EN BANC
[A.M. No. P-02-1651. August 4, 2003]
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.
ESCRITOR, respondent.
D E C I S I O N
PUNO, J.:
The case at bar takes us to a most difficult area of
constitutional law where man stands accountable to an authority higher than the
state. To be held on balance are the state’s interest and the
respondent’s religious freedom. In this highly sensitive area of law, the task
of balancing between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only temporal.
The task is not made easier by the American origin of our religion clauses and
the wealth of U.S. jurisprudence on these clauses for in the United States,
there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses.[1] The
U.S. Supreme Court itself has acknowledged that in this constitutional area,
there is “considerable internal inconsistency in the opinions of the Court.”[2] As
stated by a professor of law, “(i)t is by now notorious that legal doctrines
and judicial decisions in the area of religious freedom are in serious
disarray. In perhaps no other area of constitutional law have confusion and
inconsistency achieved such undisputed sovereignty.”[3] Nevertheless,
this thicket is the only path to take to conquer the mountain of a legal
problem the case at bar presents. Both the penetrating and panoramic view this
climb would provide will largely chart the course of religious freedom in
Philippine jurisdiction. That the religious freedom question arose in an
administrative case involving only one person does not alter the paramount
importance of the question for the “constitution commands the positive
protection by government of religious freedom -not only for a minority, however
small- not only for a majority, however large- but for each of us.”[4]
I. Facts
The facts of the case will determine whether respondent
will prevail in her plea of religious freedom. It is necessary
therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000,
complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter in
said court, is living with a man not her husband. They allegedly
have a child of eighteen to twenty years old. Estrada is not
personally related either to Escritor or her partner and is a resident not of
Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the
charge against Escritor as he believes that she is committing an immoral act
that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated
that “there is no truth as to the veracity of the allegation” and challenged
Estrada to “appear in the open and prove his allegation in the proper forum.”[6] Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor
moved for the inhibition of Judge Caoibes from hearing her case to avoid
suspicion and bias as she previously filed an administrative complaint against
him and said case was still pending in the Office of the Court Administrator
(OCA). Escritor’s motion was denied. The preliminary
conference proceeded with both Estrada and Escritor in
attendance. Estrada confirmed that he filed the letter-complaint for
immorality against Escritor because in his frequent visits to the Hall of
Justice of Las Piñas City, he learned from conversations therein that Escritor
was living with a man not her husband and that she had an eighteen to
twenty-year old son by this man. This prompted him to write to Judge
Caoibes as he believed that employees of the judiciary should be respectable
and Escritor’s live-in arrangement did not command respect.[7]
Respondent Escritor testified that when she entered the
judiciary in 1999,[8] she
was already a widow, her husband having died in 1998.[9] She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But
as a member of the religious sect known as the Jehovah’s Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of
living together, she executed on July 28, 1991 a “Declaration of Pledging
Faithfulness,” viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have
accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of having
been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.
I recognize this relationship as a binding tie before
‘Jehovah’ God and before all persons to be held to and honored in full accord
with the principles of God’s Word. I will continue to seek the means
to obtain legal recognition of this relationship by the civil authorities and
if at any future time a change in circumstances make this possible, I promise
to legalize this union.
Signed this 28th day of July 1991.[10]
Escritor’s partner, Quilapio, executed a similar pledge
on the same day.[11] Both
pledges were executed in Atimonan, Quezon and signed by three
witnesses. At the time Escritor executed her pledge, her husband was
still alive but living with another woman. Quilapio was likewise
married at that time, but had been separated in fact from his
wife. During her testimony, Escritor volunteered to present members
of her congregation to confirm the truthfulness of their “Declarations of
Pledging Faithfulness,” but Judge Caoibes deemed it unnecessary and considered
her identification of her signature and the signature of Quilapio sufficient
authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge
Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court
Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepaño, directed
Escritor to comment on the charge against her. In her comment,
Escritor reiterated her religious congregation’s approval of her conjugal
arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but
she reiterates to state with candor that there is no truth as to the veracity
of same allegation. Included herewith are documents denominated as
Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by
both respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the WATCH TOWER
BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie
before “JEHOVAH” God and before all persons to be held to and honored in full
accord with the principles of God’s Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair
discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch . . . to which undersigned believes to be a high
authority in relation to her case.[13]
Deputy Court Administrator Christopher O. Lock
recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda,
RTC Branch 255, Las Piñas City for investigation, report and
recommendation. In the course of Judge Maceda’s investigation, Escritor
again testified that her congregation allows her conjugal arrangement with
Quilapio and it does not consider it immoral. She offered to supply
the investigating judge some clippings which explain the basis of her
congregation’s belief and practice regarding her conjugal
arrangement. Escritor started living with Quilapio twenty years ago
when her husband was still alive but living with another woman. She
met this woman who confirmed to her that she was living with her (Escritor’s)
husband.[14]
Gregorio Salazar, a member of the Jehovah’s Witnesses
since 1985, also testified. He had been a presiding minister since
1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing
a “Declaration of Pledging Faithfulness”, viz:
Q: Now, insofar as the pre-marital
relationship is concern (sic), can you cite some particular rules and
regulations in your congregation?
A: Well, we of course, talk to the
persons with regards (sic) to all the parties involved and then we request them
to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of
faithfulness.
Q: What are the relations of the
document Declaration of Pledge of faithfulness, who are suppose (sic) to
execute this document?
A: This must be signed, the
document must be signed by the elders of the congregation; the couple, who is a
member (sic) of the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations
do you have in relation with this document?
A: Actually, sir, the signing of
that document, ah, with the couple has consent to marital relationship (sic)
gives the Christian Congregation view that the couple has put themselves on
record before God and man that they are faithful to each other. As
if that relation is validated by God.
Q: From your explanation, Minister, do
you consider it a pledge or a document between the parties, who are members of
the congregation?
A: It is a pledge and a
document. It is a declaration, pledge of a (sic) pledge of
faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have
contracted, let us say, I am the one who contracted with the opposite member of
my congregation, opposite sex, and that this document will give us the right to
a marital relationship.
Q: So, in short, when you execute a
declaration of pledge of faithfulness, it is a preparation for you to enter a
marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that
the parties, cohabiting or living under the same roof?
A: Well, the Pledge of
faithfulness document is (sic) already approved as to the marital relationship.
Q: Do you mean to say, Minister, by
executing this document the contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible
says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter
Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said
“that everyone divorcing his wife, except on account of fornication, makes her
a subject for adultery, and whoever marries a divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazar’s
Congregation, the Almanza Congregation in Las Piñas, in May
2001. The declarations having been executed in Atimonan, Quezon in
1991, Salazar had no personal knowledge of the personal circumstances of
Escritor and Quilapio when they executed their declarations. However,
when the two transferred to Almanza, Salazar inquired about their status from
the Atimonan Congregation, gathered comments of the elders therein, and
requested a copy of their declarations. The Almanza Congregation
assumed that the personal circumstances of the couple had been considered by
the Atimonan Congregation when they executed their declarations.
Escritor and Quilapio’s declarations are recorded in the
Watch Tower Central office. They were executed in the usual and
approved form prescribed by the Watch Tower Bible and Tract Society which was
lifted from the article, “Maintaining Marriage in Honor Before God and Men,” [16] in
the March 15, 1977 issue of the Watch Tower magazine, entitled The
Watchtower.
The declaration requires the approval of the elders of
the Jehovah’s Witnesses congregation and is binding within the congregation all
over the world except in countries where divorce is allowed. The
Jehovah’s congregation requires that at the time the declarations are executed,
the couple cannot secure the civil authorities’ approval of the marital
relationship because of legal impediments. It is thus standard
practice of the congregation to check the couple’s marital status before giving
imprimatur to the conjugal arrangement. The execution of the
declaration finds scriptural basis in Matthew 5:32 that when the spouse commits
adultery, the offended spouse can remarry. The marital status of the
declarants and their respective spouses’ commission of adultery are
investigated before the declarations are executed. Thus, in the case
of Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved and the
declaration is valid everywhere, including the Almanza
Congregation. That Escritor’s and Quilapio’s declarations were
approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregation’s
branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting
the legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal
impediments for both are lifted, the couple can already register their marriage
with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their
marriage as authorized by Philippine law. In sum, therefore, insofar
as the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.[17]
Salvador Reyes, a minister at the General de Leon,
Valenzuela City Congregation of the Jehovah’s Witnesses since 1974 and member
of the headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article
entitled, “Maintaining Marriage Before God and Men” to which Escritor and
Minister Salazar referred in their testimonies. The article appeared
in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower
Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent
him in authenticating the article. The article is distributed to the
Jehovah’s Witnesses congregations which also distribute them to the public.[18]
The parties submitted their respective memoranda to the
investigating judge. Both stated that the issue for resolution is
whether or not the relationship between respondent Escritor and Quilapio is
valid and binding in their own religious congregation, the Jehovah’s Witnesses. Complainant
Estrada adds however, that the effect of the relationship to Escritor’s
administrative liability must likewise be determined. Estrada
argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the “proper public authorities” such that she bound
herself “to seek means to . . . legalize their union.” Thus, even
assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation and
serves only the internal purpose of displaying to the rest of the congregation
that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot
override the norms of conduct required by law for government employees. To
rule otherwise would create a dangerous precedent as those who cannot legalize
their live-in relationship can simply join the Jehovah’s Witnesses congregation
and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the
validity of her conjugal arrangement with Quilapio based on the belief and
practice of her religion, the Jehovah’s Witnesses. She quoted portions of the
magazine article entitled, “Maintaining Marriage Before God and Men,” in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits “1”
and “2”) executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah’s Witnesses admit
and recognize (sic) the supremacy of the proper public authorities in the
marriage arrangement. However, it is helpful to understand the
relative nature of Caesar’s authority regarding marriage. From
country to country, marriage and divorce legislation presents a multitude of
different angles and aspects. Rather than becoming entangled in a
confusion of technicalities, the Christian, or the one desiring to become a
disciple of God’s Son, can be guided by basic Scriptural principles that hold
true in all cases.
God’s view is of first concern. So, first of
all the person must consider whether that one’s present relationship, or the
relationship into which he or she contemplates entering, is one that could meet
with God’s approval, or whether in itself, it violates the standards of God’s
Word. Take, for example, the situation where a man lives with a wife
but also spends time living with another woman as a concubine. As
long as such a state of concubinage prevails, the relationship of the second
woman can never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so. The only
right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of one’s immediate family, or a
homosexual relationship or other such situation condemned by God’s
Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a situation could not make
any kind of “Declaration of Faithfulness,” since it would have no merit in God’s
eyes.
If the relationship is such that it can have God’s
approval, then, a second principle to consider is that one should do all one
can to establish the honorableness of one’s marital union in the eyes of all.
(Heb. 13:4). If divorce is possible, then such step should now be
taken so that, having obtained the divorce (on whatever legal grounds may be
available), the present union can receive civil validation as a recognized
marriage.
Finally, if the marital relationship is not one out of
harmony with the principles of God’s Word, and if one has done all that can
reasonably be done to have it recognized by civil authorities and has been
blocked in doing so, then, a Declaration Pledging Faithfulness can be
signed. In some cases, as has been noted, the extreme slowness of
official action may make accomplishing of legal steps a matter of many, many
years of effort. Or it may be that the costs represent a crushingly
heavy burden that the individual would need years to be able to
meet. In such cases, the declaration pledging faithfulness will
provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the
respondent as a Minister of Jehovah God, should be able to approach the matter
in a balanced way, neither underestimating nor overestimating the validation
offered by the political state. She always gives primary concern to
God’s view of the union. Along with this, every effort should be
made to set a fine example of faithfulness and devotion to one’s mate, thus,
keeping the marriage “honorable among all.” Such course will bring
God’s blessing and result to the honor and praise of the author of marriage,
Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the
investigating judge that complainant’s Memorandum came from Judge Caoibes’
chambers[21] whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge
Maceda found Escritor’s factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that “(b)y
strict Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: ‘that which is
willful, flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community’ (7 C.J.S. 959)’
(Delos Reyes vs. Aznar, 179 SCRA, at p. 666).” He pointed out, however, that
“the more relevant question is whether or not to exact from respondent
Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral standards of the
Catholic faith in determining her administrative responsibility in the case at
bar.”[22] The
investigating judge acknowledged that “religious freedom is a fundamental right
which is entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator (at p.
270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando’s separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531)” and thereby recommended
the dismissal of the complaint against Escritor.[23]
After considering the Report and Recommendation of
Executive Judge Maceda, the Office of the Court Administrator, through Deputy
Court Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time she
joined the judiciary as her husband had died a year before, “it is due to her
relationship with a married man, voluntarily carried on, that respondent may
still be subject to disciplinary action.”[24] Considering
the ruling of the Court in Dicdican
v. Fernan, et al.[25] that
“court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the court of justice,” DCA Lock found
Escritor’s defense of freedom of religion unavailing to warrant dismissal of
the charge of immorality. Accordingly, he recommended that
respondent be found guilty of immorality and that she be penalized with
suspension of six months and one day without pay with a warning that a
repetition of a similar act will be dealt with more severely in accordance with
the Civil Service Rules.[26]
II. Issue
Whether or not respondent should be found guilty of the
administrative charge of “gross and immoral conduct.” To resolve this
issue, it is necessary to determine the sub-issue of whether or not
respondent’s right to religious freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for which government employees
are held administratively liable.
III. Applicable Laws
Respondent is charged with committing “gross and immoral
conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a)
No officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary
action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman’s
terms, invokes the religious beliefs and practices and moral standards of her religion,
the Jehovah’s Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct for
which she should be held administratively liable. While not
articulated by respondent, she invokes religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of
civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have
taken, it would be well to understand not only its birth in the United States,
but its conception in the Old World. One cannot understand, much
less intelligently criticize the approaches of the courts and the political branches
to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval
world and in the American experience.[27] This
fresh look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been
religious. Every significant event in the primitive man’s life, from birth to
death, was marked by religious ceremonies. Tribal society survived
because religious sanctions effectively elicited adherence to social
customs. A person who broke a custom violated a taboo which would
then bring upon him “the wrathful vengeance of a superhuman mysterious power.”[28] Distinction
between the religious and non-religious would thus have been meaningless to
him. He sought protection from all kinds of evil - whether a wild
beast or tribe enemy and lightning or wind - from the same
person. The head of the clan or the Old Man of the tribe or the king
protected his wards against both human and superhuman enemies. In time,
the king not only interceded for his people with the divine powers, but he
himself was looked upon as a divine being and his laws as divine decrees.[29]
Time came, however, when the function of acting as
intermediary between human and spiritual powers became sufficiently
differentiated from the responsibility of leading the tribe in war and policing
it in peace as to require the full-time services of a special priest class. This
saw the birth of the social and communal problem of the competing claims of the
king and priest. Nevertheless, from the beginning, the king and not the
priest was superior. The head of the tribe was the warrior, and
although he also performed priestly functions, he carried out these functions
because he was the head and representative of the community.[30]
There being no distinction between the religious and the
secular, the same authority that promulgated laws regulating relations between
man and man promulgated laws concerning man’s obligations to the
supernatural. This authority was the king who was the head of the
state and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of
Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property;[31] and
also catalogued the gods and assigned them their places in the divine hierarchy
so as to put Hammurabi’s own god to a position of equality with existing gods.[32] In
sum, the relationship of religion to the state (king) in pre-Hebreic times may
be characterized as a union of the two forces, with the state almost
universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be
coined to describe the relation of the Hebrew state with the Mosaic
religion: theocracy. The authority and power of the state was
ascribed to God.[34] The
Mosaic creed was not merely regarded as the religion of the state, it was (at
least until Saul) the state itself. Among the Hebrews, patriarch,
prophet, and priest preceded king and prince. As man of God, Moses
decided when the people should travel and when to pitch camp, when they should
make war and when peace. Saul and David were made kings by the
prophet Samuel, disciple of Eli the priest. Like the Code of
Hammurabi, the Mosaic code combined civil laws with religious mandates, but
unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and
all-embracing: sacrifices were made and Israel was prohibited from exacting
usury, mistreating aliens or using false weights, all because God commanded
these.
