A legal wifes right over her husbands dead body: Valino vs Adriano (GR 182894, 22

April 2014)
Even if a deceased person has validly expressed his wish to be buried at the mausoleum of his paramours
family, the deceaseds legal wife has the legal right to bury the deceased elsewhere, because the deceaseds
wishes are compulsory only with respect to the form of his funeral this was arguably the gist of the
Supreme Courts En Banc Decision (speaking through Justice Jose Catral Mendoza) in the case of Valino vs
Adriano (GR 182894, 22 April 2014), with a dissent by Justice Marvic Mario Victor F. Leonen (joined by Justice
Roberto A. Abad).
The facts of the case as stated in the Decision are as follows:
Atty. Adriano Adriano (Atty. Adriano), a partner in the Pelaez Adriano and Gregorio Law Office, married
respondent Rosario Adriano(Rosario) on November 15, 1955. The couple had two (2) sons, Florante and
Ruben Adriano; three (3) daughters, Rosario, Victoria and Maria Teresa; and one (1) adopted daughter, Leah
Antonette. The marriage of Atty. Adriano and Rosario, however, turned sour and they were eventually
separated-in-fact. Years later, Atty. Adriano courted Valino, one of his clients, until they decided to live together
as husband and wife. Despite such arrangement, he continued to provide financial support to Rosario and their
children (respondents). In 1992, Atty. Adriano died of acute emphysema. At that time, Rosario was in the United
States spending Christmas with her children. As none of the family members was around, Valino took it upon
herself to shoulder the funeral and burial expenses for Atty. Adriano. When Rosario learned about the death of
her husband, she immediately called Valino and requested that she delay the interment for a few days but her
request was not heeded. The remains of Atty. Adriano were then interred at the mausoleum of the family of
Valino at the Manila Memorial Park. Respondents were not able to attend the interment. Claiming that they
were deprived of the chance to view the remains of Atty. Adriano before he was buried and that his burial at the
Manila Memorial Park was contrary to his wishes, respondents commenced suit against Valino praying that
they be indemnified for actual, moral and exemplary damages and attorneys fees and that the remains of Atty.
Adriano be exhumed and transferred to the family plot at the Holy Cross Memorial Cemetery in Novaliches,
Quezon City. In her defense, Valino countered that Rosario and Atty. Adriano had been separated for more than
twenty (20) years before he courted her. Valino claimed that throughout the time they were together, he had
introduced her to his friends and associates as his wife. Although they were living together, Valino admitted that
he never forgot his obligation to support the respondents. She contended that, unlike Rosario, she took good
care of Atty. Adriano and paid for all his medical expenses when he got seriously ill. She also claimed that
despite knowing that Atty. Adriano was in a coma and dying, Rosario still left for the United States. According to
Valino, it was Atty. Adrianos last wish that his remains be interred in the Valino family mausoleum at the Manila
Memorial Park. Valino further claimed that she had suffered damages as result of the suit brought by
respondents. Thus, she prayed that she be awarded moral and exemplary damages and attorneys fees.
The RTC dismissed the complaint of respondents for lack of merit as well as the counterclaim of Valino after it
found them to have not been sufficiently proven.
xxx
On appeal, the CA reversed and set aside the RTC decision and directed Valino to have the remains of Atty.
Adriano exhumed at the expense of respondents. It likewise directed respondents, at their expense, to transfer,
transport and inter the remains of the decedent in the family plot at the Holy Cross Memorial Park in
Novaliches, Quezon City.
According to the Court, the lone legal issue in this petition is who between Rosario and Valino is entitled to the
remains of Atty. Adriano. In affirming the Court of Appeals decision, the Supreme Court reasoned as follows:
First, the Supreme Court held that it is clear that the law gives the right and duty to make funeral arrangements
to Rosario, she being the surviving legal wife of Atty. Adriano. Quote:
Article 305 of the Civil Code, in relation to what is now Article 199 [6][Formerly Article 294a of the New Civil Code] of the Family
Code, specifies the persons who have the right and duty to make funeral arrangements for the deceased.
Thus:
Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with
the order established for support, under Article 294. In case of descendants of the same degree, or of brothers

