I.

Facts

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

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro

Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch
253, Regional Trial Court of Las Piñas City, requesting for an
EN BANC
investigation of rumors that respondent Soledad Escritor, court interpreter
in said court, is living with a man not her husband. They allegedly have a
A.M. No. P-02-1651            August 4, 2003 child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Piñas City but
ALEJANDRO ESTRADA, complainant,  of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as
vs. he believes that she is committing an immoral act that tarnishes the
SOLEDAD S. ESCRITOR, respondent. 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
PUNO, J.:
Judge Caoibes referred the letter to Escritor who stated that "there is no
The case at bar takes us to a most difficult area of constitutional law truth as to the veracity of the allegation" and challenged Estrada to
where man stands accountable to an authority higher than the state. To "appear in the open and prove his allegation in the proper forum." 6 Judge
be held on balance are the state's interest and the respondent's religious Caoibes set a preliminary conference on October 12, 2000. Escritor
freedom. In this highly sensitive area of law, the task of balancing moved for the inhibition of Judge Caoibes from hearing her case to avoid
between authority and liberty is most delicate because to the person suspicion and bias as she previously filed an administrative complaint
invoking religious freedom, the consequences of the case are not only against him and said case was still pending in the Office of the Court
temporal. The task is not made easier by the American origin of our Administrator (OCA). Escritor's motion was denied. The preliminary
religion clauses and the wealth of U.S. jurisprudence on these clauses for conference proceeded with both Estrada and Escritor in attendance.
in the United States, there is probably no more intensely controverted Estrada confirmed that he filed the letter-complaint for immorality against
area of constitutional interpretation than the religion clauses. 1 The U.S. Escritor because in his frequent visits to the Hall of Justice of Las Piñas
Supreme Court itself has acknowledged that in this constitutional area, City, he learned from conversations therein that Escritor was living with a
there is "considerable internal inconsistency in the opinions of the man not her husband and that she had an eighteen to twenty-year old
Court."2 As stated by a professor of law, "(i)t is by now notorious that legal son by this man. This prompted him to write to Judge Caoibes as he
doctrines and judicial decisions in the area of religious freedom are in believed that employees of the judiciary should be respectable and
serious disarray. In perhaps no other area of constitutional law have Escritor's live-in arrangement did not command respect. 7
confusion and inconsistency achieved such undisputed
sovereignty."3 Nevertheless, this thicket is the only path to take to Respondent Escritor testified that when she entered the judiciary in
conquer the mountain of a legal problem the case at bar presents. Both 1999,8 she was already a widow, her husband having died in 1998. 9 She
the penetrating and panoramic view this climb would provide will largely admitted that she has been living with Luciano Quilapio, Jr. without the
chart the course of religious freedom in Philippine jurisdiction. That the benefit of marriage for twenty years and that they have a son. But as a
religious freedom question arose in an administrative case involving only member of the religious sect known as the Jehovah's Witnesses and the
one person does not alter the paramount importance of the question for Watch Tower and Bible Tract Society, their conjugal arrangement is in
the "constitution commands the positive protection by government of conformity with their religious beliefs. In fact, after ten years of living
religious freedom -not only for a minority, however small- not only for a together, she executed on July 28, 1991 a "Declaration of Pledging
majority, however large- but for each of us."4 Faithfulness," viz:
 DECLARATION OF PLEDGING FAITHFULNESS acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
I, Soledad S. Escritor, do hereby declare that I have accepted
Luciano D. Quilapio, Jr., as my mate in marital relationship; that I Same marital arrangement is recognized as a binding tie before
have done all within my ability to obtain legal recognition of this "JEHOVAH" God and before all persons to be held to and
relationship by the proper public authorities and that it is because honored in full accord with the principles of God's Word.
of having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship. xxx           xxx           xxx

I recognize this relationship as a binding tie before 'Jehovah' God Undersigned submits to the just, humane and fair discretion of the
and before all persons to be held to and honored in full accord Court with verification from the WATCH TOWER BIBLE and
with the principles of God's Word. I will continue to seek the TRACT SOCIETY, Philippine Branch . . . to which undersigned
means to obtain legal recognition of this relationship by the civil believes to be a high authority in relation to her case.13
authorities and if at any future time a change in circumstances
make this possible, I promise to legalize this union. Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Signed this 28th day of July 1991. 10 Branch 255, Las Piñas City for investigation, report and recommendation.
In the course of Judge Maceda's investigation, Escritor again testified
Escritor's partner, Quilapio, executed a similar pledge on the same that her congregation allows her conjugal arrangement with Quilapio and
day.11 Both pledges were executed in Atimonan, Quezon and signed by it does not consider it immoral. She offered to supply the investigating
three witnesses. At the time Escritor executed her pledge, her husband judge some clippings which explain the basis of her congregation's belief
was still alive but living with another woman. Quilapio was likewise and practice regarding her conjugal arrangement. Escritor started living
married at that time, but had been separated in fact from his wife. During with Quilapio twenty years ago when her husband was still alive but living
her testimony, Escritor volunteered to present members of her with another woman. She met this woman who confirmed to her that she
congregation to confirm the truthfulness of their "Declarations of Pledging was living with her (Escritor's) husband.14
Faithfulness," but Judge Caoibes deemed it unnecessary and considered
her identification of her signature and the signature of Quilapio sufficient Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also
authentication of the documents.12 testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. explained the import of and procedure for executing a "Declaration of
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Pledging Faithfulness", viz:
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation
of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to Q:         Now, insofar as the pre-marital relationship is concern
comment on the charge against her. In her comment, Escritor reiterated (sic), can you cite some particular rules and regulations in your
her religious congregation's approval of her conjugal arrangement with congregation?
Quilapio, viz:
A:         Well, we of course, talk to the persons with regards (sic)
Herein respondent does not ignore alleged accusation but she to all the parties involved and then we request them to execute a
reiterates to state with candor that there is no truth as to the Public Declaration of Pledge of faithfulness.
veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1 Q:         What is that document?
and Exhibit 2) duly signed by both respondent and her mate in
marital relationship with the witnesses concurring their
A:         Declaration of Pledge of faithfulness.
Q:         What are the relations of the document Declaration of Q:         Do you mean to say, Minister, by executing this
Pledge of faithfulness, who are suppose (sic) to execute this document the contracting parties have the right to cohabit?
document?
A:         Can I sir, cite, what the Bible says, the basis of that
A:         This must be signed, the document must be signed by the Pledge of Faithfulness as we Christians follow. The basis is
elders of the congregation; the couple, who is a member (sic) of herein stated in the Book of Matthew, Chapter Five, Verse
the congregation, baptized member and true member of the Twenty-two. So, in that verse of the Bible, Jesus said "that
congregation. everyone divorcing his wife, except on account of fornication,
makes her a subject for adultery, and whoever marries a divorced
Q:         What standard rules and regulations do you have in woman commits adultery.15
relation with this document?
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza
A:         Actually, sir, the signing of that document, ah, with the Congregation in Las Piñas, in May 2001. The declarations having been
couple has consent to marital relationship (sic) gives the Christian executed in Atimonan, Quezon in 1991, Salazar had no personal
Congregation view that the couple has put themselves on record knowledge of the personal circumstances of Escritor and Quilapio when
before God and man that they are faithful to each other. As if that they executed their declarations. However, when the two transferred to
relation is validated by God. Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a
Q:         From your explanation, Minister, do you consider it a copy of their declarations. The Almanza Congregation assumed that the
pledge or a document between the parties, who are members of personal circumstances of the couple had been considered by the
the congregation? Atimonan Congregation when they executed their declarations.

A:         It is a pledge and a document. It is a declaration, pledge Escritor and Quilapio's declarations are recorded in the Watch Tower
of a (sic) pledge of faithfulness. 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
Q:         And what does pledge mean to you?
Men,"16 in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
A:         It means to me that they have contracted, let us say, I am
the one who contracted with the opposite member of my
The declaration requires the approval of the elders of the Jehovah's
congregation, opposite sex, and that this document will give us
Witnesses congregation and is binding within the congregation all over
the right to a marital relationship.
the world except in countries where divorce is allowed. The Jehovah's
congregation requires that at the time the declarations are executed, the
Q:         So, in short, when you execute a declaration of pledge of couple cannot secure the civil authorities' approval of the marital
faithfulness, it is a preparation for you to enter a marriage? relationship because of legal impediments. It is thus standard practice of
the congregation to check the couple's marital status before giving
A:         Yes, Sir. imprimatur to the conjugal arrangement. The execution of the declaration
finds scriptural basis in Matthew 5:32 that when the spouse commits
Q:         But it does not necessarily mean that the parties, adultery, the offended spouse can remarry. The marital status of the
cohabiting or living under the same roof? declarants and their respective spouses' commission of adultery are
investigated before the declarations are executed. Thus, in the case of
A:         Well, the Pledge of faithfulness document is (sic) already Escritor, it is presumed that the Atimonan Congregation conducted an
approved as to the marital relationship. investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza
Congregation. That Escritor's and Quilapio's declarations were approved legalize their live-in relationship can simply join the Jehovah's Witnesses
are shown by the signatures of three witnesses, the elders in the congregation and use their religion as a defense against legal liability. 19
Atimonan Congregation. Salazar confirmed from the congregation's
branch office that these three witnesses are elders in the Atimonan On the other hand, respondent Escritor reiterates the validity of her
Congregation. Although in 1998 Escritor was widowed, thereby lifting the conjugal arrangement with Quilapio based on the belief and practice of
legal impediment to marry on her part, her mate is still not capacitated to her religion, the Jehovah's Witnesses. She quoted portions of the
remarry. Thus, their declarations remain valid. Once all legal magazine article entitled, "Maintaining Marriage Before God and Men," in
impediments for both are lifted, the couple can already register their her memorandum signed by herself, viz:
marriage with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
marriage as authorized by Philippine law. In sum, therefore, insofar as executed by the respondent and her mate greatly affect the
the congregation is concerned, there is nothing immoral about the administrative liability of respondent. Jehovah's Witnesses admit
conjugal arrangement between Escritor and Quilapio and they remain and recognize (sic) the supremacy of the proper public authorities
members in good standing in the congregation. 17 in the marriage arrangement. However, it is helpful to understand
the relative nature of Caesar's authority regarding marriage. From
Salvador Reyes, a minister at the General de Leon, Valenzuela City country to country, marriage and divorce legislation presents a
Congregation of the Jehovah's Witnesses since 1974 and member of the multitude of different angles and aspects. Rather than becoming
headquarters of the Watch Tower Bible and Tract Society of the entangled in a confusion of technicalities, the Christian, or the
Philippines, Inc., presented the original copy of the magazine article one desiring to become a disciple of God's Son, can be guided by
entitled, "Maintaining Marriage Before God and Men" to which Escritor basic Scriptural principles that hold true in all cases.
and Minister Salazar referred in their testimonies. The article appeared in
the March 15, 1977 issue of the Watchtower magazine published in God's view is of first concern. So, first of all the person must
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower consider whether that one's present relationship, or the
Bible and Tract Society of the Philippines, Inc., authorized Reyes to relationship into which he or she contemplates entering, is one
represent him in authenticating the article. The article is distributed to the that could meet with God's approval, or whether in itself, it
Jehovah's Witnesses congregations which also distribute them to the violates the standards of God's Word. Take, for example, the
public.18 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
The parties submitted their respective memoranda to the investigating concubinage prevails, the relationship of the second woman can
judge. Both stated that the issue for resolution is whether or not the never be harmonized with Christian principles, nor could any
relationship between respondent Escritor and Quilapio is valid and declaration on the part of the woman or the man make it so. The
binding in their own religious congregation, the Jehovah's Witnesses. only right course is cessation of the relationship. Similarly with an
Complainant Estrada adds however, that the effect of the relationship to incestuous relationship with a member of one's immediate family,
Escritor's administrative liability must likewise be determined. Estrada or a homosexual relationship or other such situation condemned
argued, through counsel, that the Declaration of Pledging Faithfulness by God's Word. It is not the lack of any legal validation that makes
recognizes the supremacy of the "proper public authorities" such that she such relationships unacceptable; they are in themselves
bound herself "to seek means to . . . legalize their union." Thus, even unscriptural and hence, immoral. Hence, a person involved in
assuming arguendo that the declaration is valid and binding in her such a situation could not make any kind of "Declaration of
congregation, it is binding only to her co-members in the congregation Faithfulness," since it would have no merit in God's eyes.
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 If the relationship is such that it can have God's approval, then, a
couple. Their religious belief and practice, however, cannot override the second principle to consider is that one should do all one can to
norms of conduct required by law for government employees. To rule establish the honorableness of one's marital union in the eyes of
otherwise would create a dangerous precedent as those who cannot all. (Heb. 13:4). If divorce is possible, then such step should now
 be taken so that, having obtained the divorce (on whatever legal responsibility in the case at bar." 22 The investigating judge acknowledged
grounds may be available), the present union can receive civil that "religious freedom is a fundamental right which is entitled to the
validation as a recognized marriage. highest priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270, EBRALINAG
Finally, if the marital relationship is not one out of harmony with supra, citing Chief Justice Enrique M. Fernando's separate opinion in
the principles of God's Word, and if one has done all that can German vs. Barangan, 135 SCRA 514, 530-531)" and thereby
reasonably be done to have it recognized by civil authorities and recommended the dismissal of the complaint against Escritor. 23
has been blocked in doing so, then, a Declaration Pledging
Faithfulness can be signed. In some cases, as has been noted, After considering the Report and Recommendation of Executive Judge
the extreme slowness of official action may make accomplishing Maceda, the Office of the Court Administrator, through Deputy Court
of legal steps a matter of many, many years of effort. Or it may be Administrator (DCA) Lock and with the approval of Court Administrator
that the costs represent a crushingly heavy burden that the Presbitero Velasco, concurred with the factual findings of Judge Maceda
individual would need years to be able to meet. In such cases, but departed from his recommendation to dismiss the complaint. DCA
the declaration pledging faithfulness will provide the congregation Lock stressed that although Escritor had become capacitated to marry by
with the basis for viewing the existing union as honorable while the time she joined the judiciary as her husband had died a year before,
the individual continues conscientiously to work out the legal "it is due to her relationship with a married man, voluntarily carried on,
aspects to the best of his ability. 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
Keeping in mind the basic principles presented, the respondent have been enjoined to adhere to the exacting standards of morality and
as a Minister of Jehovah God, should be able to approach the decency in their professional and private conduct in order to preserve the
matter in a balanced way, neither underestimating nor good name and integrity of the court of justice," DCA Lock found
overestimating the validation offered by the political state. She Escritor's defense of freedom of religion unavailing to warrant dismissal
always gives primary concern to God's view of the union. Along of the charge of immorality. Accordingly, he recommended that
with this, every effort should be made to set a fine example of respondent be found guilty of immorality and that she be penalized with
faithfulness and devotion to one's mate, thus, keeping the suspension of six months and one day without pay with a warning that a
marriage "honorable among all." Such course will bring God's repetition of a similar act will be dealt with more severely in accordance
blessing and result to the honor and praise of the author of with the Civil Service Rules.26
marriage, Jehovah God. (1 Cor. 10:31-33)20
II. Issue
Respondent also brought to the attention of the investigating judge that
complainant's Memorandum came from Judge Caoibes' Whether or not respondent should be found guilty of the administrative
chambers21 whom she claims was merely using petitioner to malign her. charge of "gross and immoral conduct." To resolve this issue, it is
necessary to determine the sub-issue of whether or not respondent's
In his Report and Recommendation, investigating judge Maceda found right to religious freedom should carve out an exception from the
Escritor's factual allegations credible as they were supported by prevailing jurisprudence on illicit relations for which government
testimonial and documentary evidence. He also noted that "(b)y strict employees are held administratively liable.
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: 'that which is III. Applicable Laws
willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community' (7 Respondent is charged with committing "gross and immoral conduct"
C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
out, however, that "the more relevant question is whether or not to exact Administrative Code which provides, viz:
from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict
moral standards of the Catholic faith in determining her administrative
 Sec. 46. Discipline: General Provisions. - (a) No officer or power."28 Distinction between the religious and non-religious would thus
employee in the Civil Service shall be suspended or dismissed have been meaningless to him. He sought protection from all kinds of evil
except for cause as provided by law and after due process. - 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
(b) The following shall be grounds for disciplinary action: protected his wards against both human and superhuman enemies. In
time, the king not only interceded for his people with the divine powers,
xxx           xxx           xxx but he himself was looked upon as a divine being and his laws as divine
decrees.29
(5) Disgraceful and immoral conduct; xxx.
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
Not represented by counsel, respondent, in layman's terms, invokes the
from the responsibility of leading the tribe in war and policing it in peace
religious beliefs and practices and moral standards of her religion, the
as to require the full-time services of a special priest class. This saw the
Jehovah's Witnesses, in asserting that her conjugal arrangement with a
birth of the social and communal problem of the competing claims of the
man not her legal husband does not constitute disgraceful and immoral
king and priest. Nevertheless, from the beginning, the king and not the
conduct for which she should be held administratively liable. While not
priest was superior. The head of the tribe was the warrior, and although
articulated by respondent, she invokes religious freedom under Article III,
he also performed priestly functions, he carried out these functions
Section 5 of the Constitution, which provides, viz:
because he was the head and representative of the community. 30
Sec. 5. No law shall be made respecting an establishment of
There being no distinction between the religious and the secular, the
religion, or prohibiting the free exercise thereof. The free exercise
same authority that promulgated laws regulating relations between man
and enjoyment of religious profession and worship, without
and man promulgated laws concerning man's obligations to the
discrimination or preference, shall forever be allowed. No
supernatural. This authority was the king who was the head of the state
religious test shall be required for the exercise of civil or political
and the source of all law and who only delegated performance of rituals
rights.
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
IV. Old World Antecedents of the American Religion Clauses regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property;31 and also catalogued the
To understand the life that the religion clauses have taken, it would be gods and assigned them their places in the divine hierarchy so as to put
well to understand not only its birth in the United States, but its Hammurabi's own god to a position of equality with existing gods. 32 In
conception in the Old World. One cannot understand, much less sum, the relationship of religion to the state (king) in pre-Hebreic times
intelligently criticize the approaches of the courts and the political may be characterized as a union of the two forces, with the state almost
branches to religious freedom in the recent past in the United States universally the dominant partner.33
without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience. 27 This fresh With the rise of the Hebrew state, a new term had to be coined to
look at the religion clauses is proper in deciding this case of first describe the relation of the Hebrew state with the Mosaic religion:
impression. 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
In primitive times, all of life may be said to have been religious. Every state, it was (at least until Saul) the state itself. Among the Hebrews,
significant event in the primitive man's life, from birth to death, was patriarch, prophet, and priest preceded king and prince. As man of God,
marked by religious ceremonies. Tribal society survived because Moses decided when the people should travel and when to pitch camp,
religious sanctions effectively elicited adherence to social customs. A when they should make war and when peace. Saul and David were made
person who broke a custom violated a taboo which would then bring upon kings by the prophet Samuel, disciple of Eli the priest. Like the Code of
him "the wrathful vengeance of a superhuman mysterious Hammurabi, the Mosaic code combined civil laws with religious
mandates, but unlike the Hammurabi Code, religious laws were not of established by Moses because the high priest under that order endorsed
secondary importance. On the contrary, religious motivation was primary the claim of his rival to the throne. 39
and all-embracing: sacrifices were made and Israel was prohibited from
exacting usury, mistreating aliens or using false weights, all because God The subordination of religion to the state was also true in pre-Christian
commanded these. Rome which engaged in emperor-worship. When Augustus became head
of the Roman state and the priestly hierarchy, he placed religion at a high
Moses of the Bible led not like the ancient kings. The latter used religion esteem as part of a political plan to establish the real religion of pre-
as an engine to advance the purposes of the state. Hammurabi unified Christian Rome - the worship of the head of the state. He set his great
Mesopotamia and established Babylon as its capital by elevating its city- uncle Julius Caesar among the gods, and commanded that worship of
god to a primary position over the previous reigning gods. 35 Moses, on the Divine Julius should not be less than worship of Apollo, Jupiter and other
other hand, capitalized on the natural yearnings of the Hebrew slaves for gods. When Augustus died, he also joined the ranks of the gods, as other
freedom and independence to further God's purposes. Liberation and emperors before him.40
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 onset of Christianity, however, posed a difficulty to the emperor as
the full worship of God.36 the Christians' dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the
Upon the monotheism of Moses was the theocracy of Israel founded. death of Jesus, Christians were subjected to persecution. By the time of
This monotheism, more than anything else, charted not only the future of the emperor Trajan, Christians were considered outlaws. Their crime was
religion in western civilization, but equally, the future of the relationship "hatred of the human race", placing them in the same category as pirates
between religion and state in the west. This fact is acknowledged by and brigands and other "enemies of mankind" who were subject to
many writers, among whom is Northcott who pointed out, viz: summary punishments.41