Moses of the Bible led not like the ancient
kings. The latter used religion as an engine to advance the purposes
of the state. Hammurabi unified Mesopotamia and established Babylon as its
capital by elevating its city-god to a primary position over the previous
reigning gods.[35] Moses,
on the other hand, capitalized on the natural yearnings of the Hebrew slaves
for freedom and independence to further God’s purposes. Liberation
and Exodus were preludes to Sinai and the receipt of the Divine
Law. The conquest of Canaan was a preparation for the building of
the temple and the full worship of God.[36]
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not only
the future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is
acknowledged by many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception
of a single and universal God that introduced a religious exclusivism leading
to compulsion and persecution in the realm of religion. Ancient
religions were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not arise. It
was not until an exclusive fellowship, that the questions of proselytism,
change of belief and liberty of religion arose.[37] (emphasis
supplied)
The Hebrew theocracy existed in its pure form from Moses
to Samuel. In this period, religion was not only superior to the
state, but it was all of the state. The Law of God as transmitted
through Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and
ultimately, the master, of religion. Saul and David each received
their kingdom from Samuel the prophet and disciple of Eli the priest, but soon
the king dominated prophet and priest. Saul disobeyed and even
sought to slay Samuel the prophet of God.[38] Under
Solomon, the subordination of religion to state became complete; he used
religion as an engine to further the state’s purposes. He reformed
the order of priesthood established by Moses because the high priest under that
order endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was also true
in pre-Christian Rome which engaged in emperor-worship. When Augustus became
head of the Roman state and the priestly hierarchy, he placed religion at a
high esteem as part of a political plan to establish the real religion of
pre-Christian Rome - the worship of the head of the state. He set
his great uncle Julius Caesar among the gods, and commanded that worship of
Divine Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods, as
other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to
the emperor as the Christians’ dogmatic exclusiveness prevented them from
paying homage to publicly accepted gods. In the first two centuries
after the death of Jesus, Christians were subjected to
persecution. By the time of the emperor Trajan, Christians were
considered outlaws. Their crime was “hatred of the human race”,
placing them in the same category as pirates and brigands and other “enemies of
mankind” who were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to
reorganize the empire and make its administration more
efficient. But the closely-knit hierarchically controlled church presented
a serious problem, being a state within a state over which he had no
control. He had two options: either to force it into submission and
break its power or enter into an alliance with it and procure political control
over it. He opted for force and revived the persecution, destroyed
the churches, confiscated sacred books, imprisoned the clergy and by torture
forced them to sacrifice.[42] But
his efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two
co-rulers of the empire, in issuing an edict of toleration to Christians “on
condition that nothing is done by them contrary to discipline.”[43] A
year later, after Galerius died, Constantine and Licius jointly issued the
epochal Edict of Milan (312 or 313), a document of monumental
importance in the history of religious liberty. It provided
“that liberty of worship shall not be denied to any, but that
the mind and will of every individual shall be free to manage divine affairs
according to his own choice.” (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted “that every person who cherishes the
desire to observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance.” Furthermore,
it was provided that the “same free and open power to follow their own religion
or worship is granted also to others, in accordance with the tranquillity of
our times, in order that every person may have free opportunity to worship
the object of his choice.”(emphasis supplied)[44]
Before long, not only did Christianity achieve equal
status, but acquired privilege, then prestige, and eventually, exclusive power. Religion
became an engine of state policy as Constantine considered Christianity a means
of unifying his complex empire. Within seven years after the Edict
of Milan, under the emperor’s command, great Christian edifices were erected,
the clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors
called and dismissed church councils, and enforced unity of belief and
practice. Until recently the church had been the victim of
persecution and repression, but this time it welcomed the state’s persecution
and repression of the nonconformist and the orthodox on the belief that it was
better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between
church and state was not easy. It was a constant struggle of one
claiming dominance over the other. In time, however, after the
collapse and disintegration of the Roman Empire, and while monarchical states
were gradually being consolidated among the numerous feudal holdings, the
church stood as the one permanent, stable and universal power. Not
surprisingly, therefore, it claimed not merely equality but superiority over
the secular states. This claim, symbolized by Pope Leo’s crowning of
Charlemagne, became the church’s accepted principle of its relationship to the
state in the Middle Ages. As viewed by the church, the union of
church and state was now a union of the state in the church. The
rulers of the states did not concede to this claim of
supremacy. Thus, while Charlemagne received his crown from the Pope,
he himself crowned his own son as successor to nullify the inference of supremacy.[45] The
whole history of medieval Europe was a struggle for supremacy between prince
and Pope and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13th century,
the Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope
Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred
the Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty and its
acceptance as the principle governing the relations between a democratic state
and its citizens, history shows that it is more accurate to say that the “same
causes that gave rise to the Protestant revolution also resulted in the
widespread acceptance of the principle of religious liberty, and ultimately of
the principle of separation of church and state.”[46] Pleas
for tolerance and freedom of conscience can without doubt be found in the
writings of leaders of the Reformation. But just as Protestants
living in the countries of papists pleaded for toleration of religion, so did
the papists that lived where Protestants were dominant.[47] Papist
and Protestant governments alike accepted the idea of cooperation between church
and state and regarded as essential to national unity the uniformity of at
least the outward manifestations of religion.[48] Certainly,
Luther, leader of the Reformation, stated that “neither pope, nor bishop, nor
any man whatever has the right of making one syllable binding on a Christian
man, unless it be done with his own consent.”[49] But
when the tables had turned and he was no longer the hunted heretic, he likewise
stated when he made an alliance with the secular powers that “(h)eretics are
not to be disputed with, but to be condemned unheard, and whilst they perish by
fire, the faithful ought to pursue the evil to its source, and bathe their
hands in the blood of the Catholic bishops, and of the Pope, who is a devil in
disguise.”[50]To
Luther, unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as
Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the
state as an engine to further religion. In establishing theocracy in
Geneva, Calvin made absence from the sermon a crime, he included criticism of
the clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the
Reformation, wrote that “(t)he terrible papal edict, the more terrible imperial
edict, the imprisonments, the confiscations, the recantations, the fagots and
burnings, all these things I can see accomplish nothing except to make the evil
more widespread.”[52]The
minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and
the Friends of the Quakers founded by George Fox in the 17th century,
endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political
governments.[53] The
English Baptists proclaimed that the “magistrate is not to meddle with religion
or matters of conscience, nor compel men to this or that form of religion.”[54]
Thus, out of the Reformation, three rationalizations of
church-state relations may be distinguished: the Erastian (after the
German doctor Erastus), the theocratic, and the separatist. The
first assumed state superiority in ecclesiastical affairs and the use of
religion as an engine of state policy as demonstrated by Luther’s belief that
civic cohesion could not exist without religious unity so that coercion to
achieve religious unity was justified. The second was founded on
ecclesiastical supremacy and the use of state machinery to further religious
interests as promoted by Calvin. The third, which was yet to achieve
ultimate and complete expression in the New World, was discernibly in its
incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.[55] After
the Reformation, Erastianism pervaded all Europe except for Calvin’s theocratic
Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted
by Parliament in 1678, which, to encourage woolen trade, imposed on all
clergymen the duty of seeing to it that no person was buried in a shroud made
of any substance other than wool.[56] Under
Elizabeth, supremacy of the crown over the church was complete: ecclesiastical
offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high
treason, the thirty-nine Articles of the Church of England were adopted and
English Protestantism attained its present doctrinal status.[57] Elizabeth
was to be recognized as “the only Supreme Governor of this realm . . . as well
in all spiritual or ecclesiastical things or causes as temporal.” She and her
successors were vested, in their dominions, with “all manner of jurisdictions,
privileges, and preeminences, in any wise touching or concerning any spiritual
or ecclesiastical jurisdiction.”[58] Later,
however, Cromwell established the constitution in 1647 which
granted full liberty to all Protestant sects, but denied toleration to
Catholics.[59] In
1689, William III issued the Act of Toleration which established
a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the
Roman Catholic Relief Act of 1829 was adopted. The Jews
followed suit in 1858 when they were finally permitted to sit in
Parliament.[60]
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in
Israel, Judea, the Holy Roman Empire and Geneva was completely
gone. The prevailing church-state relationship in Europe was
Erastianism embodied in the system of jurisdictionalism whereby one faith was
favored as the official state-supported religion, but other faiths were
permitted to exist with freedom in various degrees. No nation had
yet adopted as the basis of its church-state relations the principle of the
mutual independence of religion and government and the concomitant principle
that neither might be used as an engine to further the policies of the other,
although the principle was in its seminal form in the arguments of some
dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century
Europe were a thing of the past by the time America declared its independence
from the Old World, but their memory was still vivid in the minds of the
Constitutional Fathers as expressed by the United States Supreme
Court, viz:
The centuries immediately before and contemporaneous with
the colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to maintain
their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant sects
had persecuted other protestant sects, Catholics of one shade of belief had
persecuted Catholics of another shade of belief, and all of these had from time
to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for which these punishments
had been inflicted were such things as speaking disrespectfully of the views of
ministers of government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and
tithes to support them.[61]
In 1784, James Madison captured in this
statement the entire history of church-state relations in Europe up to the time
the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain
attempts of the secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.[62]
In sum, this history shows two salient features: First,
with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second,
likewise with minor exceptions, this history witnessed the unscrupulous
use of religion by secular powers to promote secular purposes and policies, and
the willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes and emperors
in exchange for religion’s invaluable service. This was the context
in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional
democracy and in human history.[63]
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe,
primarily in Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants
brought with them their religious and political ideas from England and English
books and pamphlets largely provided their cultural fare.[64] But
although these settlers escaped from Europe to be freed from bondage of laws
which compelled them to support and attend government favored churches, some of
these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English
Crown to the individuals and companies designated to make the laws which would
control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to support
or attend.[65] At
one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of religious
diversity. Still others, which originally tolerated only a single
religion, eventually extended support to several different faiths.[66]
This was the state of the American colonies when the
unique American experiment of separation of church and state came about. The
birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological
factors contributed in bringing it forth. Among these were the
“English Act of Toleration of 1689, the multiplicity of sects, the lack of
church affiliation on the part of most Americans, the rise of commercial
intercourse, the exigencies of the Revolutionary War, the Williams-Penn
tradition and the success of their experiments, the writings of Locke, the
social contract theory, the Great Awakening, and the influence of European
rationalism and deism.”[67] Each
of these factors shall be briefly discussed.
First, the practical factors. England’s policy
of opening the gates of the American colonies to different faiths resulted in
the multiplicity of sects in the colonies. With an Erastian
justification, English lords chose to forego protecting what was considered to
be the true and eternal church of a particular time in order to encourage trade
and commerce. The colonies were large financial investments which
would be profitable only if people would settle there. It would be
difficult to engage in trade with persons one seeks to destroy for religious
belief, thus tolerance was a necessity. This tended to distract the
colonies from their preoccupations over their religion and its exclusiveness,
encouraging them “to think less of the Church and more of the State and of
commerce.”[68] The
diversity brought about by the colonies’ open gates encouraged religious
freedom and non-establishment in several ways. First, as there were
too many dissenting sects to abolish, there was no alternative but to learn to
live together. Secondly, because of the daily exposure to different
religions, the passionate conviction in the exclusive rightness of one’s
religion, which impels persecution for the sake of one’s religion,
waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment could
not survive.[69]
But while there was a multiplicity of denomination, paradoxically,
there was a scarcity of adherents. Only about four percent of the
entire population of the country had a church affiliation at the time the
republic was founded.[70] This
might be attributed to the drifting to the American colonies of the skepticism
that characterized European Enlightenment.[71] Economic
considerations might have also been a factor. The individualism of
the American colonist, manifested in the multiplicity of sects, also resulted
in much unaffiliated religion which treated religion as a personal
non-institutional matter. The prevalence of lack of church
affiliation contributed to religious liberty and disestablishment as persons
who were not connected with any church were not likely to persecute others for
similar independence nor accede to compulsory taxation to support a church to which
they did not belong.[72]
However, for those who were affiliated to churches, the
colonial policy regarding their worship generally followed the tenor of the
English Act of Toleration of 1689. In England, this Act conferred on
Protestant dissenters the right to hold public services subject to registration
of their ministers and places of worship.[73] Although
the toleration accorded to Protestant dissenters who qualified under its terms
was only a modest advance in religious freedom, it nevertheless was of some
influence to the American experiment.[74] Even
then, for practical considerations, concessions had to be made to other
dissenting churches to ensure their cooperation in the War of Independence
which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the
Great Awakening in mid-18th century, an evangelical religious revival
originating in New England, caused a break with formal church religion and a
resistance to coercion by established churches. This movement
emphasized an emotional, personal religion that appealed directly to the
individual, putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God. Thus, although
they had no quarrel with orthodox Christian theology as in fact they were
fundamentalists, this group became staunch advocates of separation of church
and state.[75]
Then there was the Williams-Penn tradition. Roger
Williams was the founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but on the
concept of mutual independence of religion and government. In 1663,
Rhode Island obtained a charter from the British crown which declared that
settlers have it “much on their heart to hold forth a livelie experiment that a
most flourishing civil state may best be maintained . . . with full libertie in
religious concernments.”[76] In
Williams’ pamphlet, The Bloudy Tenent of Persecution for cause of
Conscience, discussed in a Conference between Truth and Peace,[77] he
articulated the philosophical basis for his argument of religious
liberty. To him, religious freedom and separation of church and
state did not constitute two but only one principle. Religious
persecution is wrong because it “confounds the Civil and Religious” and because
“States . . . are proved essentially Civil. The “power of true
discerning the true fear of God” is not one of the powers that the people have
transferred to Civil Authority.[78] Williams’ Bloudy
Tenet is considered an epochal milestone in the history of religious
freedom and the separation of church and state.[79]
William Penn, proprietor of the land that became Pennsylvania,
was also an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers. He
opposed coercion in matters of conscience because “imposition, restraint and
persecution for conscience sake, highly invade the Divine
prerogative.” Aside from his idealism, proprietary interests made
toleration in Pennsylvania necessary. He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants both
from the Continent and Britain. At the end of the colonial period,
Pennsylvania had the greatest variety of religious groups. Penn was
responsible in large part for the “Concessions and agreements of the
Proprietors, Freeholders, and inhabitants of West Jersey, in America”, a
monumental document in the history of civil liberty which provided among
others, for liberty of conscience.[80] The
Baptist followers of Williams and the Quakers who came after Penn continued the
tradition started by the leaders of their denominations. Aside from
the Baptists and the Quakers, the Presbyterians likewise greatly contributed to
the evolution of separation and freedom.[81] The
Constitutional fathers who convened in Philadelphia in 1787, and Congress and
the states that adopted the First Amendment in 1791 were very familiar with and
strongly influenced by the successful examples of Rhode Island and
Pennsylvania.[82]
Undeniably, John Locke and the social contract theory
also contributed to the American experiment. The social contract
theory popularized by Locke was so widely accepted as to be deemed self-evident
truth in America’s Declaration of Independence. With the doctrine of
natural rights and equality set forth in the Declaration of Independence, there
was no room for religious discrimination. It was difficult to
justify inequality in religious treatment by a new nation that severed its
political bonds with the English crown which violated the self-evident truth
that all men are created equal.[83]
The social contract theory was applied by many religious
groups in arguing against establishment, putting emphasis on religion as a
natural right that is entirely personal and not within the scope of the powers
of a political body. That Locke and the social contract theory were
influential in the development of religious freedom and separation is evident
from the memorial presented by the Baptists to the Continental Congress in
1774, viz:
Men unite in society, according to the great Mr. Locke,
with an intention in every one the better to preserve himself, his liberty and
property. The power of the society, or Legislature constituted by
them, can never be supposed to extend any further than the common good, but is
obliged to secure every one’s property. To give laws, to receive
obedience, to compel with the sword, belong to none but the civil magistrate;
and on this ground we affirm that the magistrate’s power extends not to
establishing any articles of faith or forms of worship, by force of laws; for
laws are of no force without penalties. The care of souls cannot
belong to the civil magistrate, because his power consists only in outward
force; but pure and saving religion consists in the inward persuasion of the
mind, without which nothing can be acceptable to God.[84] (emphasis
supplied)
The idea that religion was outside the jurisdiction of
civil government was acceptable to both the religionist and
rationalist. To the religionist, God or Christ did not desire that
government have that jurisdiction (“render unto Caesar that which is Caesar’s”;
“my kingdom is not of this world”) and to the rationalist, the power to act in
the realm of religion was not one of the powers conferred on government as part
of the social contract.[85]
Not only the social contract theory drifted to the
colonies from Europe. Many of the leaders of the Revolutionary and
post-revolutionary period were also influenced by European deism and
rationalism,[86] in
general, and some were apathetic if not antagonistic to formal religious
worship and institutionalized religion. Jefferson, Paine, John
Adams, Washington, Franklin, Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to
the emphasis on secular interests and the relegation of historic theology to
the background.[87] For
these men of the enlightenment, religion should be allowed to rise and fall on
its own, and the state must be protected from the clutches of the church whose
entanglements has caused intolerance and corruption as witnessed throughout
history.[88] Not
only the leaders but also the masses embraced rationalism at the end of the
eighteenth century, accounting for the popularity of Paine’s Age of Reason.[89]
Finally, the events leading to religious freedom and
separation in Virginia contributed significantly to the American experiment of
the First Amendment. Virginia was the “first state in the history of
the world to proclaim the decree of absolute divorce between church and state.”[90] Many
factors contributed to this, among which were that half to two-thirds of the
population were organized dissenting sects, the Great Awakening had won many
converts, the established Anglican Church of Virginia found themselves on the
losing side of the Revolution and had alienated many influential laymen with
its identification with the Crown’s tyranny, and above all, present in Virginia
was a group of political leaders who were devoted to liberty generally,[91] who
had accepted the social contract as self-evident, and who had been greatly
influenced by Deism and Unitarianism. Among these leaders were
Washington, Patrick Henry, George Mason, James Madison and above the rest,
Thomas Jefferson.
The first major step towards separation in
Virginia was the adoption of the following provision in the Bill of Rights of
the state’s first constitution:
That religion, or the duty which we owe to our
Creator, and the manner of discharging it, can be directed only by reason
and conviction, not by force or violence; and therefore, all men are equally
entitled to the free exercise of religion according to the dictates of
conscience; and that it is the mutual duty of all to practice Christian
forbearance, love, and charity towards each other.[92] (emphasis
supplied)
The adoption of the Bill of Rights signified the
beginning of the end of establishment. Baptists, Presbyterians and
Lutherans flooded the first legislative assembly with petitions for abolition
of establishment. While the majority of the population were
dissenters, a majority of the legislature were churchmen. The
legislature compromised and enacted a bill in 1776 abolishing the more
oppressive features of establishment and granting exemptions to the dissenters,
but not guaranteeing separation. It repealed the laws punishing
heresy and absence from worship and requiring the dissenters to contribute to
the support of the establishment.[93] But
the dissenters were not satisfied; they not only wanted abolition of support
for the establishment, they opposed the compulsory support of their own
religion as others. As members of the established church would not
allow that only they would pay taxes while the rest did not, the legislature
enacted in 1779 a bill making permanent the establishment’s loss of its
exclusive status and its power to tax its members; but those who voted for it
did so in the hope that a general assessment bill would be passed. Without
the latter, the establishment would not survive. Thus, a bill was
introduced in 1779 requiring every person to enroll his name with the county
clerk and indicate which “society for the purpose of Religious Worship” he
wished to support. On the basis of this list, collections were to be
made by the sheriff and turned over to the clergymen and teachers designated by
the religious congregation. The assessment of any person who failed
to enroll in any society was to be divided proportionately among the societies.[94] The
bill evoked strong opposition.
In 1784, another bill, entitled “Bill Establishing a
Provision for Teachers of the Christian Religion” was introduced requiring all
persons “to pay a moderate tax or contribution annually for the support of the
Christian religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship.”[95] This
likewise aroused the same opposition to the 1779 bill. The most
telling blow against the 1784 bill was the monumental “Memorial and
Remonstrance against Religious Assessments” written by Madison and widely
distributed before the reconvening of legislature in the fall of 1785.[96] It stressed
natural rights, the government’s lack of jurisdiction over the domain of
religion, and the social contract as the ideological basis of separation while
also citing practical considerations such as loss of population through
migration. He wrote, viz:
Because we hold it for a ‘fundamental and undeniable
truth,’ that religion, or the duty which we owe to our creator, and the
manner of discharging it, can be directed only by reason and conviction, not by
force or violence. The religion, then, of every man, must be left to
the conviction and conscience of every man; and it is the right of every man to
exercise it as these may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the opinions of men,
depending only on the evidence contemplated in their own minds, cannot follow
the dictates of other men; it is unalienable, also, because what is here a
right towards men, is a duty towards the creator. It is the duty of
every man to render the creator such homage, and such only as he believes to be
acceptable to him; this duty is precedent, both in order of time and degree of
obligation, to the claims of civil society. Before any man can be
considered as a member of civil society, he must be considered as a subject of
the governor of the universe; and if a member of civil society, who enters
into any subordinate association, must always do it with a reservation of his
duty to the general authority, much more must every man who becomes a member of
any particular civil society do it with the saving his allegiance to the
universal sovereign.[97] (emphases
supplied)
Madison articulated in the Memorial the widely held
beliefs in 1785 as indicated by the great number of signatures appended to the
Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a
much earlier 1779 bill of Jefferson which had not been voted on, the “Bill for
Establishing Religious Freedom”, and it was finally passed in January
1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that
all attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness, and
are a departure from the plan of the Holy Author of our religion, who being
Lord both of body and mind, yet chose not to propagate it by coercions on
either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General
Assembly. That no man shall be compelled to frequent or support any
religious worship, place or ministry whatsoever, nor shall be enforced,
restrained, molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all men
shall be free to profess, and by argument to maintain, their opinions in
matters of religion, and that the same shall in no wise diminish, enlarge
or affect their civil capacities.[98] (emphases
supplied)
This statute forbade any kind of taxation in support of
religion and effectually ended any thought of a general or particular
establishment in Virginia.[99] But
the passage of this law was obtained not only because of the influence of the
great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians and
the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious
to pull down the existing state church as they realized that it was impossible
for them to be elevated to that privileged position. Apart from
these expediential considerations, however, many of the Presbyterians were
sincere advocates of 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 ti the spirit
of the Gospel.[103] Thus,
separation was necessary.[104] Jefferson’s
religious freedom statute was amilestone in the history of religious
freedom. The United States Supreme Court has not just once
acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection
against government interference with religious liberty as the Virginia Statute
of Religious Liberty.
Even in the absence of the religion clauses, the
principle that government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the
Constitution of 1787. This could be deduced from the prohibition of
any religious test for federal office in Article VI of the Constitution and the
assumed lack of power of Congress to act on any subject not expressly mentioned
in the Constitution.[105] However,
omission of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution.[106] In
the ratifying conventions of almost every state, some objection was expressed
to the absence of a restriction on the Federal Government as regards
legislation on religion.[107] Thus,
in 1791, this restriction was made explicit with the adoption of the religion
clauses in the First Amendment as they are worded to this day, with the first
part usually referred to as the Establishment Clause and the second part, the
Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the
First Amendment religion clauses comes an equally broad disagreement as to what
these clauses specifically require, permit and forbid. No agreement
has been reached by those who have studied the religion clauses as regards its
exact meaning and the paucity of records in Congress renders it difficult to
ascertain its meaning.[108] Consequently, the
jurisprudence in this area is volatile and fraught with inconsistencies whether
within a Court decision or across decisions.
One source of difficulty is the difference in the
context in which the First Amendment was adopted and in which it is applied
today. In the 1780s, religion played a primary role in social life -
i.e., family responsibilities, education, health care, poor relief, and other
aspects of social life with significant moral dimension - while government
played a supportive and indirect role by maintaining conditions in which these
activities may be carried out by religious or religiously-motivated
associations. Today, government plays this primary role and religion
plays the supportive role.[109] Government
runs even family planning, sex education, adoption and foster care programs.[110] Stated
otherwise and with some exaggeration, “(w)hereas two centuries ago, in matters
of social life which have a significant moral dimension, government was the
handmaid of religion, today religion, in its social responsibilities, as
contrasted with personal faith and collective worship, is the handmaid of
government.”[111] With
government regulation of individual conduct having become more pervasive, inevitably
some of those regulations would reach conduct that for some individuals are
religious. As a result, increasingly, there may be inadvertent
collisions between purely secular government actions and religion clause
values.[112]
Parallel to this expansion of government has been the
expansion of religious organizations in population, physical institutions,
types of activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway houses for
prisoners, sports facilities, theme parks, publishing houses and mass media
programs. In these activities, religious organizations complement
and compete with commercial enterprises, thus blurring the line between many
types of activities undertaken by religious groups and secular activities.
Churches have also concerned themselves with social and political issues as a
necessary outgrowth of religious faith as witnessed in pastoral letters on war
and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity
has significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no
longer easy for individuals to live solely among their own kind or to shelter
their children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit;[113] and
agreement that if the rights of believers as well as non-believers are all to
be respected and given their just due, a rigid, wooden interpretation of the
religion clauses that is blind to societal and political realities must be
avoided.[114]
Religion cases arise from different
circumstances. The more obvious ones arise from a government action
which purposely aids or inhibits religion. These cases are easier to resolve
as, in general, these actions are plainly unconstitutional. Still,
this kind of cases poses difficulty in ascertaining proof of intent to aid or
inhibit religion.[115] The
more difficult religion clause cases involve government action with a secular
purpose and general applicability which incidentally or inadvertently aids or
burdens religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with “burdensome effect” on
religious exercise even if the government action is not religiously motivated.[116] Ideally,
the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that
are threatened and burdened turn to the courts for protection.[117] Most
of these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a “burdensome” effect.[118]
With the change in political and social context and the
increasing inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion clauses has
also been modified to suit current realities. Defining religion
is a difficult task for even theologians, philosophers and moralists cannot
agree on a comprehensive definition. Nevertheless, courts must define
religion for constitutional and other legal purposes.[119] It
was in the 1890 case of Davis v. Beason[120] that
the United States Supreme Court first had occasion to define religion, viz:
The term ‘religion’ has reference to one’s views of his
relations to his Creator, and to the obligations they impose of reverence for
his being and character, and of obedience to his will. It is often
confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law respecting the
establishment of religion, or forbidding the free exercise thereof, was
intended to allow everyone under the jurisdiction of the United States to
entertain such notions respecting his relations to his Maker and the duties
they impose as may be approved by his judgment and conscience, and to exhibit
his sentiments in such form of worship as he may think proper, not injurious to
the equal rights of others, and to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was
reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v.