and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.
[Emphases supplied]
Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the
following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
[Emphasis supplied]
Further, Article 308 of the Civil Code provides:
Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the
persons mentioned in Articles 294 and 305. [Emphases supplied]
In this connection, Section 1103 of the Revised Administrative Code provides:
Section 1103. Persons charged with the duty of burial. The immediate duty of burying the body of a
deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons
herein below specified:
(a) If the deceased was a married man or woman, the duty of the burial shall devolve upon the surviving
spouse if he or she possesses sufficient means to pay the necessary expenses;
x x x x. [Emphases supplied]
From the aforecited provisions, it is undeniable that the law simply confines the right and duty to make funeral
arrangements to the members of the family to the exclusion of ones common law partner. In Tomas Eugenio
Sr. v. Velez,[7][263 Phil. 1149 (1990)] a petition for habeas corpus was filed by the brothers and sisters of the late Vitaliana
Vargas against her lover, Tomas Eugenio, Sr., alleging that the latter forcibly took her and confined her in his
residence. It appearing that she already died of heart failure due to toxemia of pregnancy, Tomas Eugenio, Sr.
sought the dismissal of the petition for lack of jurisdiction and claimed the right to bury the deceased, as the
common-law husband.
In its decision, the Court resolved that the trial court continued to have jurisdiction over the case
notwithstanding the death of Vitaliana Vargas. As to the claim of Tomas Eugenio, Sr. that he should be
considered a spouse having the right and duty to make funeral arrangements for his common-law wife, the
Court ruled:
x x x Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally
married who cohabit for many years as husband and wife, who represent themselves to the public as husband
and wife, and who are reputed to be husband and wife in the community where they live may be considered
legally married in common law jurisdictions but not in the Philippines.
While it is true that our laws do not just brush aside the fact that such relationships are present in our society,
and that they produce a community of properties and interests which is governed by law, authority exists in
case law to the effect that such form of co-ownership requires that the man and woman living together coownership requires that the man and woman living together must not in any way be incapacitated to contract
marriage. In any case, herein petitioner has a subsisting marriage with another woman, a legal impediment
which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, the Court, thru Mr.
Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During
Liquidation of Inventoried Property) stated: Be it noted, however, that with respect to spouse, the same
must be the legitimate spouse (not common-law spouses).
There is a view that under Article 332 of the Revised Penal Code, the term spouse embraces common law
relation for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief
committed or caused mutually by spouses. The Penal Code article, it is said, makes no distinction between a
couple whose cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de
facto. But this view cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil

Code, unless expressly providing to the contrary as in Article 144, when referring to a spouse contemplate
a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he
was not legally capacitated to marry her in her lifetime. [8][Id. at 1158-1159][Emphases supplied]
As applied to this case, it is clear that the law gives the right and duty to make funeral arrangements to Rosario,
she being the surviving legal wife of Atty. Adriano.
The Supreme Court elaborated on what constitutes a valid waiver on part of the legal wife to make the
husbands funeral arrangement, emphasizing that long de facto separation cannot per se constitute a valid
waiver. Quote:
The fact that she was living separately from her husband and was in the United States when he died has no
controlling significance. To say that Rosario had, in effect, waived or renounced, expressly or impliedly, her right
and duty to make arrangements for the funeral of her deceased husband is baseless. The right and duty to
make funeral arrangements, like any other right, will not be considered as having been waived or
renounced, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent
to that end.[9][See Marawi Marantao General Hospital, Inc. v. CA , 402 Phil. 356, 369 (2001). See also Thomson v. CA, 358 Phil. 761, 778,
(1998);
Gatchalian v. Delim, G.R. No. 56487, October 21, 1991, 203 SCRA 126, 132; Yepes v. Samar Express Transit, 123 Phil. 948, 949
(1966);
Andres v. The Crown Life Insurance Co. , 102 Phil. 919, 924(1958); Lang v. Acting Provincial Sheriff of Surigao , 93 Phil. 661,
669 (1953); and
Fernandez v. Sebido, 70 Phil. 151, 159 (1940).] While there was disaffection between Atty. Adriano and Rosario
and their children when he was still alive, the Court also recognizes that human compassion, more often than
not, opens the door to mercy and forgiveness once a family member joins his Creator. Notably, it is an
undisputed fact that the respondents wasted no time in making frantic pleas to Valino for the delay of the
interment for a few days so they could attend the service and view the remains of the deceased. As soon as
they came to know about Atty. Adrianos death in the morning of December 19, 1992 (December 20, 1992 in
the Philippines), the respondents immediately contacted Valino and the Arlington Memorial Chapel to express
their request, but to no avail.
xxx
Moreover, it cannot be surmised that just because Rosario was unavailable to bury her husband when she
died, she had already renounced her right to do so. Verily, in the same vein that the right and duty to make
funeral arrangements will not be considered as having been waived or renounced, the right to deprive a
legitimate spouse of her legal right to bury the remains of her deceased husband should not be readily
presumed to have been exercised, except upon clear and satisfactory proof of conduct indicative of a free and
voluntary intent of the deceased to that end. Should there be any doubt as to the true intent of the
deceased, the law favors the legitimate family. Here, Rosarios keenness to exercise the rights and
obligations accorded to the legal wife was even bolstered by the fact that she was joined by the children in
this case.
The Supreme Court held that the evidence is that the deceased did not express his wishes, so Article 307 of
the Civil Code cannot apply. Quote:
Valino insists that the expressed wishes of the deceased should nevertheless prevail pursuant to Article 307 of
the Civil Code. Valinos own testimony that it was Atty. Adrianos wish to be buried in their family plot is being
relied upon heavily. It should be noted, however, that other than Valinos claim that Atty. Adriano wished to be
buried at the Manila Memorial Park, no other evidence was presented to corroborate such claim. Considering
that Rosario equally claims that Atty. Adriano wished to be buried in the Adriano family plot in Novaliches, it
becomes apparent that the supposed burial wish of Atty. Adriano was unclear and undefinite. Considering this
ambiguity as to the true wishes of the deceased, it is the law that supplies the presumption as to his intent. No
presumption can be said to have been created in Valinos favor, solely on account of a long-time relationship
with Atty. Adriano.
The Supreme Court held that the fact alone that the deceased had been living with the common law wife all
these years, cannot give rise to a presumption that what the common law wife says are the deceaseds wishes,
are indeed the latters wishes. According to the Court, [n]o presumption can be said to have been created in
Valinos favor, solely on account of a long-time relationship with Atty. Adriano. Justice Leonen disagreed,
arguing that:
What [petitioner Fe Floro Valino] asserts is that she was Atty. Adrianos constant companion for a long time
who was constantly by his side, showing him the love and devotion as a wife would have, who took care of him