Historically it was the Hebrew and Christian conception of a In 284, Diocletian became emperor and sought to reorganize the empire
single and universal God that introduced a religious exclusivism and make its administration more efficient. But the closely-knit
leading to compulsion and persecution in the realm of religion. hierarchically controlled church presented a serious problem, being a
Ancient religions were regarded as confined to each separate state within a state over which he had no control. He had two options:
people believing in them, and the question of change from one either to force it into submission and break its power or enter into an
religious belief to another did not arise. It was not until an alliance with it and procure political control over it. He opted for force and
exclusive fellowship, that the questions of proselytism, change of revived the persecution, destroyed the churches, confiscated sacred
belief and liberty of religion arose.37 (emphasis supplied) books, imprisoned the clergy and by torture forced them to sacrifice. 42 But
his efforts proved futile.
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 The later emperor, Constantine, took the second option of alliance.
state. The Law of God as transmitted through Moses and his successors Constantine joined with Galerius and Licinius, his two co-rulers of the
was the whole of government. 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
With Saul, however, the state rose to be the rival and ultimately, the Galerius died, Constantine and Licius jointly issued the epochal Edict of
master, of religion. Saul and David each received their kingdom from Milan (312 or 313), a document of monumental importance in the history
Samuel the prophet and disciple of Eli the priest, but soon the king of religious liberty. It provided "that liberty of worship shall not be denied
dominated prophet and priest. Saul disobeyed and even sought to slay to any, but that the mind and will of every individual shall be free to
Samuel the prophet of God.38 Under Solomon, the subordination of manage divine affairs according to his own choice." (emphasis supplied)
religion to state became complete; he used religion as an engine to Thus, all restrictive statutes were abrogated and it was enacted "that
further the state's purposes. He reformed the order of priesthood 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 The corruption and abuses of the Catholic Church spurred the
power to follow their own religion or worship is granted also to others, in Reformation aimed at reforming the Catholic Church and resulting in the
accordance with the tranquillity of our times, in order that every person establishment of Protestant churches. While Protestants are accustomed
may have free opportunity to worship the object of his choice."(emphasis to ascribe to the Reformation the rise of religious liberty and its
supplied)44 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
Before long, not only did Christianity achieve equal status, but acquired "same causes that gave rise to the Protestant revolution also resulted in
privilege, then prestige, and eventually, exclusive power. Religion the widespread acceptance of the principle of religious liberty, and
became an engine of state policy as Constantine considered Christianity ultimately of the principle of separation of church and state." 46 Pleas for
a means of unifying his complex empire. Within seven years after the tolerance and freedom of conscience can without doubt be found in the
Edict of Milan, under the emperor's command, great Christian edifices writings of leaders of the Reformation. But just as Protestants living in the
were erected, the clergy were freed from public burdens others had to countries of papists pleaded for toleration of religion, so did the papists
bear, and private heathen sacrifices were forbidden. that lived where Protestants were dominant.47 Papist and Protestant
governments alike accepted the idea of cooperation between church and
The favors granted to Christianity came at a price: state interference in state and regarded as essential to national unity the uniformity of at least
religious affairs. Constantine and his successors called and dismissed the outward manifestations of religion.48 Certainly, Luther, leader of the
church councils, and enforced unity of belief and practice. Until recently Reformation, stated that "neither pope, nor bishop, nor any man whatever
the church had been the victim of persecution and repression, but this has the right of making one syllable binding on a Christian man, unless it
time it welcomed the state's persecution and repression of the be done with his own consent." 49 But when the tables had turned and he
nonconformist and the orthodox on the belief that it was better for was no longer the hunted heretic, he likewise stated when he made an
heretics to be purged of their error than to die unsaved. 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
Both in theory as in practice, the partnership between church and state
blood of the Catholic bishops, and of the Pope, who is a devil in
was not easy. It was a constant struggle of one claiming dominance over
disguise."50 To Luther, unity among the peoples in the interests of the
the other. In time, however, after the collapse and disintegration of the
state was an important consideration. Other personalities in the
Roman Empire, and while monarchical states were gradually being
Reformation such as Melanchton, Zwingli and Calvin strongly espoused
consolidated among the numerous feudal holdings, the church stood as
theocracy or the use of the state as an engine to further religion. In
the one permanent, stable and universal power. Not surprisingly,
establishing theocracy in Geneva, Calvin made absence from the sermon
therefore, it claimed not merely equality but superiority over the secular
a crime, he included criticism of the clergy in the crime of blasphemy
states. This claim, symbolized by Pope Leo's crowning of Charlemagne,
punishable by death, and to eliminate heresy, he cooperated in the
became the church's accepted principle of its relationship to the state in
Inquisition.51
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 There were, however, those who truly advocated religious liberty.
received his crown from the Pope, he himself crowned his own son as Erasmus, who belonged to the Renaissance than the Reformation, wrote
successor to nullify the inference of supremacy.45 The whole history of that "(t)he terrible papal edict, the more terrible imperial edict, the
medieval Europe was a struggle for supremacy between prince and Pope imprisonments, the confiscations, the recantations, the fagots and
and the resulting religious wars and persecution of heretics and burnings, all these things I can see accomplish nothing except to make
nonconformists. At about the second quarter of the 13th century, the the evil more widespread."52 The minority or dissident sects also ardently
Inquisition was established, the purpose of which was the discovery and advocated religious liberty. The Anabaptists, persecuted and despised,
extermination of heresy. Accused heretics were tortured with the approval along with the Socinians (Unitarians) and the Friends of the Quakers
of the church in the bull Ad extirpanda issued by Pope Innocent IV in founded by George Fox in the 17th century, endorsed the supremacy and
1252. 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, state-supported religion, but other faiths were permitted to exist with
nor compel men to this or that form of religion." 54 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
Thus, out of the Reformation, three rationalizations of church-state and government and the concomitant principle that neither might be used
relations may be distinguished: the Erastian (after the German doctor as an engine to further the policies of the other, although the principle
Erastus), the theocratic, and the separatist. The first assumed state was in its seminal form in the arguments of some dissident minorities and
superiority in ecclesiastical affairs and the use of religion as an engine of intellectual leaders of the Renaissance. The religious wars of 16th and
state policy as demonstrated by Luther's belief that civic cohesion could 17th century Europe were a thing of the past by the time America
not exist without religious unity so that coercion to achieve religious unity declared its independence from the Old World, but their memory was still
was justified. The second was founded on ecclesiastical supremacy and vivid in the minds of the Constitutional Fathers as expressed by the
the use of state machinery to further religious interests as promoted by United States Supreme Court, viz:
Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the The centuries immediately before and contemporaneous with the
arguments of some dissident minorities that the magistrate should not colonization of America had been filled with turmoil, civil strife,
intermeddle in religious affairs.55 After the Reformation, Erastianism and persecution generated in large part by established sects
pervaded all Europe except for Calvin's theocratic Geneva. In England, determined to maintain their absolute political and religious
perhaps more than in any other country, Erastianism was at its height. To supremacy. With the power of government supporting them, at
illustrate, a statute was enacted by Parliament in 1678, which, to various times and places, Catholics had persecuted Protestants,
encourage woolen trade, imposed on all clergymen the duty of seeing to Protestants had persecuted Catholics, Protestant sects had
it that no person was buried in a shroud made of any substance other persecuted other protestant sects, Catholics of one shade of
than wool.56 Under Elizabeth, supremacy of the crown over the church belief had persecuted Catholics of another shade of belief, and all
was complete: ecclesiastical offices were regulated by her proclamations, of these had from time to time persecuted Jews. In efforts to force
recusants were fined and imprisoned, Jesuits and proselytizing priests loyalty to whatever religious group happened to be on top and in
were put to death for high treason, the thirty-nine Articles of the Church of league with the government of a particular time and place, men
England were adopted and English Protestantism attained its present and women had been fined, cast in jail, cruelly tortured, and
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme killed. Among the offenses for which these punishments had been
Governor of this realm . . . as well in all spiritual or ecclesiastical things or inflicted were such things as speaking disrespectfully of the views
causes as temporal." She and her successors were vested, in their of ministers of government-established churches, non-attendance
dominions, with "all manner of jurisdictions, privileges, and at those churches, expressions of non-belief in their doctrines,
preeminences, in any wise touching or concerning any spiritual or and failure to pay taxes and tithes to support them. 61
ecclesiastical jurisdiction."58 Later, however, Cromwell established the
constitution in 1647 which granted full liberty to all Protestant sects, but In 1784, James Madison captured in this statement the entire history of
denied toleration to Catholics.59 In 1689, William III issued the Act of church-state relations in Europe up to the time the United States
Toleration which established a de facto toleration for all except Catholics. Constitution was adopted, viz:
The Catholics achieved religious liberty in the 19th century when the
Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit Torrents of blood have been spilt in the world in vain attempts of
in 1858 when they were finally permitted to sit in Parliament. 60 the secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
When the representatives of the American states met in Philadelphia in
1787 to draft the constitutional foundation of the new republic, the In sum, this history shows two salient features: First, with minor
theocratic state which had flourished intermittently in Israel, Judea, the exceptions, the history of church-state relationships was characterized by
Holy Roman Empire and Geneva was completely gone. The prevailing persecution, oppression, hatred, bloodshed, and war, all in the name of
church-state relationship in Europe was Erastianism embodied in the the God of Love and of the Prince of Peace. Second, likewise with minor
system of jurisdictionalism whereby one faith was favored as the official exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the willing protecting what was considered to be the true and eternal church of a
acceptance of that role by the vanguards of religion in exchange for the particular time in order to encourage trade and commerce. The colonies
favors and mundane benefits conferred by ambitious princes and were large financial investments which would be profitable only if people
emperors in exchange for religion's invaluable service. This was the would settle there. It would be difficult to engage in trade with persons
context in which the unique experiment of the principle of religious one seeks to destroy for religious belief, thus tolerance was a necessity.
freedom and separation of church and state saw its birth in American This tended to distract the colonies from their preoccupations over their
constitutional democracy and in human history.63 religion and its exclusiveness, encouraging them "to think less of the
Church and more of the State and of commerce."68 The diversity brought
V. Factors Contributing to the Adoption of the American Religion about by the colonies' open gates encouraged religious freedom and
Clauses non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live
Settlers fleeing from religious persecution in Europe, primarily in together. Secondly, because of the daily exposure to different religions,
Anglican-dominated England, established many of the American the passionate conviction in the exclusive rightness of one's religion,
colonies. British thought pervaded these colonies as the immigrants which impels persecution for the sake of one's religion, waned. Finally,
brought with them their religious and political ideas from England and because of the great diversity of the sects, religious uniformity was not
English books and pamphlets largely provided their cultural fare. 64 But possible, and without such uniformity, establishment could not survive. 69
although these settlers escaped from Europe to be freed from bondage of
laws which compelled them to support and attend government favored But while there was a multiplicity of denomination, paradoxically, there
churches, some of these settlers themselves transplanted into American was a scarcity of adherents. Only about four percent of the entire
soil the oppressive practices they escaped from. The charters granted by population of the country had a church affiliation at the time the republic
the English Crown to the individuals and companies designated to make was founded.70 This might be attributed to the drifting to the American
the laws which would control the destinies of the colonials authorized colonies of the skepticism that characterized European
them to erect religious establishments, which all, whether believers or Enlightenment.71 Economic considerations might have also been a factor.
not, were required to support or attend.65 At one time, six of the colonies The individualism of the American colonist, manifested in the multiplicity
established a state religion. Other colonies, however, such as Rhode of sects, also resulted in much unaffiliated religion which treated religion
Island and Delaware tolerated a high degree of religious diversity. Still as a personal non-institutional matter. The prevalence of lack of church
others, which originally tolerated only a single religion, eventually affiliation contributed to religious liberty and disestablishment as persons
extended support to several different faiths.66 who were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation to
This was the state of the American colonies when the unique American support a church to which they did not belong. 72
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 However, for those who were affiliated to churches, the colonial policy
number of interdependent practical and ideological factors contributed in regarding their worship generally followed the tenor of the English Act of
bringing it forth. Among these were the "English Act of Toleration of 1689, Toleration of 1689. In England, this Act conferred on Protestant
the multiplicity of sects, the lack of church affiliation on the part of most dissenters the right to hold public services subject to registration of their
Americans, the rise of commercial intercourse, the exigencies of the ministers and places of worship. 73 Although the toleration accorded to
Revolutionary War, the Williams-Penn tradition and the success of their Protestant dissenters who qualified under its terms was only a modest
experiments, the writings of Locke, the social contract theory, the Great advance in religious freedom, it nevertheless was of some influence to
Awakening, and the influence of European rationalism and deism." 67 Each the American experiment.74 Even then, for practical considerations,
of these factors shall be briefly discussed. concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect
First, the practical factors. England's policy of opening the gates of the on the colonies.
American colonies to different faiths resulted in the multiplicity of sects in
the colonies. With an Erastian justification, English lords chose to forego
Next, the ideological factors. First, the Great Awakening in mid-18th came after Penn continued the tradition started by the leaders of their
century, an evangelical religious revival originating in New England, denominations. Aside from the Baptists and the Quakers, the
caused a break with formal church religion and a resistance to coercion Presbyterians likewise greatly contributed to the evolution of separation
by established churches. This movement emphasized an emotional, and freedom.81 The Constitutional fathers who convened in Philadelphia
personal religion that appealed directly to the individual, putting emphasis in 1787, and Congress and the states that adopted the First Amendment
on the rights and duties of the individual conscience and its answerability in 1791 were very familiar with and strongly influenced by the successful
exclusively to God. Thus, although they had no quarrel with orthodox examples of Rhode Island and Pennsylvania.82
Christian theology as in fact they were fundamentalists, this group
became staunch advocates of separation of church and state. 75 Undeniably, John Locke and the social contract theory also contributed to
the American experiment. The social contract theory popularized by
Then there was the Williams-Penn tradition. Roger Williams was the Locke was so widely accepted as to be deemed self-evident truth in
founder of the colony of Rhode Island where he established a community America's Declaration of Independence. With the doctrine of natural
of Baptists, Quakers and other nonconformists. In this colony, religious rights and equality set forth in the Declaration of Independence, there
freedom was not based on practical considerations but on the concept of was no room for religious discrimination. It was difficult to justify inequality
mutual independence of religion and government. In 1663, Rhode Island in religious treatment by a new nation that severed its political bonds with
obtained a charter from the British crown which declared that settlers the English crown which violated the self-evident truth that all men are
have it "much on their heart to hold forth a livelie experiment that a most created equal.83
flourishing civil state may best be maintained . . . with full libertie in
religious concernments."76 In Williams' pamphlet, The Bloudy Tenent of The social contract theory was applied by many religious groups in
Persecution for cause of Conscience, discussed in a Conference arguing against establishment, putting emphasis on religion as a natural
between Truth and Peace,77 he articulated the philosophical basis for his right that is entirely personal and not within the scope of the powers of a
argument of religious liberty. To him, religious freedom and separation of political body. That Locke and the social contract theory were influential
church and state did not constitute two but only one principle. Religious in the development of religious freedom and separation is evident from
persecution is wrong because it "confounds the Civil and Religious" and the memorial presented by the Baptists to the Continental Congress in
because "States . . . are proved essentially Civil. The "power of true 1774, viz:
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 Men unite in society, according to the great Mr. Locke, with an
an epochal milestone in the history of religious freedom and the intention in every one the better to preserve himself, his liberty
separation of church and state.79 and property. The power of the society, or Legislature constituted
by them, can never be supposed to extend any further than the
William Penn, proprietor of the land that became Pennsylvania, was also common good, but is obliged to secure every one's property. To
an ardent advocate of toleration, having been imprisoned for his religious give laws, to receive obedience, to compel with the sword, belong
convictions as a member of the despised Quakers. He opposed coercion to none but the civil magistrate; and on this ground we affirm that
in matters of conscience because "imposition, restraint and persecution the magistrate's power extends not to establishing any articles of
for conscience sake, highly invade the Divine prerogative." Aside from his faith or forms of worship, by force of laws; for laws are of no force
idealism, proprietary interests made toleration in Pennsylvania without penalties. The care of souls cannot belong to the civil
necessary. He attracted large numbers of settlers by promising religious magistrate, because his power consists only in outward force; but
toleration, thus bringing in immigrants both from the Continent and pure and saving religion consists in the inward persuasion of the
Britain. At the end of the colonial period, Pennsylvania had the greatest mind, without which nothing can be acceptable to
variety of religious groups. Penn was responsible in large part for the God.84 (emphasis supplied)
"Concessions and agreements of the Proprietors, Freeholders, and
inhabitants of West Jersey, in America", a monumental document in the The idea that religion was outside the jurisdiction of civil government was
history of civil liberty which provided among others, for liberty of acceptable to both the religionist and rationalist. To the religionist, God or
conscience.80 The Baptist followers of Williams and the Quakers who Christ did not desire that government have that jurisdiction ("render unto
Caesar that which is Caesar's"; "my kingdom is not of this world") and to The adoption of the Bill of Rights signified the beginning of the end of
the rationalist, the power to act in the realm of religion was not one of the establishment. Baptists, Presbyterians and Lutherans flooded the first
powers conferred on government as part of the social contract.85 legislative assembly with petitions for abolition of establishment. While
the majority of the population were dissenters, a majority of the
Not only the social contract theory drifted to the colonies from Europe. legislature were churchmen. The legislature compromised and enacted a
Many of the leaders of the Revolutionary and post-revolutionary period bill in 1776 abolishing the more oppressive features of establishment and
were also influenced by European deism and rationalism, 86 in general, granting exemptions to the dissenters, but not guaranteeing separation. It
and some were apathetic if not antagonistic to formal religious worship repealed the laws punishing heresy and absence from worship and
and institutionalized religion. Jefferson, Paine, John Adams, Washington, requiring the dissenters to contribute to the support of the
Franklin, Madison, among others were reckoned to be among the establishment.93 But the dissenters were not satisfied; they not only
Unitarians or Deists. Unitarianism and Deism contributed to the emphasis wanted abolition of support for the establishment, they opposed the
on secular interests and the relegation of historic theology to the compulsory support of their own religion as others. As members of the
background.87 For these men of the enlightenment, religion should be established church would not allow that only they would pay taxes while
allowed to rise and fall on its own, and the state must be protected from the rest did not, the legislature enacted in 1779 a bill making permanent
the clutches of the church whose entanglements has caused intolerance the establishment's loss of its exclusive status and its power to tax its
and corruption as witnessed throughout history.88 Not only the leaders but members; but those who voted for it did so in the hope that a general
also the masses embraced rationalism at the end of the eighteenth assessment bill would be passed. Without the latter, the establishment
century, accounting for the popularity of Paine's Age of Reason. 89 would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which
Finally, the events leading to religious freedom and separation in Virginia "society for the purpose of Religious Worship" he wished to support. On
contributed significantly to the American experiment of the First the basis of this list, collections were to be made by the sheriff and turned
Amendment. Virginia was the "first state in the history of the world to over to the clergymen and teachers designated by the religious
proclaim the decree of absolute divorce between church and congregation. The assessment of any person who failed to enroll in any
state."90 Many factors contributed to this, among which were that half to society was to be divided proportionately among the societies. 94 The bill
two-thirds of the population were organized dissenting sects, the Great evoked strong opposition.
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of
alienated many influential laymen with its identification with the Crown's the Christian Religion" was introduced requiring all persons "to pay a
tyranny, and above all, present in Virginia was a group of political leaders moderate tax or contribution annually for the support of the Christian
who were devoted to liberty generally,91 who had accepted the social religion, or of some Christian church, denomination or communion of
contract as self-evident, and who had been greatly influenced by Deism Christians, or for some form of Christian worship." 95 This likewise aroused
and Unitarianism. Among these leaders were Washington, Patrick Henry, the same opposition to the 1779 bill. The most telling blow against the
George Mason, James Madison and above the rest, Thomas Jefferson. 1784 bill was the monumental "Memorial and Remonstrance against
Religious Assessments" written by Madison and widely distributed before
The first major step towards separation in Virginia was the adoption of the the reconvening of legislature in the fall of 1785. 96 It stressed natural
following provision in the Bill of Rights of the state's first constitution: rights, the government's lack of jurisdiction over the domain of religion,
and the social contract as the ideological basis of separation while also
citing practical considerations such as loss of population through
That religion, or the duty which we owe to our Creator, and the
migration. He wrote, viz:
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 Because we hold it for a 'fundamental and undeniable truth,' that
dictates of conscience; and that it is the mutual duty of all to religion, or the duty which we owe to our creator, and the manner
practice Christian forbearance, love, and charity towards each of discharging it, can be directed only by reason and conviction,
other.92 (emphasis supplied) 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 men shall be free to profess, and by argument to maintain, their
right of every man to exercise it as these may dictate. This right opinions in matters of religion, and that the same shall in no wise
is, in its nature, an unalienable right. It is unalienable, because diminish, enlarge or affect their civil capacities.98 (emphases
the opinions of men, depending only on the evidence supplied)
contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right This statute forbade any kind of taxation in support of religion and
towards men, is a duty towards the creator. It is the duty of every effectually ended any thought of a general or particular establishment in
man to render the creator such homage, and such only as he Virginia.99 But the passage of this law was obtained not only because of
believes to be acceptable to him; this duty is precedent, both in the influence of the great leaders in Virginia but also because of
order of time and degree of obligation, to the claims of civil substantial popular support coming mainly from the two great dissenting
society. Before any man can be considered as a member of civil sects, namely the Presbyterians and the Baptists. The former were never
society, he must be considered as a subject of the governor of established in Virginia and an underprivileged minority of the population.
the universe; and if a member of civil society, who enters into any This made them anxious to pull down the existing state church as they
subordinate association, must always do it with a reservation of realized that it was impossible for them to be elevated to that privileged
his duty to the general authority, much more must every man who position. Apart from these expediential considerations, however, many of
becomes a member of any particular civil society do it with the the Presbyterians were sincere advocates of separation 100 grounded on
saving his allegiance to the universal sovereign. 97 (emphases rational, secular arguments and to the language of natural
supplied) religion.101 Influenced by Roger Williams, the Baptists, on the other hand,
assumed that religion was essentially a matter of concern of the
Madison articulated in the Memorial the widely held beliefs in 1785 as individual and his God, i.e., subjective, spiritual and supernatural, having
indicated by the great number of signatures appended to the Memorial. no relation with the social order.102 To them, the Holy Ghost was sufficient
The assessment bill was speedily defeated. to maintain and direct the Church without governmental assistance and
state-supported religion was contrary ti the spirit of the Gospel. 103 Thus,
Taking advantage of the situation, Madison called up a much earlier 1779 separation was necessary.104 Jefferson's religious freedom statute was a
bill of Jefferson which had not been voted on, the "Bill for Establishing milestone in the history of religious freedom. The United States Supreme
Religious Freedom", and it was finally passed in January 1786. It Court has not just once acknowledged that the provisions of the First
provided, viz: Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference
Well aware that Almighty God hath created the mind free; that all with religious liberty as the Virginia Statute of Religious Liberty.
attempts to influence it by temporal punishments or burdens, or
by civil incapacitations, tend not only to beget habits of hypocrisy Even in the absence of the religion clauses, the principle that government
and meanness, and are a departure from the plan of the Holy had no power to legislate in the area of religion by restricting its free
Author of our religion, who being Lord both of body and mind, yet exercise or establishing it was implicit in the Constitution of 1787. This
chose not to propagate it by coercions on either, as was in his could be deduced from the prohibition of any religious test for federal
Almighty power to do; 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
xxx           xxx           xxx 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
Be it therefore enacted by the General Assembly. That no man
objection was expressed to the absence of a restriction on the Federal
shall be compelled to frequent or support any religious worship,
Government as regards legislation on religion. 107 Thus, in 1791, this
place or ministry whatsoever, nor shall be enforced, restrained,
restriction was made explicit with the adoption of the religion clauses in
molested or burdened in his body or goods, nor shall otherwise
the First Amendment as they are worded to this day, with the first part
suffer on account of his religious opinions or beliefs, but that all
usually referred to as the Establishment Clause and the second part, the houses for prisoners, sports facilities, theme parks, publishing houses
Free Exercise Clause, viz: and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the
Congress shall make no law respecting an establishment of line between many types of activities undertaken by religious groups and
religion or prohibiting the free exercise thereof. secular activities. Churches have also concerned themselves with social
and political issues as a necessary outgrowth of religious faith as
VI. Religion Clauses in the United States: witnessed in pastoral letters on war and peace, economic justice, and
Concept, Jurisprudence, Standards 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
With the widespread agreement regarding the value of the First
growth in population density, mobility and diversity has significantly
Amendment religion clauses comes an equally broad disagreement as to
changed the environment in which religious organizations and activities
what these clauses specifically require, permit and forbid. No agreement
exist and the laws affecting them are made. It is no longer easy for
has been reached by those who have studied the religion clauses as
individuals to live solely among their own kind or to shelter their children
regards its exact meaning and the paucity of records in Congress renders
from exposure to competing values. The result is disagreement over what
it difficult to ascertain its meaning.108 Consequently, the jurisprudence in
laws should require, permit or prohibit; 113 and agreement that if the rights
this area is volatile and fraught with inconsistencies whether within a
of believers as well as non-believers are all to be respected and given
Court decision or across decisions.
their just due, a rigid, wooden interpretation of the religion clauses that is
blind to societal and political realities must be avoided. 114
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 cases arise from different circumstances. The more obvious
religion played a primary role in social life - i.e., family responsibilities,
ones arise from a government action which purposely aids or inhibits
education, health care, poor relief, and other aspects of social life with
religion. These cases are easier to resolve as, in general, these actions
significant moral dimension - while government played a supportive and
are plainly unconstitutional. Still, this kind of cases poses difficulty in
indirect role by maintaining conditions in which these activities may be
ascertaining proof of intent to aid or inhibit religion. 115 The more difficult
carried out by religious or religiously-motivated associations. Today,
religion clause cases involve government action with a secular purpose
government plays this primary role and religion plays the supportive
and general applicability which incidentally or inadvertently aids or
role.109 Government runs even family planning, sex education, adoption
burdens religious exercise. In Free Exercise Clause cases, these
and foster care programs.110 Stated otherwise and with some
government actions are referred to as those with "burdensome effect" on
exaggeration, "(w)hereas two centuries ago, in matters of social life which
religious exercise even if the government action is not religiously
have a significant moral dimension, government was the handmaid of
motivated.116 Ideally, the legislature would recognize the religions and
religion, today religion, in its social responsibilities, as contrasted with
their practices and would consider them, when practical, in enacting laws
personal faith and collective worship, is the handmaid of
of general application. But when the legislature fails to do so, religions
government."111 With government regulation of individual conduct having
that are threatened and burdened turn to the courts for protection. 117 Most
become more pervasive, inevitably some of those regulations would
of these free exercise claims brought to the Court are for exemption, not
reach conduct that for some individuals are religious. As a result,
invalidation of the facially neutral law that has a "burdensome" effect. 118
increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values. 112
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
Parallel to this expansion of government has been the expansion of
religion for purposes of interpreting the religion clauses has also been
religious organizations in population, physical institutions, types of
modified to suit current realities. Defining religion is a difficult task for
activities undertaken, and sheer variety of denominations, sects and
even theologians, philosophers and moralists cannot agree on a
cults. Churches run day-care centers, retirement homes, hospitals,
comprehensive definition. Nevertheless, courts must define religion for
schools at all levels, research centers, settlement houses, halfway
constitutional and other legal purposes.119It was in the 1890 case of Davis
v. Beason120 that the United States Supreme Court first had occasion to anyone "who, by reason of religious training and belief, is conscientiously
define religion, viz: opposed to participation in war in any form." Speaking for the Court,
Justice Clark ruled, viz:
The term 'religion' has reference to one's views of his relations to
his Creator, and to the obligations they impose of reverence for Congress, in using the expression 'Supreme Being' rather than
his being and character, and of obedience to his will. It is often the designation 'God,' was merely clarifying the meaning of
confounded with the cultus or form of worship of a particular sect, religious tradition and belief so as to embrace all religions and to
but is distinguishable from the latter. The First Amendment to the exclude essentially political, sociological, or philosophical views
Constitution, in declaring that Congress shall make no law (and) the test of belief 'in relation to a Supreme Being' is whether
respecting the establishment of religion, or forbidding the free a given belief that is sincere and meaningful occupies a place in
exercise thereof, was intended to allow everyone under the the life of its possessor parallel to the orthodox belief in God.
jurisdiction of the United States to entertain such notions (emphasis supplied)
respecting his relations to his Maker and the duties they impose
as may be approved by his judgment and conscience, and to The Court was convinced that Seeger, Peter and the others were
exhibit his sentiments in such form of worship as he may think conscientious objectors possessed of such religious belief and training.
proper, not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of Federal and state courts have expanded the definition of religion in
worship of any sect.121 Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four
The definition was clearly theistic which was reflective of the popular criteria to qualify as religion under the First Amendment. First, there must
attitudes in 1890. be belief in God or some parallel belief that occupies a central place in
the believer's life. Second, the religion must involve a moral code
In 1944, the Court stated in United States v. Ballard 122 that the free transcending individual belief, i.e., it cannot be purely subjective. Third, a
exercise of religion "embraces the right to maintain theories of life and of demonstrable sincerity in belief is necessary, but the court must not
death and of the hereafter which are rank heresy to followers of the inquire into the truth or reasonableness of the belief. 127 Fourth, there must
orthodox faiths."123 By the 1960s, American pluralism in religion had be some associational ties,128 although there is also a view that religious
flourished to include non-theistic creeds from Asia such as Buddhism and beliefs held by a single person rather than being part of the teachings of
Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the any kind of group or sect are entitled to the protection of the Free
term "religion" to non-theistic beliefs such as Buddhism, Taoism, Ethical Exercise Clause.129
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger 126 which involved four men Defining religion is only the beginning of the difficult task of deciding
who claimed "conscientious objector" status in refusing to serve in the religion clause cases. Having hurdled the issue of definition, the court
Vietnam War. One of the four, Seeger, was not a member of any then has to draw lines to determine what is or is not permissible under
organized religion opposed to war, but when specifically asked about his the religion clauses. In this task, the purpose of the clauses is the
belief in a Supreme Being, Seeger stated that "you could call (it) a belief yardstick. Their purpose is singular; they are two sides of the same
in a Supreme Being or God. These just do not happen to be the words coin.130 In devoting two clauses to religion, the Founders were stating not
that I use." Forest Peter, another one of the four claimed that after two opposing thoughts that would cancel each other out, but two
considerable meditation and reflection "on values derived from the complementary thoughts that apply in different ways in different
Western religious and philosophical tradition," he determined that it would circumstances.131 The purpose of the religion clauses - both in the
be "a violation of his moral code to take human life and that he restriction it imposes on the power of the government to interfere with the
considered this belief superior to any obligation to the state." The Court free exercise of religion and the limitation on the power of government to
avoided a constitutional question by broadly interpreting not the Free establish, aid, and support religion - is the protection and promotion of
Exercise Clause, but the statutory definition of religion in the Universal religious liberty.132 The end, the goal, and the rationale of the religion
Military Training and Service Act of 1940 which exempt from combat clauses is this liberty.133 Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which would be useful in understanding these two strains, the scope of
they are directed is government-induced homogeneity. 134 The Free protection of each clause, and the tests used in religious clause cases.
Exercise Clause directly articulates the common objective of the two Most of these cases are cited as authorities in Philippine religion clause
clauses and the Establishment Clause specifically addresses a form of cases.
interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a A. Free Exercise Clause
propensity.135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of The Court first interpreted the Free Exercise Clause in the 1878 case of
those who might dissent from whatever religion is established. 136 It has Reynolds v. United States.143 This landmark case involved Reynolds, a
even been suggested that the sense of the First Amendment is captured Mormon who proved that it was his religious duty to have several wives
if it were to read as "Congress shall make no law respecting an and that the failure to practice polygamy by male members of his religion
establishment of religion or otherwise prohibiting the free exercise when circumstances would permit would be punished with damnation in
thereof" because the fundamental and single purpose of the two religious the life to come. Reynolds' act of contracting a second marriage violated
clauses is to "avoid any infringement on the free exercise of Section 5352, Revised Statutes prohibiting and penalizing bigamy, for
religions"137 Thus, the Establishment Clause mandates separation of which he was convicted. The Court affirmed Reynolds' conviction, using
church and state to protect each from the other, in service of the larger what in jurisprudence would be called the belief-action test which allows
goal of preserving religious liberty. The effect of the separation is to limit absolute protection to belief but not to action. It cited Jefferson's Bill
the opportunities for any religious group to capture the state apparatus to Establishing Religious Freedom which, according to the Court, declares
the disadvantage of those of other faiths, or of no faith at all 138 because "the true distinction between what properly belongs to the Church and
history has shown that religious fervor conjoined with state power is likely what to the State."144 The bill, making a distinction between belief and
to tolerate far less religious disagreement and disobedience from those action, states in relevant part, viz:
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:
That to suffer the civil magistrate to intrude his powers into the
"(t)he structure of our government has, for the preservation of civil liberty,
field of opinion, and to restrain the profession or propagation of
rescued the temporal institutions from religious interference. On the other
principles on supposition of their ill tendency, is a dangerous
hand, it has secured religious liberty from the invasion of the civil
fallacy which at once destroys all religious liberty;
authority."140
that it is time enough for the rightful purposes of civil government
In upholding religious liberty as the end goal in religious clause cases, the
for its officers to interfere when principles break out into overt acts
line the court draws to ensure that government does not establish and
against peace and good order.145 (emphasis supplied)
instead remains neutral toward religion is not absolutely straight. Chief
Justice Burger explains, viz:
The Court then held, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic Congress was deprived of all legislative power over mere opinion,
purpose of these provisions, which is to insure that no religion be but was left free to reach actions which were in violation of social
sponsored or favored, none commanded and none duties or subversive of good order. . .
inhibited.141 (emphasis supplied)
Laws are made for the government of actions, and while they
Consequently, U.S. jurisprudence has produced two identifiably cannot interfere with mere religious belief and opinions, they may
different,142 even opposing, strains of jurisprudence on the religion with practices. Suppose one believed that human sacrifice were a
clauses: separation (in the form of strict separation or the tamer version necessary part of religious worship, would it be seriously
of strict neutrality or separation) and benevolent neutrality or contended that the civil government under which he lived could
accommodation. A view of the landscape of U.S. religion clause cases not interfere to prevent a sacrifice? Or if a wife religiously
 believed it was her duty to burn herself upon the funeral pile of though as there remains an absolute prohibition of governmental
her dead husband, would it be beyond the power of the civil proscription of beliefs.150
government to prevent her carrying her belief into practice?
The Free Exercise Clause accords absolute protection to individual
So here, as a law of the organization of society under the religious convictions and beliefs151 and proscribes government from
exclusive dominion of the United States, it is provided that plural questioning a person's beliefs or imposing penalties or disabilities based
marriages shall not be allowed. Can a man excuse his practices solely on those beliefs. The Clause extends protection to both beliefs and
to the contrary because of his religious belief? To permit this unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down
would be to make the professed doctrines of religious belief a state law requiring as a qualification for public office an oath declaring
superior to the law of the land, and in effect to permit every citizen belief in the existence of God. The protection also allows courts to look
to become a law unto himself. Government could exist only in into the good faith of a person in his belief, but prohibits inquiry into the
name under such circumstances.146 truth of a person's religious beliefs. As held in United States v.
Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may
The construct was thus simple: the state was absolutely prohibited by the believe what they cannot prove. They may not be put to the proof of their
Free Exercise Clause from regulating individual religious beliefs, but religious doctrines or beliefs."
placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute Next to belief which enjoys virtually absolute protection, religious speech
protection because any statute designed to prohibit a particular religious and expressive religious conduct are accorded the highest degree of
belief unaccompanied by any conduct would most certainly be motivated protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the
only by the legislature's preference of a competing religious belief. Thus, Court struck down a state law prohibiting door-to-door solicitation for any
all cases of regulation of belief would amount to regulation of religion for religious or charitable cause without prior approval of a state agency. The
religious reasons violative of the Free Exercise Clause. On the other law was challenged by Cantwell, a member of the Jehovah's Witnesses
hand, most state regulations of conduct are for public welfare purposes which is committed to active proselytizing. The Court invalidated the state
and have nothing to do with the legislature's religious preferences. Any statute as the prior approval necessary was held to be a censorship of
burden on religion that results from state regulation of conduct arises only religion prohibited by the Free Exercise Clause. The Court held, viz:
when particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These burdens are In the realm of religious faith, and in that of political belief, sharp
thus usually inadvertent and did not figure in the belief-action test. As differences arise. In both fields the tenets of one may seem the
long as the Court found that regulation address action rather than belief, rankest error to his neighbor. To persuade others to his point of
the Free Exercise Clause did not pose any problem. 147 The Free Exercise view, the pleader, as we know, resorts to exaggeration, to
Clause thus gave no protection against the proscription of actions even if vilification of men who have been, or are, prominent in church or
considered central to a religion unless the legislature formally outlawed state, and even to false statement. But the people of this nation
the belief itself.148 have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view,
This belief-action distinction was held by the Court for some years as essential to enlightened opinion and right conduct on the part of
shown by cases where the Court upheld other laws which burdened the citizens of a democracy.155
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v. Cantwell took a step forward from the protection afforded by the
United States.149 However, more than a century since Reynolds was Reynolds case in that it not only affirmed protection of belief but also
decided, the Court has expanded the scope of protection from belief to freedom to act for the propagation of that belief, viz:
speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone Thus the Amendment embraces two concepts - freedom to
unchallenged. The belief-action distinction is still of some importance believe and freedom to act. The first is absolute but, in the nature
 of things, the second cannot be. Conduct remains subject to instead recognized the deliberate-inadvertent distinction, i.e., the
regulation for the protection of society. . . In every case, the distinction between deliberate state interference of religious exercise for
power to regulate must be so exercised as not, in attaining a religious reasons which was plainly unconstitutional and government's
permissible end, unduly to infringe the protected freedom. inadvertent interference with religion in pursuing some secular
(emphasis supplied)156 objective.162 In the 1940 case of Minersville School District v.
Gobitis,163 the Court upheld a local school board requirement that all
The Court stated, however, that government had the power to regulate public school students participate in a daily flag salute program, including
the times, places, and manner of solicitation on the streets and assure the Jehovah's Witnesses who were forced to salute the American flag in
the peace and safety of the community. violation of their religious training, which considered flag salute to be
worship of a "graven image." The Court recognized that the general
Three years after Cantwell, the Court in Douglas v. City of requirement of compulsory flag salute inadvertently burdened the
Jeanette,157 ruled that police could not prohibit members of the Jehovah's Jehovah Witnesses' practice of their religion, but justified the government
Witnesses from peaceably and orderly proselytizing on Sundays merely regulation as an appropriate means of attaining national unity, which was
because other citizens complained. In another case likewise involving the the "basis of national security." Thus, although the Court was already
Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously aware of the deliberate-inadvertent distinction in government interference
held unconstitutional a city council's denial of a permit to the Jehovah's with religion, it continued to hold that the Free Exercise Clause presented
Witnesses to use the city park for a public meeting. The city council's no problem to interference with religion that was inadvertent no matter
refusal was because of the "unsatisfactory" answers of the Jehovah's how serious the interference, no matter how trivial the state's non-
Witnesses to questions about Catholicism, military service, and other religious objectives, and no matter how many alternative approaches
issues. The denial of the public forum was considered blatant censorship. were available to the state to pursue its objectives with less impact on
While protected, religious speech in the public forum is still subject to religion, so long as government was acting in pursuit of a secular
reasonable time, place and manner regulations similar to non-religious objective.
speech. Religious proselytizing in congested areas, for example, may be
limited to certain areas to maintain the safe and orderly flow of Three years later, the Gobitis decision was overturned in West Virginia
pedestrians and vehicular traffic as held in the case of Heffron v. v. Barnette164 which involved a similar set of facts and issue. The Court
International Society for Krishna Consciousness.159 recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of
The least protected under the Free Exercise Clause is religious conduct, students to declare a belief. The Court ruled that "compulsory unification
usually in the form of unconventional religious practices. Protection in this of opinions leads only to the unanimity of the graveyard" and exempt the
realm depends on the character of the action and the government students who were members of the Jehovah's Witnesses from saluting
rationale for regulating the action.160 The Mormons' religious conduct of the flag. A close scrutiny of the case, however, would show that it was
polygamy is an example of unconventional religious practice. As decided not on the issue of religious conduct as the Court said, "(n)or
discussed in the Reynolds case above, the Court did not afford protection does the issue as we see it turn on one's possession of particular
to the practice. Reynolds was reiterated in the 1890 case of Davis again religious views or the sincerity with which they are held. While religion
involving Mormons, where the Court held, viz: "(c)rime is not the less supplies appellees' motive for enduring the discomforts of making the
odious because sanctioned by what any particular sect may designate as issue in this case, many citizens who do not share these religious views
religion."161 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
The belief-action test in Reynolds and Davis proved unsatisfactory. Under
susceptible only of restriction only to prevent grave and immediate
this test, regulation of religiously dictated conduct would be upheld no
danger to interests which the state may lawfully protect." 166 The Court
matter how central the conduct was to the exercise of religion and no
seemed to recognize the extent to which its approach in Gobitis
matter how insignificant was the government's non-religious regulatory
subordinated the religious liberty of political minorities - a specially
interest so long as the government is proscribing action and not belief.
protected constitutional value - to the common everyday economic and
Thus, the Court abandoned the simplistic belief-action distinction and
public welfare objectives of the majority in the legislature. This time, even State of her constitutional rights of free exercise, or because any
inadvertent interference with religion must pass judicial scrutiny under the incidental burden on the free exercise of appellant's religion may
Free Exercise Clause with only grave and immediate danger sufficing to be justified by a 'compelling state interest in the regulation of a
override religious liberty. But the seeds of this heightened scrutiny would subject within the State's constitutional power to
only grow to a full flower in the 1960s.167 regulate. . .'NAACP v. Button, 371 US 415, 438 9 L ed 2d 405,
421, 83 S Ct 328.173 (emphasis supplied)
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence. 168 A two- The Court stressed that in the area of religious liberty, it is basic that it is
part balancing test was established in Braunfeld v. Brown169 where the not sufficient to merely show a rational relationship of the substantial
Court considered the constitutionality of applying Sunday closing laws to infringement to the religious right and a colorable state interest. "(I)n this
Orthodox Jews whose beliefs required them to observe another day as highly sensitive constitutional area, '[o]nly the gravest abuses,
the Sabbath and abstain from commercial activity on Saturday. Chief endangering paramount interests, give occasion for permissible
Justice Warren, writing for the Court, found that the law placed a severe limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S
burden on Sabattarian retailers. He noted, however, that since the burden Ct 315."174 The Court found that there was no such compelling state
was the indirect effect of a law with a secular purpose, it would violate the interest to override Sherbert's religious liberty. It added that even if the
Free Exercise Clause only if there were alternative ways of achieving the state could show that Sherbert's exemption would pose serious
state's interest. He employed a two-part balancing test of validity where detrimental effects to the unemployment compensation fund and
the first step was for plaintiff to show that the regulation placed a real scheduling of work, it was incumbent upon the state to show that no
burden on his religious exercise. Next, the burden would be upheld only if alternative means of regulations would address such detrimental effects
the state showed that it was pursuing an overriding secular goal by the without infringing religious liberty. The state, however, did not discharge
means which imposed the least burden on religious practices. 170 The this burden. The Court thus carved out for Sherbert an exemption from
Court found that the state had an overriding secular interest in setting the Saturday work requirement that caused her disqualification from
aside a single day for rest, recreation and tranquility and there was no claiming the unemployment benefits. The Court reasoned that upholding
alternative means of pursuing this interest but to require Sunday as a the denial of Sherbert's benefits would force her to choose between
uniform rest day. receiving benefits and following her religion. This choice placed "the
same kind of burden upon the free exercise of religion as would a fine
Two years after came the stricter compelling state interest test in the imposed against (her) for her Saturday worship." This germinal case of
1963 case of Sherbert v. Verner.171 This test was similar to the two-part Sherbert firmly established the exemption doctrine, 175 viz:
balancing test in Braunfeld,172 but this latter test stressed that the state
interest was not merely any colorable state interest, but must be It is certain that not every conscience can be accommodated by
paramount and compelling to override the free exercise claim. In this all the laws of the land; but when general laws conflict with
case, Sherbert, a Seventh Day Adventist, claimed unemployment scruples of conscience, exemptions ought to be granted unless
compensation under the law as her employment was terminated for some 'compelling state interest' intervenes.
refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
for determining whether the denial of benefits could withstand even as early as Braunfeld), the Court moved from the doctrine that
constitutional scrutiny, the Court ruled, viz: inadvertent or incidental interferences with religion raise no problem
under the Free Exercise Clause to the doctrine that such interferences
Plainly enough, appellee's conscientious objection to Saturday violate the Free Exercise Clause in the absence of a compelling state
work constitutes no conduct prompted by religious principles of a interest - the highest level of constitutional scrutiny short of a holding of a
kind within the reach of state legislation. If, therefore, the decision per se violation. Thus, the problem posed by the belief-action test and the
of the South Carolina Supreme Court is to withstand appellant's deliberate-inadvertent distinction was addressed. 176
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
Throughout the 1970s and 1980s under the Warren, and afterwards, the It follows that in order for Wisconsin to compel school attendance
Burger Court, the rationale in Sherbert continued to be applied. beyond the eighth grade against a claim that such attendance
In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals interferes with the practice of a legitimate religious belief, it must
Division,178 for example, the Court reiterated the exemption doctrine and appear either that the State does not deny the free exercise of
held that in the absence of a compelling justification, a state could not religious belief by its requirement, or that there is a state interest
withhold unemployment compensation from an employee who resigned of sufficient magnitude to override the interest claiming protection
or was discharged due to unwillingness to depart from religious practices under the Free Exercise Clause. Long before there was general
and beliefs that conflicted with job requirements. But not every acknowledgement of the need for universal education, the
governmental refusal to allow an exemption from a regulation which Religion Clauses had specially and firmly fixed the right of free
burdens a sincerely held religious belief has been invalidated, even exercise of religious beliefs, and buttressing this fundamental
though strict or heightened scrutiny is applied. In United States v. right was an equally firm, even if less explicit, prohibition against
Lee,179 for instance, the Court using strict scrutiny and referring to the establishment of any religion. The values underlying these
Thomas, upheld the federal government's refusal to exempt Amish two provisions relating to religion have been zealously protected,
employers who requested for exemption from paying social security taxes sometimes even at the expense of other interests of admittedly
on wages on the ground of religious beliefs. The Court held that high social importance. . .
"(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 The essence of all that has been said and written on the subject
affords no basis for resisting the tax."180 It reasoned that unlike in is that only those interests of the highest order and those not
Sherbert, an exemption would significantly impair government's otherwise served can overbalance legitimate claims to the free
achievement of its objective - "the fiscal vitality of the social security exercise of religion. . .
system;" mandatory participation is indispensable to attain this objective.
The Court noted that if an exemption were made, it would be hard to . . . our decisions have rejected the idea that that religiously
justify not allowing a similar exemption from general federal taxes where grounded conduct is always outside the protection of the Free
the taxpayer argues that his religious beliefs require him to reduce or Exercise Clause. It is true that activities of individuals, even when
eliminate his payments so that he will not contribute to the government's religiously based, are often subject to regulation by the States in
war-related activities, for example. the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal government in the
The strict scrutiny and compelling state interest test significantly exercise of its delegated powers . . . But to agree that religiously
increased the degree of protection afforded to religiously motivated grounded conduct must often be subject to the broad police
conduct. While not affording absolute immunity to religious activity, a power of the State is not to deny that there are areas of conduct
compelling secular justification was necessary to uphold public policies protected by the Free Exercise Clause of the First Amendment
that collided with religious practices. Although the members of the Court and thus beyond the power of the State to control, even under
often disagreed over which governmental interests should be considered regulations of general applicability. . . .This case, therefore, does
compelling, thereby producing dissenting and separate opinions in not become easier because respondents were convicted for their
religious conduct cases, this general test established a strong "actions" in refusing to send their children to the public high
presumption in favor of the free exercise of religion. 181 school; in this context belief and action cannot be neatly confined
in logic-tight compartments. . .183
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder182 where the Court upheld the religious practice of the Old Order The onset of the 1990s, however, saw a major setback in the protection
Amish faith over the state's compulsory high school attendance law. The afforded by the Free Exercise Clause. In Employment Division, Oregon
Amish parents in this case did not permit secular education of their Department of Human Resources v. Smith,184 the sharply divided
children beyond the eighth grade. Chief Justice Burger, writing for the Rehnquist Court dramatically departed from the heightened scrutiny and
majority, held, viz: 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 Justice O'Connor wrote a concurring opinion pointing out that the
sect outside the Judeo-Christian mainstream of American religion, came majority's rejection of the compelling governmental interest test was the
in conflict with the state's interest in prohibiting the use of illicit drugs. most controversial part of the decision. Although she concurred in the
Oregon's controlled substances statute made the possession of peyote a result that the Free Exercise Clause had not been offended, she sharply
criminal offense. Two members of the church, Smith and Black, worked criticized the majority opinion as a dramatic departure "from well-settled
as drug rehabilitation counselors for a private social service agency in First Amendment jurisprudence. . . and . . . (as) incompatible with our
Oregon. Along with other church members, Smith and Black ingested Nation's fundamental commitment to religious liberty." This portion of her
peyote, a hallucinogenic drug, at a sacramental ceremony practiced by concurring opinion was supported by Justices Brennan, Marshall and
Native Americans for hundreds of years. The social service agency fired Blackmun who dissented from the Court's decision. Justice O'Connor
Smith and Black citing their use of peyote as "job-related misconduct". asserted that "(t)he compelling state interest test effectuates the First
They applied for unemployment compensation, but the Oregon Amendment's command that religious liberty is an independent liberty,
Employment Appeals Board denied their application as they were that it occupies a preferred position, and that the Court will not permit
discharged for job-related misconduct. Justice Scalia, writing for the encroachments upon this liberty, whether direct or indirect, unless
majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely required by clear and compelling government interest 'of the highest
the incidental effect of a generally applicable and otherwise valid law, the order'." Justice Blackmun registered a separate dissenting opinion, joined
First Amendment has not been offended." In other words, the Free by Justices Brennan and Marshall. He charged the majority with
Exercise Clause would be offended only if a particular religious practice "mischaracterizing" precedents and "overturning. . . settled law
were singled out for proscription. The majority opinion relied heavily on concerning the Religion Clauses of our Constitution." He pointed out that
the Reynolds case and in effect, equated Oregon's drug prohibition law the Native American Church restricted and supervised the sacramental
with the anti-polygamy statute in Reynolds. The relevant portion of the use of peyote. Thus, the state had no significant health or safety
majority opinion held, viz: justification for regulating the sacramental drug use. He also observed
that Oregon had not attempted to prosecute Smith or Black, or any Native
We have never invalidated any governmental action on the basis Americans, for that matter, for the sacramental use of peyote. In
of the Sherbert test except the denial of unemployment conclusion, he said that "Oregon's interest in enforcing its drug laws
compensation. against religious use of peyote (was) not sufficiently compelling to
outweigh respondents' right to the free exercise of their religion."
Even if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not The Court went back to the Reynolds and Gobitis doctrine in Smith. The
apply it to require exemptions from a generally applicable criminal Court's standard in Smith virtually eliminated the requirement that the
law. . . government justify with a compelling state interest the burdens on
religious exercise imposed by laws neutral toward religion. The Smith
We conclude today that the sounder approach, and the approach in doctrine is highly unsatisfactory in several respects and has been
accord with the vast majority of our precedents, is to hold the test criticized as exhibiting a shallow understanding of free exercise
inapplicable to such challenges. The government's ability to enforce jurisprudence.185 First, the First amendment was intended to protect
generally applicable prohibitions of socially harmful conduct, like its ability minority religions from the tyranny of the religious and political majority. A
to carry out other aspects of public policy, "cannot depend on measuring deliberate regulatory interference with minority religious freedom is the
the effects of a governmental action on a religious objector's spiritual worst form of this tyranny. But regulatory interference with a minority
development." . . .To make an individual's obligation to obey such a law religion as a result of ignorance or sensitivity of the religious and political
contingent upon the law's coincidence with his religious beliefs except majority is no less an interference with the minority's religious freedom. If
where the State's interest is "compelling" - permitting him, by virtue of his the regulation had instead restricted the majority's religious practice, the
beliefs, "to become a law unto himself," . . . - contradicts both majoritarian legislative process would in all probability have modified or
constitutional tradition and common sense. rejected the regulation. Thus, the imposition of the political majority's non-
religious objectives at the expense of the minority's religious interests
implements the majority's religious viewpoint at the expense of the
minority's. Second, government impairment of religious liberty would slaves. An ordinance made it a crime to "unnecessarily kill, torment,
most often be of the inadvertent kind as in Smith considering the political torture, or mutilate an animal in public or private ritual or ceremony not for
culture where direct and deliberate regulatory imposition of religious the primary purpose of food consumption." The ordinance came as a
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not response to the local concern over the sacrificial practices of the
afford protection to inadvertent interference, it would be left almost Santeria. Justice Kennedy, writing for the majority, carefully pointed out
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies that the questioned ordinance was not a generally applicable criminal
common sense. The state should not be allowed to interfere with the prohibition, but instead singled out practitioners of the Santeria in that it
most deeply held fundamental religious convictions of an individual in forbade animal slaughter only insofar as it took place within the context of
order to pursue some trivial state economic or bureaucratic objective. religious rituals.
This is especially true when there are alternative approaches for the state
to effectively pursue its objective without serious inadvertent impact on It may be seen from the foregoing cases that under the Free Exercise
religion.186 Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
Thus, the Smith decision has been criticized not only for increasing the non-religious speech, and unconventional religious practice receives less
power of the state over religion but as discriminating in favor of protection; nevertheless conduct, even if its violates a law, could be
mainstream religious groups against smaller, more peripheral groups who accorded protection as shown in Wisconsin.194
lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost B. Establishment Clause
invariably from relatively politically powerless minority religions and Smith
virtually wiped out their judicial recourse for exemption. 189 Thus, the Smith The Court's first encounter with the Establishment Clause was in the
decision elicited much negative public reaction especially from the 1947 case of Everson v. Board of Education.195 Prior cases had made
religious community, and commentaries insisted that the Court was passing reference to the Establishment Clause196 and raised
allowing the Free Exercise Clause to disappear.190 So much was the establishment questions but were decided on other grounds. 197 It was in
uproar that a majority in Congress was convinced to enact the Religious the Everson case that the U.S. Supreme Court adopted Jefferson's
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited metaphor of "a wall of separation between church and state" as
government at all levels from substantially burdening a person's free encapsulating the meaning of the Establishment Clause. The often and
exercise of religion, even if such burden resulted from a generally loosely used phrase "separation of church and state" does not appear in
applicable rule, unless the government could demonstrate a compelling the U.S. Constitution. It became part of U.S. jurisprudence when the
state interest and the rule constituted the least restrictive means of Court in the 1878 case of Reynolds v. United States198 quoted
furthering that interest.191 RFRA, in effect, sought to overturn the Jefferson's famous letter of 1802 to the Danbury Baptist Association in
substance of the Smith ruling and restore the status quo prior to Smith. narrating the history of the religion clauses, viz:
Three years after the RFRA was enacted, however, the Court, dividing 6
to 3, declared the RFRA unconstitutional in City of Boerne v.
Believing with you that religion is a matter which lies solely
Flores.192 The Court ruled that "RFRA contradicts vital principles
between man and his God; that he owes account to none other
necessary to maintain separation of powers and the federal balance." It
for his faith or his worship; that the legislative powers of the
emphasized the primacy of its role as interpreter of the Constitution and
Government reach actions only, and not opinions, I contemplate
unequivocally rejected, on broad institutional grounds, a direct
with sovereign reverence that act of the whole American people
congressional challenge of final judicial authority on a question of
which declared that their Legislature should 'make no law
constitutional interpretation.
respecting an establishment of religion or prohibiting the free
exercise thereof,' thus building a wall of separation between
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Church and State.199 (emphasis supplied)
Hialeah193 which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism
and West African religions brought to the Carribean by East African
Chief Justice Waite, speaking for the majority, then added, "(c)oming as approve the slightest breach. New Jersey has not breached it
this does from an acknowledged leader of the advocates of the measure, here.203
it may be accepted almost as an authoritative declaration of the scope
and effect of the amendment thus secured."200 By 1971, the Court integrated the different elements of the Court's
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
The interpretation of the Establishment Clause has in large part been in and laid down a three-pronged test in Lemon v. Kurtzman204 in
cases involving education, notably state aid to private religious schools determining the constitutionality of policies challenged under the
and prayer in public schools.201 In Everson v. Board of Education, for Establishment Clause. This case involved a Pennsylvania statutory
example, the issue was whether a New Jersey local school board could program providing publicly funded reimbursement for the cost of
reimburse parents for expenses incurred in transporting their children to teachers' salaries, textbooks, and instructional materials in secular
and from Catholic schools. The reimbursement was part of a general subjects and a Rhode Island statute providing salary supplements to
program under which all parents of children in public schools and teachers in parochial schools. The Lemon test requires a challenged
nonprofit private schools, regardless of religion, were entitled to policy to meet the following criteria to pass scrutiny under the
reimbursement for transportation costs. Justice Hugo Black, writing for a Establishment Clause. "First, the statute must have a secular legislative
sharply divided Court, justified the reimbursements on the child benefit purpose; second, its primary or principal effect must be one that neither
theory, i.e., that the school board was merely furthering the state's advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
legitimate interest in getting children "regardless of their religion, safely 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
and expeditiously to and from accredited schools." The Court, after must not foster 'an excessive entanglement with religion.' (Walz v.Tax
narrating the history of the First Amendment in Virginia, interpreted the Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
Establishment Clause, viz: [1970])" (emphasis supplied) 205Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were
The 'establishment of religion' clause of the First Amendment unconstitutional as fostering excessive entanglement between
means at least this: Neither a state nor the Federal Government government and religion.
can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another. The most controversial of the education cases involving the
Neither can force nor influence a person to go to or remain away Establishment Clause are the school prayer decisions. "Few decisions of
from church against his will or force him to profess a belief or the modern Supreme Court have been criticized more intensely than the
disbelief in any religion. No person can be punished for school prayer decisions of the early 1960s."206 In the 1962 case of Engel
entertaining or professing religious beliefs or disbeliefs, for church v. Vitale,207 the Court invalidated a New York Board of Regents policy
attendance or non-attendance. No tax in any amount, large or that established the voluntary recitation of a brief generic prayer by
small, can be levied to support any religious activities or children in the public schools at the start of each school day. The majority
institutions, whatever they may be called, or whatever form they opinion written by Justice Black stated that "in this country it is no part of
may adopt to teach or practice religion. Neither a state nor the the business of government to compose official prayers for any group of
Federal Government can, openly or secretly participate in the the American people to recite as part of a religious program carried on by
affairs of any religious organizations or groups and vice versa. In government." In fact, history shows that this very practice of establishing
the words of Jefferson, the clause against establishment of governmentally composed prayers for religious services was one of the
religion by law was intended to erect "a wall of separation reasons that caused many of the early colonists to leave England and
between Church and State."202 seek religious freedom in America. The Court called to mind that the first
and most immediate purpose of the Establishment Clause rested on the
The Court then ended the opinion, viz: belief that a union of government and religion tends to destroy
government and to degrade religion. The following year, the Engel
The First Amendment has erected a wall between church and decision was reinforced in Abington School District v.
state. That wall must be kept high and impregnable. We could not Schempp208 and Murray v. Curlett209 where the Court struck down the
practice of Bible reading and the recitation of the Lord's prayer in the
Pennsylvania and Maryland schools. The Court held that to withstand the choose to take religious instruction were required to leave their
strictures of the Establishment Clause, a statute must have a secular classrooms and go to some other place in the school building for their
legislative purpose and a primary effect that neither advances nor inhibits secular studies while those who were released from their secular study
religion. It reiterated, viz: for religious instruction were required to attend the religious classes. The
Court held that the use of tax-supported property for religious instruction
The wholesome 'neutrality' of which this Court's cases speak thus and the close cooperation between the school authorities and the
stems from a recognition of the teachings of history that powerful religious council in promoting religious education amounted to a
sects or groups might bring about a fusion of governmental and prohibited use of tax-established and tax-supported public school system
religious functions or a concert or dependency of one upon the to aid religious groups spread their faith. The Court rejected the claim that
other to the end that official support of the State of Federal the Establishment Clause only prohibited government preference of one
Government would be placed behind the tenets of one or of all religion over another and not an impartial governmental assistance of all
orthodoxies. This the Establishment Clause prohibits. And a religions. In Zorach v. Clauson,214 however, the Court upheld released
further reason for neutrality is found in the Free Exercise Clause, time programs allowing students in public schools to leave campus upon
which recognizes the value of religious training, teaching and parental permission to attend religious services while other students
observance and, more particularly, the right of every person to attended study hall. Justice Douglas, the writer of the opinion, stressed
freely choose his own course with reference thereto, free of any that "(t)he First Amendment does not require that in every and all
compulsion from the state.210 respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:
The school prayer decisions drew furious reactions. Religious leaders
and conservative members of Congress and resolutions passed by In the McCollum case the classrooms were used for religious
several state legislatures condemned these decisions. 211 On several instruction and the force of the public school was used to promote
occasions, constitutional amendments have been introduced in Congress that instruction. . . We follow the McCollum case. But we cannot
to overturn the school prayer decisions. Still, the Court has maintained its expand it to cover the present released time program unless
position and has in fact reinforced it in the 1985 case of Wallace v. separation of Church and State means that public institutions can
Jaffree212 where the Court struck down an Alabama law that required make no adjustments of their schedules to accommodate the
public school students to observe a moment of silence "for the purpose of religious needs of the people. We cannot read into the Bill of
meditation or voluntary prayer" at the start of each school day. Rights such a philosophy of hostility to religion. 215

