Id. at 149, 159-160.chanrobles virtual law library
[256]
Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257]
Id. at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and Roemer:
From
Separation to Detente in Church-State Relations", 55 North Carolina Law
Review (April 1977), 563-75.
[258]
Buzzard, L., Ericsson, S., supra, p. 51.chanrobles virtual law library
[259]
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[260]
Buzzard, L., Ericsson, S., supra, p. 61.chanrobles virtual law library
[261]
Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262]
Kelley, D., supra, p. 34.chanrobles virtual law library
[263]
Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion
(1970),
p. 21.
[264]
Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
Religion
(1963), pp. xxvi, xxviii.
[265]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
[266]
Berman, H., supra, p. 162.
[267]
The Constitution and Religion, p. 1569.
[268]
McCoy, T., supra, p. 1335, 1338-1339.
[269]
McConnell, M., "Accommodation of Religion: An Update and a Response to
the Critics", The George Washington Law Review (1992), vol. 60 (3), p.
685, 688.
[270]
Id.
[271]
Id. at 689.
[272]
Id. at 690-694, 715.
[273]
Id. at 686.
[274]
Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663,
679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S. 668,
673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).chanrobles virtual law library
[275]
McConnell, M., "Religious Freedom at a Crossroads," The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 139; 184.
[276]
Id. at 174.chanrobles virtual law library
[277]
Neuhaus, R., "A New Order of Religious Freedom," The George Washington
Law Review (1992), vol. 60 (2), p. 620, 631.
[278]
Buzzard, L., Ericsson, S., supra, pp. 61-62.chanrobles virtual law library
[279]
Emanuel, S., supra, pp. 633-634, citing Tribe, L., American
Constitutional
Law, 2nd ed. (1988), p. 1251. See also Nowak, J., Rotunda, R., and
Young, J., Constitutional Law, 3rd ed. (1986), pp. 1067-1069.chanrobles virtual law library
[280]
Id. at 633.chanrobles virtual law library
[281]
Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[282]
McConnell, M., "Accommodation of Religion: An Update and a Response to
the Critics", The George Washington Law Review (1992), vol. 60 (3), p.
685, 715.
[283]
Buzzard, L., Ericsson, S., supra, pp. 61-63.chanrobles virtual law library
[284]
McConnell, "The Origins and Historical Understanding of Free Exercise
of
Religion," Harvard Law Review, vol. 103 (1990), p. 1410, 1416-7.
[285]
Buzzard, L., Ericsson, S., supra, p. 70.chanrobles virtual law library
[286]
McConnell, M., "Accommodation of Religion: An Update and a Response to
the Critics," The George Washington Law Review (1992), vol. 60 (3), p.
685, 735.
[287]
Buzzard, L., Ericsson, S., supra, pp. 68-71.
[288]
Lupu, I., supra, p. 743, 775.
[289]
Id. at 775.chanrobles virtual law library
[290]
Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[291]
Buzzard, L., Ericsson, S., supra, p. 68.
[292]
Lupu, I., supra, p. 743, 776.chanrobles virtual law library
[293]
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
[294]
Martinez, H., "The High and Impregnable Wall of Separation Between
Church
and State", Philippine Law Journal (1962), vol. 37(5), p. 748, 766.
[295]
Article II.chanrobles virtual law library
[296]
Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), p. 284.
[297]
Coquia, J., Church and State Law and Relations, p. 52, citing Article X
of the Treaty of Paris. The territories referred to were Cuba, Puerto
Rico,
Guam, the West Indies and the Philippine Islands.
[298]
Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la
Republica Filipina promulgada el dia 22 de Enero de 1899 (Edicion
oficial,
Islas Filipinas, Barazoain, Bul, 1899), p. 9.
[299]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 13, 148.
[300]
Coquia, J., supra, p. 77, citing Acts of the Philippine Commission,
With
Philippine Organic Laws 10.
[301]
25 Phil. 273 (1913).
[302]
Id. at 276.
[303]
Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd
Congress
(1934).
[304]
Laurel, S., Proceedings of the Philippine Constitutional Convention,
vol.
III (1966), pp. 654-655.
[305]
Aruego, J., The Framing of the Philippine Constitution, vol. I (1949),
p. 164.
[306]
Id. at 150.