in his final moments and gave him a proper burial. As such, there is a presumption that she would be in the
best position to relay his final wishes.
xxx
The ponencia also noted there was animosity between Atty. Adriano and respondents when he was still alive.
He and his legal spouse, respondent Rosario, have been separated-in-fact for more than thirty (30) years, and
he has not been in contact with his children, the other respondents, for about the same period of time. They did
not even visit him when he fell ill and was on his deathbed; it was only after he died that they came, asserting
their rights to his remains.
xxx
Upon our death, the law does not cease to respect our earned autonomy. Rather, it gives space for us to
speak through the agency of she who may have sat at our bedside as we suffered through a lingering illness.
I am of the view that it is that love and caring which should be rewarded with the honor of putting us in that
place where we mark our physical presence for the last time and where we will be eternally remembered.
The Supreme Court held that even assuming for arguments sake that the deceased expressed his wishes,
Article 307 of the New Civil Code cannot apply because [see (1) & (2)]:
(1) Article 307 only applies to the form of the funeral rites. With respect to other aspects (such as place of
burial) Article 305 of the New Civil Code will be given primacy and it will be the wishes of those who have the
duty to bury the deceased that will prevail. Quote:
Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the Valino family plot at the
Manila Memorial Park, the result remains the same. Article 307 of the Civil Code provides:
Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of
such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the
form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after
consulting the other members of the family.
From its terms, it is apparent that Article 307 simply seeks to prescribe the form of the funeral rites that should
govern in the burial of the deceased. As thoroughly explained earlier, the right and duty to make funeral
arrangements reside in the persons specified in Article 305 in relation to Article 199 of the Family Code.
At any rate, it should be remembered that the wishes of the decedent with respect to his funeral are not
absolute.
As Dr. Tolentino further wrote:
The dispositions or wishes of the deceased in relation to his funeral must not be contrary to law. They must not
violate the legal and reglamentary provisions concerning funerals and the disposition of the remains, whether
as regards the time and manner of disposition, or the place of burial, or the ceremony to be observed. [11]
[TOLENTINO, I CIVIL CODE OF THE PHILIPPINES, p. 657, citing
Sacred Heart of Jesus v. Soklowski, 159 Minn. 331, 199 N.W. 81; Wilson v. Read, 74
N.H. 322, 68 Atl. 37;
, 20 Pa. 313, 56 Atl. 878.]
Pettigrew v. Pettigrew
[Emphases supplied]
In this case, the wishes of the deceased with respect to his funeral are limited by Article 305 of the Civil
Code in relation to Article 199of the Family Code, and subject the same to those charged with the right and
duty to make the proper arrangements to bury the remains of their loved-one. As aptly explained by the
appellate court in its disquisition:
The testimony of defendant-appellee Fe Floro Valino that it was the oral wish of Atty. Adriano Adriano that he be
interred at the Floro familys mausoleum at the Manila Memorial Park, must bend to the provisions of the law.
Even assuming arguendo that it was the express wish of the deceased to be interred at the Manila Memorial
Park, still, the law grants the duty and the right to decide what to do with the remains to the wife, in this case,
plaintiff- appellant Rosario D. Adriano, as the surviving spouse, and not to defendant-appellee Fe Floro Valino,
who is not even in the list of those legally preferred, despite the fact that her intentions may have been very
commendable. The law does not even consider the emotional fact that husband and wife had, in this case at
bench, been separated-in-fact and had been living apart for more than 30 years. [12][Rollo, p. 43.]
As for Valinos contention that there is no point in exhuming and transferring the remains of Atty. Adriano, it
should be said that the burial of his remains in a place other than the Adriano family plot in Novaliches runs

counter to the wishes of his family. It does not only violate their right provided by law, but it also disrespects the
family because the remains of the patriarch are buried in the family plot of his live-in partner.
With respect to (1), Leonen J disagreed arguing that:
I am of the opinion that Article 305 should only be considered when, first, the deceased left no explicit
instructions on how he wishes to be interred, and second, when none among the deceaseds surviving relations
are willing to make the funeral arrangements and a conflict arises. In these situations, the conflict must be
settled according to the order of preference stated in Article 199. In any other case, it should be the express
wishes of the deceased which should take precedence.
xxx
It is the ponencias opinion that the wishes of the deceased contemplated in Article 307 only governs the form
of the funeral and that the duty and, more specifically, the right to make arrangements for the funeral remains
with the persons specified in Article 305 in relation to Article 199. It is my submission, however, that Article 307
should be interpreted to mean that the right to determine ones funeral, including the right to
determine how and where one wishes to be buried, remains with the deceased, and it is only in the absence of
his express wishes, or in the absence of his religious beliefs and affiliations, or if there is doubt as to his
wishes, that other persons may assume the right to decide the funeral arrangements.
xxx
Part of life is the ability to control how one wishes to be memorialized, and such right should remain with the
deceased. It is only when the deceased has not left any express instructions that the right is given to the
persons specified under the law.
xxx
The law reaches into much of our lives while we live. It constitutes and frames most of our actions. But at the
same time, the law also grants us the autonomy or the space to define who we are. Upon our death, the law
does not cease to respect our earned autonomy.
(2) According to the Supreme Court, it is generally recognized that any inferences as to the wishes of the
deceased should be established by some form of testamentary disposition. Quote:
Even if Article 307 were to be interpreted to include the place of burial among those on which the wishes of
the deceased shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law,
commented that it is generally recognized that any inferences as to the wishes of the deceased should
be established by some form of testamentary disposition.[10][TOLENTINO, I CIVIL CODE OF THE PHILIPPINES, p. 657,
citing
Sheeban v. Commercial Travelers , 283 Mass. 543, 186 N.E. 627; Lindh v. Great Northern, 99 Minn. 408, 109 N.W. 823; Kyles v.
Southern Ry Co., 147 N.C. 394, 61 S.E. 278] As Article 307 itself provides, the wishes of the deceased must
be expressly provided. It cannot be inferred lightly, such as from the circumstance that Atty. Adriano spent
his last remaining days with Valino. It bears stressing once more that other than Valinos claim that Atty. Adriano
wished to be buried at the Valino family plot, no other evidence was presented to corroborate it.
Lastly, the Supreme Court discussed the status of a corpse as beyond the commerce of man vis--vis the
possessory right of individuals who have the right and duty to bury the deceased. Quote:
It is generally recognized that the corpse of an individual is outside the commerce of man. However, the law
recognizes that a certain right of possession over the corpse exists, for the purpose of a decent burial, and for
the exclusion of the intrusion by third persons who have no legitimate interest in it. This quasi-property right,
arising out of the duty of those obligated by law to bury their dead, also authorizes them to take possession of
the dead body for purposes of burial to have it remain in its final resting place, or to even transfer it to a proper
place where the memory of the dead may receive the respect of the living. This is a family right. There can be
no doubt that persons having this right may recover the corpse from third persons. [13][TOLENTINO, I CIVIL CODE OF THE
PHILIPPINES, p. 654, citing 1-I Enneccerus, Kipp & Wolff 548 fn; 1 Valverde 239-240 fn.