Ballard[122] that
the free exercise of religion “embraces the right to maintain theories of
life and of death and of the hereafter which are rank heresy to followers
of the orthodox faiths.”[123] By
the 1960s, American pluralism in religion had flourished to include non-theistic
creeds from Asia such as Buddhism and Taoism.[124] In
1961, the Court, in Torcaso v. Watkins,[125] expanded
the term “religion” to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger[126] which
involved four men who claimed “conscientious objector” status in refusing to
serve in the Vietnam War. One of the four, Seeger, was not a member
of any organized religion opposed to war, but when specifically asked about his
belief in a Supreme Being, Seeger stated that “you could call (it) a belief in
a Supreme Being or God. These just do not happen to be the words
that I use.” Forest Peter, another one of the four claimed that after
considerable meditation and reflection “on values derived from the Western
religious and philosophical tradition,” he determined that it would be “a
violation of his moral code to take human life and that he considered this
belief superior to any obligation to the state.” The Court avoided a
constitutional question by broadly interpreting not the Free Exercise Clause,
but the statutory definition of religion in the Universal Military Training and
Service Act of 1940 which exempt from combat anyone “who, by reason of
religious training and belief, is conscientiously opposed to participation in
war in any form.” Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression ‘Supreme Being’ rather
than the designation ‘God,’ was merely clarifying the meaning of religious
tradition and belief so as to embrace all religions and to exclude essentially
political, sociological, or philosophical views (and) the test of belief
‘in relation to a Supreme Being’ is whether a given belief that is sincere and
meaningful occupies a place in the life of its possessor parallel to the
orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others
were conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the
definition of religion in Seeger to include even non-theistic
beliefs such as Taoism or Zen Buddhism. It has been proposed that
basically, a creed must meet four criteria to qualify as religion under the
First Amendment. First, there must be belief in God or some parallel
belief that occupies a central place in the believer’s life. Second, the
religion must involve a moral code transcending individual belief, i.e., it
cannot be purely subjective. Third, a demonstrable sincerity in belief is
necessary, but the court must not inquire into the truth or reasonableness of
the belief.[127] Fourth,
there must be some associational ties,[128] although
there is also a view that religious beliefs held by a single person rather than
being part of the teachings of 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 Clausedirectly articulates the common objective of the two clauses and
the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most familiar
and for which government historically had demonstrated a propensity.[135] In
other words, free exercise is the end, proscribing establishment is a necessary
means to this end to protect the rights of those who might dissent from
whatever religion is established.[136] It
has even been suggested that the sense of the First Amendment is captured if it
were to read as “Congress shall make no law respecting an establishment of
religion or otherwise prohibiting the free exercise thereof” because
the fundamental and single purpose of the two religious clauses is to “avoid
any infringement on the free exercise of religions”[137] Thus,
the Establishment Clause mandates separation of church and state to protect
each from the other, in service of the larger goal of preserving religious
liberty. The effect of the separation is to limit the opportunities
for any religious group to capture the state apparatus to the disadvantage of
those of other faiths, or of no faith at all[138] because
history has shown that religious fervor conjoined with state power is likely to
tolerate far less religious disagreement and disobedience from those who hold
different beliefs than an enlightened secular state.[139] In
the words of the U.S. Supreme Court, the two clauses are interrelated, viz:
“(t)he structure of our government has, for the preservation of civil liberty,
rescued the temporal institutions from religious interference. On
the other hand, it has secured religious liberty from the invasion of the civil
authority.”[140]
In upholding religious liberty as the end goal in religious
clause cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this
area cannot be an absolutely straight line; rigidity could well defeat the
basic purpose of these provisions, which is to insure that no religion be
sponsored or favored, none commanded and none inhibited.[141] (emphasis
supplied)
Consequently, U.S. jurisprudence has produced two
identifiably different,[142] even
opposing, strains of jurisprudence on the religion clauses: separation (in
the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. A
view of the landscape of U.S. religion clause cases would be useful in
understanding these two strains, the scope of protection of each clause, and
the tests used in religious clause cases. Most of these cases are
cited as authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in
the 1878 case of Reynolds v. United States.[143] This
landmark case involved Reynolds, a Mormon who proved that it was his religious
duty to have several wives and that the failure to practice polygamy by male
members of his religion when circumstances would permit would be punished with
damnation in the life to come. Reynolds’ act of contracting a second
marriage violated Section 5352, Revised Statutes prohibiting and penalizing
bigamy, for which he was convicted. The Court affirmed Reynolds’
conviction, using what in jurisprudence would be called the belief-action
test which allows absolute protection to belief but not to
action. It cited Jefferson’s Bill Establishing Religious Freedom
which, according to the Court, declares “the true distinction between what
properly belongs to the Church and what to the State.”[144] The
bill, making a distinction between belief and action, states in relevant
part, viz:
That to suffer the civil magistrate to intrude his powers
into the field of opinion, and to restrain the profession or propagation of
principles on supposition of their ill tendency, is a dangerous fallacy
which at once destroys all religious liberty;
that it is time enough for the rightful purposes of
civil government for its officers to interfere when principles break out into
overt acts against peace and good order.[145] (emphasis
supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere
opinion, but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while
they cannot interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended that the
civil government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was 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 hasexpanded
the scope of protection from belief to speech and conduct. But
while the belief-action test has been abandoned, the rulings in the
earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to
individual religious convictions and beliefs[151] and
proscribes government from questioning a person’s beliefs or imposing penalties
or disabilities based solely on those beliefs. The Clause extends
protection to both beliefs and unbelief. Thus, in Torcaso v.
Watkins,[152] a
unanimous Court struck down a state law requiring as a qualification for public
office an oath declaring belief in the existence of God. The
protection also allows courts to look into the good faith of a person in his
belief, but prohibits inquiry into the truth of a person’s religious
beliefs. As held in United States v. Ballard,[153] “(h)eresy
trials are foreign to the Constitution. Men may believe what they
cannot prove. They may not be put to the proof of their religious
doctrines or beliefs.”
Next to belief which enjoys virtually absolute
protection, religious speech and expressive religious conduct are accorded the
highest degree of protection. Thus, in the 1940 case of Cantwell
v. Connecticut,[154] the
Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state
agency. The law was challenged by Cantwell, a member of the
Jehovah’s Witnesses which is committed to active proselytizing. The
Court invalidated the state statute as the prior approval necessary was held to
be a censorship of religion prohibited by the Free Exercise
Clause. The Court held, viz:
In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields the tenets of one
may seem the rankest error to his neighbor. To persuade others to
his point of view, the pleader, as we know, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or state, and
even to false statement. But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened opinion
and right conduct on the part of citizens of a democracy.[155]
Cantwell took a step forward from the protection
afforded by the Reynolds case in that it not only affirmed protection
of belief but also freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to
regulation for the protection of society. . . In every case, the power to
regulate must be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom. (emphasis supplied)[156]
The Court stated, however, that government had the power
to regulate the times, places, and manner of solicitation on the streets and
assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas
v. City of Jeanette,[157] ruled
that police could not prohibit members of the Jehovah’s Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens
complained. In another case likewise involving the Jehovah’s Witnesses, Niemotko
v. Maryland,[158] the
Court unanimously held unconstitutional a city council’s denial of a permit to
the Jehovah’s Witnesses to use the city park for a public
meeting. The city council’s refusal was because of the
“unsatisfactory” answers of the Jehovah’s Witnesses to questions about
Catholicism, military service, and other issues. The denial of the
public forum was considered blatant censorship. While protected,
religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain areas
to maintain the safe and orderly flow of pedestrians and vehicular traffic as
held in the case of Heffron v. International Society for Krishna
Consciousness.[159]
The least protected under the Free Exercise Clause is
religious conduct, usually in the form of unconventional religious practices. Protection
in this realm depends on the character of the action and the government
rationale for regulating the action.[160] The
Mormons’ religious conduct of polygamy is an example of
unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the
practice. Reynolds was reiterated in the 1890 case of Davis again
involving Mormons, where the Court held, viz: “(c)rime is not the less
odious because sanctioned by what any particular sect may designate as
religion.”[161]
The belief-action test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of religiously dictated
conduct would be upheld no matter how central the conduct was to the exercise
of religion and no matter how insignificant was the government’s non-religious
regulatory interest so long as the government is proscribing action and not
belief. Thus, the Court abandoned the simplistic belief-action distinction
and instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and government’s
inadvertent interference with religion in pursuing some secular objective.[162] In
the 1940 case of Minersville School District v. Gobitis,[163] the
Court upheld a local school board requirement that all public school students
participate in a daily flag salute program, including the Jehovah’s Witnesses
who were forced to salute the American flag in violation of their religious
training, which considered flag salute to be worship of a “graven
image.” The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses’ practice
of their religion, but justified the government regulation as an appropriate
means of attaining national unity, which was the “basis of national
security.” Thus, although the Court was already aware of the
deliberate-inadvertent distinction in government interference with religion, it
continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the state’s non-religious objectives, and
no matter how many alternative approaches were available to the state to pursue
its objectives with less impact on religion, so long as government was acting
in pursuit of a secular objective.
Three years later, the Gobitis decision was
overturned in West Virginia v. Barnette[164] which
involved a similar set of facts and issue. The Court recognized that
saluting the flag, in connection with the pledges, was a form of utterance and
the flag salute program was a compulsion of students to declare a belief. The
Court ruled that “compulsory unification of opinions leads only to the
unanimity of the graveyard” and exempt the students who were members of the
Jehovah’s Witnesses from saluting the flag. A close scrutiny of the
case, however, would show that it was decided not on the issue of religious
conduct as the Court said, “(n)or does the issue as we see it turn on one’s
possession of particular religious views or the sincerity with which they are
held. While religion supplies appellees’ motive for enduring the
discomforts of making the issue in this case, many citizens who do not share
these religious views hold such a compulsory rite to infringe constitutional
liberty of the individual.” (emphasis supplied)[165] The
Court pronounced, however, that, “freedoms of speech and of press, of assembly,
and of worship . . . are susceptible only of restriction only to prevent grave
and immediate danger to interests which the state may lawfully protect.”[166] The
Court seemed to recognize the extent to which its approach in Gobitis subordinated
the religious liberty of political minorities - a specially protected
constitutional value - to the common everyday economic and public welfare
objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to override
religious liberty. But the seeds of this heightened scrutiny would
only grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed
the belief-action test, the Warren Court began the modern free exercise
jurisprudence.[168] A two-part balancing
test was established inBraunfeld 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 tranquility and there was no alternative
means of pursuing this interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state
interest test in the 1963 case of Sherbert v. Verner.[171] This
test was similar to the two-part balancing test in Braunfeld,[172] but
this latter test stressed that the state interest was not merely any
colorable state interest, but must be paramount and compelling to override the
free exercise claim. In this case, Sherbert, a Seventh Day
Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious
grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether
the denial of benefits could withstand constitutional scrutiny, the Court
ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a kind within
the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellant’s constitutional
challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of appellant’s
religion may be justified by a ‘compelling state interest in the regulation of
a subject within the State’s constitutional power to regulate. . .’ NAACP
v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis
supplied)
The Court stressed that in the area of religious liberty,
it is basic that it is not sufficient to merely show a rational relationship of
the substantial infringement to the religious right and a colorable state
interest. “(I)n this highly sensitive constitutional area, ‘[o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible
limitation.’ Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315.”[174] The
Court found that there was no such compelling state interest to override
Sherbert’s religious liberty. It added that even if the state could
show that Sherbert’s exemption would pose serious detrimental effects to the
unemployment compensation fund and scheduling of work, it was incumbent upon
the state to show thatno alternative means of regulations would address
such detrimental effects without infringing religious liberty. The
state, however, did not discharge this burden. The Court thus carved
out for Sherbert an exemption from the Saturday work requirement that caused
her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert’s benefits would force her
to choose between receiving benefits and following her
religion. This choice placed “the same kind of burden upon the free
exercise of religion as would a fine imposed against (her) for her Saturday
worship.” This germinal case of Sherbert firmly
established the exemption doctrine, [175] viz:
It is certain that not every conscience can be
accommodated by all the laws of the land; but when general laws conflict
with scruples of conscience, exemptions ought to be granted unless some
‘compelling state interest’ intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert
(or even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the
Free Exercise Clause in the absence of a compelling state interest - the
highest level of constitutional scrutiny short of a holding of a per
se violation. Thus, the problem posed by the belief-action
test and the deliberate-inadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and
afterwards, the Burger Court, the rationale in Sherbert continued to
be applied. In Thomas v. Review Board[177] and Hobbie
v. Unemployment Appeals Division,[178] for
example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to
unwillingness to depart from religious practices and beliefs that conflicted
with job requirements. But not every governmental refusal to allow
an exemption from a regulation which burdens a sincerely held religious belief
has been invalidated, even though strict or heightened scrutiny is
applied. InUnited States v. Lee,[179] for
instance, the Court using strict scrutiny and referring to Thomas, upheld
the federal government’s refusal to exempt Amish employers who requested for
exemption from paying social security taxes on wages on the ground of religious
beliefs. The Court held that “(b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious belief in
conflict with the payment of taxes affords no basis for resisting the tax.”[180] It
reasoned that unlike in Sherbert, an exemption would significantly impair
government’s achievement of its objective - “the fiscal vitality of the social
security system;” mandatory participation is indispensable to attain this
objective. The Court noted that if an exemption were made, it would
be hard to justify not allowing a similar exemption from general federal taxes
where the taxpayer argues that his religious beliefs require him to reduce or
eliminate his payments so that he will not contribute to the government’s
war-related activities, for example.
The strict scrutiny and compelling state interest test
significantly increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to
religious activity, a compelling secular justification was necessary to uphold
public policies that collided with religious practices. Although the
members of the Court often disagreed over which governmental interests should
be considered compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion.[181]
Heightened scrutiny was also used in the 1972 case
of Wisconsin v. 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 acknowledgement of the need for universal education,
the Religion Clauses had specially and firmly fixed the right of free exercise
of religious beliefs, and buttressing this fundamental right was an equally
firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the expense of other
interests of admittedly high social importance. . .
The essence of all that has been said and written on the
subject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise of
religion.. .
. . . our decisions have rejected the idea that that
religiously grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even
when religiously based, are often subject to regulation by the States in the
exercise of their undoubted power to promote the health, safety, and general
welfare, or the Federal government in the exercise of its delegated powers . .
. But to agree that religiously grounded conduct must often be subject to
the broad police power of the State is not to deny that there are areas of
conduct protected by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations of general
applicability. . . .This case, therefore, does not become easier because
respondents were convicted for their “actions” in refusing to send their
children to the public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . [183]
The onset of the 1990s, however, saw a major setback in
the protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,[184] the
sharply divided Rehnquist Court dramatically departed from
the heightened scrutiny and compelling justification approach and imposed
serious limits on the scope of protection of religious freedom afforded by the
First Amendment. In this case, the well-established practice of the
Native American Church, a sect outside the Judeo-Christian mainstream of
American religion, came in conflict with the state’s interest in prohibiting
the use of illicit drugs. Oregon’s controlled substances statute
made the possession of peyote a criminal offense. Two members of the
church, Smith and Black, worked as drug rehabilitation counselors for a private
social service agency in Oregon. Along with other church members,
Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental
ceremony practiced by Native Americans for hundreds of years. The
social service agency fired Smith and Black citing their use of peyote as
“job-related misconduct”. They applied for unemployment
compensation, but the Oregon Employment Appeals Board denied their application
as they were discharged for job-related misconduct. Justice Scalia, writing for
the majority, ruled that “if prohibiting the exercise of religion . . . is
. . . merely the incidental effect of a generally applicable and otherwise valid
law, the First Amendment has not been offended.” In other words, the Free
Exercise Clause would be offended only if a particular religious practice were
singled out for proscription. The majority opinion relied heavily on
the Reynolds case and in effect, equated Oregon’s drug prohibition
law with the anti-polygamy statute in Reynolds. The relevant
portion of the majority opinion held, viz:
We have never invalidated any governmental action on the
basis of the Sherbert test except the denial of unemployment
compensation.
Even if we were inclined to breathe into Sherbert some
life beyond the unemployment compensation field, we would not apply it to
require exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the
approach in accord with the vast majority of our precedents, is to hold the
test inapplicable to such challenges. The government’s ability to
enforce generally applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, “cannot depend on
measuring the effects of a governmental action on a religious objector’s
spiritual development.” . . .To make an individual’s obligation to obey such a
law contingent upon the law’s coincidence with his religious beliefs except
where the State’s interest is “compelling” - permitting him, by virtue of his
beliefs, “to become a law unto himself,” . . . - contradicts both
constitutional tradition and common sense.
Justice O’Connor wrote a concurring opinion pointing out
that the majority’s rejection of the compelling governmental interest test was
the most controversial part of the decision. Although she concurred
in the result that the Free Exercise Clause had not been offended, she sharply
criticized the majority opinion as a dramatic departure “from well-settled
First Amendment jurisprudence. . . and . . . (as) incompatible with
our Nation’s fundamental commitment to religious liberty.” This
portion of her concurring opinion was supported by Justices Brennan, Marshall
and Blackmun who dissented from the Court’s decision. Justice
O’Connor asserted that “(t)he compelling state interest test effectuates
the First Amendment’s command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by
clear and compelling government interest ‘of the highest order’.” Justice
Blackmun registered a separate dissenting opinion, joined by Justices Brennan
and Marshall. He charged the majority with “mischaracterizing”
precedents and “overturning. . . settled law concerning the Religion Clauses of
our Constitution.” He pointed out that the Native American Church restricted
and supervised the sacramental use of peyote. Thus, the state had no
significant health or safety justification for regulating the sacramental drug
use. He also observed that Oregon had not attempted to prosecute
Smith or Black, or any Native Americans, for that matter, for the sacramental
use of peyote. In conclusion, he said that “Oregon’s interest in
enforcing its drug laws against religious use of peyote (was) not sufficiently
compelling to outweigh respondents’ right to the free exercise of their religion.”
The Court went back to the Reynolds and Gobitis doctrine
in Smith. The Court’s standard in Smith virtually
eliminated the requirement that the government justify with a compelling state
interest the burdens on religious exercise imposed by laws neutral toward
religion. The Smith doctrine is highly unsatisfactory in
several respects and has been criticized as exhibiting a shallow understanding
of free exercise jurisprudence.[185] First,
the First amendment was intended to protect minority religions from the tyranny
of the religious and political majority. A deliberate regulatory
interference with minority religious freedom is the worst form of this
tyranny. But regulatory interference with a minority religion as a
result of ignorance or sensitivity of the religious and political majority is
no less an interference with the minority’s religious freedom. If
the regulation had instead restricted the majority’s religious practice, the
majoritarian legislative process would in all probability have modified or
rejected the regulation. Thus, the imposition of the political
majority’s non-religious objectives at the expense of the minority’s religious
interests implements the majority’s religious viewpoint at the expense of the
minority’s. Second, government impairment of religious liberty would
most often be of the inadvertent kind as in Smith considering the
political culture where direct and deliberate regulatory imposition of
religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could
not afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine
simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious
inadvertent impact on religion.[186]
Thus, the Smith decision has been criticized
not only for increasing the power of the state over religion but as
discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,[187] contrary
to the original theory of the First Amendment.[188] Undeniably,
claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped
out their judicial recourse for exemption.[189] Thus,
the Smith decision elicited much negative public reaction especially
from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.[190] So
much was the uproar that a majority in Congress was convinced to enact the
Religious Freedom Restoration Act (RFRA) of 1993. The RFRA
prohibited government at all levels from substantially burdening a person’s
free exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a compelling state
interest and the rule constituted the least restrictive means of furthering
that interest.[191]RFRA,
in effect, sought to overturn the substance of the Smith ruling and
restore the status quo prior to Smith. Three years after the RFRA was
enacted, however, the Court, dividing 6 to 3, declared the RFRA
unconstitutional in City of Boerne v. Flores.[192] The
Court ruled that “RFRA contradicts vital principles necessary to maintain
separation of powers and the federal balance.” It emphasized the primacy
of its role as interpreter of the Constitution and unequivocally rejected, on
broad institutional grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi
Babalu Aye, Inc. v. City of 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.