[307]
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
[308]
Baddiri, E., "Islam and the 1987 Constitution: An Issue on the Practice
of Religion," 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed
Muhammad
Al-Naquib Al-Attas, Islam and Secularism 46 (1978).chanrobles virtual law library
[309]
Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310]
64 Phil 201 (1937).chanrobles virtual law library
[311]
101 Phil. 386 (1957).chanrobles virtual law library
[312]
Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[313]
106 Phil. 2 (1959).chanrobles virtual law library
[314]
Id. at 9-10.chanrobles virtual law library
[315]
Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary
(1987), p. 225, Footnote 38.
[316]
319 U.S. 103.chanrobles virtual law library
[317]
234 SCRA 630 (1994).
[318]
493 U.S. 378 (1990).
[319]
106 Phil. 2 (1959).
[320]
106 Phil. 2 (1959), p. 10.
[321]
Id. at 11-12.
[322]
Id. at 14.
[323]
Id. at 25.
[324]
Id. at 24-25.
[325]
110 Phil 150.
[326]
59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93
(1974);
Gonzalez v. Central Azucarera de Tarlac Labor Union, 139 SCRA (1985).
[327]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54
(1974),
p. 72.
[328]
Id. at 73.chanrobles virtual law library
[329]
64 Phil 201.
[330]
392 US 236chanrobles virtual law library
.
[331]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332]
Id. at 75.chanrobles virtual law library
[333]
Id.chanrobles virtual law library
[334]
61 SCRA 93 (1974).
[335]
80 SCRA 350 (1977).
[336]
139 SCRA 30 (1985).chanrobles virtual law library
[337]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing
Cantwell v. Connecticut, 310 U.S. 296.
[338]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.chanrobles virtual law library
[339]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985).chanrobles virtual law library
[340]
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting
Opinion
of Justice Teehankee.
[341]
219 SCRA 256 (1993), March 1, 1993.chanrobles virtual law library
[342]
Id., at 270-271.chanrobles virtual law library
[343]
Id. at 271-272.
[344]
Id. at 272.
[345]
Id. at 272-273.
[346]
Id. at 270.
[347]
Id. at 269.
[348]
259 SCRA 529 (1996).
[349]
Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[350]
Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[351]
Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing
Hentoff,
Speech, Harm and Self-Government: Understanding the Ambit of the Clear
and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).chanrobles virtual law library
[352]
Id.chanrobles virtual law library
[353]
Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354]
This argument was a central theme in John Locke's A Letter Concerning
Toleration,
which strongly influenced the thinking of many Americans, including
Jefferson
and Madison. (Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional
Discourse", University of Pennsylvania Law Review, vol. 140[1],
November
1991, p. 149, 155).
[355]
Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary
(1987), p. 233.
[356]
Id. at 234.chanrobles virtual law library
[357]
64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of
the
Philippines: A Commentary (1987), p. 234.
[358]
An Act Appropriating the Sum of Sixty Thousand Pesos and Making the
Same
Available out of any Funds in the Insular Treasury not otherwise
Appropriated
for the Cost of Plates and Printing of Postage Stamps with New Designs,
and for other Purposes.
[359]
Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360]
Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361]
104 SCRA 510 (1981).
[362]
86 SCRA 413 (1978).
[363]
367 U.S. 488 (1961).
[364]
Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365]
96 Phil. 417 (1955).
[366]
45 Am. Jur. 77.chanrobles virtual law library
[367]
96 Phil 417 (1955), p. 426.chanrobles virtual law library
[368]
Id. at 441, citing American authorities.chanrobles virtual law library
[369]
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370]
Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371]
Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372]
Walz v. Tax Commission, supra, p. 668.chanrobles virtual law library
[373]
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
[374]
Drakeman, D., supra, p. 127.chanrobles virtual law library
[375]
Buzzard, L. and Ericsson, S., supra, p., 7.
[376]
Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), pp. 288-289.
[377]
Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378]
Martin, Statutory Construction (1979), p. 210.
[379]
Aruego, J., supra, pp. 331-337.chanrobles virtual law library
[380]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the
Constitutional
Convention of the Philippines, vol. 4, pp. 1550, 1552.
[381]
Aruego, J., supra, p. 337.chanrobles virtual law library
[382]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), p. 153.
[383]
Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention
of the Philippines, vol. 4, p. 1539.
[384]
Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention
of the Philippines, vol. 4, pp. 1541-1543.