Estrada vs Escritor (August 4, 2003)

AM P-02-1651, August 4, 2003

FACTS:
Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. Alejandro Estrada, the complainant,
wrote to Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of Las Pinas City, requesting for an
investigation of rumors that Escritor has been living with Luciano Quilapio Jr., a man not her husband, and had
eventually begotten a son. Escritors husband, who had lived with another woman, died a year before she entered
into the judiciary. On the other hand, Quilapio is still legally married to another woman. Estrada is not related to
either Escritor or Quilapio and is not a resident of Las Pinas but of Bacoor, Cavite. According to the complainant,
respondent should not be allowed to remain employed in the judiciary for it will appear as if the court allows such act.
Escritor is a member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible Tract
Society where her conjugal arrangement with Quilapio is in conformity with their religious beliefs. After ten years of
living together, she executed on July 28, 1991 a Declaration of Pledging Faithfulness which was approved by the
congregation. Such declaration is effective when legal impediments render it impossible for a couple to legalize their
union. Gregorio, Salazar, a member of the Jehovahs Witnesses since 1985 and has been a presiding minister since
1991, testified and explained the import of and procedures for executing the declaration which was completely
executed by Escritor and Quilapios in Atimonan, Quezon and was signed by three witnesses and recorded in Watch
Tower Central Office.
ISSUE:
Whether or not respondent should be found guilty of the administrative charge of gross and immoral conduct and be
penalized by the State for such conjugal arrangement.

HELD:
A distinction between public and secular morality and religious morality should be kept in mind. The jurisdiction of the
Court extends only to public and secular morality.
The Court states that our Constitution adheres the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. This benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling state interests.
The states interest is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard
of morality and decency. There is nothing in the OCAs (Office of the Court Administrator) memorandum to the Court
that demonstrates how this interest is so compelling that it should override respondents plea of religious freedom.
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.
In order to properly settle the case at bar, it is essential that the government be given an opportunity to demonstrate
the compelling state interest it seeks to uphold in opposing the respondents position that her conjugal arrangement is
not immoral and punishable as it is within the scope of free exercise protection. The Court could not prohibit and
punish her conduct where the Free Exercise Clause protects it, since this would be an unconstitutional encroachment
of her right to religious freedom. Furthermore, the court cannot simply take a passing look at respondents claim of
religious freedom but must also apply the compelling state interest test.
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.