Religious instruction in public schools has also pressed the Court to In the area of government displays or affirmations of belief, the Court has
interpret the Establishment Clause. Optional religious instruction within given leeway to religious beliefs and practices which have acquired a
public school premises and instructional time were declared offensive of secular meaning and have become deeply entrenched in history. For
the Establishment Clause in the 1948 case of McCollum v. Board of instance, in McGowan v. Maryland,216 the Court upheld laws that
Education,213 decided just a year after the seminal Everson case. In this prohibited certain businesses from operating on Sunday despite the
case, interested members of the Jewish, Roman Catholic and a few obvious religious underpinnings of the restrictions. Citing the secular
Protestant faiths obtained permission from the Board of Education to offer purpose of the Sunday closing laws and treating as incidental the fact
classes in religious instruction to public school students in grades four to that this day of rest happened to be the day of worship for most
nine. Religion classes were attended by pupils whose parents signed Christians, the Court held, viz:
printed cards requesting that their children be permitted to attend. The
classes were taught in three separate groups by Protestant teachers, It is common knowledge that the first day of the week has come
Catholic priests and a Jewish rabbi and were held weekly from thirty to to have special significance as a rest day in this country. People
forty minutes during regular class hours in the regular classrooms of the of all religions and people with no religion regard Sunday as a
school building. The religious teachers were employed at no expense to time for family activity, for visiting friends and relatives, for later
the school authorities but they were subject to the approval and sleeping, for passive and active entertainments, for dining out,
supervision of the superintendent of schools. Students who did not and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to and stabilizing influences in community life and finds this
invalidate Nebraska's policy of beginning legislative sessions with prayers classification useful, desirable, and in the public interest. 223
offered by a Protestant chaplain retained at the taxpayers' expense. The
majority opinion did not rely on the Lemon test and instead drew heavily The Court added that the exemption was not establishing religion but
from history and the need for accommodation of popular religious "sparing the exercise of religion from the burden of property taxation
beliefs, viz: levied on private profit institutions"224 and preventing excessive
entanglement between state and religion. At the same time, the Court
In light of the unambiguous and unbroken history of more than acknowledged the long-standing practice of religious tax exemption and
200 years, there can be no doubt that the practice of opening the Court's traditional deference to legislative bodies with respect to the
legislative sessions with prayer has become the fabric of our taxing power, viz:
society. To invoke Divine guidance on a public body entrusted
with making the laws is not, in these circumstances, an (f)ew concepts are more deeply embedded in the fabric of our
"establishment" of religion or a step toward establishment; it is national life, beginning with pre-Revolutionary colonial times, than
simply a tolerable acknowledgement of beliefs widely held among for the government to exercise . . . this kind of benevolent
the people of this country. As Justice Douglas observed, "(w)e neutrality toward churches and religious exercise generally so
are a religious people whose institutions presuppose a Supreme long as none was favored over others and none suffered
Being." (Zorach c. Clauson, 343 US 306, 313 [1952]) 219 (emphasis interference.225(emphasis supplied)
supplied)
C. Strict Neutrality v. Benevolent Neutrality
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 To be sure, the cases discussed above, while citing many landmark
that occurs in nearly every legislature in the United States, including the decisions in the religious clauses area, are but a small fraction of the
U.S. Congress."220 That Marsh was not an aberration is suggested by hundreds of religion clauses cases that the U.S. Supreme Court has
subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court passed upon. Court rulings contrary to or making nuances of the above
upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 cases may be cited. Professor McConnell poignantly recognizes this, viz:
decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a "neutral
Thus, as of today, it is constitutional for a state to hire a
harbinger of the holiday season" for many, rather than a symbol of
Presbyterian minister to lead the legislature in daily prayers
Christianity.
(Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the
The Establishment Clause has also been interpreted in the area of tax schools for children to pray if they want to (Wallace v. Jaffree,
exemption. By tradition, church and charitable institutions have been 472 US 38, 56 [1985]). It is unconstitutional for a state to require
exempt from local property taxes and their income exempt from federal employers to accommodate their employees' work schedules to
and state income taxes. In the 1970 case of Walz v. Tax their sabbath observances (Estate of Thornton v. Caldor, Inc.,
Commission,222 the New York City Tax Commission's grant of property 472 US 703, 709-10 [1985]) but constitutionally mandatory for a
tax exemptions to churches as allowed by state law was challenged by state to require employers to pay workers compensation when
Walz on the theory that this required him to subsidize those churches the resulting inconsistency between work and sabbath leads to
indirectly. The Court upheld the law stressing its neutrality, viz: discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-
It has not singled out one particular church or religious group or affiliated organizations to teach adolescents about proper sexual
even churches as such; rather, it has granted exemptions to all behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to
houses of religious worship within a broad class of property teach them science or history (Lemon v. Kurtzman, 403 US 602,
owned by non-profit, quasi-public corporations . . . The State has 618-619 [1971]). It is constitutional for the government to provide
an affirmative policy that considers these groups as beneficial
 religious school pupils with books (Board of Education v. Allen, the First Congress, which framed the First Amendment, or its
392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, principal author and sponsor, James Madison, intended that
433 US 229, 249-51 [1977]); with bus rides to religious schools Amendment to create a state of complete independence between
(Everson v. Board of Education, 330 US 1, 17 [1947]), but not religion and government. In fact, the evidence in the public
from school to a museum on a field trip (Wolman v. Walter, 433 documents goes the other way.230 (emphasis supplied)
US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious To succinctly and poignantly illustrate the historical basis of benevolent
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for neutrality that gives room for accommodation, less than twenty-four hours
safety-related maintenance (Committee for Pub. Educ v. Nyquist, after Congress adopted the First Amendment's prohibition on laws
413 US 756, 774-80 [1973]). It is a mess.226 respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with
But the purpose of the overview is not to review the entirety of the U.S. a resolution in favor of a presidential proclamation declaring a national
religion clause jurisprudence nor to extract the prevailing case law day of Thanksgiving and Prayer. Only two members of Congress
regarding particular religious beliefs or conduct colliding with particular opposed the resolution, one on the ground that the move was a
government regulations. Rather, the cases discussed above suffice to "mimicking of European customs, where they made a mere mockery of
show that, as legal scholars observe, this area of jurisprudence has thanksgivings", the other on establishment clause concerns.
demonstrated two main standards used by the Court in deciding religion Nevertheless, the salutary effect of thanksgivings throughout Western
clause cases: separation (in the form of strict separation or the tamer history was acknowledged and the motion was passed without further
version of strict neutrality or separation) and benevolent neutrality or recorded discussion.231 Thus, accommodationists also go back to the
accommodation. The weight of current authority, judicial and in terms of framers to ascertain the meaning of the First Amendment, but prefer to
sheer volume, appears to lie with the separationists, strict or tame. 227 But focus on acts rather than words. Contrary to the claim of separationists
the accommodationists have also attracted a number of influential that rationalism pervaded America in the late 19th century and that
scholars and jurists.228 The two standards producing two streams of America was less specifically Christian during those years than at any
jurisprudence branch out respectively from the history of the First other time before or since,232accommodationaists claim that American
Amendment in England and the American colonies and climaxing in citizens at the time of the Constitution's origins were a remarkably
Virginia as narrated in this opinion and officially acknowledged by the religious people in particularly Christian terms.233
Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation - The two streams of jurisprudence - separationist or accommodationist -
strict or tame - protects the principle of church-state separation with a are anchored on a different reading of the "wall of separation." The strict
rigid reading of the principle while benevolent neutrality protects religious separtionist view holds that Jefferson meant the "wall of separation" to
realities, tradition and established practice with a flexible reading of the protect the state from the church. Jefferson was a man of the
principle.229 The latter also appeals to history in support of its position, viz: Enlightenment Era of the eighteenth century, characterized by the
rationalism and anticlericalism of that philosophic bent. 234 He has often
The opposing school of thought argues that the First Congress been regarded as espousing Deism or the rationalistic belief in a natural
intended to allow government support of religion, at least as long religion and natural law divorced from its medieval connection with divine
as that support did not discriminate in favor of one particular law, and instead adhering to a secular belief in a universal
religion. . . the Supreme Court has overlooked many important harmony.235 Thus, according to this Jeffersonian view, the Establishment
pieces of history. Madison, for example, was on the Clause being meant to protect the state from the church, the state's
congressional committee that appointed a chaplain, he declared hostility towards religion allows no interaction between the two.236 In fact,
several national days of prayer and fasting during his presidency, when Jefferson became President, he refused to proclaim fast or
and he sponsored Jefferson's bill for punishing Sabbath breakers; thanksgiving days on the ground that these are religious exercises and
moreover, while president, Jefferson allowed federal support of the Constitution prohibited the government from intermeddling with
religious missions to the Indians. . . And so, concludes one recent religion.237 This approach erects an absolute barrier to formal
book, 'there is no support in the Congressional records that either interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state public schools as in Engel and Schempp.246 The McCollum case
adjust its secular programs to alleviate burdens the programs placed on prohibiting optional religious instruction within public school premises
believers.238 Only the complete separation of religion from politics would during regular class hours also demonstrates strict neutrality. In these
eliminate the formal influence of religious institutions and provide for a education cases, the Court refused to uphold the government action as
free choice among political views thus a strict "wall of separation" is they were based not on a secular but on a religious purpose. Strict
necessary.239 Strict separation faces difficulties, however, as it is deeply neutrality was also used in Reynolds and Smith which both held that if
embedded in history and contemporary practice that enormous amounts government acts in pursuit of a generally applicable law with a secular
of aid, both direct and indirect, flow to religion from government in return purpose that merely incidentally burdens religious exercise, the First
for huge amounts of mostly indirect aid from religion. Thus, strict Amendment has not been offended. However, if the strict neutrality
separationists are caught in an awkward position of claiming a standard is applied in interpreting the Establishment Clause, it could de
constitutional principle that has never existed and is never likely to. 240 facto void religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Schempp, strict
A tamer version of the strict separationist view, the strict neutrality or neutrality could lead to "a brooding and pervasive devotion to the secular
separationist view is largely used by the Court, showing the Court's and a passive, or even active, hostility to the religious" which is prohibited
tendency to press relentlessly towards a more secular society. 241 It finds by the Constitution.247 Professor Laurence Tribe commented in his
basis in the Everson case where the Court declared that Jefferson's "wall authoritative treatise, viz:
of separation" encapsulated the meaning of the First Amendment but at
the same time held that the First Amendment "requires the state to be To most observers. . . strict neutrality has seemed incompatible
neutral in its relations with groups of religious believers and non- with the very idea of a free exercise clause. The Framers,
believers; it does not require the state to be their adversary. State power whatever specific applications they may have intended, clearly
is no more to be used so as to handicap religions than it is to favor them." envisioned religion as something special; they enacted that vision
(emphasis supplied)242 While the strict neutrality approach is not hostile to into law by guaranteeing the free exercise of religion but not, say,
religion, it is strict in holding that religion may not be used as a basis for of philosophy or science. The strict neutrality approach all but
classification for purposes of governmental action, whether the action erases this distinction. Thus it is not surprising that the Supreme
confers rights or privileges or imposes duties or obligations. Only secular Court has rejected strict neutrality, permitting and sometimes
criteria may be the basis of government action. It does not permit, much mandating religious classifications.248
less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz: The separationist approach, whether strict or tame, is caught in a
dilemma because while the Jeffersonian wall of separation "captures the
The thesis proposed here as the proper construction of the spirit of the American ideal of church-state separation", in real life church
religion clauses of the first amendment is that the freedom and and state are not and cannot be totally separate. 249 This is all the more
separation clauses should be read as a single precept that true in contemporary times when both the government and religion are
government cannot utilize religion as a standard for action or growing and expanding their spheres of involvement and activity,
inaction because these clauses prohibit classification in terms of resulting in the intersection of government and religion at many points. 250
religion either to confer a benefit or to impose a burden. 244
Consequently, the Court has also decided cases employing benevolent
The Court has repeatedly declared that religious freedom means neutrality. Benevolent neutrality which gives room for accommodation is
government neutrality in religious matters and the Court has also buttressed by a different view of the "wall of separation" associated with
repeatedly interpreted this policy of neutrality to prohibit government from Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
acting except for secular purposes and in ways that have primarily classic, The Garden and the Wilderness, he asserts that to the extent the
secular effects.245 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
Prayer in public schools is an area where the Court has applied strict meant to protect the church from the state,251 i.e., the "garden" of the
neutrality and refused to allow any form of prayer, spoken or silent, in the church must be walled in for its own protection from the "wilderness" of
the world252 with its potential for corrupting those values so necessary to The First Amendment, however, does not say that in every and all
religious commitment.253 Howe called this the "theological" or respects there shall be a separation of Church and State. Rather,
"evangelical" rationale for church-state separation while the wall it studiously defines the manner, the specific ways, in which there
espoused by "enlightened" statesmen such as Jefferson and Madison, shall be no concert or union or dependency one or the other. That
was a "political" rationale seeking to protect politics from intrusions by the is the common sense of the matter. Otherwise, the state and
church.254 But it has been asserted that this contrast between the Williams religion would be aliens to each other - hostile, suspicious, and
and Jeffersonian positions is more accurately described as a difference in even unfriendly. Churches could not be required to pay even
kinds or styles of religious thinking, not as a conflict between "religious" property taxes. Municipalities would not be permitted to render
and "secular (political)"; the religious style was biblical and evangelical in police or fire protection to religious groups. Policemen who
character while the secular style was grounded in natural religion, more helped parishioners into their places of worship would violate the
generic and philosophical in its religious orientation. 255 Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the
The Williams wall is, however, breached for the church is in the state and proclamations making Thanksgiving Day a holiday; "so help me
so the remaining purpose of the wall is to safeguard religious liberty. God" in our courtroom oaths- these and all other references to the
Williams' view would therefore allow for interaction between church and Almighty that run through our laws, our public rituals, our
state, but is strict with regard to state action which would threaten the ceremonies would be flouting the First Amendment. A fastidious
integrity of religious commitment.256 His conception of separation is not atheist or agnostic could even object to the supplication with
total such that it provides basis for certain interactions between church which the Court opens each session: 'God save the United States
and state dictated by apparent necessity or practicality. 257 This and this Honorable Court.
"theological" view of separation is found in Williams' writings, viz:
xxx           xxx           xxx
. . . when they have opened a gap in the hedge or wall of
separation between the garden of the church and the wilderness We are a religious people whose institutions presuppose a
of the world, God hath ever broke down the wall itself, removed Supreme Being. We guarantee the freedom to worship as one
the candlestick, and made his garden a wilderness, as this day. chooses. . . When the state encourages religious instruction or
And that therefore if He will eer please to restore His garden and cooperates with religious authorities by adjusting the schedule of
paradise again, it must of necessity be walled in peculiarly unto public events, it follows the best of our traditions. For it then
Himself from the world. . .258 respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not
Chief Justice Burger spoke of benevolent neutrality in Walz, viz: would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . .
The general principle deducible from the First Amendment and all But we find no constitutional requirement which makes it
that has been said by the Court is this: that we will not tolerate necessary for government to be hostile to religion and to throw its
either governmentally established religion or governmental weight against efforts to widen their effective scope of religious
interference with religion. Short of those expressly proscribed influence.261(emphases supplied)
governmental acts there is room for play in the joints productive
of a benevolent neutrality which will permit religious exercise to Benevolent neutrality is congruent with the sociological proposition that
exist without sponsorship and without interference. 259(emphasis religion serves a function essential to the survival of society itself, thus
supplied) there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may be
The Zorach case expressed the doctrine of accommodation, 260 viz: 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) With religion looked upon with benevolence and not hostility, benevolent
and surrogate religion(s) in their ideology.262 As one sociologist wrote: neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
It is widely held by students of society that there are certain into account not to promote the government's favored form of religion, but
functional prerequisites without which society would not continue to allow individuals and groups to exercise their religion without
to exist. At first glance, this seems to be obvious - scarcely more hindrance. Their purpose or effect therefore is to remove a burden on, or
than to say that an automobile could not exist, as a going system, facilitate the exercise of, a person's or institution's religion. As Justice
without a carburetor. . . Most writers list religion among the Brennan explained, the "government [may] take religion into account…to
functional prerequisites.263 exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would
Another noted sociologist, Talcott Parsons, wrote: "There is no known otherwise thereby be infringed, or to create without state involvement an
human society without something which modern social scientists would atmosphere in which voluntary religious exercise may
classify as a religion…Religion is as much a human universal as flourish."269 (emphasis supplied) Accommodation is forbearance and not
language."264 alliance. it does not reflect agreement with the minority, but respect for
the conflict between the temporal and spiritual authority in which the
minority finds itself.270
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 Accommodation is distinguished from strict neutrality in that the latter
Clause questions. Among these are the inscription of "In God We Trust" holds that government should base public policy solely on secular
on American currency, the recognition of America as "one nation under considerations, without regard to the religious consequences of its
God" in the official pledge of allegiance to the flag, the Supreme Court's actions. The debate between accommodation and strict neutrality is at
time-honored practice of opening oral argument with the invocation "God base a question of means: "Is the freedom of religion best achieved when
save the United States and this honorable Court," and the practice of the government is conscious of the effects of its action on the various
Congress and every state legislature of paying a chaplain, usually of a religious practices of its people, and seeks to minimize interferences with
particular Protestant denomination to lead representatives in those practices? Or is it best advanced through a policy of 'religious
prayer.265 These practices clearly show the preference for one theological blindness' - keeping government aloof from religious practices and
viewpoint -the existence of and potential for intervention by a god - over issues?" An accommodationist holds that it is good public policy, and
the contrary theological viewpoint of atheism. Church and government sometimes constitutionally required, for the state to make conscious and
agencies also cooperate in the building of low-cost housing and in other deliberate efforts to avoid interference with religious freedom. On the
forms of poor relief, in the treatment of alcoholism and drug addiction, in other hand, the strict neutrality adherent believes that it is good public
foreign aid and other government activities with strong moral policy, and also constitutionally required, for the government to avoid
dimension.266 The persistence of these de facto establishments are in religion-specific policy even at the cost of inhibiting religious exercise. 271
large part explained by the fact that throughout history, the evangelical
theory of separation, i.e., Williams' wall, has demanded respect for these There are strong and compelling reasons, however, to take the
de facto establishments.267 But the separationists have a different accommodationist position rather than the strict neutrality position. First,
explanation. To characterize these as de jure establishments according the accommodationist interpretation is most consistent with the language
to the principle of the Jeffersonian wall, the U.S. Supreme Court, the of the First Amendment. The religion clauses contain two parallel
many dissenting and concurring opinions explain some of these practices provisions, both specifically directed at "religion." The government may
as "'de minimis' instances of government endorsement or as historic not "establish" religion and neither may government "prohibit" it. Taken
governmental practices that have largely lost their religious significance together, the religion clauses can be read most plausibly as warding off
or at least have proven not to lead the government into further two equal and opposite threats to religious freedom - government action
involvement with religion.268 that promotes the (political) majority's favored brand of religion and
government action that impedes religious practices not favored by the
majority. The substantive end in view is the preservation of the autonomy
of religious life and not just the formal process value of ensuring that legislature; while a constitutional interpretation that requires
government does not act on the basis of religious bias. On the other accommodations extends this treatment to religious faiths that are less
hand, strict neutrality interprets the religion clauses as allowing able to protect themselves in the political arena. Fourth, the
government to do whatever it desires to or for religion, as long as it does accommodationist position is practical as it is a commonsensical way to
the same to or for comparable secular entities. Thus, for example, if deal with the various needs and beliefs of different faiths in a pluralistic
government prohibits all alcoholic consumption by minors, it can prohibit nation. Without accommodation, many otherwise beneficial laws would
minors from taking part in communion. Paradoxically, this view would interfere severely with religious freedom. Aside from laws against serving
make the religion clauses violate the religion clauses, so to speak, since alcoholic beverages to minors conflicting with celebration of communion,
the religion clauses single out religion by name for special protection. regulations requiring hard hats in construction areas can effectively
Second, the accommodationist position best achieves the purposes of exclude Amish and Sikhs from the workplace, or employment anti-
the First Amendment. The principle underlying the First Amendment is discrimination laws can conflict with the Roman Catholic male priesthood,
that freedom to carry out one's duties to a Supreme Being is an among others. Exemptions from such laws are easy to craft and
inalienable right, not one dependent on the grace of legislature. Although administer and contribute much to promoting religious freedom at little
inalienable, it is necessarily limited by the rights of others, including the cost to public policy. Without exemptions, legislature would be frequently
public right of peace and good order. Nevertheless it is a substantive right forced to choose between violating religious conscience of a segment of
and not merely a privilege against discriminatory legislation. The the population or dispensing with legislation it considers beneficial to
accomplishment of the purpose of the First Amendment requires more society as a whole. Exemption seems manifestly more reasonable than
than the "religion blindness" of strict neutrality. With the pervasiveness of either of the alternative: no exemption or no law.272
government regulation, conflicts with religious practices become frequent
and intense. Laws that are suitable for secular entities are sometimes Benevolent neutrality gives room for different kinds of accommodation:
inappropriate for religious entities, thus the government must make those which are constitutionally compelled, i.e., required by the Free
special provisions to preserve a degree of independence for religious Exercise Clause; and those which are discretionary or legislative, i.e.,
entities for them to carry out their religious missions according to their and those not required by the Free Exercise Clause but nonetheless
religious beliefs. Otherwise, religion will become just like other secular permitted by the Establishment Clause.273 Some Justices of the Supreme
entities subject to pervasive regulation by majoritarian institutions. Third, Court have also used the term accommodation to describe government
the accommodationist interpretation is particularly necessary to protect actions that acknowledge or express prevailing religious sentiments of
adherents of minority religions from the inevitable effects of the community such as display of a religious symbol on public property or
majoritarianism, which include ignorance and indifference and overt the delivery of a prayer at public ceremonial events. 274 Stated otherwise,
hostility to the minority. In a democratic republic, laws are inevitably using benevolent neutrality as a standard could result to three situations
based on the presuppositions of the majority, thus not infrequently, they of accommodation: those where accommodation is required, those where
come into conflict with the religious scruples of those holding different it is permissible, and those where it is prohibited. In the first situation,
world views, even in the absence of a deliberate intent to interfere with accommodation is required to preserve free exercise protections and not
religious practice. At times, this effect is unavoidable as a practical matter unconstitutionally infringe on religious liberty or create penalties for
because some laws are so necessary to the common good that religious freedom. Contrary to the Smith declaration that free exercise
exceptions are intolerable. But in other instances, the injury to religious exemptions are "intentional government advancement", these
conscience is so great and the advancement of public purposes so small exemptions merely relieve the prohibition on the free exercise thus
or incomparable that only indifference or hostility could explain a refusal allowing the burdened religious adherent to be left alone. The state must
to make exemptions. Because of plural traditions, legislators and create exceptions to laws of general applicability when these laws
executive officials are frequently willing to make such exemptions when threaten religious convictions or practices in the absence of a compelling
the need is brought to their attention, but this may not always be the case state interest.275 By allowing such exemptions, the Free Exercise Clause
when the religious practice is either unknown at the time of enactment or does not give believers the right or privilege to choose for themselves to
is for some reason unpopular. In these cases, a constitutional override socially-prescribed decision; it allows them to obey spiritual
interpretation that allows accommodations prevents needless injury to the rather than temporal authority276 for those who seriously invoke the Free
religious consciences of those who can have an influence in the 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 against optional religious instruction in the public school premises. 283 In
derived from duties. To deny a person or a community the right to act effect, the last situation would arrive at a strict neutrality conclusion.
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 In the first situation where accommodation is required, the approach
denial compelling. "Because they may turn out to be right about the duty follows this basic framework:
in question, and because, even if they are wrong, religion bears witness
to that which transcends the political order, such denials should be rare If the plaintiff can show that a law or government practice inhibits
and painfully reluctant."277 the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary
The Yoder case is an example where the Court held that the state must to the accomplishment of some important (or 'compelling') secular
accommodate the religious beliefs of the Amish who objected to enrolling objective and that it is the least restrictive means of achieving that
their children in high school as required by law. The Sherbert case is objective. If the plaintiff meets this burden and the government
another example where the Court held that the state unemployment does not, the plaintiff is entitled to exemption from the law or
compensation plan must accommodate the religious convictions of practice at issue. In order to be protected, the claimant's beliefs
Sherbert.278 In these cases of "burdensome effect", the modern approach must be 'sincere', but they need not necessarily be consistent,
of the Court has been to apply strict scrutiny, i.e., to declare the burden coherent, clearly articulated, or congruent with those of the
as permissible, the Court requires the state to demonstrate that the claimant's religious denomination. 'Only beliefs rooted in religion
regulation which burdens the religious exercise pursues a particularly are protected by the Free Exercise Clause'; secular beliefs,
important or compelling government goal through the least restrictive however sincere and conscientious, do not suffice. 284
means. If the state's objective could be served as well or almost as well
by granting an exemption to those whose religious beliefs are burdened In other words, a three-step process (also referred to as the "two-step
by the regulation, such an exemption must be given. 279This approach of balancing process" supra when the second and third steps are combined)
the Court on "burdensome effect" was only applied since the 1960s. Prior as in Sherbert is followed in weighing the state's interest and religious
to this time, the Court took the separationist view that as long as the state freedom when these collide. Three questions are answered in this
was acting in pursuit of non-religious ends and regulating conduct rather process. First, "(h)as the statute or government action created a burden
than pure religious beliefs, the Free Exercise Clause did not pose a on the free exercise of religion?" The courts often look into the sincerity of
hindrance such as in Reynolds.280 In the second situation where the religious belief, but without inquiring into the truth of the belief
accommodation is permissible, the state may, but is not required to, because the Free Exercise Clause prohibits inquiring about its truth as
accommodate religious interests. The Walz case illustrates this situation held in Ballard and Cantwell. The sincerity of the claimant's belief is
where the Court upheld the constitutionality of tax exemption given by ascertained to avoid the mere claim of religious beliefs to escape a
New York to church properties, but did not rule that the state was mandatory regulation. As evidence of sincerity, the U.S. Supreme Court
required to provide tax exemptions. The Court declared that "(t)he limits has considered historical evidence as in Wisconsin where the Amish
of permissible state accommodation to religion are by no means co- people had held a long-standing objection to enrolling their children in
extensive with the noninterference mandated by the Free Exercise ninth and tenth grades in public high schools. In another case, Dobkin v.
Clause."281 The Court held that New York could have an interest in District of Columbia,285 the Court denied the claim of a party who
encouraging religious values and avoiding threats to those values refused to appear in court on Saturday alleging he was a Sabbatarian,
through the burden of property taxes. Other examples are the Zorach but the Court noted that he regularly conducted business on Saturday.
case allowing released time in public schools and Marsh allowing Although it is true that the Court might erroneously deny some claims
payment of legislative chaplains from public funds. Finally, in the situation because of a misjudgment of sincerity, this is not as argument to reject all
where accommodation is prohibited, establishment concerns prevail over claims by not allowing accommodation as a rule. There might be injury to
potential accommodation interests. To say that there are valid the particular claimant or to his religious community, but for the most part,
exemptions buttressed by the Free Exercise Clause does not mean that the injustice is done only in the particular case.286 Aside from the sincerity,
all claims for free exercise exemptions are valid.282 An example where the court may look into the centrality of those beliefs, assessing them not
accommodation was prohibited is McCollum where the Court ruled 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 it is achieving its legitimate state objective is the least intrusive means,
Amish people's convictions against becoming involved in public high i.e., it has chosen a way to achieve its legitimate state end that imposes
schools were central to their way of life and faith. Similarly, in Sherbert, as little as possible on religious liberties. In Cantwell, for example, the
the Court concluded that the prohibition against Saturday work was a Court invalidated the license requirement for the door-to-door solicitation
"cardinal principle."287 Professor Lupu puts to task the person claiming as it was a forbidden burden on religious liberty, noting that less drastic
exemption, viz: means of insuring peace and tranquility existed. As a whole, in carrying
out the compelling state interest test, the Court should give careful
On the claimant's side, the meaning and significance of the attention to context, both religious and regulatory, to achieve refined
relevant religious practice must be demonstrated. Religious judgment.292
command should outweigh custom, individual conscience should
count for more than personal convenience, and theological In sum, as shown by U.S. jurisprudence on religion clause cases, the
principle should be of greater significance than institutional ease. competing values of secular government and religious freedom create
Sincerity matters, (footnote omitted) and longevity of practice - tensions that make constitutional law on the subject of religious liberty
both by the individual and within the individual's religious tradition unsettled, mirroring the evolving views of a dynamic society.293
- reinforces sincerity. Most importantly, the law of free exercise
must be inclusive and expansive, recognizing non-Christian VII. Religion Clauses in the Philippines
religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and A. History
accepting of the intensity and scope of fundamentalist creed. 288
Before our country fell under American rule, the blanket of Catholicism
Second, the court asks: "(i)s there a sufficiently compelling state interest covered the archipelago. There was a union of church and state and
to justify this infringement of religious liberty?" In this step, the Catholicism was the state religion under the Spanish Constitution of
government has to establish that its purposes are legitimate for the state 1876. Civil authorities exercised religious functions and the friars
and that they are compelling. Government must do more than assert the exercised civil powers.294 Catholics alone enjoyed the right of engaging in
objectives at risk if exemption is given; it must precisely show how and to public ceremonies of worship.295 Although the Spanish Constitution itself
what extent those objectives will be undermined if exemptions are was not extended to the Philippines, Catholicism was also the
granted.289 The person claiming religious freedom, on the other hand, will established church in our country under the Spanish rule. Catholicism
endeavor to show that the interest is not legitimate or that the purpose, was in fact protected by the Spanish Penal Code of 1884 which was in
although legitimate, is not compelling compared to infringement of effect in the Philippines. Some of the offenses in chapter six of the Penal
religious liberty. This step involves balancing, i.e., weighing the interest of Code entitled "Crimes against Religion and Worship" referred to crimes
the state against religious liberty to determine which is more compelling against the state religion.296The coming of the Americans to our country,
under the particular set of facts. The greater the state's interests, the however, changed this state-church scheme for with the advent of this
more central the religious belief would have to be to overcome it. In regime, the unique American experiment of "separation of church and
assessing the state interest, the court will have to determine the state" was transported to Philippine soil.
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
Even as early as the conclusion of the Treaty of Paris between the United
find the interest truly compelling, there will be no requirement that the
States and Spain on December 10, 1898, the American guarantee of
state diminish the effectiveness of its regulation by granting the
religious freedom had been extended to the Philippines. The Treaty
exemption.290
provided that "the inhabitants of the territories over which Spain
relinquishes or cedes her sovereignty shall be secured in the free
Third, the court asks: "(h)as the state in achieving its legitimate purposes exercise of religion."297 Even the Filipinos themselves guaranteed
used the least intrusive means possible so that the free exercise is not religious freedom a month later or on January 22, 1899 upon the
infringed any more than necessary to achieve the legitimate goal of the adoption of the Malolos Constitution of the Philippine Republic under
state?"291 The analysis requires the state to show that the means in which
General Emilio Aguinaldo. It provided that "the State recognizes the That no law shall be made respecting an establishment of religion
liberty and equality of all religion (de todos los cultos) in the same manner or prohibiting the free exercise thereof, and that the free exercise
as the separation of the Church and State." But the Malolos Constitution and enjoyment of religious profession and worship without
and government was short-lived as the Americans took over the reigns of discrimination or preference, shall forever be allowed; and no
government.298 religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated,
With the Philippines under the American regime, President McKinley applied, donated, or used, directly or indirectly, for the use,
issued Instructions to the Second Philippine Commission, the body benefit, or support of any sect, church, denomination, sectarian
created to take over the civil government in the Philippines in 1900. The institution, or system of religion, or for the use, benefit or support
Instructions guaranteed religious freedom, viz: of any priest, preacher, minister, or other religious teachers or
dignitary as such.
That no law shall be made respecting the establishment of
religion or prohibiting the free exercise thereof, and that the free This was followed by the Philippine Independence Law or
exercise and enjoyment of religious profession and worship Tydings-McDuffie Law of 1934 which guaranteed independence
without discrimination or preference shall forever be allowed ... to the Philippines and authorized the drafting of a Philippine
that no form of religion and no minister of religion shall be forced constitution. It enjoined Filipinos to include freedom of religion in
upon the community or upon any citizen of the Islands, that, on drafting their constitution preparatory to the grant of
the other hand, no minister of religion shall be interfered with or independence. The law prescribed that "(a)bsolute toleration of
molested in following his calling. 299 religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account
This provision was based on the First Amendment of the United States of religious belief or mode of worship."303
Constitution. Likewise, the Instructions declared that "(t)he separation
between State and Church shall be real, entire and absolute." 300 The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
Thereafter, every organic act of the Philippines contained a provision on of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty
freedom of religion. Similar to the religious freedom clause in the of Paris of December 10, 1898, which first introduced religious toleration
Instructions, the Philippine Bill of 1902 provided that: in our country. President McKinley's Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law."304 In accordance with the
No law shall be made respecting an establishment of religion or
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of
prohibiting the free exercise thereof, and that free exercise and
Rights, Article IV, Section 7, viz:
enjoyment of religious worship, without discrimination or preference, shall
forever be allowed.
Sec. 7. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof, and the free
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902
exercise and enjoyment of religious profession and worship,
"caused the complete separation of church and state, and the abolition of
without discrimination or preference, shall forever be allowed. No
all special privileges and all restrictions theretofor conferred or imposed
religious test shall be required for the exercise of civil or political
upon any particular religious sect."302
rights.
The Jones Law of 1916 carried the same provision, but expanded it with
This provision, borrowed from the Jones Law, was readily
a restriction against using public money or property for religious
approved by the Convention.305 In his speech as Chairman of the
purposes, viz:
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 religio, vaguely referring to a "bond between man and the gods." 308 This
background, nature, extent and limitations as construed and pre-Christian term for the cult and rituals of pagan Rome was first
interpreted by the great statesmen and jurists that vitalized Christianized in the Latin translation of the Bible. 309 While the U.S.
them."306 Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a non-theistic
The 1973 Constitution which superseded the 1935 Constitution contained belief or act is covered by the religion clauses, this Court has not been
an almost identical provision on religious freedom in the Bill of Rights in confronted with the same issue. In Philippine jurisprudence, religion, for
Article IV, Section 8, viz: purposes of the religion clauses, has thus far been interpreted as theistic.
In 1937, the Philippine case of Aglipay v. Ruiz310 involving the
Sec. 8. No law shall be made respecting an establishment of Establishment Clause, defined "religion" as a "profession of faith to an
religion, or prohibiting the free exercise thereof. The free exercise active power that binds and elevates man to his Creator." Twenty years
and enjoyment of religious profession and worship, without later, the Court cited the Aglipay definition in American Bible Society v.
discrimination or preference, shall forever be allowed. No City of Manila,311 a case involving the Free Exercise clause. The latter
religious test shall be required for the exercise of civil or political also cited the American case of Davis in defining religion, viz: "(i)t has
rights. reference to one's views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and
obedience to His Will." The Beason definition, however, has been
This time, however, the General Provisions in Article XV added in Section
expanded in U.S. jurisprudence to include non-theistic beliefs.
15 that "(t)he separation of church and state shall be inviolable."
1. Free Exercise Clause
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 Freedom of choice guarantees the liberty of the religious conscience and
of church and state was included verbatim in the 1987 Constitution, but prohibits any degree of compulsion or burden, whether direct or indirect,
this time as a principle in Section 6, Article II entitled Declaration of in the practice of one's religion. The Free Exercise Clause principally
Principles and State Policies. 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
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 In interpreting the Free Exercise Clause, the realm of belief poses no
1935 Bill of Rights, it is not surprising that nearly all the major Philippine difficulty. The early case of Gerona v. Secretary of Education313 is
cases involving the religion clauses turn to U.S. jurisprudence in instructive on the matter, viz:
explaining the nature, extent and limitations of these clauses. However, a
close scrutiny of these cases would also reveal that while U.S. The realm of belief and creed is infinite and limitless bounded
jurisprudence on religion clauses flows into two main streams of only by one's imagination and thought. So is the freedom of
interpretation - separation and benevolent neutrality - the well-spring of belief, including religious belief, limitless and without bounds. One
Philippine jurisprudence on this subject is for the most part, benevolent may believe in most anything, however strange, bizarre and
neutrality which gives room for accommodation. unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards.
B. Jurisprudence But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.314
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is derived The difficulty in interpretation sets in when belief is externalized into
from the Middle English religioun, from Old French religion, from Latin speech and action.
Religious speech comes within the pale of the Free Exercise Clause as American Bible Society, the "clear and present danger" rule was laid
illustrated in the American Bible Society case. In that case, plaintiff down but it was not clearly applied.
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible In the much later case of Tolentino v. Secretary of Finance,317 also
in the course of its ministry. The defendant City of Manila required plaintiff involving the sale of religious books, the Court distinguished the
to secure a mayor's permit and a municipal license as ordinarily required American Bible Society case from the facts and issues in Tolentino and
of those engaged in the business of general merchandise under the city's did not apply the American Bible Society ruling. In Tolentino, the
ordinances. Plaintiff argued that this amounted to "religious censorship Philippine Bible Society challenged the validity of the registration
and restrained the free exercise and enjoyment of religious profession, to provisions of the Value Added Tax (VAT) Law as a prior restraint. The
wit: the distribution and sale of bibles and other religious literature to the Court held, however, that the fixed amount of registration fee was not
people of the Philippines." imposed for the exercise of a privilege like a license tax which American
Bible Society ruled was violative of religious freedom. Rather, the
After defining religion, the Court, citing Tanada and Fernando, made this registration fee was merely an administrative fee to defray part of the cost
statement, viz: of registration which was a central feature of the VAT system.
Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the
The constitutional guaranty of the free exercise and enjoyment of Court also declared prefatorily that "the Free Exercise of Religion Clause
religious profession and worship carries with it the right to does not prohibit imposing a generally applicable sales and use tax on
disseminate religious information. Any restraint of such right can the sale of religious materials by a religious organization." In the Court's
only be justified like other restraints of freedom of expression on resolution of the motion for reconsideration of the Tolentino decision, the
the grounds that there is a clear and present danger of any Court noted that the burden on religious freedom caused by the tax was
substantive evil which the State has the right to prevent. (Tanada just similar to any other economic imposition that might make the right to
and Fernando on the Constitution of the Philippines, vol. 1, 4th disseminate religious doctrines costly.
ed., p. 297) (emphasis supplied)
Two years after American Bible Society came the 1959 case of Gerona
This was the Court's maiden unequivocal affirmation of the "clear and v. Secretary of Education,319 this time involving conduct expressive of
present danger" rule in the religious freedom area, and in Philippine religious belief colliding with a rule prescribed in accordance with law. In
jurisprudence, for that matter.315 The case did not clearly show, however, this case, petitioners were members of the Jehovah's Witnesses. They
whether the Court proceeded to apply the test to the facts and issues of challenged a Department Order issued by the Secretary of Education
the case, i.e., it did not identify the secular value the government implementing Republic Act No. 1265 which prescribed compulsory flag
regulation sought to protect, whether the religious speech posed a clear ceremonies in all public schools. In violation of the Order, petitioner's
and present danger to this or other secular value protected by children refused to salute the Philippine flag, sing the national anthem, or
government, or whether there was danger but it could not be recite the patriotic pledge, hence they were expelled from school.
characterized as clear and present. It is one thing to apply the test and Seeking protection under the Free Exercise Clause, petitioners claimed
find that there is no clear and present danger, and quite another not to that their refusal was on account of their religious belief that the
apply the test altogether. Philippine flag is an image and saluting the same is contrary to their
religious belief. The Court stated, viz:
Instead, the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or . . . If the exercise of religious belief clashes with the established
occupation of selling said "merchandise" for profit. To add, the Court, institutions of society and with the law, then the former must yield
citing Murdock v. Pennsylvania,316 ruled that applying the ordinance to the latter. The Government steps in and either restrains said
requiring it to secure a license and pay a license fee or tax would impair exercise or even prosecutes the one exercising it. (emphasis
its free exercise of religious profession and worship and its right of supplied)320
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
The Court then proceeded to determine if the acts involved constituted a Thus, the religious freedom doctrines one can derive from Gerona are:
religious ceremony in conflict with the beliefs of the petitioners with the (1) it is incumbent upon the Court to determine whether a certain ritual is
following justification: 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
After all, the determination of whether a certain ritual is or is not a law of general applicability (in this case the Department Order)
religious ceremony must rest with the courts. It cannot be left to a incidentally burdens the exercise of one's religion, one's right to religious
religious group or sect, much less to a follower of said group or sect; freedom cannot justify exemption from compliance with the law. The
otherwise, there would be confusion and misunderstanding for there Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
might be as many interpretations and meaning to be given to a certain Education, et al.325
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 Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
faith, may want to give to such ritual or ceremony.321 Rope Workers Union.[326] In this unanimously decided en banc case,
Victoriano was a member of the Iglesia ni Cristo which prohibits the
It was held that the flag was not an image, the flag salute was not a affiliation of its members with any labor organization. He worked in the
religious ceremony, and there was nothing objectionable about the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
singing of the national anthem as it speaks only of love of country, Workers Union which had with the company a closed shop provision
patriotism, liberty and the glory of suffering and dying for it. The Court pursuant to Republic Act No. 875 allowing closed shop arrangements.
upheld the questioned Order and the expulsion of petitioner's children, Subsequently, Republic Act No. 3350 was enacted exempting from the
stressing that: application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of their members
Men may differ and do differ on religious beliefs and creeds, with any labor organization. Victoriano resigned from the union after
government policies, the wisdom and legality of laws, even the Republic Act No. 3350 took effect. The union notified the company of
correctness of judicial decisions and decrees; but in the field of Victoriano's resignation, which in turn notified Victoriano that unless he
love of country, reverence for the flag, national unity and could make a satisfactory arrangement with the union, the company
patriotism, they can hardly afford to differ, for these are matters in would be constrained to dismiss him from the service. Victoriano sought
which they are mutually and vitally interested, for to them, they to enjoin the company and the union from dismissing him. The court
mean national existence and survival as a nation or national having granted the injunction, the union came to this Court on questions
extinction.322 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
In support of its ruling, the Court cited Justice Frankfurter's dissent in the
first issue, the Court ruled, viz:
Barnette case, viz:
Religious freedom, although not unlimited, is a fundamental
The constitutional protection of religious freedom x x x gave
personal right and liberty (Schneider v. Irgington, 308 U.S. 147,
religious equality, not civil immunity. Its essence is freedom from
161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position
conformity to religious dogma, not freedom from conformity to law
in the hierarchy of values. Contractual rights, therefore, must yield
because of religious dogma.323
to freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and
It stated in categorical terms, viz: welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent
The freedom of religious belief guaranteed by the Constitution does not necessary.327 (emphasis supplied)
and cannot mean exemption from or non-compliance with reasonable
and non-discriminatory laws, rules and regulations promulgated by
competent authority.324
As regards the Establishment Clause issue, the Court after citing the of religious sects that prohibit their members from affiliating with a
constitutional provision on establishment and free exercise of religion, labor organization, is the protection of said employees against the
declared, viz: aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs, and
The constitutional provisions not only prohibits legislation for the . . . eliminating to a certain extent economic insecurity due to
support of any religious tenets or the modes of worship of any unemployment.331
sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 The Court stressed that "(a)lthough the exemption may benefit those who
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise are members of religious sects that prohibit their members from joining
of one's chosen form of religion within limits of utmost amplitude. labor unions, the benefit upon the religious sects is merely incidental and
It has been said that the religion clauses of the Constitution are indirect."332 In enacting Republic Act No. 3350, Congress merely relieved
all designed to protect the broadest possible liberty of the exercise of religion by certain persons of a burden imposed by union
conscience, to allow each man to believe as his conscience security agreements which Congress itself also imposed through the
directs, to profess his beliefs, and to live as he believes he ought Industrial Peace Act. The Court concluded the issue of exemption by
to live, consistent with the liberty of others and with the common citing Sherbert which laid down the rule that when general laws conflict
good. (footnote omitted). Any legislation whose effect or purpose with scruples of conscience, exemptions ought to be granted unless
is to impede the observance of one or all religions, or to some "compelling state interest" intervenes. The Court then abruptly
discriminate invidiously between the religions, is invalid, even added that "(i)n the instant case, We see no compelling state interest to
though the burden may be characterized as being only indirect. withhold exemption."333
(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 A close look at Victoriano would show that the Court mentioned several
power, a general law which has for its purpose and effect to tests in determining when religious freedom may be validly limited. First,
advance the state's secular goals, the statute is valid despite its the Court mentioned the test of "immediate and grave danger to the
indirect burden on religious observance, unless the state can security and welfare of the community" and "infringement of religious
accomplish its purpose without imposing such burden. (Braunfeld freedom only to the smallest extent necessary" to justify limitation of
v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan religious freedom. Second, religious exercise may be indirectly burdened
v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied) by a general law which has for its purpose and effect the advancement of
the state's secular goals, provided that there is no other means by which
Quoting Aglipay v. Ruiz,329 the Court held that "government is not the state can accomplish this purpose without imposing such burden.
precluded from pursuing valid objectives secular in character even if the Third, the Court referred to the "compelling state interest" test which
incidental result would be favorable to a religion or sect." It also grants exemptions when general laws conflict with religious exercise,
cited Board of Education v. Allen,330 which held that in order to unless a compelling state interest intervenes.
withstand the strictures of constitutional prohibition, a statute must have a
secular legislative purpose and a primary effect that neither advances nor It is worth noting, however, that the first two tests were mentioned only for
inhibits religion. Using these criteria in upholding Republic Act No. 3350, the purpose of highlighting the importance of the protection of religious
the Court pointed out, viz: freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden
(Republic Act No. 3350) was intended to serve the secular on religious freedom caused by another law, i.e, the Industrial Peace Act
purpose of advancing the constitutional right to the free exercise providing for union shop agreements. The first two tests were only
of religion, by averting that certain persons be refused work, or be mentioned in Victoriano but were not applied by the Court to the facts and
dismissed from work, or be dispossessed of their right to work issues of the case. The third, the "compelling state interest" test was
and of being impeded to pursue a modest means of livelihood, by employed by the Court to determine whether the exemption provided by
reason of union security agreements. . . . The primary effects of Republic Act No. 3350 was not unconstitutional. It upheld the exemption,
the exemption from closed shop agreements in favor of members stating that there was no "compelling state interest" to strike it down.
However, after careful consideration of the Sherbert case from which . . . Thus the (First) amendment embraces two concepts -
Victoriano borrowed this test, the inevitable conclusion is that the freedom to believe and freedom to act. The first is absolute, but in
"compelling state interest" test was not appropriate and could not find the nature of things, the second cannot be.337
application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South The Court reiterated the Gerona ruling, viz:
Carolina Unemployment Compensation Act which disqualified her from
claiming unemployment benefits. It was the appellees, members of the In the case at bar, petitioners are not denied or restrained of their
South Carolina Employment Commission, a government agency, who freedom of belief or choice of their religion, but only in the manner
propounded the state interest to justify overriding Sherbert's claim of by which they had attempted to translate the same to action. This
religious freedom. The U.S. Supreme Court, considering Sherbert's and curtailment is in accord with the pronouncement of this Court in
the Commission's arguments, found that the state interest was not Gerona v. Secretary of Education (106 Phil. 2), thus:
sufficiently compelling to prevail over Sherbert's free exercise claim. This
situation did not obtain in the Victoriano case where it was the
. . . But between the freedom of belief and the exercise of said
government itself, through Congress, which provided the exemption in
belief, there is quite a stretch of road to travel. If the exercise of
Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the
said religious belief clashes with the established institutions of
government could not argue against the exemption on the basis of a
society and with the law, then the former must yield and give way
compelling state interest as it would be arguing against itself; while
to the latter. The government steps in and either restrains said
Victoriano would not seek exemption from the questioned law to allow the
exercise or even prosecutes the one exercising it. (italics
free exercose of religion as the law in fact provides such an exemption. In
supplied)
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 The majority found that the restriction imposed upon petitioners was
freedom. "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
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
mentioned in Victoriano, German went back to the Gerona rule that
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
religious freedom will not be upheld if it clashes with the established
Otros Trabajadores de Filipinas,334 Anucension v. National Labor
institutions of society and the law.
Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac
Labor Union.336
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
Then came German v. Barangan in 1985 at the height of the anti-
cases. His dissent stated in relevant part, viz:
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 A brief restatement of the applicable constitutional principles as
religious worship and locomotion, they came to the Court on a petition for set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125
mandamus to allow them to enter and pray inside the St. Jude Chapel. SCRA 553[1983]) should guide us in resolving the issues.
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 1. The right to freely exercise one's religion is guaranteed in
concluded that they were using their religious liberty to express their Section 8 of our Bill of Rights. (footnote omitted) Freedom of
opposition to the government. Citing Cantwell, the Court distinguished worship, alongside with freedom of expression and speech and
between freedom to believe and freedom to act on matters of religion, viz: 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 present danger of a character both grave and imminent, of a
preferred rights. No verbal formula, no sanctifying phrase can, of serious evil to public safety, public morals, public health or any
course, dispense with what has been so felicitously termed by other legitimate public interest, that the State has a right (and
Justice Holmes 'as the sovereign prerogative of judgment.' duty) to prevent. Absent such a threat to public safety, the
Nonetheless, the presumption must be to incline the weight of the expulsion of the petitioners from the schools is not
scales of justice on the side of such rights, enjoying as they do justified.342 (emphasis supplied)
precedence and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-
570) The Court added, viz:

2. In the free exercise of such preferred rights, there is to be no We are not persuaded that by exempting the Jehovah's
prior restraint although there may be subsequent punishment of Witnesses from saluting the flag, singing the national anthem and
any illegal acts committed during the exercise of such basic reciting the patriotic pledge, this religious group which admittedly
rights. The sole justification for a prior restraint or limitation on the comprises a 'small portion of the school population' will shake up
exercise of these basic rights is the existence of a grave and our part of the globe and suddenly produce a nation 'untaught
present danger of a character both grave and imminent, of a and uninculcated in and unimbued with reverence for the flag,
serious evil to public safety, public morals, public health or any patriotism, love of country and admiration for national heroes'
other legitimate public interest, that the State has a right (and (Gerona v. Secretary of Education, 106 Phil. 224). After all, what
duty) to prevent (Idem, at pp. 560-561). 339 (emphasis supplied) the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Constitution, the democratic way of life and form of government,
Teehankee's dissent was taken involved the rights to free speech and and learn not only the arts, sciences, Philippine history and
assembly, and not the exercise of religious freedom. At issue in that case culture but also receive training for a vocation or profession and
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti- be taught the virtues of 'patriotism, respect for human rights,
Bases Coalition, from the City of Manila to hold a peaceful march and appreciation of national heroes, the rights and duties of
rally from the Luneta to the gates of the U.S. Embassy. Nevertheless citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV,
Bagatsing was used by Justice Teehankee in his dissent which had 1987 Constitution) as part of the curricula. Expelling or banning
overtones of petitioner German and his companions' right to assemble the petitioners from Philippine schools will bring about the very
and petition the government for redress of grievances. 340 situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in
In 1993, the issue on the Jehovah's Witnesses' participation in the flag a ceremony that violates their religious beliefs, will hardly be
ceremony again came before the Court in Ebralinag v. The Division conducive to love of country or respect for duly constituted
Superintendent of Schools.341 A unanimous Court overturned the authorities.343
Gerona ruling after three decades. Similar to Gerona, this case involved
several Jehovah's Witnesses who were expelled from school for refusing Barnette also found its way to the opinion, viz:
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 Furthermore, let it be noted that coerced unity and loyalty even to
religious freedom issue as in Gerona, the Court this time transported the the country, x x x- assuming that such unity and loyalty can be
"grave and imminent danger" test laid down in Justice Teehankee's attained through coercion- is not a goal that is constitutionally
dissent in German, viz: obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means. (Meyer vs. Nebraska,
The sole justification for a prior restraint or limitation on the 262 U.S. 390, 67 L. ed. 1042, 1046).344
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
Towards the end of the decision, the Court also cited the Victoriano case school children of the Jehovah's Witnesses from the flag salute
and its use of the "compelling state interest" test in according exemption ceremonies on the basis of their own self-perceived religious
to the Jehovah's Witnesses, viz: 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
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72- argued as the compelling state interest, much less did the Court explain
75, we upheld the exemption of members of the Iglesia ni Cristo, why the interest was not sufficiently compelling to override petitioners'
from the coverage of a closed shop agreement between their religious freedom.
employer and a union because it would violate the teaching of
their church not to join any group: Three years after Ebralinag, the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al.348Although there was a dissent with
'x x x It is certain that not every conscience can be respect to the applicability of the "clear and present danger" test in this
accommodated by all the laws of the land; but when case, the majority opinion in unequivocal terms applied the "clear and
general laws conflict with scruples of conscience, present danger" test to religious speech. This case involved the television
exemptions ought to be granted unless some 'compelling program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon
state interest' intervenes.' (Sherbert vs. Verner, 374 U.S. petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its
398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)' episodes, respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground that they
We hold that a similar exemption may be accorded to the "offend and constitute an attack against other religions which is expressly
Jehovah's Witnesses with regard to the observance of the flag prohibited by law." Invoking religious freedom, petitioner alleged that the
ceremony out of respect for their religious beliefs, however Board acted without jurisdiction or with grave abuse of discretion in
'bizarre' those beliefs may seem to others.345 requiring it to submit the VTR tapes of its television program and x-rating
them. While upholding the Board's power to review the Iglesia television
show, the Court was emphatic about the preferred status of religious
The Court annulled the orders expelling petitioners from school.
freedom. Quoting Justice Cruz' commentary on the constitution, the Court
held that freedom to believe is absolute but freedom to act on one's
Thus, the "grave and imminent danger" test laid down in a dissenting belief, where it affects the public, is subject to the authority of the state.
opinion in German which involved prior restraint of religious worship with The commentary quoted Justice Frankfurter's dissent in Barnette which
overtones of the right to free speech and assembly, was transported to was quoted in Gerona, viz: "(t)he constitutional provision on religious
Ebralinag which did not involve prior restraint of religious worship, speech freedom terminated disabilities, it did not create new privileges. It gave
or assembly. Although, it might be observed that the Court faintly implied religious liberty, not civil immunity. Its essence is freedom from conformity
that Ebralinag also involved the right to free speech when in its to religious dogma, not freedom from conformity to law because of
preliminary remarks, the Court stated that compelling petitioners to religious dogma."349 Nevertheless, the Court was quick to add the criteria
participate in the flag ceremony "is alien to the conscience of the present by which the state can regulate the exercise of religious freedom, that is,
generation of Filipinos who cut their teeth on the Bill of Rights which when the exercise will bring about the "clear and present danger of some
guarantees their rights to free speech and the free exercise of religious substantive evil which the State is duty bound to prevent, i.e., serious
profession and worship;" the Court then stated in a footnote that the "flag detriment to the more overriding interest of public health, public morals,
salute, singing the national anthem and reciting the patriotic pledge are or public welfare."350
all forms of utterances."346
In annulling the x-rating of the shows, the Court stressed that the
The "compelling state interest" test was not fully applied by the Court in Constitution is hostile to all prior restraints on speech, including religious
Ebralinag. In the Solicitor General's consolidated comment, one of the speech and the x-rating was a suppression of petitioner's freedom of
grounds cited to defend the expulsion orders issued by the public speech as much as it was an interference with its right to free exercise of
respondents was that "(t)he State's compelling interests being pursued by religion. Citing Cantwell, the Court recognized that the different religions
the DEC's lawful regulations in question do not warrant exemption of the may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion from exception or upholding an exception to accommodate religious exercise
this kind of attack. where it is justified.353