It may be seen from the foregoing cases that under the
Free Exercise Clause, religious belief is absolutely protected, religious
speech and proselytizing are highly protected but subject to restraints
applicable to non-religious speech, and unconventional religious practice
receives less protection; nevertheless conduct, even if its violates a law,
could be accorded protection as shown in Wisconsin.[194]
B. Establishment Clause
The Court’s first encounter with the
Establishment Clause was in the 1947 case of Everson v. Board of
Education.[195] Prior
cases had made passing reference to the Establishment Clause[196] and
raised establishment questions but were decided on other grounds.[197] It
was in the Everson case that the U.S. Supreme Court adopted
Jefferson’s metaphor of “a wall of separation between church and state” as
encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase “separation of church and state” does not appear in the
U.S. Constitution. It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States[198] quoted
Jefferson’s famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies
solely between man and his God; that he owes account to none other for his
faith or his worship; that the legislative powers of the Government reach
actions only, and not opinions, I contemplate with sovereign reverence that act
of the whole American people which declared that their Legislature should ‘make
no law respecting an establishment of religion or prohibiting the free exercise
thereof,’ thus building a wall of separation between Church and State.[199] (emphasis
supplied)
Chief Justice Waite, speaking for the majority, then
added, “(c)oming as this does from an acknowledged leader of the advocates of
the measure, it may be accepted almost as an authoritative declaration of the
scope and effect of the amendment thus secured.”[200]
The interpretation of the Establishment Clause has in
large part been in cases involving education, notably state aid to private
religious schools and prayer in public schools.[201] In Everson
v. Board of Education, for example, the issue was whether a New Jersey
local school board could reimburse parents for expenses incurred in
transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children
in public schools and nonprofit private schools, regardless of religion, were
entitled to reimbursement for transportation costs. Justice Hugo
Black, writing for a sharply divided Court, justified the reimbursements on
the child benefit theory, i.e., that the school board was merely
furthering the state’s legitimate interest in getting children “regardless of
their religion, safely and expeditiously to and from accredited
schools.” The Court, after narrating the history of the First
Amendment in Virginia, interpreted the Establishment Clause, viz:
The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or remain away from church against his
will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or
non-attendance. No tax in any amount, large or small, can be levied
to support any religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or
secretly participate in the affairs of any religious organizations or groups
and vice versa. In the words of Jefferson, the clause against establishment
of religion by law was intended to erect “a wall of separation between Church
and State.”[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and
state. That wall must be kept high and impregnable. We
could not approve the slightest breach. New Jersey has not breached
it here.[203]
By 1971, the Court integrated the different elements of
the Court’s Establishment Clause jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in
determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of teachers’
salaries, textbooks, and instructional materials in secular subjects and a
Rhode Island statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy
to meet the following criteria to pass scrutiny under the Establishment
Clause. “First, the statute must have a secular legislative purpose;
second, its primary or principal effect must be one that neither advances nor
inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d
1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster ‘an
excessive entanglement with religion.’ (Walz v.Tax Commission, 397 US 664, 668,
25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])”(emphasis supplied)[205] Using
this test, the Court held that the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering excessive entanglement
between government and religion.
The most controversial of the education cases involving
the Establishment Clause are the school prayer decisions. “Few
decisions of the modern Supreme Court have been criticized more intensely than
the school prayer decisions of the early 1960s.”[206] In
the 1962 case of Engel v. Vitale,[207] the
Court invalidated a New York Board of Regents policy that established the
voluntary recitation of a brief generic prayer by children in the public
schools at the start of each school day. The majority opinion
written by Justice Black stated that “in this country it is no part of the
business of government to compose official prayers for any group of the
American people to recite as part of a religious program carried on by
government.” In fact, history shows that this very practice of
establishing governmentally composed prayers for religious services was one of
the reasons that caused many of the early colonists to leave England and seek
religious freedom in America. The Court called to mind that the
first and most immediate purpose of the Establishment Clause rested on the
belief that a union of government and religion tends to destroy government and
to degrade religion. The following year, the Engel decision was
reinforced in Abington School District v. Schempp[208] and Murray
v. Curlett[209] where
the Court struck down the practice of Bible reading and the recitation of the
Lord’s prayer in the Pennsylvania and Maryland schools. The Court
held that to withstand the strictures of the Establishment Clause, a statute
must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome ‘neutrality’ of which this Court’s cases
speak thus stems from a recognition of the teachings of history that powerful
sects or groups might bring about a fusion of governmental and religious
functions or a concert or dependency of one upon the other to the end that
official support of the State of Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the Establishment Clause
prohibits. And a further reason for neutrality is found in the Free
Exercise Clause, which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to freely choose
his own course with reference thereto, free of any compulsion from the state.[210]
The school prayer decisions drew furious
reactions. Religious leaders and conservative members of Congress and
resolutions passed by several state legislatures condemned these decisions.[211] On
several occasions, constitutional amendments have been introduced in Congress
to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case of Wallace
v. Jaffree[212] where
the Court struck down an Alabama law that required public school students to
observe a moment of silence “for the purpose of meditation or voluntary prayer”
at the start of each school day.
Religious instruction in public schools has also pressed
the Court to interpret the Establishment Clause. Optional religious
instruction within public school premises and instructional time were declared
offensive of the Establishment Clause in the 1948 case of McCollum v.
Board of Education,[213] decided
just a year after the seminal Everson case. In this case,
interested members of the Jewish, Roman Catholic and a few Protestant faiths
obtained permission from the Board of Education to offer classes in religious
instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents signed
printed cards requesting that their children be permitted to attend. The
classes were taught in three separate groups by Protestant teachers, Catholic
priests and a Jewish rabbi and were held weekly from thirty to forty minutes
during regular class hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school authorities but
they were subject to the approval and supervision of the superintendent of
schools. Students who did not choose to take religious instruction
were required to leave their classrooms and go to some other place in the
school building for their secular studies while those who were released from
their secular study for religious instruction were required to attend the
religious classes. The Court held that the use of tax-supported property
for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education amounted
to a prohibited use of tax-established and tax-supported public school system
to aid religious groups spread their faith. The Court rejected
the claim that the Establishment Clause only prohibited government preference
of one religion over another and not an impartial governmental assistance of
all religions. In Zorach v. Clauson,[214] however,
the Court upheld released time programs allowing students in public schools to
leave campus upon parental permission to attend religious services while other
students attended study hall. Justice Douglas, the writer of the
opinion, stressed that “(t)he First Amendment does not require that in every
and all respects there shall be a separation of Church and
State.” The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for
religious instruction and the force of the public school was used to promote
that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless separation of
Church and State means that public institutions can make no adjustments of
their schedules to accommodate the religious needs of the people. We
cannot read into the Bill of Rights such a philosophy of hostility to religion.[215]
In the area of government displays or affirmations of
belief, the Court has given leeway to religious beliefs and practices which
have acquired a secular meaning and have become deeply entrenched in
history. For instance, in McGowan v. Maryland,[216] the
Court upheld laws that prohibited certain businesses from operating on Sunday despite
the obvious religious underpinnings of the restrictions. Citing the
secular purpose of the Sunday closing laws and treating as incidental the fact
that this day of rest happened to be the day of worship for most Christians,
the Court held, viz:
It is common knowledge that the first day of the week has
come to have special significance as a rest day in this
country. People of all religions and people with no religion regard
Sunday as a time for family activity, for visiting friends and relatives, for
later sleeping, for passive and active entertainments, for dining out, and the
like.[217]
In the 1983 case of Marsh v. Chambers,[218] the
Court refused to invalidate Nebraska’s policy of beginning legislative sessions
with prayers offered by a Protestant chaplain retained at the taxpayers’
expense. The majority opinion did not rely on the Lemon test
and instead drew heavily from history and the need for accommodation of popular
religious beliefs, viz:
In light of the unambiguous and unbroken history of more
than 200 years, there can be no doubt that the practice of opening legislative
sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is not, in
these circumstances, an “establishment” of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. As Justice Douglas observed,
“(w)e are a religious people whose institutions presuppose a Supreme Being.” (Zorach
c. Clauson, 343 US 306, 313 [1952])[219] (emphasis
supplied)
Some view the Marsh ruling as a mere aberration
as the Court would “inevitably be embarrassed if it were to attempt to strike
down a practice that occurs in nearly every legislature in the United States,
including the U.S. Congress.”[220] That Marsh was
not an aberration is suggested by subsequent cases. In the 1984 case
of Lynch v. Donnelly,[221] the
Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4
decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a “neutral harbinger
of the holiday season” for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the
area of tax exemption. By tradition, church and charitable
institutions have been exempt from local property taxes and their income exempt
from federal and state income taxes. In the 1970 case of Walz
v. Tax Commission,[222] the
New York City Tax Commission’s grant of property tax exemptions to churches as
allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:
It has not singled out one particular church or religious
group or even churches as such; rather, it has granted exemptions to all houses
of religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . . The State has an affirmative policy
that considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the
public interest.[223]
The Court added that the exemption was not establishing
religion but “sparing the exercise of religion from the burden of property
taxation levied on private profit institutions”[224] and
preventing excessive entanglement between state and religion. At the
same time, the Court acknowledged the long-standing practice of religious tax
exemption and the Court’s traditional deference to legislative bodies with
respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of
our national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent neutrality toward
churches and religious exercise generally so long as none was favored over
others and none suffered interference.[225] (emphasis
supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many
landmark decisions in the religious clauses area, are but a small fraction of
the hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon. Court rulings contrary to or making nuances of the above cases
may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to
hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v.
Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set
aside a moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional
for a state to require employers to accommodate their employees’ work schedules
to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703,
709-10 [1985]) but constitutionally mandatory for a state to require employers
to pay workers compensation when the resulting inconsistency between work and
sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4
[1963]). It is constitutional for the government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual
behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them
science or history (Lemon v. Kurtzman, 403 US 602, 618-619
[1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236,
238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with
bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17
[1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433
US 229, 252-55 [1977]); with cash to pay for state-mandated standardized tests
(Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54
[1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ
v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226]
But the purpose of the overview is not to review the
entirety of the U.S. religion clause jurisprudence nor to extract the
prevailing case law regarding particular religious beliefs or conduct colliding
with particular government regulations. Rather, the cases discussed
above suffice to show that, as legal scholars observe, this area of
jurisprudence has demonstrated two main standards used by the Court
in deciding religion clause cases: separation (in the form of strict
separation or the tamer version of strict neutrality or separation) and benevolent
neutrality or accommodation. The weight of current authority,
judicial and in terms of sheer volume, appears to lie with the separationists,
strict or tame.[227] But
the accommodationists have also attracted a number of influential scholars and
jurists.[228] The
two standards producing two streams of jurisprudence branch out respectively
from the history of the First Amendment in England and the American colonies
and climaxing in Virginia as narrated in this opinion and officially
acknowledged by the Court in Everson, and from American societal life
which reveres religion and practices age-old religious
traditions. Stated otherwise, separation - strict or tame
- protects the principle of church-state separation with a rigid reading of the
principle while benevolent neutrality protects religious realities,
tradition and established practice with a flexible reading of the principle.[229] The
latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First
Congress intended to allow government support of religion, at least as
long as that support did not discriminate in favor of one particular religion.
. . the Supreme Court has overlooked many important pieces of
history. Madison, for example, was on the congressional committee
that appointed a chaplain, he declared several national days of prayer and
fasting during his presidency, and he sponsored Jefferson’s bill for punishing
Sabbath breakers; moreover, while president, Jefferson allowed federal support
of religious missions to the Indians. . . And so, concludes one recent book,
‘there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and
sponsor, James Madison, intended that Amendment to create a state of complete
independence between religion and government. In fact, the evidence
in the public documents goes the other way.[230] (emphasis
supplied)
To succinctly and poignantly illustrate the historical
basis of benevolent neutrality that gives room for accommodation,
less than twenty-four hours after Congress adopted the First Amendment’s
prohibition on laws respecting an establishment of religion, Congress decided
to express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. Only two members of
Congress opposed the resolution, one on the ground that the move was a
“mimicking of European customs, where they made a mere mockery of
thanksgivings”, the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion was passed without
further recorded discussion.[231] Thus,
accommodationists also go back to the framers to ascertain the meaning of the
First Amendment, but prefer to focus on acts rather than words. Contrary
to the claim of separationists that rationalism pervaded America in the late 19th century
and that America was less specifically Christian during those years than at any
other time before or since,[232] accommodationaists
claim that American citizens at the time of the Constitution’s origins were a
remarkably religious people in particularly Christian terms.[233]
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the “wall of
separation.” The strict separtionist view holds that
Jefferson meant the “wall of separation” to protect the state from the
church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and anticlericalism of
that philosophic bent.[234] He
has often been regarded as espousing Deism or the rationalistic belief in a
natural religion and natural law divorced from its medieval connection with
divine law, and instead adhering to a secular belief in a universal harmony.[235] Thus,
according to this Jeffersonian view, the Establishment Clause being meant to
protect the state from the church, the state’s hostility towards religion
allows no interaction between the two.[236] In
fact, when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with religion.[237] This
approach erects an absolute barrier to formal interdependence of religion and
state. Religious institutions could not receive aid, whether direct
or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on believers.[238] Only
the complete separation of religion from politics would eliminate the formal
influence of religious institutions and provide for a free choice among
political views thus a strict “wall of separation” is necessary.[239] Strict
separation faces difficulties, however, as it is deeply embedded in history and
contemporary practice that enormous amounts of aid, both direct and indirect,
flow to religion from government in return for huge amounts of mostly indirect
aid from religion. Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed
and is never likely to.[240]
A tamer version of the strict separationist
view, the strict neutrality or separationist view is
largely used by the Court, showing the Court’s tendency to press relentlessly
towards a more secular society.[241] It
finds basis in the Everson case where the Court declared that
Jefferson’s “wall of separation” encapsulated the meaning of the First
Amendment but at the same time held that the First Amendment “requires the
state to be neutral in its relations with groups of religious
believers and non-believers; it does not require the state to be their
adversary. State power is no more to be used so as to handicap
religions than it is to favor them.” (emphasis supplied)[242] While
the strict neutrality approach is not hostile to religion, it is strict in
holding that religion may not be used as a basis for classification for purposes
of governmental action, whether the action confers rights or privileges or
imposes duties or obligations. Only secular criteria may be the
basis of government action. It does not permit, much less require,
accommodation of secular programs to religious belief.[243] Professor
Kurland wrote, viz:
The thesis proposed here as the proper construction of
the religion clauses of the first amendment is that the freedom and separation
clauses should be read as a single precept that government cannot utilize
religion as a standard for action or inaction because these clauses prohibit
classification in terms of religion either to confer a benefit or to impose a burden.[244]
The Court has repeatedly declared that religious freedom
means government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government from
acting except for secular purposes and in ways that have primarily secular
effects.[245]
Prayer in public schools is an area where the Court has
applied strict neutrality and refused to allow any form of prayer, spoken or
silent, in the public schools as in Engel and Schempp.[246]The McCollum
case prohibiting optional religious instruction within public school
premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the
government action as they were based not on a secular but on a religious
purpose. Strict neutrality was also used in Reynolds and Smith which
both held that if government acts in pursuit of a generally applicable law with
a secular purpose that merely incidentally burdens religious exercise, the
First Amendment has not been offended. However, if the strict
neutrality standard is applied in interpreting the Establishment Clause, it
could de facto void religious expression in the Free Exercise
Clause. As pointed out by Justice Goldberg in his concurring opinion
in Schempp, strict neutrality could lead to “a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the
religious” which is prohibited by the Constitution.[247]Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed
incompatible with the very idea of a free exercise clause. The
Framers, whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say, of
philosophy or science. The strict neutrality approach all but erases
this distinction. Thus it is not surprising that the Supreme Court
has rejected strict neutrality, permitting and sometimes mandating religious
classifications.[248]
The separationist approach, whether strict or
tame, is caught in a dilemma because while the Jeffersonian wall of separation
“captures the spirit of the American ideal of church-state separation”, in real
life church and state are not and cannot be totally separate.[249] This
is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many points.[250]
Consequently, the Court has also decided cases
employing benevolent neutrality. Benevolent neutrality which
gives room for accommodation is buttressed by a different view of the
“wall of separation” associated with Williams, founder of the Rhode Island
colony. In Mark DeWolfe Howe’s classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of separation
in mind, it was unlike the Jeffersonian wall that is meant to protect the state
from the church; instead, the wall is meant to protect the church from the
state,[251] i.e.,
the “garden” of the church must be walled in for its own protection from the
“wilderness” of the 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:
. . . when they have opened a gap in the hedge or wall of
separation between the garden of the church and the wilderness of the world,
God hath ever broke down the wall itself, removed the candlestick, and made his
garden a wilderness, as this day. And that therefore if He will eer
please to restore His garden and paradise again, it must of necessity be walled
in peculiarly unto Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent
neutrality in Walz, viz:
The general principle deducible from the First Amendment
and all that has been said by the Court is this: that we will not tolerate
either governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts
there is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without sponsorship and without
interference.[259] (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every
and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, the specific ways,
in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise,
the state and religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or
fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the proclamations making
Thanksgiving Day a holiday; “so help me God” in our courtroom oaths- these and
all other references to the Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the First Amendment. A
fastidious atheist or agnostic could even object to the supplication with which
the Court opens each session: ‘God save the United States and this Honorable
Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one chooses. .