EN BANC
[A.M. No. P-02-1651. August 4, 2003]
ALEJANDRO ESTRADA, complainant,
vs. SOLEDAD S. ESCRITOR, respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an
authority higher than the state. To be held on balance are the states interest and the respondents 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 Pias 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 Pias 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). Escritors motion was denied. The preliminary
conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the lettercomplaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias 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 Escritors 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 Jehovahs
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 Gods 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]
Escritors partner, Quilapio, executed a similar pledge on the same day. [11] Both pledges were executed in Atimonan,
Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still 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. Elepao, directed Escritor to comment on the charge against her. In her comment,
Escritor reiterated her religious congregations 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 Gods 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 Pias City for investigation, report and recommendation. In the course
of Judge Macedas 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 congregations 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 (Escritors) husband.[14]
Gregorio Salazar, a member of the Jehovahs 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 Salazars Congregation, the Almanza Congregation in Las Pias, 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 Quilapios 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 Jehovahs Witnesses congregation and is binding
within the congregation all over the world except in countries where divorce is allowed. The Jehovahs 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
couples 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 Escritors and Quilapios declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregations
branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 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 Jehovahs 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 Jehovahs 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 Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the
relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel, that
the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that she
bound herself to seek means to . . . legalize their union. Thus, even assumingarguendo 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 Jehovahs 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 Jehovahs 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. Jehovahs 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
Caesars 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 Gods Son, can be guided by basic Scriptural principles that
hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or the
relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether in
itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives with a wife but also
spends time living with another woman as a concubine. As long as such a state of concubinage 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 ones immediate family, or a homosexual relationship or other such situation
condemned by Gods 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 Gods eyes.
If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do
all one can to establish the honorableness of ones 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 Gods 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 Gods view of the union. Along with this, every effort should be
made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable among
all. Such course will bring Gods 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 complainants 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 Escritors 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 Jehovahs
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. Fernandos 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 Escritors defense of freedom of religion unavailing to warrant dismissal of the
charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that 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 respondents 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 laymans terms, invokes the religious beliefs and practices and
moral standards of her religion, the Jehovahs 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 mans 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 mans 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 Hammurabis 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 Gods 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 ofreligion 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 states 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 emperorworship. 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 emperors 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 states 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 Leos
crowning of Charlemagne, became the churchs 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 13 th 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 17 th 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:
theErastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority
in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers belief that
civic cohesion could not exist without religious unity so that coercion to achieve religious unity was 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 Calvins
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
Tolerationwhich 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
1858when 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 religions 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. Englands 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 ones religion, which impels persecution for the sake of ones 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 Americas 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 selfevident 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 ones 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
magistrates 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 Caesars; 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 Paines 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 Crowns 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 selfevident, 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 states 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 establishments 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 governments 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]Jeffersons religious freedom statute was a milestone in the history of
religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the
First Amendment of the U.S. Constitution had the same objectives and intended to afford the same
protection against government interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area
of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be
deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed
lack of power of Congress to act on any subject not expressly mentioned in the Constitution. [105]However, omission of
an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution.
[106]
In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction
on the Federal Government as regards legislation on religion. [107]Thus, in 1791, this restriction was made explicit with
the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually
referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

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

houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities,
religious organizations complement and compete with commercial enterprises, thus blurring the line between many
types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves
with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and
peace, economic justice, and human life, or in ringing affirmations for racial equality on religious
foundations. Inevitably, these developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity has significantly changed the
environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer
easy for individuals to live solely among their own kind or to shelter their children from exposure to competing
values. The result is disagreement over what laws should require, permit or prohibit; [113] and agreement that if the
rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden
interpretation of the religion clauses that is blind to societal and political realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones arise from a government action
which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion. [115] The
more difficult religion clause cases involve government action with a secular purpose and general applicability which
incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government
actions are referred to as those with burdensome effect on religious exercise even if the government action is not
religiously motivated.[116] Ideally, the legislature would recognize the religions and their practices and would consider
them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are
threatened and burdened turn to the courts for protection. [117] Most of these free exercise claims brought to the Court
are for exemption, not invalidation of the facially neutral law that has a burdensome effect.[118]
With the change in political and social context and the increasing inadvertent collisions between law and
religious exercise, the definition of religion for purposes of interpreting the religion clauses has also beenmodified 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 ones 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 creedsfrom Asia such
as Buddhism and Taoism.[124] In 1961, the Court, in Torcaso v. Watkins,[125] expanded the term religion to nontheistic 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 believers life. Second, the religion must involve a moral code transcending individual belief,
i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not
inquire into the truth or reasonableness of the belief.[127] Fourth, there must be some associational ties,[128] although
there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of
group or sect are entitled to the protection of the Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the
issue of definition, the court then has to draw lines to determine what is or is not permissible under the
religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two
sides of the same coin.[130] In devoting two clauses to religion, the Founders were stating not two opposing thoughts
that would cancel each other out, but two complementary thoughts that apply in different ways in different
circumstances.[131] The purpose of the religion clauses - both in the restriction it imposes on the power of the
government to interfere with the free exercise of religion and the limitation on the power of government to establish,
aid, and support religion - is the protection and promotion of religious liberty.[132] The end, the goal, and the
rationale of the religion clauses is this liberty.[133] Both clauses were adopted to prevent government imposition of
religious orthodoxy; the great evil against which they are directed is government-induced homogeneity. [134] The Free
Exercise Clause directly articulates the common objective of the two clauses and the Establishment
Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar
and for which government historically had demonstrated a propensity. [135] In other words, free exercise is the end,
proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from
whatever religion is established.[136] It has even been suggested that the sense of the First Amendment is captured if
it were to read as Congress shall make no law respecting an establishment of religion or otherwise prohibiting the
free exercise thereof because the fundamental and single purpose of the two religious clauses is to avoid any
infringement on the free exercise of religions[137] Thus, the Establishment Clause mandates separation of church and
state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the
separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of
those of other faiths, or of no faith at all [138] because history has shown that religious fervor conjoined with state power
is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an
enlightened secular state.[139] In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: (t)he
structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the civil authority. [140]
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat
the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded
and none inhibited.[141] (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,[142] even opposing, strains of jurisprudence
on the religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion clause cases
would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in
religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.[143]This
landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that