The Court then called to mind the "clear and present danger" test first laid 2. Establishment Clause
down in the American Bible Society case and the test of "immediate and
grave danger" with "infringement only to the smallest extent necessary to In Philippine jurisdiction, there is substantial agreement on the values
avoid danger" in Victoriano and pointed out that the reviewing board sought to be protected by the Establishment Clause, namely, voluntarism
failed to apply the "clear and present danger" test. Applying the test, the and insulation of the political process from interfaith dissension. The first,
Court noted, viz: voluntarism, has both a personal and a social dimension. As a personal
value, it refers to the inviolability of the human conscience which, as
The records show that the decision of the respondent Board, discussed above, is also protected by the free exercise clause. From the
affirmed by the respondent appellate court, is completely bereft of religious perspective, religion requires voluntarism because compulsory
findings of facts to justify the conclusion that the subject video faith lacks religious efficacy. Compelled religion is a contradiction in
tapes constitute impermissible attacks against another religion. terms.354 As a social value, it means that the "growth of a religious sect as
There is no showing whatsoever of the type of harm the tapes will a social force must come from the voluntary support of its members
bring about especially the gravity and imminence of the because of the belief that both spiritual and secular society will benefit if
threatened harm. Prior restraint on speech, including religious religions are allowed to compete on their own intrinsic merit without
speech, cannot be justified by hypothetical fears but only by the benefit of official patronage. Such voluntarism cannot be achieved unless
showing of a substantive and imminent evil which has taken the the political process is insulated from religion and unless religion is
life of a reality already on ground. insulated from politics."355 Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding
Replying to the challenge on the applicability of the "clear and present interfaith dissension.356
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 The neutrality principle was applied in the first significant non-
types of speech: "speech that advocates dangerous ideas, speech that establishment case under the 1935 Constitution. In the 1937 case
provokes a hostile audience reaction, out of court contempt and release of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the
of information that endangers a fair trial" 351 and ruled, viz: issuance and sale of postage stamps commemorating the Thirty-Third
International Eucharistic Congress of the Catholic Church on the ground
. . . even allowing the drift of American jurisprudence, there is that the constitutional prohibition against the use of public money for
reason to apply the clear and present danger test to the case at religious purposes has been violated. It appears that the Director of Posts
bar which concerns speech that attacks other religions and could issued the questioned stamps under the provisions of Act No.
readily provoke hostile audience reaction. It cannot be doubted 4052358 which appropriated a sum for the cost of plates and printing of
that religious truths disturb and disturb terribly.352 postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the
In Iglesia therefore, the Court went back to Gerona insofar as holding that Government." The printing and issuance of the postage stamps in
religious freedom cannot be invoked to seek exemption from compliance question appears to have been approved by authority of the President.
with a law that burdens one's religious exercise. It also reiterated the Justice Laurel, speaking for the Court, took pains explaining religious
"clear and present danger" test in American Bible Society and the "grave freedom and the role of religion in society, and in conclusion, found no
and imminent danger" in Victoriano, but this time clearly justifying its constitutional infirmity in the issuance and sale of the stamps, viz:
applicability and showing how the test was applied to the case.
The prohibition herein expressed is a direct corollary of the
In sum, the Philippine Supreme Court has adopted a posture of not principle of separation of church and state. Without the necessity
invalidating a law offensive to religious freedom, but carving out an 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 In so deciding the case, the Court, citing U.S. jurisprudence, laid down
state is prejudicial to both, for occasions might arise when the the doctrine that a law or government action with a legitimate secular
state will use the church, and the church the state, as a weapon purpose does not offend the Establishment Clause even if it incidentally
in the furtherance of their respective ends and aims . . . It is aids a particular religion.
almost trite to say now that in this country we enjoy both religious
and civil freedom. All the officers of the Government, from the Almost forty-five years after Aglipay came Garces v.
highest to the lowest, in taking their oath to support and defend Estenzo.361 Although the Court found that the separation of church and
the Constitution, bind themselves to recognize and respect the state was not at issue as the controversy was over who should have
constitutional guarantee of religious freedom, with its inherent custody of a saint's image, it nevertheless made pronouncements on the
limitations and recognized implications. It should be stated that separation of church and state along the same line as the Aglipay ruling.
what is guaranteed by our Constitution is religious liberty, not The Court held that there was nothing unconstitutional or illegal in holding
mere toleration. a fiesta and having a patron saint for the barrio. It adhered to the barrio
resolutions of the barangay involved in the case stating that the barrio
Religious freedom, however, as a constitutional mandate is not an fiesta is a socio-religious affair, the celebration of which is an "ingrained
inhibition of profound reverence for religion and is not a denial of its tradition in rural communities" that "relieves the monotony and drudgery
influence in human affairs. Religion as a profession of faith to an active of the lives of the masses." Corollarily, the Court found nothing illegal
power that binds and elevates man to his Creator is recognized. And, in about any activity intended to facilitate the worship of the patron saint
so far as it instills into the minds the purest principles of morality, its such as the acquisition and display of his image bought with funds
influence is deeply felt and highly appreciated. When the Filipino people, obtained through solicitation from the barrio residents. The Court pointed
in the preamble of their Constitution, implored "the aid of Divine out that the image of the patron saint was "purchased in connection with
Providence, in order to establish a government that shall embody their the celebration of the barrio fiesta honoring the patron saint, San Vicente
ideals, conserve and develop the patrimony of the nation, promote the Ferrer, and not for the purpose of favoring any religion nor interfering with
general welfare, and secure to themselves and their posterity the religious matters or the religious beliefs of the barrio residents." Citing the
blessings of independence under a regime of justice, liberty and Aglipay ruling, the Court declared, viz:
democracy," they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men Not every governmental activity which involves the expenditure of
and nations. The elevating influence of religion in human society is public funds and which has some religious tint is violative of the
recognized here as elsewhere. In fact, certain general concessions are constitutional provisions regarding separation of church and state,
indiscriminately accorded to religious sects and denominations. . .359 freedom of worship and banning the use of public money or
property.
xxx           xxx           xxx
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented
It is obvious that while the issuance and sale of the stamps in a novel issue involving the religion clauses. In this case, Section 2175 of
question may be said to be inseparably linked with an event of a the Revised Administrative Code of 1917 disqualifying ecclesiastics from
religious character, the resulting propaganda, if any, received by appointment or election as municipal officer was challenged. After
the Roman Catholic Church, was not the aim and purpose of the protracted deliberation, the Court was sharply divided on the issue.
Government. We are of the opinion that the Government should Seven members of the Court, one short of the number necessary to
not be embarrassed in its activities simply because of incidental declare a law unconstitutional, approached the problem from a free
results, more or less religious in character, if the purpose had in exercise perspective and considered the law a religious test offensive of
view is one which could legitimately be undertaken by appropriate the constitution. They were Justices Fernando, Teehankee, Muñoz-
legislation. The main purpose should not be frustrated by its Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
subordination to mere incidental results not contemplated. (Vide Associate Justice Fernando, the ponente, stated, viz: "The challenged
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Administrative Code provision, certainly insofar as it declares ineligible
Law. ed., 168)360 (emphases supplied) ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the Constitution." necessitated the determination of who was the legitimate bishop of the
Citing Torcaso v. Watkins,363 the ponencia held, viz: church. The Court cited American Jurisprudence, 366 viz:

Torcaso v. Watkins, an American Supreme Court decision, has Where, however, a decision of an ecclesiastical court plainly
persuasive weight. What was there involved was the validity of a violates the law it professes to administer, or is in conflict with the
provision in the Maryland Constitution prescribing that 'no law of the land, it will not be followed by the civil courts. . . In
religious test ought ever to be required as a disqualification for some instances, not only have the civil courts the right to inquire
any office or profit or trust in this State, other than a declaration of into the jurisdiction of the religious tribunals and the regularity of
belief in the existence of God ***.' Such a constitutional their procedure, but they have subjected their decisions to the
requirement was assailed as contrary to the First Amendment of test of fairness or to the test furnished by the constitution and the
the United States Constitution by an appointee to the office of law of the church. . .367
notary public in Maryland, who was refused a commission as he
would not declare a belief in God. He failed in the Maryland Court The Court then ruled that petitioner Fonacier was legitimately ousted and
of Appeals but prevailed in the United States Supreme Court, respondent de los Reyes was the duly elected head of the Church, based
which reversed the state court decision. It could not have been on their internal laws. To finally dispose of the property issue, the Court,
otherwise. As emphatically declared by Justice Black: 'this citing Watson v. Jones,368 declared that the rule in property controversies
Maryland religious test for public office unconstitutionally invades within religious congregations strictly independent of any other superior
the appellant's freedom of belief and religion and therefore cannot ecclesiastical association (such as the Philippine Independent Church) is
be enforced against him. that the rules for resolving such controversies should be those of any
voluntary association. If the congregation adopts the majority rule then
The analogy appears to be obvious. In that case, it was lack of the majority should prevail; if it adopts adherence to duly constituted
belief in God that was a disqualification. Here being an authorities within the congregation, then that should be followed. Applying
ecclesiastic and therefore professing a religious faith suffices to these rules, Fonacier lost the case. While the Court exercised jurisdiction
disqualify for a public office. There is thus an incompatibility over the case, it nevertheless refused to touch doctrinal and disciplinary
between the Administrative Code provision relied upon by differences raised, viz:
petitioner and an express constitutional mandate. 364
The amendments of the constitution, restatement of articles of
On the other hand, the prevailing five other members of the Court - Chief religion and abandonment of faith or abjuration alleged by
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - appellant, having to do with faith, practice, doctrine, form of
approached the case from a non-establishment perspective and upheld worship, ecclesiastical law, custom and rule of a church and
the law as a safeguard against the constant threat of union of church and having reference to the power of excluding from the church those
state that has marked Philippine history. Justice Makasiar stated: "To allegedly unworthy of membership, are unquestionably
allow an ecclesiastic to head the executive department of a municipality ecclesiastical matters which are outside the province of the civil
is to permit the erosion of the principle of separation of Church and State courts.369
and thus open the floodgates for the violation of the cherished liberty of
religion which the constitutional provision seeks to enforce and protect." VIII. Free Exercise Clause vis-à-vis Establishment Clause
Consequently, the Court upheld the validity of Section 2175 of the
Revised Administrative Code and declared respondent priest ineligible for In both Philippine and U.S. jurisdiction, it is recognized that there is a
the office of municipal mayor. tension between the Free Exercise Clause and the Establishment Clause
in their application. There is a natural antagonism between a command
Another type of cases interpreting the establishment clause deals with not to establish religion and a command not to inhibit its practice; this
intramural religious disputes. Fonacier v. Court of Appeals365 is the tension between the religion clauses often leaves the courts with a choice
leading case. The issue therein was the right of control over certain between competing values in religion cases.370
properties of the Philippine Independent Church, the resolution of which
One set of facts, for instance, can be differently viewed from the members from joining unions did not offend the Establishment Clause.
Establishment Clause perspective and the Free Exercise Clause point of We ruled, viz:
view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of We believe that in enacting Republic Act No. 3350, Congress
ecclesiastics to assume elective or appointive government positions was acted consistently with the spirit of the constitutional provision. It
violative of the Free Exercise Clause. On the other hand, the prevailing acted merely to relieve the exercise of religion, by certain
five justices gave importance to the Establishment Clause in stating that persons, of a burden that is imposed by union security
the principle of separation of church and state justified the prohibition. agreements.373 (emphasis supplied)

Tension is also apparent when a case is decided to uphold the Free Finally, in some cases, a practice is obviously violative of the
Exercise Clause and consequently exemptions from a law of general Establishment Clause but the Court nevertheless upholds it. In Schempp,
applicability are afforded by the Court to the person claiming religious Justice Brennan stated: "(t)here are certain practices, conceivably
freedom; the question arises whether the exemption does not amount to violative of the Establishment Clause, the striking down of which might
support of the religion in violation of the Establishment Clause. This was seriously interfere with certain religious liberties also protected by the
the case in the Free Exercise Clause case of Sherbert where the U.S. First Amendment."
Supreme Court ruled, viz:
How the tension between the Establishment Clause and the Free
In holding as we do, plainly we are not fostering the Exercise Clause will be resolved is a question for determination in the
"establishment" of the Seventh-day Adventist religion in South actual cases that come to the Court. In cases involving both the
Carolina, for the extension of unemployment benefits to Establishment Clause and the Free Exercise Clause, the two clauses
Sabbatarians in common with Sunday worshippers reflects should be balanced against each other. The courts must review all the
nothing more than the governmental obligation of neutrality in the relevant facts and determine whether there is a sufficiently strong free
face of religious differences, and does not represent that exercise right that should prevail over the Establishment Clause problem.
involvement of religious with secular institutions which it is the In the United States, it has been proposed that in balancing, the free
object of the Establishment Clause to forestall.371 (emphasis exercise claim must be given an edge not only because of abundant
supplied) historical evidence in the colonial and early national period of the United
States that the free exercise principle long antedated any broad-based
Tension also exists when a law of general application provides exemption support of disestablishment, but also because an Establishment Clause
in order to uphold free exercise as in the Walz case where the appellant concern raised by merely accommodating a citizen's free exercise of
argued that the exemption granted to religious organizations, in effect, religion seems far less dangerous to the republic than pure establishment
required him to contribute to religious bodies in violation of the cases. Each time the courts side with the Establishment Clause in cases
Establishment Clause. But the Court held that the exemption was not a involving tension between the two religion clauses, the courts convey a
case of establishing religion but merely upholding the Free Exercise message of hostility to the religion that in that case cannot be freely
Clause by "sparing the exercise of religion from the burden of property exercised.374 American professor of constitutional law, Laurence Tribe,
taxation levied on private profit institutions." Justice Burger wrote, viz: similarly suggests that the free exercise principle "should be dominant in
any conflict with the anti-establishment principle." This dominance would
(t)he Court has struggled to find a neutral course between the two be the result of commitment to religious tolerance instead of "thwarting at
religion clauses, both of which are cast in absolute terms, and all costs even the faintest appearance of establishment." 375 In our
either of which, if expanded to a logical extreme, would tend to jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of
clash with the other.372 the religion clauses does not suffice. Modern society is characterized by
the expanding regulatory arm of government that reaches a variety of
Similarly, the Philippine Supreme Court in the Victoriano case held that areas of human conduct and an expanding concept of religion. To
the exemption afforded by law to religious sects who prohibit their adequately meet the demands of this modern society, the societal values
the religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. This, in fact, has been the insurmountable wall in convincing the Court that the wall of separation
approach followed by the Philippine Court.376 would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987,
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on 1973 and 1935 Constitutions as shown by other provisions on religion in
Philippine and American Religion Clause History, Law and all three constitutions. It is a cardinal rule in constitutional construction
Jurisprudence that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
The history of the religion clauses in the 1987 Constitution shows that that will give to all of them full force and effect.377 From this construction, it
these clauses were largely adopted from the First Amendment of the U.S. will be ascertained that the intent of the framers was to adopt a
Constitution. The religion clauses in the First Amendment were contained benevolent neutrality approach in interpreting the religious clauses in the
in every organic Act of the Philippines under the American regime. When Philippine constitutions, and the enforcement of this intent is the goal of
the delegates of the 1934 Constitutional Convention adopted a Bill of construing the constitution.378
Rights in the 1935 Constitution, they purposely retained the phraseology
of the religion clauses in the First Amendment as contained in the Jones We first apply the hermeneutical scalpel to dissect the 1935 Constitution.
Law in order to adopt its historical background, nature, extent and At the same time that the 1935 Constitution provided for an
limitations. At that time, there were not too many religion clause cases in Establishment Clause, it also provided for tax exemption of church
the United States as the U.S. Supreme Court decided an Establishment property in Article VI, Section 22, par. 3(b), viz:
Clause issue only in the 1947 Everson case. The Free Exercise Clause
cases were also scarce then. Over the years, however, with the (3) Cemeteries, churches, and parsonages or convents,
expanding reach of government regulation to a whole gamut of human appurtenant thereto, and all lands, buildings, and improvements
actions and the growing plurality and activities of religions, the number of used exclusively for religious, charitable, or educational purposes
religion clause cases in the U.S. exponentially increased. With this shall be exempt from taxation.
increase came an expansion of the interpretation of the religion clauses,
at times reinforcing prevailing case law, at other times modifying it, and Before the advent of the 1935 Constitution, Section 344 of the
still at other times creating contradictions so that two main streams of Administrative Code provided for a similar exemption. To the same effect,
jurisprudence had become identifiable. The first stream employs the Tydings-McDuffie Law contained a limitation on the taxing power of
separation while the second employs benevolent neutrality in interpreting the Philippine government during the Commonwealth period. 379 The
the religious clauses. Alongside this change in the landscape of U.S. original draft of the Constitution placed this provision in an ordinance to
religion clause jurisprudence, the Philippines continued to adopt the 1935 be appended to the Constitution because this was among the provisions
Constitution religion clauses in the 1973 Constitution and later, the 1987 prescribed by the Tydings-McDuffie Law. However, in order to have a
Constitution. Philippine jurisprudence and commentaries on the religious constitutional guarantee for such an exemption even beyond the
clauses also continued to borrow authorities from U.S. jurisprudence Commonwealth period, the provision was introduced in the body of the
without articulating the stark distinction between the two streams of U.S. Constitution on the rationale that "if churches, convents [rectories or
jurisprudence. One might simply conclude that the Philippine parsonages] and their accessories are always necessary for facilitating
Constitutions and jurisprudence also inherited the disarray of U.S. religion the exercise of such [religious] freedom, it would also be natural that their
clause jurisprudence and the two identifiable streams; thus, when a existence be also guaranteed by exempting them from taxation." 380 The
religion clause case comes before the Court, a separationist approach or amendment was readily approved with 83 affirmative votes against 15
a benevolent neutrality approach might be adopted and each will have negative votes.381
U.S. authorities to support it. Or, one might conclude that as the history of
the First Amendment as narrated by the Court in Everson supports the The Philippine constitutional provision on tax exemption is not found in
separationist approach, Philippine jurisprudence should also follow this the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
approach in light of the Philippine religion clauses' history. As a result, in justify this kind of exemption to withstand Establishment Clause scrutiny
a case where the party claims religious liberty in the face of a general law by stating that church property was not singled out but was exempt along
that inadvertently burdens his religious exercise, he faces an almost with property owned by non-profit, quasi-public corporations because the
state upheld the secular policy "that considers these groups as beneficial legality. It was pointed out, however, that even with the prohibition under
and stabilizing influences in community life and finds this classification the Jones Law, appropriations were made to chaplains of the national
useful, desirable, and in the public interest." The Court also stated that penitentiary and the Auditor General upheld its validity on the basis of a
the exemption was meant to relieve the burden on free exercise imposed similar United States practice. But it was also pointed out that the U.S.
by property taxation. At the same time, however, the Court acknowledged Constitution did not contain a prohibition on appropriations similar to the
that the exemption was an exercise of benevolent neutrality to Jones Law.384 To settle the question on the constitutionality of payment of
accommodate a long-standing tradition of exemption. With the inclusion salaries of religious officers in certain government institutions and to
of the church property tax exemption in the body of the 1935 Constitution avoid the feared situation where the enumerated government institutions
and not merely as an ordinance appended to the Constitution, the could not employ religious officials with compensation, the exception in
benevolent neutrality referred to in the Walz case was given constitutional the 1935 provision was introduced and approved. The provision garnered
imprimatur under the regime of the 1935 Constitution. The provision, as 74 affirmative votes against 34 negative votes.385 As pointed out in the
stated in the deliberations, was an acknowledgment of the necessity of deliberations, the U.S. Constitution does not provide for this exemption.
the exempt institutions to the exercise of religious liberty, thereby However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
evincing benevolence towards religious exercise. benevolent neutrality approach, implicitly approved the state of Texas'
payment of prison chaplains' salaries as reasonably necessary to permit
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz: inmates to practice their religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing tradition of beginning legislative
(3) No public money, or property shall ever be appropriated, sessions with prayers offered by legislative chaplains retained at
applied, or used, directly or indirectly, for the use, benefit, or taxpayers' expense. The constitutional provision exempting religious
support of any sect, church, denomination, sectarian institution or officers in government institutions affirms the departure of the Philippine
system of religion, for the use, benefit or support of any priest, Constitution from the U.S. Constitution in its adoption of benevolent
preacher, ministers or other religious teacher or dignitary as such, neutrality in Philippine jurisdiction. While the provision prohibiting aid to
except when such priest, preacher, minister, or dignitary is religion protects the wall of separation between church and state, the
assigned to the armed forces or to any penal institution, provision at the same time gives constitutional sanction to a breach in the
orphanage, or leprosarium. (emphasis supplied) wall.