. When the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it follows
the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement that
the government show a callous indifference to religious groups. . . But we find
no constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence.[261] (emphases
supplied)
Benevolent neutrality is congruent with the
sociological proposition that religion serves a function essential to the
survival of society itself, thus there is no human society without one or more
ways of performing the essential function of religion. Although for
some individuals there may be no felt need for religion and thus it is optional
or even dispensable, for society it is not, which is why there is no human
society without one or more ways of performing the essential function of
religion. Even in ostensibly atheistic societies, there are vigorous
underground religion(s) and surrogate religion(s) in their ideology.[262] As
one sociologist wrote:
It is widely held by students of society that there are
certain functional prerequisites without which society would not continue to
exist. At first glance, this seems to be obvious - scarcely more
than to say that an automobile could not exist, as a going system, without a
carburetor. . . Most writers list religion among the functional prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: “There
is no known human society without something which modern social scientists
would classify as a religion…Religion is as much a human universal as
language.”[264]
Benevolent neutrality thus recognizes that religion
plays an important role in the public life of the United States as shown by
many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of
“In God We Trust” on American currency, the recognition of America as “one
nation under God” in the official pledge of allegiance to the flag, the Supreme
Court’s time-honored practice of opening oral argument with the invocation “God
save the United States and this honorable Court,” and the practice of Congress
and every state legislature of paying a chaplain, usually of a particular
Protestant denomination to lead representatives in prayer.[265] These
practices clearly show the preference for one theological viewpoint -the
existence of and potential for intervention by a god - over the contrary
theological viewpoint of atheism. Church and government agencies
also cooperate in the building of low-cost housing and in other forms of poor
relief, in the treatment of alcoholism and drug addiction, in foreign aid and
other government activities with strong moral dimension.[266] The
persistence of these de facto establishments are in large part
explained by the fact that throughout history, the evangelical theory of
separation, i.e., Williams’ wall, has demanded respect for these de facto establishments.[267] But
the separationists have a different explanation. To characterize
these as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring
opinions explain some of these practices as “‘de minimis’ instances of
government endorsement or as historic governmental practices that have largely
lost their religious significance or at least have proven not to lead the
government into further involvement with religion.[268]
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations are government
policies that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals and groups
to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion. As Justice Brennan explained, the
“government [may] take religion into account…to exempt, when possible, from
generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise
may flourish.”[269] (emphasis
supplied) Accommodation is forbearance and not
alliance. it does not reflectagreement with the minority,
but respect for the conflict between the temporal and spiritual
authority in which the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in
that the latter holds that government should base public policy solely on
secular considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is
at base a question of means: “Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those practices? Or
is it best advanced through a policy of ‘religious blindness’ - keeping
government aloof from religious practices and issues?” An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other
hand, the strict neutrality adherent believes that it is good public policy,
and also constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take
the accommodationist position rather than the strict neutrality
position. First, the accommodationist interpretation is most
consistent with the language of the First Amendment. The religion
clauses contain two parallel provisions, both specifically directed at
“religion.” The government may not “establish” religion and neither
may government “prohibit” it. Taken together, the religion clauses
can be read most plausibly as warding off two equal and opposite threats to
religious freedom - government action that promotes the (political) majority’s
favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in
view is the preservation of the autonomy of religious life and not just
the formal process value of ensuring that government does not act on
the basis of religious bias. On the other hand, strict neutrality
interprets the religion clauses as allowing government to do whatever it
desires to or for religion, as long as it does the same to or for comparable
secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses
violate the religion clauses, so to speak, since the religion clauses single
out religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First Amendment. The
principle underlying the First Amendment is that freedom to carry out
one’s duties to a Supreme Being is an inalienable right, not one dependent on
the grace of legislature. Although inalienable, it is necessarily
limited by the rights of others, including the public right of peace and good
order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of
the purpose of the First Amendment requires more than the “religion blindness”
of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and
intense. Laws that are suitable for secular entities are sometimes
inappropriate for religious entities, thus the government must make special
provisions to preserve a degree of independence for religious entities for them
to carry out their religious missions according to their religious
beliefs. Otherwise, religion will become just like other secular
entities subject to pervasive regulation by majoritarian
institutions. Third, the accommodationist interpretation is
particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority,
thus not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate intent
to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances,
the injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not always
be the case when the religious practice is either unknown at the time of
enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allowsaccommodations prevents needless
injury to the religious consciences of those who can have an influence in the
legislature; while a constitutional interpretation that requiresaccommodations
extends this treatment to religious faiths that are less able to protect
themselves in the political arena. Fourth, the accommodationist
position is practical as it is a commonsensical way to deal with the various
needs and beliefs of different faiths in a pluralistic
nation. Without accommodation, many otherwise beneficial laws would
interfere severely with religious freedom. Aside from laws against
serving alcoholic beverages to minors conflicting with celebration of
communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment
anti-discrimination laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at little cost to
public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment of the
population or dispensing with legislation it considers beneficial to society as
a whole. Exemption seems manifestly more reasonable than either of
the alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds
of accommodation: those which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those which are discretionary or
legislative, i.e., and those not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause.[273] Some
Justices of the Supreme Court have also used the term accommodation to
describe government actions that acknowledge or express prevailing religious
sentiments of the community such as display of a religious symbol on public
property or the delivery of a prayer at public ceremonial events.[274] Stated
otherwise, using benevolent neutrality as a standard could result to
three situations of accommodation: those whereaccommodation 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 invoke the Free Exercise Clause claim to be fulfilling a
solemn duty. Religious freedom is a matter less of rights than
duties; more precisely, it is a matter of rights derived from
duties. To deny a person or a community the right to act upon such a
duty can be justified only by appeal to a yet more compelling
duty. Of course, those denied will usually not find the reason for
the denial compelling. “Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that
which transcends the political order, such denials should be rare and painfully
reluctant.”[277]
The Yoder case is an example where the Court
held that the state must accommodate the religious beliefs of the Amish who objected
to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court
held that the state unemployment compensation plan must accommodate the
religious convictions of Sherbert.[278] In
these cases of “burdensome effect”, the modern approach of the Court has been
to apply strict scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government
goal through the least restrictive means. If the state’s objective
could be served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, such an exemption must
be given.[279] This
approach of the Court on “burdensome effect” was only applied since the
1960s. Prior to this time, the Court took the separationist view
that as long as the state was acting in pursuit of non-religious ends and
regulating conduct rather than pure religious beliefs, the Free Exercise Clause
did not pose a hindrance such as in Reynolds.[280] In
the second situation where accommodation is permissible, the state may,
but is not required to, accommodate religious interests. The Walz
case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church properties, but
did not rule that the state was required to provide tax
exemptions. The Court declared that “(t)he limits of permissible
state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.”[281] The
Court held that New York could have an interest in encouraging religious values
and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing
released time in public schools and Marsh allowing payment of
legislative chaplains from public funds. Finally, in the situation
where accommodation is prohibited, establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions
buttressed by the Free Exercise Clause does not mean that all claims for free
exercise exemptions are valid.[282] An
example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school
premises.[283] In
effect, the last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required,
the approach follows this basic framework:
If the plaintiff can show that a law or government
practice inhibits the free exercise of his religious beliefs, the burden shifts
to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that
it is the least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the plaintiff is
entitled to exemption from the law or practice at issue. In order to
be protected, the claimant’s beliefs must be ‘sincere’, but they need not
necessarily be consistent, coherent, clearly articulated, or congruent with
those of the claimant’s religious denomination. ‘Only beliefs rooted
in religion are protected by the Free Exercise Clause’; secular beliefs,
however sincere and conscientious, do not suffice.[284]
In other words, a three-step process (also referred
to as the “two-step balancing process” supra when the second and
third steps are combined) as in Sherbert is followed in weighing
the state’s interest and religious freedom when these collide. Three
questions are answered in this process. First, “(h)as the statute or
government action created a burden on the free exercise of
religion?” The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because
the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimant’s belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. As evidence of sincerity,
the U.S. Supreme Court has considered historical evidence as in Wisconsin where
the Amish people had held a long-standing objection to enrolling their children
in ninth and tenth grades in public high schools. In another case,
Dobkin v. District of Columbia,[285] the
Court denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly conducted
business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of sincerity, this is not
as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his
religious community, but for the most part, the injustice is done only in the
particular case.[286] Aside
from the sincerity, the court may look into the centrality of those beliefs,
assessing them not on an objective basis but in terms of the opinion and belief
of the person seeking exemption. In Wisconsin, for example, the
Court noted that the Amish people’s convictions against becoming involved in
public high schools were central to their way of life and
faith. Similarly, in Sherbert, the Court concluded that the prohibition
against Saturday work was a “cardinal principle.”[287] Professor
Lupu puts to task the person claiming exemption, viz:
On the claimant’s side, the meaning and significance of
the relevant religious practice must be demonstrated. Religious
command should outweigh custom, individual conscience should count for more
than personal convenience, and theological principle should be of greater
significance than institutional ease. Sincerity matters, (footnote
omitted) and longevity of practice - both by the individual and within the
individual’s religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and expansive, recognizing
non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the
intensity and scope of fundamentalist creed.[288]
Second, the court asks: “(i)s there a sufficiently
compelling state interest to justify this infringement of religious
liberty?” In this step, the government has to establish that
its purposes are legitimate for the state and that they are compelling. Government
must do more than assert the objectives at risk if exemption is given; it must
precisely show how and to what extent those objectives will be undermined if exemptions
are granted.[289] The
person claiming religious freedom, on the other hand, will endeavor to show
that the interest is not legitimate or that the purpose, although legitimate,
is not compelling compared to infringement of religious
liberty. This step involves balancing, i.e., weighing the
interest of the state against religious liberty to determine which is more
compelling under the particular set of facts. The greater the
state’s interests, the more central the religious belief would have to be to
overcome it. In assessing the state interest, the court will have to
determine the importance of the secular interest and the extent to which that
interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there
will be no requirement that the state diminish the effectiveness of its
regulation by granting the exemption.[290]
Third, the court asks: “(h)as the state in achieving its
legitimate purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the legitimate
goal of the state?”[291] The
analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties. In Cantwell, for example, the
Court invalidated the license requirement for the door-to-door solicitation as
it was a forbidden burden on religious liberty, noting that less drastic means
of insuring peace and tranquility existed. As a whole, in carrying
out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined
judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause
cases, the competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.[293]
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket
of Catholicism covered the archipelago. There was a union of church
and state and Catholicism was the state religion under theSpanish Constitution
of 1876. Civil authorities exercised religious functions and the
friars exercised civil powers.[294] Catholics
alone enjoyed the right of engaging in public ceremonies of worship.[295] Although
the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under the Spanish
rule. Catholicism was in fact protected by the Spanish Penal Code of
1884 which was in effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled “Crimes against Religion and Worship”
referred to crimes against the state religion.[296] The
coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment of
“separation of church and state” was transported to Philippine soil.
Even as early as the conclusion of the Treaty of
Paris between the United States and Spain on December 10, 1898, the
American guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that “the inhabitants of the
territories over which Spain relinquishes or cedes her sovereignty shall be
secured in the free exercise of religion.”[297] Even
the Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos Constitution of the
Philippine Republic under General Emilio Aguinaldo. It provided that “the State
recognizes the liberty and equality of all religion (de todos los cultos) in
the same manner as the separation of the Church and State.” But the
Malolos Constitution and government was short-lived as the Americans took over
the reigns of government.[298]
With the Philippines under the American regime, President
McKinley issued Instructions to the Second Philippine Commission, the
body created to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of
religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no
minister of religion shall be forced upon the community or upon any citizen of
the Islands, that, on the other hand, no minister of religion shall be
interfered with or molested in following his calling.[299]
This provision was based on the First Amendment of the
United States Constitution. Likewise, the Instructions declared
that “(t)he separation between State and Church shall be real, entire and
absolute.”[300]
Thereafter, every organic act of the Philippines
contained a provision on freedom of religion. Similar to the
religious freedom clause in the Instructions, the Philippine Bill of 1902
provided that:
No law shall be made respecting an establishment of
religion or prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference, shall
forever be allowed.
In U.S. v. Balcorta,[301] the
Court stated that the Philippine Bill of 1902 “caused the complete separation
of church and state, and the abolition of all special privileges and all
restrictions theretofor conferred or imposed upon any particular religious
sect.”[302]
The Jones Law of 1916 carried the same
provision, but expanded it with a restriction against using public money or
property for religious purposes, viz:
That no law shall be made respecting an establishment of
religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. No public money or
property shall ever be appropriated, applied, donated, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or for the use, benefit or
support of any priest, preacher, minister, or other religious teachers or
dignitary as such.
This was followed by the Philippine Independence Law
or Tydings-McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine
constitution. It enjoined Filipinos to include freedom of religion
in drafting their constitution preparatory to the grant of
independence. The law prescribed that “(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious
belief or mode of worship.”[303]
The Constitutional Convention then began working on
the 1935 Constitution. In their proceedings, Delegate Jose P.
Laurel as Chairman of the Committee on Bill of Rights acknowledged that “(i)t
was the Treaty of Paris of December 10, 1898, which first introduced religious
toleration in our country. President McKinley’s Instructions to
the Second Philippine Commission reasserted this right which later was
incorporated into the Philippine Bill of 1902 and in the Jones Law.”[304] In
accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the
Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof, and the
free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily
approved by the Convention.[305] In
his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said
that modifications in phraseology of the Bill of Rights in the Jones Law were
avoided whenever possible because “the principles must remain couched in a
language expressive of their historical background, nature, extent and
limitations as construed and interpreted by the great statesmen and jurists
that vitalized them.”[306]
The 1973 Constitution which superseded the 1935
Constitution contained an almost identical provision on religious freedom in
the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of
civil or political rights.
This time, however, the General Provisions in Article XV
added in Section 15 that “(t)he separation of church and state shall be
inviolable.”
Without discussion by the 1986 Constitutional Commission,
the 1973 religious clauses were reproduced in the 1987 Constitution under
the Bill of Rights in Article III, Section 5.[307] Likewise,
the provision on separation of church and state was included verbatim in the
1987 Constitution, but this time as a principle in Section 6, Article II
entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine
religion clauses and the intent to adopt the historical background, nature,
extent and limitations of the First Amendment of the U.S. Constitution when it
was included in the 1935 Bill of Rights, it is not surprising that nearly all
the major Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also reveal
that while U.S. jurisprudence on religion clauses flows into two main streams
of interpretation - separation and benevolent neutrality - the well-spring
of Philippine jurisprudence on this subject is for the most part, benevolent
neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence
on the religion clauses, we begin with the definition of “religion”. “Religion”
is derived from the Middle English religioun, from Old French religion,
from Latin religio, vaguely referring to a “bond between man and the
gods.”[308] This
pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible.[309] While
the U.S. Supreme Court has had to take up the challenge of defining the
parameters and contours of “religion” to determine whether a non-theistic
belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue. In Philippine jurisprudence, religion,
for purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310] involving
the Establishment Clause, defined “religion” as a “profession of faith to an
active power that binds and elevates man to his Creator.” Twenty
years later, the Court cited the Aglipay definition in American
Bible Society v. City of Manila,[311] a
case involving the Free Exercise clause. The latter also cited the
American case of Davis in defining religion, viz: “(i)t has reference to
one’s views of his relations to His Creator and to the obligations they impose
of reverence to His being and character and obedience to His
Will.” The Beason definition, however, has been expanded
in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one’s religion. The Free Exercise
Clause principally guarantees voluntarism, although the Establishment Clause
also assures voluntarism by placing the burden of the advancement of religious
groups on their intrinsic merits and not on the support of the state.[312]
In interpreting the Free Exercise Clause, the realm
of belief poses no difficulty. The early case of Gerona v.
Secretary of Education[313] is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless
bounded only by one’s imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds. One
may believe in most anything, however strange, bizarre and unreasonable the
same may appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief
and the exercise of said belief, there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when
belief is externalized into speech and action.
Religious speech comes within the pale of the Free
Exercise Clause as illustrated in the American Bible Society case. In
that case, plaintiff American Bible Society was a foreign, non-stock,
non-profit, religious missionary corporation which sold bibles and gospel
portions of the bible in the course of its ministry. The defendant
City of Manila required plaintiff to secure a mayor’s permit and a municipal
license as ordinarily required of those engaged in the business of general
merchandise under the city’s ordinances. Plaintiff argued that this
amounted to “religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles
and other religious literature to the people of the Philippines.”
After defining religion, the Court, citing Tanada and
Fernando, made this statement, viz:
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on
the grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis
supplied)
This was the Court’s maiden unequivocal affirmation of
the “clear and present danger” rule in the religious freedom area, and in
Philippine jurisprudence, for that matter.[315] The
case did not clearly show, however, whether the Court proceeded to apply the
test to the facts and issues of the case, i.e., it did not identify the secular
value the government regulation sought to protect, whether the religious speech
posed a clear and present danger to this or other secular value protected by
government, or whether there was danger but it could not be characterized as
clear and present. It is one thing to apply the test and find that
there is no clear and present danger, and quite another not to apply the test
altogether.
Instead, the Court categorically held that the questioned
ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said “merchandise” for profit. To add,
the Court, citing Murdock v. Pennsylvania,[316] ruled
that applying the ordinance requiring it to secure a license and pay a license
fee or tax would impair its free exercise of religious profession and worship
and its right of dissemination of religious beliefs “as the power to tax the
exercise of a privilege is the power to control or suppress its
enjoyment.” Thus, in American Bible Society, the “clear and
present danger” rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of
Finance,[317] also
involving the sale of religious books, the Court distinguished the American
Bible Society case from the facts and issues in Tolentino and
did not apply the American Bible Society ruling. In Tolentino,
the Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior
restraint. The Court held, however, that the fixed amount of
registration fee was not imposed for the exercise of a privilege like a license
tax which American Bible Societyruled was violative of religious
freedom. Rather, the registration fee was merely an administrative
fee to defray part of the cost of registration which was a central feature of
the VAT system. Citing Jimmy Swaggart Ministries v. Board of
Equalization,[318] the
Court also declared prefatorily that “the Free Exercise of Religion Clause does
not prohibit imposing a generally applicable sales and use tax on the sale of
religious materials by a religious organization.” In the Court’s
resolution of the motion for reconsideration of the Tolentino decision, the
Court noted that the burden on religious freedom caused by the tax was just
similar to any other economic imposition that might make the right to
disseminate religious doctrines costly.
Two years after American Bible Society came the
1959 case of Gerona v. Secretary of Education,[319] this
time involving conduct expressive of religious belief colliding with
a rule prescribed in accordance with law. In this case, petitioners
were members of the Jehovah’s Witnesses. They challenged a
Department Order issued by the Secretary of Education implementing Republic Act
No. 1265 which prescribed compulsory flag ceremonies in all public schools. In
violation of the Order, petitioner’s children refused to salute the Philippine
flag, sing the national anthem, or recite the patriotic pledge, hence they were
expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their
religious belief that the Philippine flag is an image and saluting the same is
contrary to their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with
the established institutions of society and with the law, then the former must
yield to the latter. The Government steps in and either restrains
said exercise or even prosecutes the one exercising it. (emphasis
supplied)[320]
The Court then proceeded to determine if the acts
involved constituted a religious ceremony in conflict with the beliefs of the
petitioners with the following justification:
After all, the determination of whether a certain ritual
is or is not a religious ceremony must rest with the courts. It
cannot be left to a religious group or sect, much less to a follower of said
group or sect; otherwise, there would be confusion and misunderstanding for
there might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and good faith,
may want to give to such ritual or ceremony.[321]
It was held that the flag was not an image, the flag
salute was not a religious ceremony, and there was nothing objectionable about
the singing of the national anthem as it speaks only of love of country,
patriotism, liberty and the glory of suffering and dying for it. The
Court upheld the questioned Order and the expulsion of petitioner’s children,
stressing that:
Men may differ and do differ on religious beliefs and
creeds, government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of love of
country, reverence for the flag, national unity and patriotism, they can hardly
afford to differ, for these are matters in which they are mutually and vitally
interested, for to them, they mean national existence and survival as a nation
or national extinction.[322]
In support of its ruling, the Court cited Justice
Frankfurter’s dissent in the Barnette case, viz:
The constitutional protection of religious freedom x x x
gave religious equality, not civil immunity. Its essence is freedom
from conformity to religious dogma, not freedom from conformity to law because
of religious dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption from or non-compliance with
reasonable and non-discriminatory laws, rules and regulations promulgated by
competent authority.[324]
Thus, the religious freedom doctrines one can derive
from Gerona are: (1) it is incumbent upon the Court to determine
whether a certain ritual is religious or not; (2) religious freedom will
not be upheld if it clashes with the established institutions of society and
with the law such that when a law of general applicability (in this case the
Department Order) incidentally burdens the exercise of one’s religion, one’s right
to religious freedom cannot justify exemption from compliance with the law. The Gerona
ruling was reiterated inBalbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974
case of Victoriano v. Elizalde Rope Workers Union.[326] In
this unanimously decided en banc case, Victoriano was a member of the
Iglesia ni Cristo which prohibits the affiliation of its members with any labor
organization. He worked in the Elizalde Rope Factory, Inc. and was a
member of the Elizalde Rope Workers Union which had with the company a closed
shop provision pursuant to Republic Act No. 875 allowing closed shop
arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting from the application and coverage of a closed shop agreement
employees belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the
union after Republic Act No. 3350 took effect. The union notified
the company of Victoriano’s resignation, which in turn notified Victoriano that
unless he could make a satisfactory arrangement with the union, the company
would be constrained to dismiss him from the service. Victoriano
sought to enjoin the company and the union from dismissing him. The
court having granted the injunction, the union came to this Court on questions
of law, among which was whether Republic Act No. 3350 was unconstitutional for
impairing the obligation of contracts and for granting an exemption offensive
of the Establishment Clause. With respect to the first issue, the Court
ruled, viz:
Religious freedom, although not unlimited, is a
fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147,
161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom
of religion. It is only where unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest
extent necessary.[327] (emphasis
supplied)
As regards the Establishment Clause issue, the Court
after citing the constitutional provision on establishment and free exercise of
religion, declared, viz:
The constitutional provisions not only prohibits
legislation for the support of any religious tenets or the modes of worship of
any sect, thus forestalling compulsion by law of the acceptance of any creed or
the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148,
1153), but also assures the free exercise of one’s chosen form of religion
within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good. (footnote
omitted). Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being
only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its
power, a general law which has for its purpose and effect to advance the
state’s secular goals, the statute is valid despite its indirect burden on religious
observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis
supplied)
Quoting Aglipay v. Ruiz,[329] the
Court held that “government is not precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to a
religion or sect.” It also cited Board of Education v. Allen,[330] which
held that in order to withstand the strictures of constitutional prohibition, a
statute must have a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. Using these criteria in
upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular
purpose of advancing the constitutional right to the free exercise of religion,
by averting that certain persons be refused work, or be dismissed from work, or
be dispossessed of their right to work and of being impeded to pursue a modest
means of livelihood, by reason of union security agreements. . . . The primary
effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force
of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent
economic insecurity due to unemployment.[331]
The Court stressed that “(a)lthough the exemption may
benefit those who are members of religious sects that prohibit their members
from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect.”[332] In
enacting Republic Act No. 3350, Congress merely relieved the exercise of
religion by certain persons of a burden imposed by union security agreements
which Congress itself also imposed through the Industrial Peace Act. The
Court concluded the issue of exemption by citing Sherbert which
laid down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some “compelling state interest”
intervenes. The Court then abruptly added that “(i)n the instant
case, We see no compelling state interest to withhold exemption.”[333]
A close look at Victoriano would show that the
Court mentioned several tests in determining when religious freedom may be
validly limited. First, the Court mentioned the test of
“immediate and grave danger to the security and welfare of the community” and
“infringement of religious freedom only to the smallest extent necessary” to
justify limitation of religious freedom. Second,religious exercise
may be indirectly burdened by a general law which has for its purpose and
effect the advancement of the state’s secular goals, provided that there is no
other means by which the state can accomplish this purpose without imposing
such burden. Third, the Court referred to the “compelling state
interest” test which grants exemptions when general laws conflict with
religious exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests
were mentioned only for the purpose of highlighting the importance of the
protection of religious freedom as the secular purpose of Republic Act No.
3350. Upholding religious freedom was a secular purpose insofar as
it relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first
two tests were only mentioned in Victoriano but were not applied by
the Court to the facts and issues of the case. The third, the
“compelling state interest” test was employed by the Court to determine whether
the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no
“compelling state interest” to strike it down. However, after
careful consideration of the Sherbert case from which Victoriano borrowed
this test, the inevitable conclusion is that the “compelling state interest”
test was not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious
freedom in seeking exemption from the provisions of the South Carolina
Unemployment Compensation Act which disqualified her from claiming unemployment
benefits. It was the appellees, members of the South Carolina
Employment Commission, a government agency, who propounded the state interest
to justify overriding Sherbert’s claim of religious freedom. The
U.S. Supreme Court, considering Sherbert’s and the Commission’s arguments,
found that the state interest was not sufficiently compelling to prevail over
Sherbert’s free exercise claim. This situation did not obtain in
the Victoriano case where it was the government itself, through
Congress, which provided the exemption in Republic Act No. 3350 to allow
Victoriano’s exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption from
the questioned law to allow the free exercose of religion as the law in fact
provides such an exemption. In sum, although Victoriano involved
a religious belief and conduct, it did not involve a free exercise issue where
the Free Exercise Clause is invoked to exempt him from the burden imposed by a
law on his religious freedom.