[385]
Aruego, J., supra, pp. 340-345.chanrobles virtual law library
[386]
Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention
Record, vol. 10 (1967), p. 29.
[387]
Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949),
pp. 627-629.
[388]
Martin, supra, p. 218.chanrobles virtual law library
[389]
Aglipay v. Ruiz, supra, p. 206.chanrobles virtual law library
[390]
Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1
(1952),
pp. 269-270.
[391]
Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of
the Committee on Church and State of the 1971 Constitutional
Convention,
p. 18.
[392]
Bernas, J., Background paper for reconsideration of the religion
provisions
of the constitution (1971), pp. 41-43.
[393]
Tingson, J., Report of the Committee on Church and State of the 1971
Constitutional
Convention Report, p. 5.
[394]
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406,
citing Records of the Constitutional Commission, vol. II, pp. 193-194.
[395]
Records of the Constitutional Commission, vol. 4, p. 362.
[396]
Id. at 358.
[397]
Id. at 359.
[398]
Id. at 973.chanrobles virtual law library
[399]
Records of the Constitutional Commission, vol. 1, p. 102.
[400]
Bernas, Constitutional Rights and Social Demands, Part II (1991), p.
268.
[401]
Cruz, I., Constitutional Law (1995), p. 167.
[402]
Martinez, H., supra, p. 768-772.
[403]
McConnell, M., "Religious Freedom at a Crossroads", The University of
Chicago
Law Review (1992), vol. 59(1), p. 115, 169.
[404]
Martinez, H., supra, p. 773.chanrobles virtual law library
[405]
Neuhaus, R., supra, p. 630.chanrobles virtual law library
[406]
Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at
the University of Virginia, in The Complete Jefferson (Saul K. Padover
ed., 1969), p. 957, 958.
[407]
Neuhaus, R., supra, p. 630.chanrobles virtual law library
[408]
Carter, S., supra, pp. 140-142.chanrobles virtual law library
[409]
Cruz, I., Constitutional Law (1995), p. 178.chanrobles virtual law library
[410]
Liguid v. Camano, A.M. No. RTJ-99-1509, August 8, 2002; Bucatcat v.
Bucatcat,
380 Phil. 555 (2000); Navarro v. Navarro, 339 SCRA 709 (2000);
Ecube-Badel
v. Badel, 339 Phil. 510 (1997); Nalupta v. Tapec, 220 SCRA 505 (1993);
Aquino v. Navarro, 220 Phil. 49 (1985).
[411]
68 SCRA 354 (1975).chanrobles virtual law library
[412]
305 SCRA 469 (1999).chanrobles virtual law library
[413]
Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
[414]
Devlin, P., The Enforcement of Morals (1965), p. 10.
[415]
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
[416]
Devlin, P., supra, 13.
[417]
Neuhaus, R., supra, pp. 621, 624-625.
[418]
McConnell, M., "Religious Freedom at a Crossroads", The University of
Chicago,
Law Review (1992), vol. 59(1), p. 115, 139.
[419]
Neuhaus, R., supra, pp. 624-625.
[420]
Greenwalt, K., Conflicts of Law and Morality, p, 247, citing Holmes,
The
Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).
[421]
Id. at 247.
[422]
Greenwalt, K., supra, p. 272.
[423]
Buzzard, L. and Ericsson, S., supra, p. 31.
[424]
Devlin, P., supra, pp. 19-20.
[425]
Id. at 247.chanrobles virtual law library
[426]
210 SCRA 471 (1992).
[427]
Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing
Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12, citing
People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablo's
view in People v. Piosca and Peremne, 86 Phil. 31.
[428]
Devlin, P., supra, pp. 6-7.
[429]
Id. at 19.chanrobles virtual law library
[430]
Article 334 of the Revised Penal Code provides, viz:chanroblesvirtuallawlibrary
"Art.
334. Concubinage. — Any husband who shall keep a mistress in the
conjugal
dwelling, or shall have sexual intercourse, under scandalous
circumstances,
with a woman who; is not his wife, or shall cohabit with her in any
other
place, shall be punished by prision correccional in its minimum and
medium
period.
The
concubine shall suffer the penalty of destierro."