The original draft of this provision was a reproduction of a portion of To further buttress the thesis that benevolent neutrality is contemplated in
section 3 of the Jones Law which did not contain the above the Philippine Establishment Clause, the 1935 Constitution provides for
exception, viz: optional religious instruction in public schools in Article XIII, Section
5, viz:
No public money or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of . . . Optional religious instruction shall be maintained in the public
any sect, church denomination, sectarian institution, or system of schools as now authorized by law. . .
religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382 The law then applicable was Section 928 of the Administrative Code, viz:

In the deliberations of this draft provision, an amendment was proposed It shall be lawful, however, for the priest or minister of any church
to strike down everything after "church denomination." 383 The proposal established in the town where a public school is situated, either in
intended to imitate the silence of the U.S. Constitution on the subject of person or by a designated teacher of religion, to teach religion for
support for priests and ministers. It was also an imitation of the silence of one-half hour three times a week, in the school building, to those
the Malolos Constitution to restore the situation under the Malolos public-school pupils whose parents or guardians desire it and
Constitution and prior to the Jones Law, when chaplains of the express their desire therefor in writing filed with the principal of
revolutionary army received pay from public funds with no doubt about its the school . . .
During the debates of the Constitutional Convention, there were three exemption of church property from taxation, with the modification that the
positions on the issue of religious instruction in public schools. The first property should not only be used directly, but also actually and
held that the teaching of religion in public schools should be prohibited as exclusively for religious or charitable purposes. Parallel to Article VI,
this was a violation of the principle of separation of church and state and Section 23(3) of the 1935 Constitution, the 1973 Constitution also
the prohibition against the use of public funds for religious purposes. The contained a similar provision on salaries of religious officials employed in
second favored the proposed optional religious instruction as authorized the enumerated government institutions. Article XIII, Section 5 of the
by the Administrative Code and recognized that the actual practice of 1935 Constitution on optional religious instruction was also carried to the
allowing religious instruction in the public schools was sufficient proof that 1973 Constitution in Article XV, Section 8(8) with the modification that
religious instruction was not and would not be a source of religious optional religious instruction shall be conducted "as may be provided by
discord in the schools.386 The third wanted religion to be included as a law" and not "as now authorized by law" as stated in the 1935
course in the curriculum of the public schools but would only be taken by Constitution. The 1973 counterpart, however, made explicit in the
pupils at the option of their parents or guardians. After several rounds of constitution that the religious instruction in public elementary and high
debate, the second camp prevailed, thus raising to constitutional stature schools shall be done "(a)t the option expressed in writing by the parents
the optional teaching of religion in public schools, despite the opposition or guardians, and without cost to them and the government." With the
to the provision on the ground of separation of church and state. 387 As in adoption of these provisions in the 1973 Constitution, the benevolent
the provisions on church property tax exemption and compensation of neutrality approach continued to enjoy constitutional sanction. In Article
religious officers in government institutions, the U.S. Constitution does XV, Section 15 of the General Provisions of the 1973 Constitution this
not provide for optional religious instruction in public schools. In fact, in provision made its maiden appearance: "(t)he separation of church and
the McCollum case, the Court, using strict neutrality, prohibited this kind state shall be inviolable." The 1973 Constitution retained the portion of
of religious instruction where the religion teachers would conduct class the preamble "imploring the aid of Divine Providence."
within the school premises. The constitutional provision on optional
religious instruction shows that Philippine jurisdiction rejects the strict In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
neutrality approach which does not allow such accommodation of Problems of the Committee on Church and State of the 1971
religion. Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the Everson
Finally, to make certain the Constitution's benevolence to religion, the case and reiterated in Schempp - i.e., neutrality not only as between one
Filipino people "implored (ing) the aid of Divine Providence (,) in order to religion and another but even as between religion and non-religion - is
establish a government that shall embody their ideals, conserve and embodied in the Philippine Constitution. The sub-committee's answer
develop the patrimony of the nation, promote the general welfare, and was that it did not seem so. Citing the Aglipay case where Justice Laurel
secure to themselves and their posterity the blessings of independence recognized the "elevating influence of religion in human society" and the
under a regime of justice, liberty, and democracy, (in) ordain(ing) and Filipinos' imploring of Divine Providence in the 1935 Constitution, the
promulgat(ing) this Constitution." A preamble is a "key to open the mind sub-committee asserted that the state may not prefer or aid one religion
of the authors of the constitution as to the evil sought to be prevented and over another, but may aid all religions equally or the cause of religion in
the objects sought to be accomplished by the provisions thereof." 388 There general.391 Among the position papers submitted to the Committee on
was no debate on the inclusion of a "Divine Providence" in the preamble. Church on State was a background paper for reconsideration of the
In Aglipay, Justice Laurel noted that when the Filipino people implored religion provisions of the constitution by Fr. Bernas, S.J. He stated therein
the aid of Divine Providence, "(t)hey thereby manifested their intense that the Philippine Constitution is not hostile to religion and in fact
religious nature and placed unfaltering reliance upon Him who guides the recognizes the value of religion and accommodates religious
destinies of men and nations."389 The 1935 Constitution's religion clauses, values.392 Stated otherwise, the Establishment Clause contemplates not a
understood alongside the other provisions on religion in the Constitution, strict neutrality but benevolent neutrality. While the Committee introduced
indubitably shows not hostility, but benevolence, to religion. 390 the provision on separation of church and state in the General Provisions
of the 1973 Constitution, this was nothing new as according to it, this
The 1973 Constitution contained in Article VI, Section 22(3) a provision principle was implied in the 1935 Constitution even in the absence of a
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on Policies in Article II, Section 6. In opting to retain the wording of the
tax exemption of church property was retained with minor modification in provision, Fr. Bernas stated, viz:
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for . . . It is true, I maintain, that as a legal statement the sentence
religious purposes and the salaries of religious officers serving in the 'The separation of Church and State is inviolable,' is almost a
enumerated government institutions, now contained in Article VI, Section useless statement; but at the same time it is a harmless
29(2). Commissioner Bacani, however, probed into the possibility of statement. Hence, I am willing to tolerate it there, because, in the
allowing the government to spend public money for purposes which might end, if we look at the jurisprudence on Church and State,
have religious connections but which would benefit the public generally. arguments are based not on the statement of separation of
Citing the Aglipay case, Commissioner Rodrigo explained that if a public church and state but on the non-establishment clause in the Bill
expenditure would benefit the government directly, such expense would of Rights.398
be constitutional even if it results to an incidental benefit to religion. With
that explanation, Commissioner Bacani no longer pursued his proposal. 394 The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate on
The provision on optional religious instruction was also adopted in the whether to use "Almighty God" which Commissioner Bacani said was
1987 Constitution in Article XIV, Section 3(3) with the modification that it more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
was expressly provided that optional instruction shall be conducted that a number of atheistic delegates in the 1971 Constitutional
"within the regular class hours" and "without additional cost to the Convention objected to reference to a personal God. 399 "God of History",
government". There were protracted debates on what additional cost "Lord of History" and "God" were also proposed, but the phrase "Almighty
meant, i.e., cost over and above what is needed for normal operations God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious
such as wear and tear, electricity, janitorial services, 395 and when during that the 1987 Constitution is not hostile nor indifferent to religion; 400 its
the day instruction would be conducted.396 In deliberating on the phrase wall of separation is not a wall of hostility or indifference. 401
"within the regular class hours," Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored The provisions of the 1935, 1973 and 1987 constitutions on tax
principle of separation of church and state. She cited the McCullom case exemption of church property, salary of religious officers in government
where religious instruction during regular school hours was stricken down institutions, optional religious instruction and the preamble all reveal
as unconstitutional and also cited what she considered the most liberal without doubt that the Filipino people, in adopting these constitutions, did
interpretation of separation of church and state in Surach v. Clauson not intend to erect a high and impregnable wall of separation between the
where the U.S. Supreme Court allowed only release time for religious church and state.402 The strict neutrality approach which examines only
instruction. Fr. Bernas replied, viz: whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid
. . . the whole purpose of the provision was to provide for an barrier. By adopting the above constitutional provisions on religion, the
exception to the rule on non-establishment of religion, because if Filipinos manifested their adherence to the benevolent neutrality
it were not necessary to make this exception for purposes of approach in interpreting the religion clauses, an approach that looks
allowing religious instruction, then we could just drop the further than the secular purposes of government action and examines the
amendment. But, as a matter of fact, this is necessary because effect of these actions on religious exercise. Benevolent neutrality
we are trying to introduce something here which is contrary to recognizes the religious nature of the Filipino people and the elevating
American practices.397 (emphasis supplied) influence of religion in society; at the same time, it acknowledges that
government must pursue its secular goals. In pursuing these goals,
"(W)ithin regular class hours" was approved. however, government might adopt laws or actions of general applicability
which inadvertently burden religious exercise. Benevolent neutrality gives
he provision on the separation of church and state was retained but room for accommodation of these religious exercises as required by the
placed under the Principles in the Declaration of Principles and State Free Exercise Clause. It allows these breaches in the wall of separation
to uphold religious liberty, which after all is the integral purpose of the
religion clauses. The case at bar involves this first type of religious affair" - does not offend the Establishment Clause. In Victoriano,
accommodation where an exemption is sought from a law of general the Court upheld the exemption from closed shop provisions of members
applicability that inadvertently burdens religious exercise. of religious sects who prohibited their members from joining unions upon
the justification that the exemption was not a violation of the
Although our constitutional history and interpretation mandate benevolent Establishment Clause but was only meant to relieve the burden on free
neutrality, benevolent neutrality does not mean that the Court ought to exercise of religion. In Ebralinag, members of the Jehovah's Witnesses
grant exemptions every time a free exercise claim comes before it. But it were exempt from saluting the flag as required by law, on the basis not of
does mean that the Court will not look with hostility or act indifferently a statute granting exemption but of the Free Exercise Clause without
towards religious beliefs and practices and that it will strive to offending the Establishment Clause.
accommodate them when it can within flexible constitutional limits; it does
mean that the Court will not simply dismiss a claim under the Free While the U.S. and Philippine religion clauses are similar in form and
Exercise Clause because the conduct in question offends a law or the origin, Philippine constitutional law has departed from the U.S.
orthodox view for this precisely is the protection afforded by the religion jurisprudence of employing a separationist or strict neutrality approach.
clauses of the Constitution, i.e., that in the absence of legislation granting The Philippine religion clauses have taken a life of their own, breathing
exemption from a law of general applicability, the Court can carve out an the air of benevolent neutrality and accommodation. Thus, the wall of
exception when the religion clauses justify it. While the Court cannot separation in Philippine jurisdiction is not as high and impregnable as the
adopt a doctrinal formulation that can eliminate the difficult questions of wall created by the U.S. Supreme Court in Everson. 404 While the religion
judgment in determining the degree of burden on religious practice or clauses are a unique American experiment which understandably came
importance of the state interest or the sufficiency of the means adopted about as a result of America's English background and colonization, the
by the state to pursue its interest, the Court can set a doctrine on the life that these clauses have taken in this jurisdiction is the Philippines'
ideal towards which religious clause jurisprudence should be own experiment, reflective of the Filipinos' own national soul, history and
directed.403 We here lay down the doctrine that in Philippine jurisdiction, tradition. After all, "the life of the law. . . has been experience."
we adopt the benevolent neutrality approach not only because of its
merits as discussed above, but more importantly, because our But while history, constitutional construction, and earlier jurisprudence
constitutional history and interpretation indubitably show that benevolent unmistakably show that benevolent neutrality is the lens with which the
neutrality is the launching pad from which the Court should take off in Court ought to view religion clause cases, it must be stressed that the
interpreting religion clause cases. The ideal towards which this approach interest of the state should also be afforded utmost protection. To do this,
is directed is the protection of religious liberty "not only for a minority, a test must be applied to draw the line between permissible and
however small- not only for a majority, however large- but for each of us" forbidden religious exercise. It is quite paradoxical that in order for the
to the greatest extent possible within flexible constitutional limits. members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher
Benevolent neutrality is manifest not only in the Constitution but has also interest of the state. To do otherwise is self-defeating for unlimited
been recognized in Philippine jurisprudence, albeit not expressly called freedom would erode order in the state and foment anarchy, eventually
"benevolent neutrality" or "accommodation". In Aglipay, the Court not only destroying the very state its members established to protect their
stressed the "elevating influence of religion in human society" but freedoms. The very purpose of the social contract by which people
acknowledged the Constitutional provisions on exemption from tax of establish the state is for the state to protect their liberties; for this
church property, salary of religious officers in government institutions, purpose, they give up a portion of these freedoms - including the natural
and optional religious instruction as well as the provisions of the right to free exercise - to the state. It was certainly not the intention of the
Administrative Code making Thursday and Friday of the Holy Week, authors of the constitution that free exercise could be used to
Christmas Day and Sundays legal holidays. In Garces, the Court not only countenance actions that would undo the constitutional order that
recognized the Constitutional provisions indiscriminately granting guarantees free exercise.405
concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions The all important question then is the test that should be used in
which have acquired a social character - "the barrio fiesta is a socio- ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits. constitutional order of limited government is premised upon an
Beginning with the first case on the Free Exercise Clause, American acknowledgment of such higher sovereignty,407 thus the Filipinos implore
Bible Society, the Court mentioned the "clear and present danger" test the "aid of Almighty God in order to build a just and humane society and
but did not employ it. Nevertheless, this test continued to be cited in establish a government." As held in Sherbert, only the gravest abuses,
subsequent cases on religious liberty. The Gerona case then pronounced endangering paramount interests can limit this fundamental right. A mere
that the test of permissibility of religious freedom is whether it violates the balancing of interests which balances a right with just a colorable state
established institutions of society and law. The Victoriano case interest is therefore not appropriate. Instead, only a compelling interest of
mentioned the "immediate and grave danger" test as well as the doctrine the state can prevail over the fundamental right to religious liberty. The
that a law of general applicability may burden religious exercise provided test requires the state to carry a heavy burden, a compelling one, for to
the law is the least restrictive means to accomplish the goal of the law. do otherwise would allow the state to batter religion, especially the less
The case also used, albeit inappropriately, the "compelling state interest" powerful ones until they are destroyed.408 In determining which shall
test. After Victoriano, German went back to the Gerona rule. Ebralinag prevail between the state's interest and religious liberty, reasonableness
then employed the "grave and immediate danger" test and overruled the shall be the guide.409 The "compelling state interest" serves the purpose
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the of revering religious liberty while at the same time affording protection to
"clear and present danger" test in the maiden case of American Bible the paramount interests of the state. This was the test used in Sherbert
Society. Not surprisingly, all the cases which employed the "clear and which involved conduct, i.e. refusal to work on Saturdays. In the end, the
present danger" or "grave and immediate danger" test involved, in one "compelling state interest" test, by upholding the paramount interests of
form or another, religious speech as this test is often used in cases on the state, seeks to protect the very state, without which, religious liberty
freedom of expression. On the other hand, the Gerona and German will not be preserved.
cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority X. Application of the Religion Clauses to the Case at Bar
cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test. Victoriano was the only case that A. The Religion Clauses and Morality
employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of "disgraceful and immoral conduct"
The case at bar does not involve speech as in American Bible Society, for which he/she may be held administratively liable. 410 In these cases,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and there was not one dissent to the majority's ruling that their conduct was
"grave and immediate danger" tests were appropriate as speech has immoral. The respondents themselves did not foist the defense that their
easily discernible or immediate effects. The Gerona and German conduct was not immoral, but instead sought to prove that they did not
doctrine, aside from having been overruled, is not congruent with the commit the alleged act or have abated from committing the act. The facts
benevolent neutrality approach, thus not appropriate in this jurisdiction. of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v.
Similar to Victoriano, the present case involves purely conduct arising De Guzman,412 are similar to the case at bar - i.e., the complainant is a
from religious belief. The "compelling state interest" test is proper where mere stranger and the legal wife has not registered any objection to the
conduct is involved for the whole gamut of human conduct has different illicit relation, there is no proof of scandal or offense to the moral
effects on the state's interests: some effects may be immediate and sensibilities of the community in which the respondent and the partner
short-term while others delayed and far-reaching. A test that would live and work, and the government employee is capacitated to marry
protect the interests of the state in preventing a substantive evil, whether while the partner is not capacitated but has long been separated in fact.
immediate or delayed, is therefore necessary. However, not any interest Still, the Court found the government employees administratively liable
of the state would suffice to prevail over the right to religious freedom as for "disgraceful and immoral conduct" and only considered the foregoing
this is a fundamental right that enjoys a preferred position in the hierarchy circumstances to mitigate the penalty. Respondent Escritor does not
of rights - "the most inalienable and sacred of all human rights", in the claim that there is error in the settled jurisprudence that an illicit relation
words of Jefferson.406 This right is sacred for an invocation of the Free constitutes disgraceful and immoral conduct for which a government
Exercise Clause is an appeal to a higher sovereignty. The entire employee is held liable. Nor is there an allegation that the norms of
morality with respect to illicit relations have shifted towards leniency from the realm of morality, the breakdown of the fundamental agreement about
the time these precedent cases were decided. The Court finds that there the manner a society's members should behave and govern their lives
is no such error or shift, thus we find no reason to deviate from these would disintegrate society. Thus, society is justified in taking steps to
rulings that such illicit relationship constitutes "disgraceful and immoral preserve its moral code by law as it does to preserve its government and
conduct" punishable under the Civil Service Law. Respondent having other essential institutions.416 From these propositions of Devlin, one
admitted the alleged immoral conduct, she, like the respondents in the cannot conclude that Devlin negates diversity in society for he is merely
above-cited cases, could be held administratively liable. However, there saying that in the midst of this diversity, there should nevertheless be a
is a distinguishing factor that sets the case at bar apart from the cited "fundamental agreement about good and evil" that will govern how
precedents, i.e., as a defense, respondent invokes religious freedom people in a society ought to live. His propositions, in fact, presuppose
since her religion, the Jehovah's Witnesses, has, after thorough diversity hence the need to come to an agreement; his position also
investigation, allowed her conjugal arrangement with Quilapio based on allows for change of morality from time to time which may be brought
the church's religious beliefs and practices. This distinguishing factor about by this diversity. In the same vein, a pluralistic society lays down
compels the Court to apply the religious clauses to the case at bar. fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles
Without holding that religious freedom is not in issue in the case at bar, are translated into legislation that governs the order of society, laws that
both the dissenting opinion of Mme. Justice Ynares-Santiago and the may be amended from time to time. Hart's argument propounded in Mr.
separate opinion of Mr. Justice Vitug dwell more on the standards of Justice Vitug's separate opinion that, "Devlin's view of people living in a
morality than on the religion clauses in deciding the instant case. A single society as having common moral foundation (is) overly simplistic"
discussion on morality is in order. because "societies have always been diverse" fails to recognize the
necessity of Devlin's proposition in a democracy. Without fundamental
At base, morality refers to, in Socrates' words, "how we ought to live" and agreement on political and moral ideas, society will fall into anarchy; the
why. Any definition of morality beyond Socrates' simple formulation is agreement is necessary to the existence and progress of society.
bound to offend one or another of the many rival theories regarding what
it means to live morally.413 The answer to the question of how we ought to In a democracy, this common agreement on political and moral ideas is
live necessarily considers that man does not live in isolation, but in distilled in the public square. Where citizens are free, every opinion,
society. Devlin posits that a society is held together by a community of every prejudice, every aspiration, and every moral discernment has
ideas, made up not only of political ideas but also of ideas about the access to the public square where people deliberate the order of their life
manner its members should behave and govern their lives. The latter are together. Citizens are the bearers of opinion, including opinion shaped
their morals; they constitute the public morality. Each member of society by, or espousing religious belief, and these citizens have equal access to
has ideas about what is good and what is evil. If people try to create a the public square. In this representative democracy, the state is
society wherein there is no fundamental agreement about good and evil, prohibited from determining which convictions and moral judgments may
they will fail; if having established the society on common agreement, the be proposed for public deliberation. Through a constitutionally designed
agreement collapses, the society will disintegrate. Society is kept process, the people deliberate and decide. Majority rule is a necessary
together by the invisible bonds of common thought so that if the bonds principle in this democratic governance.417 Thus, when public deliberation
are too loose, the members would drift apart. A common morality is part on moral judgments is finally crystallized into law, the laws will largely
of the bondage and the bondage is part of the price of society; and reflect the beliefs and preferences of the majority, i.e., the mainstream or
mankind, which needs society, must pay its price.414 This design is median groups.418 Nevertheless, in the very act of adopting and accepting
parallel with the social contract in the realm of politics: people give up a a constitution and the limits it specifies -- including protection of religious
portion of their liberties to the state to allow the state to protect their freedom "not only for a minority, however small- not only for a majority,
liberties. In a constitutional order, people make a fundamental agreement however large- but for each of us" -- the majority imposes upon itself a
about the powers of government and their liberties and embody this self-denying ordinance. It promises not to do what it otherwise could do:
agreement in a constitution, hence referred to as the fundamental law of to ride roughshod over the dissenting minorities.419 In the realm of
the land. A complete break of this fundamental agreement such as by religious exercise, benevolent neutrality that gives room for
revolution destroys the old order and creates a new one. 415 Similarly, in accommodation carries out this promise, provided the compelling
interests of the state are not eroded for the preservation of the state is order.429 Mr. Justice Vitug expresses concern on this point in his separate
necessary to the preservation of religious liberty. That is why benevolent opinion. He observes that certain immoral acts which appear private and
neutrality is necessary in a pluralistic society such as the United States not harmful to society such as sexual congress "between a man and a
and the Philippines to accommodate those minority religions which are prostitute, though consensual and private, and with no injured third party,
politically powerless. It is not surprising that Smith is much criticized for it remains illegal in this country." His opinion asks whether these laws on
blocks the judicial recourse of the minority for religious accommodations. private morality are justified or they constitute impingement on one's
freedom of belief. Discussion on private morality, however, is not material
The laws enacted become expressions of public morality. As Justice to the case at bar for whether respondent's conduct, which constitutes
Holmes put it, "(t)he law is the witness and deposit of our moral life." 420 "In concubinage,430 is private in the sense that there is no injured party or the
a liberal democracy, the law reflects social morality over a period of offended spouse consents to the concubinage, the inescapable fact is
time."421Occasionally though, a disproportionate political influence might that the legislature has taken concubinage out of the sphere of private
cause a law to be enacted at odds with public morality or legislature morals. The legislature included concubinage as a crime under the
might fail to repeal laws embodying outdated traditional moral Revised Penal Code and the constitutionality of this law is not being
views.422 Law has also been defined as "something men create in their raised in the case at bar. In the definition of the crime of concubinage,
best moments to protect themselves in their worst moments." 423 Even consent of the injured party, i.e., the legal spouse, does not alter or
then, laws are subject to amendment or repeal just as judicial negate the crime unlike in rape431 where consent of the supposed victim
pronouncements are subject to modification and reversal to better reflect negates the crime. If at all, the consent or pardon of the offended spouse
the public morals of a society at a given time. After all, "the life of the in concubinage negates the prosecution of the action, 432 but does not alter
law...has been experience," in the words of Justice Holmes. This is not to the legislature's characterization of the act as a moral disapprobation
say though that law is all of morality. Law deals with the minimum punishable by law. The separate opinion states that, "(t)he ponencia has
standards of human conduct while morality is concerned with the taken pains to distinguish between secular and private morality, and
maximum. A person who regulates his conduct with the sole object of reached the conclusion that the law, as an instrument of the secular State
avoiding punishment under the law does not meet the higher moral should only concern itself with secular morality." The Court does not draw
standards set by society for him to be called a morally upright this distinction in the case at bar. The distinction relevant to the case is
person.424 Law also serves as "a helpful starting point for thinking about a not, as averred and discussed by the separate opinion, "between secular
proper or ideal public morality for a society"425 in pursuit of moral and private morality," but between public and secular morality on the one
progress. hand, and religious morality on the other, which will be subsequently
discussed.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship
between law and public morality. We held that under the utilitarian theory, Not every moral wrong is foreseen and punished by law, criminal or
the "protective theory" in criminal law, "criminal law is founded upon the otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
moral disapprobation x x x of actions which are immoral, i.e., which are Philippine Islands, et al., where we explained that for those wrongs which
detrimental (or dangerous) to those conditions upon which depend the are not punishable by law, Articles 19 and 21 in Chapter 2 of the
existence and progress of human society. This disapprobation is Preliminary Title of the New Civil Code, dealing with Human Relations,
inevitable to the extent that morality is generally founded and built upon a provide for the recognition of the wrong and the concomitant punishment
certain concurrence in the moral opinions of all. x x x That which we call in the form of damages. Articles 19 and 21 provide, viz:
punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of Art. 19. Any person must, in the exercise of his rights and in the
punishment."427 Stated otherwise, there are certain standards of behavior performance of his duties, act with justice, give everyone his due
or moral principles which society requires to be observed and these form and observe honesty and good faith.
the bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole.428 Thus, even if all involved xxx           xxx           xxx
in the misdeed are consenting parties, such as in the case at bar, the
injury done is to the public morals and the public interest in the moral
 Art. 21. Any person who willfully causes loss or injury to another definition of religion in American Bible Society citing Davis. Religion also
in a manner that is contrary to morals, good customs or public dictates "how we ought to live" for the nature of religion is not just to
policy shall compensate the latter for the damage. (emphasis know, but often, to act in accordance with man's "views of his relations to
supplied) His Creator."434 But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and
We then cited in Velayo the Code Commission's comment on Article 21: implies the affirmative "establishment" of a civil order for the resolution of
public moral disputes. This agreement on a secular mechanism is the
Thus at one stroke, the legislator, if the foregoing rule is approved price of ending the "war of all sects against all"; the establishment of a
(as it was approved), would vouchsafe adequate legal remedy for secular public moral order is the social contract produced by religious
that untold numbers of moral wrongs which is impossible for truce.435
human foresight to provide for specifically in the statutes.
Thus, when the law speaks of "immorality" in the Civil Service Law or
But, it may be asked, would this proposed article obliterate the "immoral" in the Code of Professional Responsibility for lawyers 436, or
boundary line between morality and law? The answer is that, in "public morals" in the Revised Penal Code,437 or "morals" in the New Civil
the last analysis, every good law draws its breath of life from Code,438 or "moral character" in the Constitution, 439 the distinction between
morals, from those principles which are written with words of fire public and secular morality on the one hand, and religious morality, on
in the conscience of man. If this premise is admitted, then the the other, should be kept in mind.440 The morality referred to in the law is
proposed rule is a prudent earnest of justice in the face of the public and necessarily secular, not religious as the dissent of Mr. Justice
impossibility of enumerating, one by one, all wrongs which cause Carpio holds. "Religious teachings as expressed in public debate may
damages. When it is reflected that while codes of law and influence the civil public order but public moral disputes may be resolved
statutes have changed from age to age, the conscience of man only on grounds articulable in secular terms."441 Otherwise, if government
has remained fixed to its ancient moorings, one can not but feel relies upon religious beliefs in formulating public policies and morals, the
that it is safe and salutary to transmute, as far as may be, moral resulting policies and morals would require conformity to what some
norms into legal rules, thus imparting to every legal system that might regard as religious programs or agenda. The non-believers would
enduring quality which ought to be one of its superlative therefore be compelled to conform to a standard of conduct buttressed by
attributes. a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs,
it would tacitly approve or endorse that belief and thereby also tacitly
Furthermore, there is no belief of more baneful consequence
disapprove contrary religious or non-religious views that would not
upon the social order than that a person may with impunity cause
support the policy. As a result, government will not provide full religious
damage to his fellow-men so long as he does not break any law
freedom for all its citizens, or even make it appear that those whose
of the State, though he may be defying the most sacred
beliefs are disapproved are second-class citizens. Expansive religious
postulates of morality. What is more, the victim loses faith in the
freedom therefore requires that government be neutral in matters of
ability of the government to afford him protection or relief.
religion; governmental reliance upon religious justification is inconsistent
with this policy of neutrality.442
A provision similar to the one under consideration is embodied in
article 826 of the German Civil Code.433(emphases supplied)
In other words, government action, including its proscription of immorality
as expressed in criminal law like concubinage, must have a secular
The public morality expressed in the law is necessarily secular for in our purpose. That is, the government proscribes this conduct because it is
constitutional order, the religion clauses prohibit the state from "detrimental (or dangerous) to those conditions upon which depend the
establishing a religion, including the morality it sanctions. Religious existence and progress of human society" and not because the conduct
morality proceeds from a person's "views of his relations to His Creator is proscribed by the beliefs of one religion or the other. Although
and to the obligations they impose of reverence to His being and admittedly, moral judgments based on religion might have a compelling
character and obedience to His Will," in accordance with this Court's influence on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law. After all, to monogamous marriage, but concludes that these values and the
they might also be adherents of a religion and thus have religious purposes of the applicable laws should be thoroughly examined and
opinions and moral codes with a compelling influence on them; the evidence in relation thereto presented in the OCA. The accommodation
human mind endeavors to regulate the temporal and spiritual institutions approach in the case at bar would also require a similar discussion of
of society in a uniform manner, harmonizing earth with these values and presentation of evidence before the OCA by the state
heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian that seeks to protect its interest on marriage and opposes the
or utilitarian in its deepest roots, but it must have an articulable and accommodation of the unconventional religious belief and practice
discernible secular purpose and justification to pass scrutiny of the regarding marriage.
religion clauses. Otherwise, if a law has an apparent secular purpose but
upon closer examination shows a discriminatory and prohibitory religious The distinction between public and secular morality as expressed - albeit
purpose, the law will be struck down for being offensive of the religion not exclusively - in the law, on the one hand, and religious morality, on
clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. the other, is important because the jurisdiction of the Court extends only
Supreme Court invalidated an ordinance prohibiting animal sacrifice of to public and secular morality. Whatever pronouncement the Court
the Santeria. Recognizing the religious nature of the Filipinos and the makes in the case at bar should be understood only in this realm where it
elevating influence of religion in society, however, the Philippine has authority. More concretely, should the Court declare respondent's
constitution's religion clauses prescribe not a strict but a benevolent conduct as immoral and hold her administratively liable, the Court will be
neutrality. Benevolent neutrality recognizes that government must pursue holding that in the realm of public morality, her conduct is reprehensible
its secular goals and interests but at the same time strives to uphold or there are state interests overriding her religious freedom. For as long
religious liberty to the greatest extent possible within flexible as her conduct is being judged within this realm, she will be accountable
constitutional limits. Thus, although the morality contemplated by laws is to the state. But in so ruling, the Court does not and cannot say that her
secular, benevolent neutrality could allow for accommodation of morality conduct should be made reprehensible in the realm of her church where
based on religion, provided it does not offend compelling state interests. it is presently sanctioned and that she is answerable for her immorality to
her Jehovah God nor that other religions prohibiting her conduct are
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality correct. On the other hand, should the Court declare her conduct
approach when it states that in deciding the case at bar, the approach permissible, the Court will be holding that under her unique
should consider that, "(a)s a rule . . . moral laws are justified only to the circumstances, public morality is not offended or that upholding her
extent that they directly or indirectly serve to protect the interests of the religious freedom is an interest higher than upholding public morality thus
larger society. It is only where their rigid application would serve to her conduct should not be penalized. But the Court is not ruling that the
obliterate the value which society seeks to uphold, or defeat the purpose tenets and practice of her religion are correct nor that other churches
for which they are enacted would, a departure be justified." In religion which do not allow respondent's conjugal arrangement should likewise
clause parlance, the separate opinion holds that laws of general allow such conjugal arrangement or should not find anything immoral
applicability governing morals should have a secular purpose of directly about it and therefore members of these churches are not answerable for
or indirectly protecting the interests of the state. If the strict application of immorality to their Supreme Being. The Court cannot speak more than
these laws (which are the Civil Service Law and the laws on marriage) what it has authority to say. In Ballard, the U.S. Supreme Court held that
would erode the secular purposes of the law (which the separate opinion courts cannot inquire about the truth of religious beliefs. Similarly, in
identifies as upholding the sanctity of marriage and the family), then in a Fonacier, this Court declared that matters dealing with "faith, practice,
benevolent neutrality framework, an accommodation of the doctrine, form of worship, ecclesiastical law, custom and rule of a
unconventional religious belief and practice (which the separate opinion church…are unquestionably ecclesiastical matters which are outside the
holds should be respected on the ground of freedom of belief) that would province of the civil courts."444 But while the state, including the Court,
promote the very same secular purpose of upholding the sanctity of accords such deference to religious belief and exercise which enjoy
marriage and family through the Declaration Pledging Faithfulness that protection under the religious clauses, the social contract and the
makes the union binding and honorable before God and men, is required constitutional order are designed in such a way that when religious belief
by the Free Exercise Clause. The separate opinion then makes a flows into speech and conduct that step out of the religious sphere and
preliminary discussion of the values society seeks to protect in adhering overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of and the laws on adultery and concubinage as laws which respondent's
belief insofar as they affect the interests of the state. The state's inroad conduct has offended and cited a string of precedents where a
on religion exercise in excess of this constitutional design is prohibited by government employee was found guilty of committing a "disgraceful and
the religion clauses; the Old World, European and American history immoral conduct" for maintaining illicit relations and was thereby
narrated above bears out the wisdom of this proscription. penalized. As stated above, there is no dispute that under settled
jurisprudence, respondent's conduct constitutes "disgraceful and immoral
Having distinguished between public and secular morality and religious conduct." However, the cases cited by the dissent do not involve the
morality, the more difficult task is determining which immoral acts under defense of religious freedom which respondent in the case at bar
this public and secular morality fall under the phrase "disgraceful and invokes. Those cited cases cannot therefore serve as precedents in
immoral conduct" for which a government employee may be held settling the issue in the case at bar.
administratively liable. The line is not easy to draw for it is like "a line that
divides land and sea, a coastline of irregularities and indentations." 445 But Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United
the case at bar does not require us to comprehensively delineate States446 in laying down the standard of morality, viz: "(w)hether an act is
between those immoral acts for which one may be held administratively immoral within the meaning of the statute is not to be determined by
liable and those to which administrative liability does not attach. We need respondent's concept of morality. The law provides the standard; the
not concern ourselves in this case therefore whether "laziness, gluttony, offense is complete if respondent intended to perform, and did in fact
vanity, selfishness, avarice and cowardice" are immoral acts which perform, the act which it condemns." The Mann Act under consideration
constitute grounds for administrative liability. Nor need we expend too in the Cleveland case declares as an offense the transportation in
much energy grappling with the propositions that not all immoral acts are interstate commerce of "any woman or girl for the purpose of prostitution
illegal or not all illegal acts are immoral, or different jurisdictions have or debauchery, or for any other immoral purpose."447 The resolution of that
different standards of morality as discussed by the dissents and separate case hinged on the interpretation of the phrase "immoral purpose." The
opinions, although these observations and propositions are true and U.S. Supreme Court held that the petitioner Mormons' act of transporting
correct. It is certainly a fallacious argument that because there are at least one plural wife whether for the purpose of cohabiting with her, or
exceptions to the general rule that the "law is the witness and deposit of for the purpose of aiding another member of their Mormon church in such
our moral life," then the rule is not true; in fact, that there are exceptions a project, was covered by the phrase "immoral purpose." In so ruling, the
only affirms the truth of the rule. Likewise, the observation that morality is Court relied on Reynolds which held that the Mormons' practice of
relative in different jurisdictions only affirms the truth that there is morality polygamy, in spite of their defense of religious freedom, was "odious
in a particular jurisdiction; without, however, discounting the truth that among the northern and western nations of Europe," 448 "a return to
underneath the moral relativism are certain moral absolutes such as barbarism,"449 "contrary to the spirit of Christianity and of the civilization
respect for life and truth-telling, without which no society will survive. Only which Christianity has produced in the Western world," 450 and thus
one conduct is in question before this Court, i.e., the conjugal punishable by law.
arrangement of a government employee whose partner is legally married
to another which Philippine law and jurisprudence consider both immoral The Cleveland standard, however, does not throw light to the issue in the
and illegal. Lest the Court inappropriately engage in the impossible task case at bar. The pronouncements of the U.S. Supreme Court that
of prescribing comprehensively how one ought to live, the Court must polygamy is intrinsically "odious" or "barbaric" do not apply in the
focus its attention upon the sole conduct in question before us. Philippines where Muslims, by law, are allowed to practice polygamy.
Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
In interpreting "disgraceful and immoral conduct," the dissenting opinion holding that the defense of religious freedom of a member of the
of Mme. Justice Ynares-Santiago groped for standards of morality and Jehovah's Witnesses under the same circumstances as respondent will
stated that the "ascertainment of what is moral or immoral calls for the not prevail over the laws on adultery, concubinage or some other law. We
discovery of contemporary community standards" but did not articulate cannot summarily conclude therefore that her conduct is likewise so
how these standards are to be ascertained. Instead, it held that, "(f)or "odious" and "barbaric" as to be immoral and punishable by law.
those in the service of the Government, provisions of law and court
precedents . . . have to be considered." It identified the Civil Service Law
While positing the view that the resolution of the case at bar lies more on Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
determining the applicable moral standards and less on religious Nabdar J. Malik451 cited in Mr. Justice Carpio's dissent decisive of the
freedom, Mme. Justice Ynares-Santiago's dissent nevertheless immorality issue in the case at bar. In that case, the Court dismissed the
discussed respondent's plea of religious freedom and disposed of this charge of immorality against a Tausug judge for engaging in an
defense by stating that "(a) clear and present danger of a substantive adulterous relationship with another woman with whom he had three
evil, destructive to public morals, is a ground for the reasonable children because "it (was) not 'immoral' by Muslim standards for Judge
regulation of the free exercise and enjoyment of religious profession. Malik to marry a second time while his first marriage (existed)." Putting
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In the quoted portion in its proper context would readily show that the Sulu
addition to the destruction of public morals, the substantive evil in this Islamic case does not provide a precedent to the case at bar.
case is the tearing down of morality, good order, and discipline in the Immediately prior to the portion quoted by the dissent, the Court stressed,
judiciary." However, the foregoing discussion has shown that the "clear viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of
and present danger" test that is usually employed in cases involving Muslim Personal Laws of the Philippines, provides that the penal laws
freedom of expression is not appropriate to the case at bar which relative to the crime of bigamy 'shall not apply to a person married x x x
involves purely religious conduct. The dissent also cites Reynolds in under Muslim Law,' it is not 'immoral' by Muslim standards for Judge
supporting its conclusion that respondent is guilty of "disgraceful and Malik to marry a second time while his first marriage exists." 452 It was by
immoral conduct." The Reynolds ruling, however, was reached with a law, therefore, that the Muslim conduct in question was classified as an
strict neutrality approach, which is not the approach contemplated by the exception to the crime of bigamy and thus an exception to the general
Philippine constitution. As discussed above, Philippine jurisdiction adopts standards of morality. The constitutionality of P.D. No. 1083 when
benevolent neutrality in interpreting the religion clauses. measured against the Establishment Clause was not raised as an issue
in the Sulu Islamic case. Thus, the Court did not determine whether P.D.
In the same vein, Mr. Justice Carpio's dissent which employs strict No. 1083 suffered from a constitutional infirmity and instead relied on the
neutrality does not reflect the constitutional intent of employing provision excepting the challenged Muslim conduct from the crime of
benevolent neutrality in interpreting the Philippine religion clauses. His bigamy in holding that the challenged act is not immoral by Muslim
dissent avers that respondent should be held administratively liable not standards. In contradistinction, in the case at bar, there is no similar law
for "disgraceful and immoral conduct" but "conduct prejudicial to the best which the Court can apply as basis for treating respondent's conduct as
interest of the service" as she is a necessary co-accused of her partner in an exception to the prevailing jurisprudence on illicit relations of civil
concubinage. The dissent stresses that being a court employee, her open servants. Instead, the Free Exercise Clause is being invoked to justify
violation of the law is prejudicial to the administration of justice. Firstly, exemption.
the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to B. Application of Benevolent Neutrality and the Compelling State
the best interest of the service." In addition, there is no evidence of the Interest Test to the Case at Bar
alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent's plea of religious freedom cannot The case at bar being one of first impression, we now subject the
prevail without so much as employing a test that would balance respondent's claim of religious freedom to the "compelling state interest"
respondent's religious freedom and the state's interest at stake in the test from a benevolent neutrality stance - i.e. entertaining the possibility
case at bar. The foregoing discussion on the doctrine of religious that respondent's claim to religious freedom would warrant carving out an
freedom, however, shows that with benevolent neutrality as a framework, exception from the Civil Service Law; necessarily, her defense of
the Court cannot simply reject respondent's plea of religious freedom religious freedom will be unavailing should the government succeed in
without even subjecting it to the "compelling state interest" test that would demonstrating a more compelling state interest.
balance her freedom with the paramount interests of the state. The strict
neutrality employed in the cases the dissent cites -Reynolds, Smith and In applying the test, the first inquiry is whether respondent's right to
People v. Bitdu decided before the 1935 Constitution which unmistakably religious freedom has been burdened. There is no doubt that choosing
shows adherence to benevolent neutrality - is not contemplated by our between keeping her employment and abandoning her religious belief
constitution. and practice and family on the one hand, and giving up her employment
and keeping her religious practice and family on the other hand, puts a to do so. The government has not been represented in the case at bar
burden on her free exercise of religion. In Sherbert, the Court found that from its incipience until this point.
Sherbert's religious exercise was burdened as the denial of
unemployment benefits "forces her to choose between following the In any event, even if the Court deems sufficient respondent's evidence on
precepts of her religion and forfeiting benefits, on the one hand, and the sincerity of her religious belief and its centrality in her faith, the case
abandoning one of the precepts of her religion in order to accept work, on at bar cannot still be decided using the "compelling state interest" test.
the other hand." The burden on respondent in the case at bar is even The case at bar is one of first impression, thus the parties were not aware
greater as the price she has to pay for her employment is not only her of the burdens of proof they should discharge in the Court's use of the
religious precept but also her family which, by the Declaration Pledging "compelling state interest" test. We note that the OCA found respondent's
Faithfulness, stands "honorable before God and men." defense of religious freedom unavailing in the face of the Court's ruling in
Dicdican v. Fernan, et al., viz:
The second step is to ascertain respondent's sincerity in her religious
belief. Respondent appears to be sincere in her religious belief and It bears emphasis that the image of a court of justice is mirrored
practice and is not merely using the "Declaration of Pledging in the conduct, official and otherwise, of the personnel who work
Faithfulness" to avoid punishment for immorality. She did not secure the thereat, from the judge to the lowest of its personnel. Court
Declaration only after entering the judiciary where the moral standards personnel have been enjoined to adhere to the exacting
are strict and defined, much less only after an administrative case for standards of morality and decency in their professional and
immorality was filed against her. The Declaration was issued to her by private conduct in order to preserve the good name and integrity
her congregation after ten years of living together with her partner, of the courts of justice.
Quilapio, and ten years before she entered the judiciary. Ministers from
her congregation testified on the authenticity of the Jehovah's Witnesses' It is apparent from the OCA's reliance upon this ruling that the state
practice of securing a Declaration and their doctrinal or scriptural basis interest it upholds is the preservation of the integrity of the judiciary by
for such a practice. As the ministers testified, the Declaration is not maintaining among its ranks a high standard of morality and decency.
whimsically issued to avoid legal punishment for illicit conduct but to However, there is nothing in the OCA's memorandum to the Court that
make the "union" of their members under respondent's circumstances demonstrates how this interest is so compelling that it should override
"honorable before God and men." It is also worthy of notice that the respondent's plea of religious freedom nor is it shown that the means
Report and Recommendation of the investigating judge annexed employed by the government in pursuing its interest is the least restrictive
letters453 of the OCA to the respondent regarding her request to be to respondent's religious exercise.
exempt from attending the flag ceremony after Circular No. 62-2001 was
issued requiring attendance in the flag ceremony. The OCA's letters were
Indeed, it is inappropriate for the complainant, a private person, to
not submitted by respondent as evidence but annexed by the
present evidence on the compelling interest of the state. The burden of
investigating judge in explaining that he was caught in a dilemma whether
evidence should be discharged by the proper agency of the government
to find respondent guilty of immorality because the Court Administrator
which is the Office of the Solicitor General. To properly settle the issue in
and Deputy Court Administrator had different positions regarding
the case at bar, the government should be given the opportunity to
respondent's request for exemption from the flag ceremony on the
demonstrate the compelling state interest it seeks to uphold in opposing
ground of the Jehovah's Witnesses' contrary belief and practice.
the respondent's stance that her conjugal arrangement is not immoral
Respondent's request for exemption from the flag ceremony shows her
and punishable as it comes within the scope of free exercise protection.
sincerity in practicing the Jehovah's Witnesses' beliefs and not using
Should the Court prohibit and punish her conduct where it is protected by
them merely to escape punishment. She is a practicing member of the
the Free Exercise Clause, the Court's action would be an unconstitutional
Jehovah's Witnesses and the Jehovah ministers testified that she is a
encroachment of her right to religious freedom. 454 We cannot therefore
member in good standing. Nevertheless, should the government, thru the
simply take a passing look at respondent's claim of religious freedom, but
Solicitor General, want to further question the respondent's sincerity and
must instead apply the "compelling state interest" test. The government
the centrality of her practice in her faith, it should be given the opportunity
must be heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the state's compelling interest
which can override respondent's religious belief and practice. To repeat,  Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374
4