Victoriano was reiterated in several cases involving
the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la
Industria Tabaquera y Otros Trabajadores de Filipinas,[334]Anucension
v. National Labor Union, et al.,[335] and Gonzales,
et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the
height of the anti-administration rallies. Petitioners were walking
to St. Jude Church within the Malacanang security area to pray for “an end to
violence” when they were barred by the police. Invoking their
constitutional freedom of religious worship and locomotion, they came to the
Court on a petition for mandamus to allow them to enter and pray inside the St.
Jude Chapel. The Court was divided on the issue. The slim
majority of six recognized their freedom of religion but noted their absence of
good faith and concluded that they were using their religious liberty to
express their opposition to the government. Citing Cantwell,
the Court distinguished between freedom to believe and freedom to act on
matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts -
freedom to believe and freedom to act. The first is absolute, but in
the nature of things, the second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or
restrained of their freedom of belief or choice of their religion, but
only in the manner by which they had attempted to translate the same to
action. This curtailment is in accord with the pronouncement of this
Court in Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise
of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the
latter. The government steps in and either restrains said exercise
or even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon
petitioners was “necessary to maintain the smooth functioning of the executive
branch of the government, which petitioners’ mass action would certainly
disrupt”[338] and
denied the petition. Thus, without considering the tests mentioned
in Victoriano, German went back to the Gerona rule that religious freedom
will not be upheld if it clashes with the established institutions of society
and the law.
Then Associate Justice Teehankee registered a dissent
which in subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional
principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125
SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one’s religion
is guaranteed in Section 8 of our Bill of Rights. (footnote
omitted) Freedom of worship, alongside with freedom of expression
and speech and peaceable assembly “along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary - even more so than on the other
departments - rests the grave and delicate responsibility of assuring respect
for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes ‘as the sovereign prerogative of
judgment.’ Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights, enjoying as they do
precedence and primacy.’ (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred
rights, there is to be no prior restraint although there may be subsequent
punishment of any illegal acts committed during the exercise of such basic
rights. The sole justification for a prior restraint or limitation
on the exercise of these basic rights is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent (Idem, at pp. 560-561).[339] (emphasis
supplied)
The J.B.L. Reyes v. Bagatsing case from which
this portion of Justice Teehankee’s dissent was taken involved the rights to
free speech and assembly, and not the exercise of religious
freedom. At issue in that case was a permit sought by retired
Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila
to hold a peaceful march and rally from the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by Justice
Teehankee in his dissent which had overtones of petitioner German and his
companions’ right to assemble and petition the government for redress of
grievances.[340]
In 1993, the issue on the Jehovah’s Witnesses’
participation in the flag ceremony again came before the Court in Ebralinag
v. The Division Superintendent of Schools.[341] A
unanimous Court overturned the Gerona ruling after three
decades. Similar to Gerona, this case involved several
Jehovah’s Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of
the Administrative Code of 1987. In resolving the same religious
freedom issue as in Gerona, the Court this time transported the “grave and
imminent danger” test laid down in Justice Teehankee’s dissent in German, viz:
The sole justification for a prior restraint or
limitation on the exercise of religious freedom (according to the late
Chief Justice Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from the schools is
not justified.[342] (emphasis
supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah’s
Witnesses from saluting the flag, singing the national anthem and reciting the
patriotic pledge, this religious group which admittedly comprises a ‘small
portion of the school population’ will shake up our part of the globe and
suddenly produce a nation ‘untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for national
heroes’ (Gerona v. Secretary of Education, 106 Phil. 224). After
all, what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the democratic
way of life and form of government, and learn not only the arts, sciences,
Philippine history and culture but also receive training for a vocation or
profession and be taught the virtues of ‘patriotism, respect for human rights,
appreciation of national heroes, the rights and duties of citizenship, and
moral and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as part of
the curricula. Expelling or banning the petitioners from Philippine
schools will bring about the very situation that this Court has feared in
Gerona. Forcing a small religious group, through the iron hand of
the law, to participate in a ceremony that violates their religious beliefs,
will hardly be conducive to love of country or respect for duly constituted
authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and
loyalty even to the country, x x x- assuming that such unity and loyalty can be
attained through coercion- is not a goal that is constitutionally obtainable at
the expense of religious liberty. A desirable end cannot be promoted
by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).[344]
Towards the end of the decision, the Court also cited
the Victoriano case and its use of the “compelling state interest”
test in according exemption to the Jehovah’s Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA
54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from
the coverage of a closed shop agreement between their employer and a union
because it would violate the teaching of their church not to join any group:
‘x x x It is certain that not every conscience can be
accommodated by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some ‘compelling
state interest’ intervenes.’ (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d
965, 970, 83 S.Ct. 1790)’
We hold that a similar exemption may be accorded to the
Jehovah’s Witnesses with regard to the observance of the flag ceremony out of
respect for their religious beliefs, however ‘bizarre’ those beliefs may seem
to others.[345]
The Court annulled the orders expelling petitioners from
school.
Thus, the “grave and imminent danger” test laid down in a
dissenting opinion in German which involved prior restraint of
religious worship with overtones of the right to free speech and assembly, was
transported to Ebralinag which did not involve prior restraint of
religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied that Ebralinagalso involved the
right to free speech when in its preliminary remarks, the Court stated that
compelling petitioners to participate in the flag ceremony “is alien to the
conscience of the present generation of Filipinos who cut their teeth on the
Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship;” the Court then stated in a
footnote that the “flag salute, singing the national anthem and reciting the
patriotic pledge are all forms of utterances.”[346]
The “compelling state interest” test was not fully
applied by the Court in Ebralinag. In the Solicitor General’s
consolidated comment, one of the grounds cited to defend the expulsion orders
issued by the public respondents was that “(t)he State’s compelling interests
being pursued by the DEC’s lawful regulations in question do not warrant
exemption of the school children of the Jehovah’s Witnesses from the flag
salute ceremonies on the basis of their own self-perceived religious
convictions.”[347] The
Court, however, referred to the test only towards the end of the decision and
did not even mention what the Solicitor General argued as the compelling state
interest, much less did the Court explain why the interest was not sufficiently
compelling to override petitioners’ religious freedom.
Three years after Ebralinag, the Court decided the
1996 case of Iglesia ni Cristo v. Court of Appeals, et al.[348] Although
there was a dissent with respect to the applicability of the “clear and present
danger” test in this case, the majority opinion in unequivocal terms applied
the “clear and present danger” test to religious speech. This case
involved the television program, “Ang Iglesia ni Cristo,” regularly aired over
the television. Upon petitioner Iglesia ni Cristo’s submission of
the VTR tapes of some of its episodes, respondent Board of Review for Motion
Pictures and Television classified these as “X” or not for public viewing on
the ground that they “offend and constitute an attack against other religions
which is expressly prohibited by law.” Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave
abuse of discretion in requiring it to submit the VTR tapes of its television
program and x-rating them. While upholding the Board’s power to
review the Iglesia television show, the Court was emphatic about the
preferred status of religious freedom. Quoting Justice Cruz’
commentary on the constitution, the Court held that freedom to believe is
absolute but freedom to act on one’s belief, where it affects the public, is
subject to the authority of the state. The commentary quoted Justice
Frankfurter’s dissent in Barnette which was quoted in Gerona, viz:
“(t)he constitutional provision on religious freedom terminated disabilities,
it did not create new privileges. It gave religious liberty, not
civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious dogma.”[349] Nevertheless,
the Court was quick to add the criteria by which the state can regulate the
exercise of religious freedom, that is, when the exercise will bring about the
“clear and present danger of some substantive evil which the State is duty bound
to prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare.”[350]
In annulling the x-rating of the shows, the Court
stressed that the Constitution is hostile to all prior restraints on speech,
including religious speech and the x-rating was a suppression of petitioner’s
freedom of speech as much as it was an interference with its right to free exercise
of religion. Citing Cantwell, the Court recognized that the
different religions may criticize one another and their tenets may collide, but
the Establishment Clause prohibits the state from protecting any religion from
this kind of attack.
The Court then called to mind the “clear and present
danger” test first laid down in the American Bible Society case and
the test of “immediate and grave danger” with “infringement only to the
smallest extent necessary to avoid danger” in Victoriano and pointed
out that the reviewing board failed to apply the “clear and present danger”
test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent
Board, affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is
no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and imminent evil
which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the
“clear and present danger” test to the case, the Court acknowledged the
permutations that the test has undergone, but stressed that the test is still
applied to four types of speech: “speech that advocates dangerous ideas, speech
that provokes a hostile audience reaction, out of court contempt and release of
information that endangers a fair trial”[351] and
ruled, viz:
. . . even allowing the drift of American
jurisprudence, there is reason to apply the clear and present danger test to
the case at bar which concerns speech that attacks other religions and could
readily provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.[352]
In Iglesia therefore, the Court went back
to Gerona insofar as holding that religious freedom cannot be invoked
to seek exemption from compliance with a law that burdens one’s religious
exercise. It also reiterated the “clear and present danger” test
in American Bible Society and the “grave and imminent danger”
in Victoriano, but this time clearly justifying its applicability and
showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a
posture of not invalidating a law offensive to religious freedom, but carving
out an exception or upholding an exception to accommodate religious exercise
where it is justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial
agreement on the values sought to be protected by the Establishment Clause,
namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a
social dimension. As a personal value, it refers to the
inviolability of the human conscience which, as discussed above, is also
protected by the free exercise clause. From the religious
perspective, religion requires voluntarism because compulsory faith lacks
religious efficacy. Compelled religion is a contradiction in terms.[354] As
a social value, it means that the “growth of a religious sect as a social
force must come from the voluntary support of its members because of the belief
that both spiritual and secular society will benefit if religions are allowed
to compete on their own intrinsic merit without benefit of official
patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from
politics.”[355] Non-establishment
thus calls for government neutrality in religious matters to uphold voluntarism
and avoid breeding interfaith dissension.[356]
The neutrality principle was applied in the first
significant non-establishment case under the 1935 Constitution. In
the 1937 case of Aglipay v. Ruiz,[357] the
Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress of the
Catholic Church on the ground that the constitutional prohibition against the
use of public money for religious purposes has been violated. It
appears that the Director of Posts issued the questioned stamps under the
provisions of Act No. 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 aims . . . It is almost trite to say now that in this
country we enjoy both religious and civil freedom. All the officers
of the Government, from the highest to the lowest, in taking their oath to
support and defend the Constitution, bind themselves to recognize and respect
the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere
toleration.
Religious freedom, however, as a constitutional mandate
is not an inhibition of profound reverence for religion and is not a denial of
its influence in human affairs. Religion as a profession of faith to
an active power that binds and elevates man to his Creator is recognized. And,
in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored “the aid of Divine
Providence, in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty and democracy,” they thereby manifested
their intense religious nature and placed unfaltering reliance upon Him who
guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and
denominations. . .[359]
xxx xxx xxx
It is obvious that while the issuance and sale of the
stamps in question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We
are of the opinion that the Government should not be embarrassed in its
activities simply because of incidental results, more or less religious in
character, if the purpose had in view is one which could legitimately be
undertaken by appropriate legislation. The main purpose should not
be frustrated by its subordination to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law.
ed., 168)[360] (emphases
supplied)
In so deciding the case, the Court, citing U.S.
jurisprudence, laid down the doctrine that a law or government action with
a legitimate secular purpose does not offend the Establishment Clause even if
it incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces
v. Estenzo.[361] Although
the Court found that the separation of church and state was not at issue as the
controversy was over who should have custody of a saint’s image, it
nevertheless made pronouncements on the separation of church and state along
the same line as the Aglipay ruling. The Court held that there
was nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered to the barrio resolutions
of the barangay involved in the case stating that the barrio
fiesta is a socio-religious affair, the celebration of which is an
“ingrained tradition in rural communities” that “relieves the monotony and
drudgery of the lives of the masses.” Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship of the
patron saint such as the acquisition and display of his image bought with funds
obtained through solicitation from the barrioresidents. The
Court pointed out that the image of the patron saint was “purchased in
connection with the celebration of the barrio fiesta honoring the patron saint,
San Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the barrio
residents.” Citing the Aglipay ruling, the Court
declared, viz:
Not every governmental activity which involves the
expenditure of public funds and which has some religious tint is violative of
the constitutional provisions regarding separation of church and state, freedom
of worship and banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.[362] which
presented a novel issue involving the religion clauses. In this
case, Section 2175 of the Revised Administrative Code of 1917 disqualifying
ecclesiastics from appointment or election as municipal officer was
challenged. After protracted deliberation, the Court was sharply
divided on the issue. Seven members of the Court, one short of the
number necessary to declare a law unconstitutional, approached the problem from
a free exercise perspective and considered the law a religious test offensive
of the constitution. They were Justices Fernando, Teehankee,
Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: “The challenged
Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the
Constitution.” Citing Torcaso v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision,
has persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that ‘no religious test
ought ever to be required as a disqualification for any office or profit or
trust in this State, other than a declaration of belief in the existence of God
***.’ Such a constitutional requirement was assailed as contrary to
the First Amendment of the United States Constitution by an appointee to the
office of notary public in Maryland, who was refused a commission as he would
not declare a belief in God. He failed in the Maryland Court of
Appeals but prevailed in the United States Supreme Court, which reversed the
state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: ‘this Maryland
religious test for public office unconstitutionally invades the appellant’s
freedom of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that
case, it was lack of belief in God that was a disqualification. Here
being an ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility
between the Administrative Code provision relied upon by petitioner and an
express constitutional mandate.[364]
On the other hand, the prevailing five other members of
the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and
Aquino - approached the case from a non-establishment perspective and upheld
the law as a safeguard against the constant threat of union of church and state
that has marked Philippine history. Justice Makasiar
stated: “To allow an ecclesiastic to head the executive department
of a municipality is to permit the erosion of the principle of separation of
Church and State and thus open the floodgates for the violation of the
cherished liberty of religion which the constitutional provision seeks to
enforce and protect.” Consequently, the Court upheld the validity of
Section 2175 of the Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment
clause deals with intramural religious disputes. Fonacier v. Court
of Appeals[365] is
the leading case. The issue therein was the right of control over
certain properties of the Philippine Independent Church, the resolution of
which necessitated the determination of who was the legitimate bishop of the church. The
Court cited American Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court
plainly violates the law it professes to administer, or is in conflict with the
law of the land, it will not be followed by the civil courts. . . In some
instances, not only have the civil courts the right to inquire into the
jurisdiction of the religious tribunals and the regularity of their procedure,
but they have subjected their decisions to the test of fairness or to the test
furnished by the constitution and the law of the church. . .[367]
The Court then ruled that petitioner Fonacier was
legitimately ousted and respondent de los Reyes was the duly elected head of
the Church, based on their internal laws. To finally dispose of the
property issue, the Court, citing Watson v. Jones,[368] declared
that the rule in property controversies within religious congregations strictly
independent of any other superior ecclesiastical association (such as the
Philippine Independent Church) is that the rules for resolving such
controversies should be those of any voluntary association. If the
congregation adopts the majority rule then the majority should prevail; if it
adopts adherence to duly constituted authorities within the congregation, then
that should be followed. Applying these rules, Fonacier lost the
case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:
The amendments of the constitution, restatement of
articles of religion and abandonment of faith or abjuration alleged by
appellant, having to do with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and having reference to the
power of excluding from the church those allegedly unworthy of membership, are
unquestionably ecclesiastical matters which are outside the province of the
civil courts.[369]
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is
recognized that there is a tension between the Free Exercise Clause and the
Establishment Clause in their application. There is a natural
antagonism between a command not to establish religion and a command not to
inhibit its practice; this tension between the religion clauses often leaves
the courts with a choice between competing values in religion cases.[370]
One set of facts, for instance, can be differently viewed
from the Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. In Pamil, the
majority gave more weight to the religious liberty of the priest in holding
that the prohibition of ecclesiastics to assume elective or appointive
government positions was violative of the Free Exercise Clause. On
the other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of church and
state justified the prohibition.
Tension is also apparent when a case is decided to uphold
the Free Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to support
of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering
the “establishment” of the Seventh-day Adventist religion in South
Carolina, for the extension of unemployment benefits to Sabbatarians in common
with Sunday worshippers reflects nothing more than the governmental
obligation of neutrality in the face of religious differences, and does not
represent that involvement of religious with secular institutions which it is
the object of the Establishment Clause to forestall.[371] (emphasis
supplied)
Tension also exists when a law of general application
provides exemption in order to uphold free exercise as in the Walz case where
the appellant argued that the exemption granted to religious organizations, in
effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not
a case of establishing religion but merely upholding the Free Exercise Clause
by “sparing the exercise of religion from the burden of property taxation
levied on private profit institutions.” Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course
between the two religion clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to clash with the
other.[372]
Similarly, the Philippine Supreme Court in the Victoriano
case held that the exemption afforded by law to religious sects who
prohibit their members from joining unions did not offend the Establishment
Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350,
Congress acted consistently with the spirit of the constitutional
provision. It acted merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by union security agreements.[373] (emphasis
supplied)
Finally, in some cases, a practice is obviously violative
of the Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: “(t)here are certain practices, conceivably violative
of the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First
Amendment.”
How the tension between the Establishment Clause and the
Free Exercise Clause will be resolved is a question for determination in the
actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses should be
balanced against each other. The courts must review all the relevant
facts and determine whether there is a sufficiently strong free exercise right
that should prevail over the Establishment Clause problem. In the
United States, it has been proposed that in balancing, the free exercise claim
must be given an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free exercise
principle long antedated any broad-based support of disestablishment, but also
because an Establishment Clause concern raised by merely accommodating a
citizen’s free exercise of religion seems far less dangerous to the republic
than pure establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two religion
clauses, the courts convey a message of hostility to the religion that in that
case cannot be freely exercised.[374] American
professor of constitutional law, Laurence Tribe, similarly suggests that the
free exercise principle “should be dominant in any conflict with the
anti-establishment principle.” This dominance would be the result of
commitment to religious tolerance instead of “thwarting at all costs even the
faintest appearance of establishment.”[375] In
our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern
society is characterized by the expanding regulatory arm of government that
reaches a variety of areas of human conduct and an expanding concept of
religion. To adequately meet the demands of this modern society, the
societal values the religion clauses are intended to protect must be considered
in their interpretation and resolution of the tension. This, in
fact, has been the approach followed by the Philippine Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987
Constitution shows that these clauses were largely adopted from the First
Amendment of the U.S. Constitution. The religion clauses in the
First Amendment were contained in every organic Act of the Philippines under
the American regime. When the delegates of the 1934 Constitutional
Convention adopted a Bill of Rights in the 1935 Constitution, they purposely
retained the phraseology of the religion clauses in the First Amendment as
contained in the Jones Law in order to adopt its historical background, nature,
extent and limitations. At that time, there were not too many
religion clause cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case. The Free
Exercise Clause cases were also scarce then. Over the years,
however, with the expanding reach of government regulation to a whole gamut of
human actions and the growing plurality and activities of religions, the number
of religion clause cases in the U.S. exponentially increased. With
this increase came an expansion of the interpretation of the religion clauses,
at times reinforcing prevailing case law, at other times modifying it, and
still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream
employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside
this change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion clauses in the
1973 Constitution and later, the 1987 Constitution. Philippine
jurisprudence and commentaries on the religious clauses also continued to
borrow authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence. One might
simply conclude that the Philippine Constitutions and jurisprudence also
inherited the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes before the Court,
a separationist approach or a benevolent neutrality approach
might be adopted and each will have U.S. authorities to support
it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports the separationist approach,
Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses’ history. As a result, in a case where
the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable
wall in convincing the Court that the wall of separation would not be breached
if the Court grants him an exemption. These conclusions, however,
are not and were never warranted by the 1987, 1973 and 1935 Constitutions as
shown by other provisions on religion in all three constitutions. 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 ofbenevolent neutrality to accommodate a long-standing tradition
of exemption. With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an ordinance
appended to the Constitution, the benevolent neutrality referred to
in the Walz case was given constitutional imprimatur under the
regime of the 1935 Constitution. The provision, as stated in the
deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing benevolence
towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI,
Section 23(3), viz:
(3) No public money, or property shall ever be
appropriated, applied, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian institution or system
of religion, for the use, benefit or support of any priest, preacher, ministers
or other religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to any
penal institution, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction
of a portion of section 3 of the Jones Law which did not contain the above
exception, viz:
No public money or property shall ever be appropriated,
applied, or used, directly or indirectly, for the use, benefit, or support of
any sect, church denomination, sectarian institution, or system of religion, or
for the use, benefit or support of any priest, preacher, minister, or dignitary
as such…[382]
In the deliberations of this draft provision, an
amendment was proposed to strike down everything after “church denomination.”[383] The
proposal intended to imitate the silence of the U.S. Constitution on the
subject of support for priests and ministers. It was also an
imitation of the silence of the Malolos Constitution to restore the situation
under the Malolos Constitution and prior to the Jones Law, when chaplains of
the revolutionary army received pay from public funds with no doubt about its
legality. It was pointed out, however, that even with the
prohibition under the Jones Law, appropriations were made to chaplains of the
national penitentiary and the Auditor General upheld its validity on the basis
of a similar United States practice. But it was also pointed out
that the U.S. Constitution did not contain a prohibition on appropriations
similar to the Jones Law.[384] To
settle the question on the constitutionality of payment of salaries of
religious officers in certain government institutions and to avoid the feared
situation where the enumerated government institutions could not employ
religious officials with compensation, the exception in the 1935 provision was
introduced and approved. The provision garnered 74 affirmative votes against 34
negative votes.[385] As
pointed out in the deliberations, the U.S. Constitution does not provide for
this exemption. However, the U.S. Supreme Court in Cruz v.