the failure to practice polygamy by male members of his religion when circumstances would permit would be
punished with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds
conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to
belief but not to action. It cited Jeffersons 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 legislatures
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 legislatures religious preferences. Any
burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in
the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action
rather than belief, the Free Exercise Clause did not pose any problem. [147] The Free Exercise Clause thus gave no
protection against the proscription of actions even if considered central to a religion unless the legislature formally
outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld
other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as
the Davis case and Church of Latter Day Saints v. United States.[149] However, more than a century
since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have
gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs[151]and
proscribes government from questioning a persons 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 persons 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 Jehovahs 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 Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other
citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the
Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the city
park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs
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 governments non-religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic belief-actiondistinction 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 governments inadvertent interference with religion in
pursuing some secular objective.[162] In the 1940 case ofMinersville 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
Jehovahs 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 states 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 Jehovahs 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 ones
possession of particular religious views or the sincerity with which they are held. While religion supplies appellees
motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious
views hold such a compulsory rite to infringe constitutional liberty of the individual. (emphasis supplied)[165] The
Court pronounced, however, that, freedoms of speech and of press, of assembly, and of worship . . . are susceptible
only of restriction only to prevent grave and immediate danger to interests which the state may lawfully
protect.[166] The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious
liberty of political minorities - a specially protected constitutional value - to the common everyday economic and public
welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass
judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious
liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free
exercise jurisprudence.[168] A two-part balancing test was established in Braunfeld v. 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 states 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.
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:
[171]