[431]
Article 266-A of the Revised Penal Code.chanrobles virtual law library
[432]
Rule 110 of the Revised Rules of Criminal Procedure, as amended
provides
in relevant part, viz:chanroblesvirtuallawlibrary
"The
crime of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot
institute
criminal prosecution without including the guilty parties, if both are
alive, nor, in any case, if the offended party has consented to the
offense
or pardoned the offenders."
[433]
Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100
Phil.
186 (1956), pp. 202-203, citing Report of the Code Commission on the
Proposed
Civil Code of the Philippines, pp. 40-41.
[434]
Carter, S., supra, p. 138.chanrobles virtual law library
[435]
Sullivan, K., supra, pp. 197-198.chanrobles virtual law library
[436]
Rule 1.01 of the Code of Professional Responsibility provides that,
"(a)
lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
(Emphasis supplied.)
[437]
Title Six of the Revised Penal Code is entitled Crimes against Public
Morals
and includes therein provisions on gambling and betting. (Emphasis
supplied.)
[438]
The New Civil Code provides, viz:chanroblesvirtuallawlibrarychanrobles virtual law library
"Article
6. Rights may be waived, unless the waiver is contrary to law, public
order,
public policy, morals, or good customs or prejudicial to a third person
with a right recognized by law.
Article
21. Any person who wilfully 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.
Article
1306. The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided that are not
contrary to law, morals, good customs, public order, or public policy.chanrobles virtual law library
Article
1409. The following contracts are inexistent and void from the
beginning:chanroblesvirtuallawlibrary
(1)
Those whose cause, object or purpose is contrary to law, morals, good
customs,
public order or public policy; x x x" (Emphasis supplied.)
[439]
Article XIV, Section 3 provides in relevant part, viz:chanroblesvirtuallawlibrary
(1)
All educational institutions shall include the study of the
Constitution
as part of the curricula.
(2)
They shall inculcate patriotism and nationalism, foster love of
humanity,
respect for human rights, appreciation of the role of national heroes
in
the historical development of the country, teach the rights and duties
of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative
thinking,
broaden scientific and technological knowledge, and promote vocational
efficiency. (Emphasis supplied.)
[440]
To illustrate the distinction between public or secular morality and
religious
morality, we take the example of a judge. If the public morality of a
society
deems that the death penalty is necessary to keep society together and
thus crystallizes this morality into law, a judge might find himself in
a conflict between public morality and his religious morality. He might
discern that after weighing all considerations, his religious beliefs
compel
him not to impose the death penalty as to do so would be immoral. If
the
judge refuses to impose the death penalty where the crime warrants it,
he will be made accountable to the state which is the authority in the
realm of public morality and be held administratively liable for
failing
to perform his duty to the state. If he refuses to act according to the
public morality because he finds more compelling his religious morality
where he is answerable to an authority he deems higher than the state,
then his choice is to get out of the public morality realm where he has
the duty to enforce the public morality or continue to face the
sanctions
of the state for his failure to perform his duty. See Griffin, L., "The
Relevance of Religion to a Lawyer's Work: Legal Ethics", Fordham Law
Review
(1998), vol. 66(4), p. 1253 for a discussion of a similar dilemma
involving
lawyers.chanrobles virtual law library
[441]
Sullivan, K., supra, p. 196.chanrobles virtual law library
[442]
Smith, S., supra, pp. 184-185. For a defense of this view, see William
P. Marshall, We Know It When We See It": The Supreme Court and
Establishment,
59 S. Cal. L. Rev. 495 (1986). For an extended criticism of this
position,
see Steven D. Smith, "Symbols, Perceptions, and Doctrinal Illusions:
Establishment
Neutrality and the 'No Establishment' Test", 86 Mich. L. Rev. 266
(1987).
[443]
Ostrom, V., "Religion and the Constitution of the American Political
System",
Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville,
Democracy
in America (1945), p. 305.
[444]
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[445]
Devlin, P., supra, p. 22.chanrobles virtual law library
[446]
329 U.S. 14 (1946).chanrobles virtual law library
[447]
Cleveland v. United States, 329 U.S. 14, p. 16.
[448]
Reynolds v. United States, supra, p. 164.
[449]
Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[450]
Id.chanrobles virtual law library
[451]
226 SCRA 193 (1993).
[452]
Id. at 199.chanrobles virtual law library
[453]
Annexes "A" and "B" of the Report and Recommendation of Executive Judge
Bonifacio Sanz Maceda.
[454]
Cruz, I., supra, p. 176. |