Beto, apparently taking a benevolent neutrality approach, implicitly
approved the state of Texas’ payment of prison chaplains’ salaries as
reasonably necessary to permit inmates to practice their
religion. Also, in the Marsh case, the U.S. Supreme Court
upheld the long-standing tradition of beginning legislative sessions with
prayers offered by legislative chaplains retained at taxpayers’
expense. The constitutional provision exempting religious officers
in government institutions affirms the departure of the Philippine Constitution
from the U.S. Constitution in its adoption of benevolent neutrality in
Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality
is contemplated in the Philippine Establishment Clause, the 1935 Constitution
provides for optional religious instruction in public schools in Article XIII,
Section 5, viz:
. . . Optional religious instruction shall be
maintained in the public schools as now authorized by law. . .
The law then applicable was Section 928 of the
Administrative Code, viz:
It shall be lawful, however, for the priest or minister
of any church established in the town where a public school is situated, either
in person or by a designated teacher of religion, to teach religion for
one-half hour three times a week, in the school building, to those
public-school pupils whose parents or guardians desire it and express their
desire therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention,
there were three positions on the issue of religious instruction in public
schools. The first held that the teaching of religion in public
schools should be prohibited as this was a violation of the principle of
separation of church and state and the prohibition against the use of public
funds for religious purposes. The second favored the proposed
optional religious instruction as authorized by the Administrative Code and
recognized that the actual practice of allowing religious instruction in the
public schools was sufficient proof that religious instruction was not and
would not be a source of religious discord in the schools.[386] The
third wanted religion to be included as a course in the curriculum of the
public schools but would only be taken by pupils at the option of their parents
or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of
religion in public schools, despite the opposition to the provision on the
ground of separation of church and state.[387] As
in the provisions on church property tax exemption and compensation of
religious officers in government institutions, the U.S. Constitution does not
provide for optional religious instruction in public schools. In
fact, in the McCollum case, the Court, using strict neutrality, prohibited
this kind of religious instruction where the religion teachers would conduct
class within the school premises. The constitutional provision on
optional religious instruction shows that Philippine jurisdiction rejects the
strict neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitution’s benevolence
to religion, the Filipino people “implored (ing) the aid of Divine Providence
(,) in order to establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence under a
regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing)
this Constitution.” A preamble is a “key to open the mind of the
authors of the constitution as to the evil sought to be prevented and the
objects sought to be accomplished by the provisions thereof.”[388] There
was no debate on the inclusion of a “Divine Providence” in the
preamble. In Aglipay, Justice Laurel noted that when the
Filipino people implored the aid of Divine Providence, “(t)hey thereby
manifested their intense religious nature and placed unfaltering reliance upon
Him who guides the destinies of men and nations.”[389] The
1935 Constitution’s religion clauses, understood alongside the other provisions
on religion in the Constitution, indubitably shows not hostility, but
benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section
22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property from taxation, with the
modification that the property should not only be used directly, but also
actually and exclusively for religious or charitable
purposes. Parallel to Article VI, Section 23(3) of the 1935
Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government institutions. Article
XIII, Section 5 of the 1935 Constitution on optional religious instruction was
also carried to the 1973 Constitution in Article XV, Section 8(8) with the
modification that optional religious instruction shall be conducted “as may be
provided by law” and not “as now authorized by law” as stated in the 1935
Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high
schools shall be done “(a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government.” With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In
Article XV, Section 15 of the General Provisions of the 1973 Constitution this
provision made its maiden appearance: “(t)he separation of church and state
shall be inviolable.” The 1973 Constitution retained the portion of the
preamble “imploring the aid of Divine Providence.”
In the Report of the Ad Hoc Sub-Committee on Goals,
Principles and Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the “absolute”
separation of Church and State as enunciated in the Everson case and
reiterated in Schempp - i.e., neutrality not only as between
one religion and another but even as between religion and non-religion - is
embodied in the Philippine Constitution. The sub-committee’s answer
was that it did not seem so. Citing the Aglipay case where Justice
Laurel recognized the “elevating influence of religion in human society” and
the Filipinos’ imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion over
another, but may aid all religions equally or the cause of religion in general.[391] Among
the position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the
constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact recognizes the
value of religion and accommodates religious values.[392] Stated
otherwise, the Establishment Clause contemplates not a strict neutrality but
benevolent neutrality. While the Committee introduced the provision
on separation of church and state in the General Provisions of the 1973
Constitution, this was nothing new as according to it, this principle was
implied in the 1935 Constitution even in the absence of a similar provision.[393]
Then came the 1987 Constitution. The 1973
Constitutional provision on tax exemption of church property was retained with
minor modification in Article VI, Section 28(3) of the 1987
Constitution. The same is true with respect to the prohibition on
the use of public money and property for religious purposes and the salaries of
religious officers serving in the enumerated government institutions, now
contained in Article VI, Section 29(2). Commissioner Bacani,
however, probed into the possibility of allowing the government to spend public
money for purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner
Rodrigo explained that if a public expenditure would benefit the government
directly, such expense would be constitutional even if it results to an
incidental benefit to religion. With that explanation, Commissioner
Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also
adopted in the 1987 Constitution in Article XIV, Section 3(3) with the
modification that it was expressly provided that optional instruction shall be
conducted “within the regular class hours” and “without additional cost to the
government”. There were protracted debates on what additional cost
meant, i.e., cost over and above what is needed for normal operations such as
wear and tear, electricity, janitorial services,[395] and
when during the day instruction would be conducted.[396] In
deliberating on the phrase “within the regular class hours,” Commissioner
Aquino expressed her reservations to this proposal as this would violate the
time-honored principle of separation of church and state. She cited
the McCullom casewhere 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 inSurach v.
Clauson where the U.S. Supreme Court allowed only release time for
religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide
for an exception to the rule on non-establishment of religion, because
if it were not necessary to make this exception for purposes of allowing
religious instruction, then we could just drop the amendment. But,
as a matter of fact, this is necessary because we are trying to introduce
something here which is contrary to American practices.[397] (emphasis
supplied)
“(W)ithin regular class hours” was approved.
The provision on the separation of church and state was
retained but placed under the Principles in the Declaration of Principles and
State Policies in Article II, Section 6. In opting to retain the
wording of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement
the sentence ‘The separation of Church and State is inviolable,’ is almost a
useless statement; but at the same time it is a harmless
statement. Hence, I am willing to tolerate it there, because, in the
end, if we look at the jurisprudence on Church and State, arguments are based
not on the statement of separation of church and state but on the
non-establishment clause in the Bill of Rights.[398]
The preamble changed “Divine Providence” in the 1935 and
1973 Constitutions to “Almighty God.” There was considerable debate
on whether to use “Almighty God” which Commissioner Bacani said was more
reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a
number of atheistic delegates in the 1971 Constitutional Convention objected to
reference to a personal God.[399] “God
of History”, “Lord of History” and “God” were also proposed, but the phrase
“Almighty God” prevailed. Similar to the 1935 and 1971
Constitutions, it is obvious that the 1987 Constitution is not hostile nor
indifferent to religion;[400] its
wall of separation is not a wall of hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions
on tax exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions, did
not intend to erect a high and impregnable wall of separation between the
church and state.[402] The
strict neutrality approach which examines only whether government action is for
a secular purpose and does not consider inadvertent burden on religious
exercise protects such a rigid barrier. By adopting the above
constitutional provisions on religion, the Filipinos manifested their adherence
to the benevolent neutrality approach in interpreting the religion
clauses, an approach that looks further than the secular purposes of government
action and examines the effect of these actions on religious
exercise. Benevolent neutrality recognizes the religious nature
of the Filipino people and the elevating influence of religion in society; at
the same time, it acknowledges that government must pursue its secular
goals. In pursuing these goals, however, government might adopt laws
or actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of
these religious exercises as required by the Free Exercise
Clause. It allows these breaches in the wall of separation to uphold
religious liberty, which after all is the integral purpose of the religion
clauses. The case at bar involves this first type of accommodation where
an exemption is sought from a law of general applicability that inadvertently
burdens religious exercise.
Although our constitutional history and interpretation
mandate benevolent neutrality, benevolent neutrality does not mean that
the Court ought to grant exemptions every time a free exercise claim comes
before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and that
it will strive to accommodate them when it can within flexible constitutional
limits; it does mean that the Court will not simply dismiss a claim under the
Free Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an
exception when the religion clauses justify it. While the Court
cannot adopt a doctrinal formulation that can eliminate the difficult questions
of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the
state to pursue its interest, the Court can set a doctrine on the ideal towards
which religious clause jurisprudence should be directed.[403] We
here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching pad
from which the Court should take off in interpreting religion clause cases. The
ideal towards which this approach is directed is the protection of religious
liberty “not only for a minority, however small- not only for a majority,
however large- but for each of us” to the greatest extent possible within
flexible constitutional limits.
Benevolent neutrality is manifest not only in the
Constitution but has also been recognized in Philippine jurisprudence, albeit
not expressly called “benevolent neutrality” or
“accommodation”. In Aglipay, the Court not only stressed the
“elevating influence of religion in human society” but acknowledged the
Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious
instruction as well as the provisions of the Administrative Code making
Thursday and Friday of the Holy Week, Christmas Day and Sundays legal
holidays. In Garces, the Court not only recognized the
Constitutional provisions indiscriminately granting concessions to religious
sects and denominations, but also acknowledged that government participation in
long-standing traditions which have acquired a social character - “the barrio
fiesta is a socio-religious affair” - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from
closed shop provisions of members of religious sects who prohibited their
members from joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the burden
on free exercise of religion. In Ebralinag, members of the
Jehovah’s Witnesses were exempt from saluting the flag as required by law, on
the basis not of a statute granting exemption but of the Free Exercise Clause
without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are
similar in form and origin, Philippine constitutional law has departed from the
U.S. jurisprudence of employing a separationist or strict neutrality approach. The
Philippine religion clauses have taken a life of their own, breathing the air
of benevolent neutrality and accommodation. Thus, the
wall of separation in Philippine jurisdiction is not as high and impregnable as
the wall created by the U.S. Supreme Court in Everson.[404] While
the religion clauses are a unique American experiment which understandably came
about as a result of America’s English background and colonization, the life
that these clauses have taken in this jurisdiction is the Philippines’ own
experiment, reflective of the Filipinos’ own national soul, history and
tradition. After all, “the life of the law. . . has been
experience.”
But while history, constitutional construction, and
earlier jurisprudence unmistakably show that benevolent neutrality is
the lens with which the Court ought to view religion clause cases, it must
be stressed that the interest of the state should also be afforded utmost
protection. To do this, a test must be applied to draw the
line between permissible and forbidden religious exercise. It is
quite paradoxical that in order for the members of a society to exercise their
freedoms, including their religious liberty, the law must set a limit when
their exercise offends the higher interest of the state. To do
otherwise is self-defeating for unlimited freedom would erode order in the
state and foment anarchy, eventually destroying the very state its members
established to protect their freedoms. The very purpose of the social
contract by which people establish the state is for the state to protect their
liberties; for this purpose, they give up a portion of these freedoms -
including the natural right to free exercise - to the state. It was
certainly not the intention of the authors of the constitution that free
exercise could be used to countenance actions that would undo the
constitutional order that guarantees free exercise.[405]
The all important question then is the test that should
be used in ascertaining the limits of the exercise of religious
freedom. Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the
“clear and present danger” test but did not employ it. Nevertheless,
this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned
the “immediate and grave danger” test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the “compelling state interest”
test. After Victoriano, German went back to the Gerona
rule. Ebralinag then employed the “grave and immediate danger”
test and overruled the Gerona test. The fairly recent case
of Iglesia ni Cristo went back to the “clear and present danger” test
in the maiden case of American Bible Society. Not surprisingly,
all the cases which employed the “clear and present danger” or “grave and
immediate danger” test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the
other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has
been overruled by Ebralinag which employed the “grave and immediate
danger” test. Victoriano was the only case that employed the
“compelling state interest” test, but as explained previously, the use of the
test was inappropriate to the facts of the case.
The case at bar does not involve speech as
in American Bible Society, Ebralinag and Iglesia ni Cristo where
the “clear and present danger” and “grave and immediate danger” tests were
appropriate as speech has easily discernible or immediate
effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutralityapproach,
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 ofMaguad
v. De Guzman,[412] are
similar to the case at bar - i.e., the complainant is a mere stranger and the
legal wife has not registered any objection to the illicit relation, there is
no proof of scandal or offense to the moral sensibilities of the community in
which the respondent and the partner live and work, and the government employee
is capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees
administratively liable for “disgraceful and immoral conduct” and only
considered the foregoing circumstances to mitigate the
penalty. Respondent Escritor does not claim that there is error in
the settled jurisprudence that an illicit relation constitutes disgraceful and
immoral conduct for which a government employee is held liable. Nor
is there an allegation that the norms of morality with respect to illicit
relations have shifted towards leniency from the time these precedent cases
were decided. The Court finds that there is no such error or shift,
thus we find no reason to deviate from these rulings that such illicit
relationship constitutes “disgraceful and immoral conduct” punishable under the
Civil Service Law. Respondent having admitted the alleged immoral conduct, she,
like the respondents in the above-cited cases, could be held administratively
liable. However, there is a distinguishing factor that sets the case at
bar apart from the cited precedents, i.e., as a defense, respondent invokes
religious freedom since her religion, the Jehovah’s Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the
church’s religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in
the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago
and the separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant
case. A discussion on morality is in order.
At base, morality refers to, in Socrates’ words, “how we
ought to live” and why. Any definition of morality beyond Socrates’
simple formulation is bound to offend one or another of the many rival theories
regarding what it means to live morally.[413] The
answer to the question of how we ought to live necessarily considers that man
does not live in isolation, but in society. Devlin posits that a
society is held together by a community of ideas, made up not only of political
ideas but also of ideas about the manner its members should behave and govern
their lives. The latter are their morals; they constitute the public
morality. Each member of society has ideas about what is good and
what is evil. If people try to create a society wherein there is no
fundamental agreement about good and evil, they will fail; if having
established the society on common agreement, the agreement collapses, the
society will disintegrate. Society is kept together by the invisible
bonds of common thought so that if the bonds are too loose, the members would
drift apart. A common morality is part of the bondage and the
bondage is part of the price of society; and mankind, which needs society, must
pay its price.[414] This
design is parallel with the social contract in the realm of politics: people
give up a portion of their liberties to the state to allow the state to protect
their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their liberties and
embody this agreement in a constitution, hence referred to as the fundamental
law of the land. A complete break of this fundamental agreement such
as by revolution destroys the old order and creates a new one.[415] Similarly,
in the realm of morality, the breakdown of the fundamental agreement about the
manner a society’s members should behave and govern their lives would
disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and other
essential institutions.[416] From
these propositions of Devlin, one cannot conclude that Devlin negates diversity
in society for he is merely saying that in the midst of this diversity, there
should nevertheless be a “fundamental agreement about good and evil” that will
govern how people in a society ought to live. His propositions, in
fact, presuppose diversity hence the need to come to an agreement; his position
also allows for change of morality from time to time which may be brought about
by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be
amended from time to time. Hart’s argument propounded in Mr. Justice
Vitug’s separate opinion that, “Devlin’s view of people living in a single
society as having common moral foundation (is) overly simplistic” because
“societies have always been diverse” fails to recognize the necessity of
Devlin’s proposition in a democracy. Without fundamental agreement
on political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.
In a democracy, this common agreement on political and
moral ideas is distilled in the public square. Where citizens are
free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order
of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens
have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic
governance.[417]Thus,
when public deliberation on moral judgments is finally crystallized into law,
the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups.[418] Nevertheless,
in the very act of adopting and accepting a constitution and the limits it
specifies -- including protection of religious freedom “not only for a
minority, however small- not only for a majority, however large- but for each
of us” -- the majority imposes upon itself a self-denying
ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.[419] In
the realm of religious exercise, benevolent neutrality that gives
room for accommodation carries out this promise, provided the
compelling interests of the state are not eroded for the preservation of the
state is necessary to the preservation of religious liberty. That is
why benevolent neutrality is necessary in a pluralistic society such
as the United States and the Philippines to accommodate those minority
religions which are politically powerless. It is not surprising
that Smith is much criticized for it blocks the judicial recourse of
the minority for religious accommodations.
The laws enacted become expressions of public
morality. As Justice Holmes put it, “(t)he law is the witness and
deposit of our moral life.”[420] “In
a liberal democracy, the law reflects social morality over a period of time.”[421] Occasionally
though, a disproportionate political influence might cause a law to be enacted
at odds with public morality or legislature might fail to repeal laws embodying
outdated traditional moral views.[422] Law
has also been defined as “something men create in their best moments to protect
themselves in their worst moments.”[423] Even
then, laws are subject to amendment or repeal just as judicial pronouncements
are subject to modification and reversal to better reflect the public morals of
a society at a given time. After all, “the life of the law...has
been experience,” in the words of Justice Holmes. This is not to say
though that law is all of morality. Law deals with the minimum
standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of
avoiding punishment under the law does not meet the higher moral standards set
by society for him to be called a morally upright person.[424] Law
also serves as “a helpful starting point for thinking about a proper or ideal
public morality for a society”[425] in
pursuit of moral progress.
In Magno v. Court of Appeals, et al.,[426] we
articulated the relationship between law and public morality. We
held that under the utilitarian theory, the “protective theory” in criminal
law, “criminal law is founded upon the moral disapprobation x x x of
actions which are immoral, i.e., which are detrimental (or dangerous)
to those conditions upon which depend the existence and progress of human
society. This disapprobation is inevitable to the extent that morality
is generally founded and built upon a certain concurrence in the moral opinions
of all. x x x That which we call punishment is only an external means of
emphasizing moral disapprobation: the method of punishment is in reality the
amount of punishment.”[427] Stated
otherwise, there are certain standards of behavior or moral principles which
society requires to be observed and these form the bases of criminal
law. Their breach is an offense not only against the person injured
but against society as a whole.[428] Thus,
even if all involved in the misdeed are consenting parties, such as in the case
at bar, the injury done is to the public morals and the public interest in the
moral order.[429] Mr.
Justice Vitug expresses concern on this point in his separate
opinion. He observes that certain immoral acts which appear private
and not harmful to society such as sexual congress “between a man and a
prostitute, though consensual and private, and with no injured third party,
remains illegal in this country.” His opinion asks whether these laws on
private morality are justified or they constitute impingement on one’s freedom
of belief. Discussion on private morality, however, is not material
to the case at bar for whether respondent’s conduct, which constitutes
concubinage,[430] is
private in the sense that there is no injured party or the offended spouse
consents to the concubinage, the inescapable fact is that the legislature has
taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality
of this law is not being raised in the case at bar. In the
definition of the crime of concubinage, consent of the injured party, i.e., the
legal spouse, does not alter or negate the crime unlike in 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.
Not every moral wrong is foreseen and punished by law,
criminal or otherwise. We recognized this reality in Velayo, et
al. v. Shell Co. of the Philippine Islands, et al., where we explained
that for those wrongs which are not punishable by law, Articles 19 and 21 in
Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human
Relations, provide for the recognition of the wrong and the concomitant
punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of
his rights and in the performance of his duties, act with justice, give
everyone his due and observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury
to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission’s
comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule
is approved (as it was approved), would vouchsafe adequate legal remedy for
that untold numbers of moral wrongs which is impossible for human
foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article
obliterate the boundary line between morality and law? The answer is
that, in the last analysis, every good law draws its breath of life from
morals, from those principles which are written with words of fire in the
conscience of man. If this premise is admitted, then the proposed
rule is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages. When it is
reflected that while codes of law and statutes have changed from age to age,
the conscience of man has remained fixed to its ancient moorings, one can
not but feel that it is safe and salutary to transmute, as far as may be, moral
norms into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful
consequence upon the social order than that a person may with impunity cause
damage to his fellow-men so long as he does not break any law of the State,
though he may be defying the most sacred postulates of
morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.