Plainly enough, appellees 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 appellants 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 appellants religion may be justified by a compelling state
interest in the regulation of a subject within the States constitutional power to regulate. . . NAACP v. Button,
371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied)
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 Sherberts religious liberty. It added that even if the state
could show that Sherberts exemption would pose serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this
burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherberts
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 ofSherbert 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 seviolation. 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
inSherbert continued to be applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment Appeals
Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job
requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v.
Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal governments 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 governments 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 governments 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, thisgeneral 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 states 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 states interest in prohibiting the use of illicit drugs. Oregons 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 jobrelated 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 Oregons 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 governments 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 objectors spiritual development. . . . To
make an individuals obligation to obey such a law contingent upon the laws coincidence with his religious
beliefs except where the States interest is compelling - permitting him, by virtue of his beliefs, to become
a law unto himself, . . . - contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys 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 Nations fundamental
commitment to religious liberty. This portion of her concurring opinion was supported by Justices Brennan, Marshall
and Blackmun who dissented from the Courts decision. Justice OConnor asserted that(t)he compelling state
interest test effectuates the First Amendments 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 Oregons 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 Courts standard in Smithvirtually
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 minoritys religious freedom. If the regulation had instead restricted the majoritys
religious practice, the majoritarian legislative process would in all probability have modified or rejected the
regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys
religious interests implements the majoritys religious viewpoint at the expense of the minoritys. 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 persons 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 theSmith 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 Courts 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
Jeffersons 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 Jeffersons 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 states 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 Courts 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 Lords 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 Courts 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 Nebraskas 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 atolerable 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 ofLynch 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 Commissions 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
Courts 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 religiouslyaffiliated 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 inEverson, 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 Jeffersons 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
foraccommodation, less than twenty-four hours after Congress adopted the First Amendments 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 19 th 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 Constitutions 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 states 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 Courts tendency to press relentlessly towards a more secular society.[241] It finds basis in
the Everson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the
First Amendment but at the same time held that the First Amendment requires the state to beneutral 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 caseprohibiting 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 andSmith 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 inSchempp, 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 Howes classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the 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 religionReligion 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 Courts 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 allowsaccommodation of
religion under certain circumstances. Accommodations are government policies that take religion specifically into
account not to promote the governments 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 persons or institutions religion. As Justice Brennan explained, the government [may] take religion
into accountto 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) majoritys 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 ones 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 thatallows accommodations 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 antidiscrimination 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 states 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 caseallowing 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 claimants beliefs must be sincere, but they need not necessarily be

consistent, coherent, clearly articulated, or congruent with those of the claimants 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 states 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 claimants 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 peoples 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 claimants 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 individuals 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 states 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-todoor solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and
tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government
and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled,
mirroring the evolving views of a dynamic society.[293]

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a
union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil
authorities exercised religious functions and the friars exercised civil powers. [294] Catholics alone enjoyed the right of
engaging in public ceremonies of worship. [295] Although the Spanish Constitution itself was not extended to the
Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in
fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state
religion.[296] The coming of the Americans to our country, however, changed this state-church scheme for with the
advent of this regime, the unique American experiment of separation of church and state was transported to
Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10,
1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that
the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free
exercise of religion.[297] Even the Filipinos themselves guaranteed religious freedom a month later or on January 22,
1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It
provided that the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as
the separation of the Church and State. But the Malolos Constitution and government was short-lived as the
Americans took over the reigns of government.[298]
With the Philippines under the American regime, President McKinley issued Instructions to the Second
Philippine Commission, the body created to take over the civil government in the Philippines in
1900. TheInstructions 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 Instructionsdeclared 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 McKinleysInstructions 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 ones 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 ones 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 ones 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 mayors permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the citys 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, 4 th ed., p.
297) (emphasis supplied)
This was the Courts 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, citingMurdock v.
Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs as the
power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Thus, in American Bible
Society, the clear and present danger rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also involving the sale of religious books, the
Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the
registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed
amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible
Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to
defray part of the cost of registration which was a central feature of the VAT system. CitingJimmy 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 Courts resolution of the motion for reconsideration of theTolentino 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 Jehovahs 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, petitioners 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 petitioners 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 Frankfurters 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 noncompliance 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 ones religion, ones right to religious freedom
cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v.
Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this
unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of
its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the
Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875
allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No.
3350 took effect. The union notified the company of Victorianos 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 ones 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 states 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 citedBoard 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 states 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 whichVictoriano 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 Sherberts claim of religious
freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state
interest was not sufficiently compelling to prevail over Sherberts 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 Victorianos 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 ones 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 Teehankees dissent was taken involved the
rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit
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. NeverthelessBagatsing 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 Jehovahs 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 Jehovahs Witnesses who were expelled from school
for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
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 Teehankees dissent inGerman, 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 Jehovahs 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 Jehovahs 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 Jehovahs 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
toEbralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience of
the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech and the free exercise of religious profession and worship; the Court then stated in a footnote that the flag
salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.[346]
The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was
that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant
exemption of the school children of the Jehovahs 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.
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
Cristos 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 Boards 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 ones belief, where it affects
the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent
in Barnette which was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated
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]
[348]

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 petitioners 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 ones religious exercise. It also reiterated the clear and
present danger test in American Bible Society and the grave and imminent danger inVictoriano, 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]