A provision similar to the one under consideration is
embodied in article 826 of the German Civil Code.[433] (emphases
supplied)
The public morality expressed in the law is necessarily
secular for in our constitutional order, the religion clauses prohibit the
state from establishing a religion, including the morality it
sanctions. Religious morality proceeds from a person’s “views of his
relations to His Creator and to the obligations they impose of reverence to His
being and character and obedience to His Will,” in accordance with this Court’s
definition of religion in American Bible Society citing Davis. Religion
also dictates “how we ought to live” for the nature of religion is not just to
know, but often, to act in accordance with man’s “views of his relations to His
Creator.”[434] But
the Establishment Clause puts a negative bar against establishment of this
morality arising from one religion or the other, and implies the affirmative
“establishment” of a civil order for the resolution of public moral
disputes. This agreement on a secular mechanism is the price of
ending the “war of all sects against all”; the establishment of a secular
public moral order is the social contract produced by religious truce.[435]
Thus, when the law speaks of “immorality” in the Civil
Service Law or “immoral” in the Code of Professional Responsibility for lawyers[436],
or “public morals” in the Revised Penal Code,[437] or
“morals” in the New Civil Code,[438] or
“moral character” in the Constitution,[439] the
distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind.[440] The
morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. “Religious
teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in
secular terms.”[441] Otherwise,
if government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some
might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a “compelled religion,” anathema to religious
freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also
tacitly disapprove contrary religious or non-religious views that would not
support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of
religion; governmental reliance upon religious justification is inconsistent
with this policy of neutrality.[442]
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 inChurch of the Lukumi Babalu Aye, Inc. where the U.S. Supreme
Court invalidated an ordinance prohibiting animal sacrifice of the
Santeria. Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine
constitution’s religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strives to
uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitug’s separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, “(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to protect
the interests of the larger society. It is only where their rigid
application would serve to obliterate the value which society seeks to uphold,
or defeat the purpose for which they are enacted would, a departure be
justified.” In religion clause parlance, the separate opinion holds
that laws of general applicability governing morals should have a secular
purpose of directly or indirectly protecting the interests of the
state. If the strict application of these laws (which are the Civil
Service Law and the laws on marriage) would erode the secular purposes of the
law (which the separate opinion identifies as upholding the sanctity of
marriage and the family), then in a benevolent neutrality framework,
anaccommodation of the unconventional religious belief and practice (which
the separate opinion holds should be respected on the ground of freedom of
belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging Faithfulness
that makes the union binding and honorable before God and men, is required by
the Free Exercise Clause. The separate opinion then makes a
preliminary discussion of the values society seeks to protect in adhering to
monogamous marriage, but concludes that these values and the purposes of the
applicable laws should be thoroughly examined and evidence in relation thereto
presented in the OCA. The accommodation approach in the
case at bar would also require a similar discussion of these values and
presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the
unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as
expressed - albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because the jurisdiction of the Court
extends only to public and secular morality. Whatever pronouncement
the Court makes in the case at bar should be understood only in this realm
where it has authority. More concretely, should the Court declare respondent’s
conduct as immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is reprehensible or
there are state interests overriding her religious freedom. For as
long as her conduct is being judged within this realm, she will be accountable
to the state. But in so ruling, the Court does not and cannot say
that her conduct should be made reprehensible in the realm of her church where
it is presently sanctioned and that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances,
public morality is not offended or that upholding her religious freedom is an
interest higher than upholding public morality thus her conduct should not be
penalized. But the Court is not ruling that the tenets and practice
of her religion are correct nor that other churches which do not allow
respondent’s conjugal arrangement should likewise allow such conjugal
arrangement or should not find anything immoral about it and therefore members
of these churches are not answerable for immorality to their Supreme
Being. The Court cannot speak more than what it has authority to
say. In Ballard, the U.S. Supreme Court held that courts cannot
inquire about the truth of religious beliefs. Similarly, in Fonacier,
this Court declared that matters dealing with “faith, practice, doctrine, form
of worship, ecclesiastical law, custom and rule of a church…are unquestionably
ecclesiastical matters which are outside the province of the civil courts.”[444] But
while the state, including the Court, accords such deference to religious
belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that
when religious belief flows into speech and conduct that step out of the
religious sphere and overlap with the secular and public realm, the state has
the power to regulate, prohibit and penalize these expressions and embodiments
of belief insofar as they affect the interests of the state. The
state’s inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American history
narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality
and religious morality, the more difficult task is determining which immoral
acts under this public and secular morality fall under the phrase “disgraceful
and immoral conduct” for which a government employee may be held
administratively liable. The line is not easy to draw for it is like
“a line that divides land and sea, a coastline of irregularities and
indentations.”[445] But
the case at bar does not require us to comprehensively delineate between those
immoral acts for which one may be held administratively liable and those to
which administrative liability does not attach. We need not concern
ourselves in this case therefore whether “laziness, gluttony, vanity,
selfishness, avarice and cowardice” are immoral acts which constitute grounds
for administrative liability. Nor need we expend too much energy
grappling with the propositions that not all immoral acts are illegal or not
all illegal acts are immoral, or different jurisdictions have different
standards of morality as discussed by the dissents and separate opinions,
although these observations and propositions are true and
correct. It is certainly a fallacious argument that because there
are exceptions to the general rule that the “law is the witness and deposit of
our moral life,” then the rule is not true; in fact, that there are exceptions
only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that
there is morality in a particular jurisdiction; without, however, discounting
the truth that underneath the moral relativism are certain moral absolutes such
as respect for life and truth-telling, without which no society will
survive. Only one conduct is in question before this Court, i.e.,
the conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both immoral
and illegal. Lest the Court inappropriately engage in the impossible
task of prescribing comprehensively how one ought to live, the Court must focus
its attention upon the sole conduct in question before us.
In interpreting “disgraceful and immoral conduct,” the
dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of
morality and stated that the “ascertainment of what is moral or immoral calls
for the discovery of contemporary community standards” but did not articulate
how these standards are to be ascertained. Instead, it held that,
“(f)or those in the service of the Government, provisions of law and court
precedents . . . have to be considered.” It identified the Civil
Service Law and the laws on adultery and concubinage as laws which respondent’s
conduct has offended and cited a string of precedents where a government
employee was found guilty of committing a “disgraceful and immoral conduct” for
maintaining illicit relations and was thereby penalized. As stated
above, there is no dispute that under settled jurisprudence, respondent’s
conduct constitutes “disgraceful and immoral conduct.” However, the
cases cited by the dissent do not involve the defense of religious freedom
which respondent in the case at bar invokes. Those cited cases
cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago’s dissent also cites Cleveland
v. United States[446] in
laying down the standard of morality, viz: “(w)hether an act is immoral
within the meaning of the statute is not to be determined by respondent’s concept
of morality. The law provides the standard; the offense is complete
if respondent intended to perform, and did in fact perform, the act which it
condemns.” The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of
“any woman or girl for the purpose of prostitution or debauchery, or for any
other immoral purpose.”[447] The
resolution of that case hinged on the interpretation of the phrase “immoral
purpose.” The U.S. Supreme Court held that the petitioner Mormons’
act of transporting at least one plural wife whether for the purpose of
cohabiting with her, or for the purpose of aiding another member of their
Mormon church in such a project, was covered by the phrase “immoral
purpose.” In so ruling, the Court relied on Reynolds which
held that the Mormons’ practice of polygamy, in spite of their defense of
religious freedom, was “odious among the northern and western nations of
Europe,”[448] “a
return to barbarism,”[449] “contrary
to the spirit of Christianity and of the civilization which Christianity has
produced in the Western world,”[450] and
thus punishable by law.
The Cleveland standard, however, does not throw
light to the issue in the case at bar. The pronouncements of the
U.S. Supreme Court that polygamy is intrinsically “odious” or “barbaric” do not
apply in the Philippines where Muslims, by law, are allowed to practice
polygamy. Unlike in Cleveland, there is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a
member of the Jehovah’s Witnesses under the same circumstances as respondent
will not prevail over the laws on adultery, concubinage or some other
law. We cannot summarily conclude therefore that her conduct is
likewise so “odious” and “barbaric” as to be immoral and punishable by law.
While positing the view that the resolution of the case at
bar lies more on determining the applicable moral standards and less on
religious freedom, Mme. Justice Ynares-Santiago’s dissent nevertheless
discussed respondent’s plea of religious freedom and disposed of this defense
by stating that “(a) clear and present danger of a substantive evil,
destructive to public morals, is a ground for the reasonable regulation of the
free exercise and enjoyment of religious profession. (American Bible Society v.
City of Manila, 101 Phil. 386 [1957]). In addition to the destruction
of public morals, the substantive evil in this case is the tearing down of
morality, good order, and discipline in the judiciary.” However, the
foregoing discussion has shown that the “clear and present danger” test that is
usually employed in cases involving freedom of expression is not appropriate to
the case at bar which involves purely religious conduct. The dissent also
cites Reynolds in supporting its conclusion that respondent is guilty
of “disgraceful and immoral conduct.” The Reynolds ruling, however,
was reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above,
Philippine jurisdiction adopts benevolent neutrality in interpreting
the religion clauses.
In the same vein, Mr. Justice Carpio’s dissent which
employs strict neutrality does not reflect the constitutional intent of
employing benevolent neutrality in interpreting the Philippine
religion clauses. His dissent avers that respondent should be held
administratively liable not for “disgraceful and immoral conduct” but “conduct
prejudicial to the best interest of the service” as she is a necessary
co-accused of her partner in concubinage. The dissent stresses that
being a court employee, her open violation of the law is prejudicial to the
administration of justice. Firstly, the dissent offends due process as
respondent was not given an opportunity to defend herself against the charge of
“conduct prejudicial to the best interest of the service.” In addition,
there is no evidence of the alleged prejudice to the best interest of the
service. Most importantly, the dissent concludes that respondent’s
plea of religious freedom cannot prevail without so much as employing a test
that would balance respondent’s religious freedom and the state’s interest at
stake in the case at bar. The foregoing discussion on the doctrine
of religious freedom, however, shows that with benevolent neutrality as
a framework, the Court cannot simply reject respondent’s plea of religious freedom
without even subjecting it to the “compelling state interest” test that would
balance her freedom with the paramount interests of the state. The
strict neutrality employed in the cases the dissent cites -Reynolds, Smith and
People v. Bitdu decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid
Lambayong v. Judge Nabdar J. Malik[451] cited
in Mr. Justice Carpio’s dissent decisive of the immorality issue in the case at
bar. In that case, the Court dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with another
woman with whom he had three children because “it (was) not ‘immoral’ by Muslim
standards for Judge Malik to marry a second time while his first marriage
(existed).” Putting the quoted portion in its proper context would
readily show that the Sulu Islamic case does not provide a precedent
to the case at bar. Immediately prior to the portion quoted by the
dissent, the Court stressed, viz: “(s)ince Art. 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides that the
penal laws relative to the crime of bigamy ‘shall not apply to a person married x
x x under Muslim Law,’ it is not ‘immoral’ by Muslim standards for Judge Malik
to marry a second time while his first marriage exists.”[452] It
was by law, therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general standards
of morality. The constitutionality of P.D. No. 1083 when measured
against the Establishment Clause was not raised as an issue in the Sulu
Islamic case. Thus, the Court did not determine whether P.D. No.
1083 suffered from a constitutional infirmity and instead relied on the
provision excepting the challenged Muslim conduct from the crime of bigamy in
holding that the challenged act is not immoral by Muslim
standards. In contradistinction, in the case at bar, there is no
similar law which the Court can apply as basis for treating respondent’s
conduct as an exception to the prevailing jurisprudence on illicit relations of
civil servants. Instead, the Free Exercise Clause is being invoked
to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now
subject the respondent’s claim of religious freedom to the “compelling
state interest” test from a benevolent neutrality stance - i.e.
entertaining the possibility that respondent’s claim to religious freedom would
warrant carving out an exception from the Civil Service Law; necessarily, her
defense of religious freedom will be unavailing should the government succeed
in demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether
respondent’s right to religious freedom has been burdened. There is
no doubt that choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and giving up her
employment and keeping her religious practice and family on the other hand,
puts a burden on her free exercise of religion. In Sherbert, the
Court found that Sherbert’s religious exercise was burdened as the denial of
unemployment benefits “forces her to choose between following the precepts of
her religion and forfeiting benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept work, on the other
hand.” The burden on respondent in the case at bar is even greater
as the price she has to pay for her employment is not only her religious
precept but also her family which, by the Declaration Pledging Faithfulness,
stands “honorable before God and men.”
The second step is to ascertain respondent’s sincerity in
her religious belief. Respondent appears to be sincere in her
religious belief and practice and is not merely using the “Declaration of
Pledging Faithfulness” to avoid punishment for immorality. She did
not secure the Declaration only after entering the judiciary where the moral
standards are strict and defined, much less only after an administrative case
for immorality was filed against her. The Declaration was issued to
her by her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary. Ministers
from her congregation testified on the authenticity of the Jehovah’s Witnesses’
practice of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not
whimsically issued to avoid legal punishment for illicit conduct but to make
the “union” of their members under respondent’s circumstances “honorable before
God and men.” It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters[453] of
the OCA to the respondent regarding her request to be exempt from attending the
flag ceremony after Circular No. 62-2001 was issued requiring attendance in the
flag ceremony. The OCA’s letters were not submitted by respondent as
evidence but annexed by the investigating judge in explaining that he was
caught in a dilemma whether to find respondent guilty of immorality because the
Court Administrator and Deputy Court Administrator had different positions
regarding respondent’s request for exemption from the flag ceremony on the
ground of the Jehovah’s Witnesses’ contrary belief and
practice. Respondent’s request for exemption from the flag ceremony
shows her sincerity in practicing the Jehovah’s Witnesses’ beliefs and not
using them merely to escape punishment. She is a practicing member
of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a
member in good standing. Nevertheless, should the government, thru
the Solicitor General, want to further question the respondent’s sincerity and
the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar
from its incipience until this point.
In any event, even if the Court deems sufficient respondent’s
evidence on the sincerity of her religious belief and its centrality in her
faith, the case at bar cannot still be decided using the “compelling state
interest” test. The case at bar is one of first impression, thus
the parties were not aware of the burdens of proof they should discharge in the
Court’s use of the “compelling state interest” test. We note that
the OCA found respondent’s defense of religious freedom unavailing in the face
of the Court’s ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is
mirrored in the conduct, official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel. Court
personnel have been enjoined to adhere to the exacting standards of morality
and decency in their professional and private conduct in order to preserve the
good name and integrity of the courts of justice.
It is apparent from the OCA’s reliance upon this ruling
that the state interest it upholds is the preservation of the integrity of the
judiciary by maintaining among its ranks a high standard of morality and
decency. However, there is nothing in the OCA’s memorandum to the
Court that demonstrates how this interest is so compelling that it should override
respondent’s plea of religious freedom nor is it shown that the means employed
by the government in pursuing its interest is the least restrictive to
respondent’s religious exercise.
Indeed, it is inappropriate for the complainant, a
private person, to present evidence on the compelling interest of the
state. The burden of evidence should be discharged by the proper
agency of the government which is the Office of the Solicitor
General. To properly settle the issue in the case at bar, the government
should be given the opportunity to demonstrate the compelling state interest it
seeks to uphold in opposing the respondent’s stance that her conjugal
arrangement is not immoral and punishable as it comes within the scope of free
exercise protection. Should the Court prohibit and punish her conduct
where it is protected by the Free Exercise Clause, the Court’s action would be
an unconstitutional encroachment of her right to religious freedom.[454] We
cannot therefore simply take a passing look at respondent’s claim of religious
freedom, but must instead apply the “compelling state interest”
test. The government must be heard on the issue as it has not been
given an opportunity to discharge its burden of demonstrating the state’s
compelling interest which can override respondent’s religious belief and
practice. To repeat, this is a case of first impression where we are
applying the “compelling state interest” test in a case involving purely
religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference in
the life of the respondent who stands not only before the Court but before her
Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to
the Office of the Court Administrator. The Solicitor General is
ordered to intervene in the case where it will be given the opportunity (a) to
examine the sincerity and centrality of respondent’s claimed religious belief
and practice; (b) to present evidence on the state’s “compelling interest” to
override respondent’s religious belief and practice; and (c) to show that the
means the state adopts in pursuing its interest is the least restrictive to
respondent’s religious freedom. The rehearing should be concluded
thirty (30) days from the Office of the Court Administrator’s receipt of this
Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga,
JJ., concur.
Panganiban, Carpio-Morales, and Callejo, Sr.,
JJ., joins the dissenting opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on
official leave.
[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.
[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.
[7] Id. at
19-26; TSN, October 12, 2000, pp. 3-10.
[8] Id. at
101.
[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.
[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.
[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.
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). .
. 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. . . It could contain a
statement such as the following:
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.”
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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[47] Pfeffer,
L., supra, p. 23.
[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 Chrisitianity,” in
Essays on Freedom and Power (1949), p. 103.
[51] Pfeffer,
L., supra, pp. 24-25.
[52] Pfeffer,
L., supra, p. 26, citing Stokes, I, p. 100.
[53] Greene,
E., supra, p. 9.
[54] Pfeffer,
L., supra, p. 26, citing Stokes, I, p. 113.
[55] Pfeffer,
L., supra, p. 26.
[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.
[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.
[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. 73.)
[71] Grossman,
J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making, Second
Edition (1980), p. 1276.
[72] Pfeffer,
L., supra, pp. 96.
[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.
[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.
[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 Humphrey, E.F., Nationalism and Religion in
America, 1774-1789 (1924), pp. 368-369.
[85] Pfeffer,
L., supra, p. 103.
[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.
[89] Pfeffer,
L., supra, p. 104, citing Laski, H.J., The Ameican 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.
[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.
[98] Id. at
74-75.
[99] Beth,
L., supra, p. 63.
[100] Id at
63-65.
[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.
[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.
[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.
[108] Beth,
L., supra, p. 71.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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).
[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).
[153] 322
U.S. 78, 86 (1944).
[154] 310
U.S. 296 (1940).
[155] Id. at
310.
[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.
[166] Id. at
639.
[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).
[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.
[175] Lupu,
I., supra, p. 1105, 1110.
[176] McCoy,
T., supra, p. 1335, 1346-1347.
[177] 450
U.S. 707 (1981).
[178] 480
U.S. 136 (1987).
[179] 455
U.S. 252 (1982).
[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).
[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.
[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.
[204] 403
U.S. 602 (1971).
[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).
[208] 374
U.S. 203 (1963).
[209] Id.
[210] Id. at
222.
[211] Witt,
E. (ed.), supra, p. 93.
[212] 472
U.S. 38 (1985).
[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.
[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.
[251] Smith,
S., supra, p. 149, 159.
[252] Drakeman, supra,
p. 54.
[253] Grossman,
J.B. and Wells, R.S., supra, p. 1276.
[254] Smith,
S., supra, p. 149, 159.
[255] Id. at
149, 159-160.
[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 Détente in Church-State Relations”, 55 North Carolina Law Review (April
1977), 563-75.
[258] Buzzard,
L., Ericsson, S., supra, p. 51.
[259] Walz v.
Tax Commission, 397 U.S. 664 (1970), p. 669.
[260] Buzzard,
L., Ericsson, S., supra, p. 61.
[261] Zorach v.
Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262] Kelley,
D., supra, p. 34.
[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. xxvii, 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).
[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.
[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.
[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.
[280] Id. at
633.
[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.
[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.
[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.
[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.
[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.
[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).
[309] Id. at 208,
citing Lewis, B., Islam and the West 3 (1993).
[310] 64
Phil 201 (1937).
[311] 101
Phil. 386 (1957).
[312] Bernas,
Constitutional Rights and Social Demands, Part II, p. 268.
[313] 106
Phil. 2 (1959).
[314] Id. at
9-10.
[315] Bernas,
J., The Constitution of the Republic of the Philippines: A Commentary (1987),
p. 225, Footnote 38.
[316] 319
U.S. 103.
[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.
[329] 64
Phil 201.
[330] 392
US 236.
[331] Victoriano v.
Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332] Id. at
75.
[333] Id.
[334] 61
SCRA 93 (1974).
[335] 80
SCRA 350 (1977).
[336] 139
SCRA 30 (1985).
[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.
[339] German, et
al. v. Barangan, et al., 135 SCRA 514 (1985).
[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.
[342] Id. at
270-271.
[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).
[352] Id.
[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.
[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.
[367] 96
Phil 417 (1955), p. 426.
[368] Id. at
441, citing American authorities.
[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.
[373] Victoriano v.
Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
[374] Drakeman,
D., supra, p. 127.
[375] Buzzard,
L. and Ericsson, S., supra, p. 75.
[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.
[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.
[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.
[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.
[389] Aglipay v.
Ruiz, supra, p. 206.
[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.
[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.
[405] Neuhaus,
R., supra, p. 630.
[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.
[408] Carter,
S., supra, pp. 140-142.
[409] Cruz,
I., Constitutional Law (1995), p. 178.
[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).
[412] 305
SCRA 469 (1999).
[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.
[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.
[430] Article
334 of the Revised Penal Code provides, viz:
“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.
[432] Rule
110 of the Revised Rules of Criminal Procedure, as amended provides in relevant
part, viz:
“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.
[435] Sullivan,
K., supra, pp. 197-198.
[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:
“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.
Article 1409. The following contracts are
inexistent and void from the beginning:
(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:
All educational institutions shall include the study of
the Constitution as part of the curricula.
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.
[441] Sullivan,
K., supra, p. 196.
[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.
[446] 329
U.S. 14 (1946).
[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.
[451] 226
SCRA 193 (1993).
[452] Id. at
199.
[453] Annexes
“A” and “B” of the Report and Recommendation of Executive Judge Bonifacio Sanz
Maceda.
[454] Cruz,
I., supra, p. 176.
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