this is a case of first impression where we are applying the "compelling U.S. 398, p. 416 (1963).
state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the 5
 Rollo, pp. 5-6.
case will make a decisive difference in the life of the respondent who
stands not only before the Court but before her Jehovah God. 6
 Id. at 8.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court 7

 Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
Administrator. The Solicitor General is ordered to intervene in the case
where it will be given the opportunity (a) to examine the sincerity and 8
 Id. at 101.
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
9
 Id. at 100; Exhibit 3, Certificate of Death.
the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. The rehearing should be concluded thirty
10
 Id. at 10; Exhibit 1.
(30) days from the Office of the Court Administrator's receipt of this
Decision. 11
 Id. at 11; Exhibit 2.

SO ORDERED. 12
 Id. at 27-33.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, 13

 Id. at 37.
JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion. 14
 Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting 15
 Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave. 16
 Citing biblical passages, this article addresses the question,
"Does the validity of a marriage depend entirely upon its
recognition by civil authorities and does their validation determine
how Jehovah God, the author of marriage, views the union?" It
traces the origins of marriage to the time of the Hebrews when
Footnotes marriage was a family or tribal affair. With the forming of Israel as
a nation, God gave a law containing provisions on marriage, but
 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in
1 there was no requirement for a license to be obtained from the
Weber, P., Equal Separation (1990), p. 17. priesthood nor that a priest or a representative from government
be present in the marriage to validate it. Instead, as long as God's
2
 Walz v. Tax Commission of the City of New York, 397 U.S. 664 law was adhered to, the marriage was valid and honorable within
(1970), p. 668. the community where the couple lived. In later Bible times,
marriages came to be registered, but only after the marriage had
been officiated, thereby making the government only a record-
 Smith, S., "The Rise and Fall of Religious Freedom in
3
keeper of the fact of marriage and not a judge of its morality.
Constitutional Discourse," University of Pennsylvania Law
Review, vol. 140(1), November 1991, pp. 149-150.
In the early centuries of the Christian congregation, marriage was In some cases, however, it is not possible to secure this
likewise chiefly a family affair and there was no requirement of recognition. For instance, in countries where divorce is not
license from the religious or civil authority to make it valid and allowed even on the Scriptural ground of fornication, either
honorable. It was conformity to God's law that was necessary for because of the dominance of one religion or other reasons, a
the marriage to be viewed as honorable within the congregation. man might have left his unfaithful wife and lives with another
Later, however, the civil authorities came to have more woman with whom he has a family. He may later learn the truth of
prominence in determining the validity of a marriage while the role God's Word and desire to be baptized as a disciple of God's Son,
of the congregation waned. Christians cannot turn their back on but he cannot obtain divorce and remarry as the national laws do
this reality in desiring to make their marriage honorable "among not allow these. He might go to a land which permits divorce and
all", i.e., in the sight of God and men. However, the view of civil remarry under the laws of that land and add honor to his union,
authorities regarding the validity of marriage is relative and but upon returning to his homeland, the law therein might not
sometimes even contradictory to the standards set by the Bible. recognize the union. If this option is not available to that man, he
For example, in some lands, polygamy is approved while the should obtain a legal separation from his estranged mate or
Bible says that a man should only have one wife. Likewise, some resort to other legal remedies, then "make a written statement to
countries allow divorce for the slightest reasons while others do the local congregation pledging faithfulness to his present mate
not allow divorce. The Bible, on the other hand, states that there and declaring his agreement to obtain a legal marriage certificate
is only one ground for divorce, namely, fornication, and those if the estranged legal wife should die or if other circumstances
divorcing for this reason become free to marry. should make possible the obtaining of such registration. If his
present mate likewise seeks baptism, she would also make such
To obtain a balanced view of civil authority (or Caesars' authority a signed statement." (p. 182) In some cases, a person might have
in Biblical terms) regarding marriage, it is well to understand the initiated the process of divorce where the law allows it, but it may
interest of civil governments in marriage. The government is take a long period to finally obtain it. If upon learning Bible truth,
concerned with the practical aspects of marriage such as property the person wants to be baptized, his baptism should not be
rights and weakening genetic effects on children born to blood delayed by the pending divorce proceedings that would make his
relatives, and not with the religious or moral aspects of marriage. present union honorable for "Bible examples indicate that
Caesar's authority is to provide legal recognition and unnecessary delay in taking the step of baptism is not advisable
accompanying protection of marital rights in court systems, thus a (Acts 2:37-41; 8:34-38; 16:30-34; 22:16)." Such person should
Christian desiring this recognition and rights must adhere to then provide the congregation with a statement pledging
Caesar's requirements. However, God is not bound by Caesar's faithfulness, thereby establishing his determination to maintain his
decisions and the Christian "should rightly give conscientious current union in honor while he exerts effort to obtain legal
consideration to Caesar's marriage and divorce provisions but will recognition of the union. Similarly, in the case of an already
always give greatest consideration to the Supreme Authority, baptized Christian whose spouse proves unfaithful and whose
Jehovah God (Acts 4:19; Rom. 13:105). . . Thus the Christian national laws do not recognize the God-given right to divorce an
appreciates that, even though Caesar's rulings of themselves are adulterous mate and remarry, he should submit clear evidence to
not what finally determine the validity of his marriage in God's the elders of the congregation of the mate's infidelity. If in the
eyes, this does not thereby exempt him from the Scriptural future he decides to take another mate, he can do this in an
injunction: 'Let marriage be honorable among all.' (Heb. 13:4) He honorable way by signing declarations pledging faithfulness
is obligated to do conscientiously whatever is within the power to where they also promise to seek legal recognition of their union
see that his marriage is accorded such honor by all." Those who where it is feasible. This declaration will be viewed by the
wish to be baptized members of the Christian congregation but do congregation as "a putting of oneself on record before God and
not have legal recognition of their marital union should do all that man that the signer will be just as faithful to his or her existing
is possible to obtain such recognition, thereby removing any marital relationship as he or she would be if the union were one
doubt as to the honorableness of their union in the eyes of validated by civil authorities. Such declaration is viewed as no
people. less binding than one made before a marriage officer
representing a 'Caesar' government of the world. . . It could 21
 Rollo, p, 240; Respondent's Memorandum, p. 2.
contain a statement such as the following:
 Report and Recommendation of Executive Judge Bonifacio
22

I, __________, do here declare that I have accepted __________ Sanz Maceda, p. 3.

as my mate in marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship by the proper 23
 Id. at 4.
public authorities and that it is because of having been unable to
do so that I therefore make this declaration pledging faithfulness  Memorandum by Deputy Court Administrator Christopher Lock
24

in this marital relationship. I recognize this relationship as a dated August 28, 2002, p. 6.
binding tie before Jehovah God and before all persons, to be held
to and honored in full accord with the principles of God's Word. I 25
 A.M. No. P-96-1231, February 12, 1997.
will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a
change in circumstances makes this possible I promise to  Memorandum by Deputy Court Administrator Christopher Lock
26

legalize this union." dated August 28, 2002, p. 7.

The declaration is signed by the declarant and by two others as  Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p.
27

witnesses and the date of declaration is indicated therein. A copy xvii.

of the declaration is kept by the persons involved, by the
congregation to which they belong, and by the branch office of  Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
28

the Watch Tower Society in that area. It is also beneficial to Wieman, Henry Nelson, and Horton, Walter M., The Growth of
announce to the congregation that a declaration was made for Religion (1938), p. 22.
their awareness that conscientious steps are being undertaken to
uphold the honorableness of the marriage relationship. It must be  Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
29

realized, however, that if the declarant is unable to obtain Wieman, Henry Nelson, and Horton, Walter M., The Growth of
recognition from the civil authorities, even if he makes that Religion (1938), p. 29.
declaration, "whatever consequences result to him as far as the
world outside is concerned are his sole responsibility and must be  Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and
30

faced by him." (p. 184) For instance, should there be inheritance Evolution of Religion (1923), pp. 68, 206.
or property issues arising from an earlier marriage, he cannot
seek legal protection with regard to his new, unrecognized union.  Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928),
31

pp. 512-528.
 Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29,
17

2002, pp. 12-32.  Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World
32

(1931), p. 47.
 Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8;
18

Exhibit 6. 33
 Pfeffer, L., supra, p. 4.
19
 Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.  Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph
34

17, in Complete Works of Josephus, p. 500.

Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo,
20 

pp. 109-110, "Maintaining Marriage Before God and Men", pp. 35

 Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
184-185.
  It may also be said that Moses actually used the concept of a
36 51
 Pfeffer, L., supra, pp. 24-25.
single all-powerful God as a means of unifying the Hebrews and
establishing them as a nation, rather than vice versa. What is 52
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
important to note, however, is that the monotheism which served
as foundation of Christianity of western civilization with its 53
 Greene, E., supra, p. 9.
consequences in church-state relations was established by
Moses of the Bible, not the Moses of history. Pfeffer, L., supra, p. 54
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
5.
55
 Pfeffer, L., supra, p. 26.
 Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty
37

(1949), p. 24.
 Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York),
56

Church and State in England (1950), p. 93.

38
 Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
 Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions
57
39
 Pfeffer, L., supra, p. 7.
(1949), pp. 674-675 and Garbett, C., pp. 61-62.
 Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of
40
 Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional
58
Religions (1934), p. 108.
Documents, 130-135.
41
 Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
 Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences,
59

XIII, p. 243.
42
 Pfeffer, L., supra, p. 13.
60
 Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
 Pfeffer, L., supra, p. 13, citing Walker, W., A History of the
43

Christian Church (1940), p. 108.

 Everson v.Board of Education of the Township of Ewing, et al.,
61

330 U.S. 1 (1947), pp. 8-9.

44
 Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
 Pfeffer, L., supra, p. 30, citing Religious News Service, October
62

 Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica,

45
31, 1950.
"Charles the Great," 14th ed., V, p. 258.
63
 Pfeffer, L., supra, p. 30.
46
 Pfeffer, L., supra, p. 22.
64
 Beth, L., American Theory of Church and State (1958), p. 3.
47
 Pfeffer, L., supra, p. 23.
65
 Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
48
 Greene, E., Religion and the State (1941), p. 8.
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980),
66

 Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A.,
49
p. 79.
Luther's Primary Works (1885), pp. 194-185.
67
 Pfeffer, L., supra, pp. 92-93.
 Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in
50

Chrisitianity," in Essays on Freedom and Power (1949), p. 103.

68
 Pfeffer, L., supra, p. 96.  Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism
84

and Religion in America, 1774-1789 (1924), pp. 368-369.

69
 Pfeffer, L., supra, p. 95
85
 Pfeffer, L., supra, p. 103.
70
 Another estimate of church membership in 1775 is that in none
of the colonies was membership in excess of 35 percent of the  Drakeman, D., Church-State Constitutional Issues (1991), p.
86

population. (Beth, L., American Theory of Church and State 55.

[1958], p. 73.)
 Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The
87

 Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial

71
Rise of American Civilization, I (1947), p. 449.
Policy Making, Second Edition (1980), p. 1276.
88
 Drakeman, D., supra, p. 55.
72
 Pfeffer, L., supra, pp. 96.
 Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican
89

 Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of

73
Democracy (1948), p. 267.
American Dissent (1934), p. 202.
 Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by
90

74
 Pfeffer, L., supra, p. 93. Virginia in Establishing Religious Liberty as a Foundation of the
American Government, Papers of the American Historical
 Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103,
75 Association, II, p. 26.
citing Cobb, S.H., The Rise of Religious Liberty in America
(1902), p. 485.  Beth, L., American Theory of Church and State (1958), pp. 61-
91

62.
76
 Pfeffer, L., supra, p. 85.
 Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The
92

 Blau, J., Cornerstones of Religious Freedom in America (1950),

77 American Tradition in Religion and Education (1950), pp. 46-47.
p. 36.
 Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism
93

78
 Pfeffer, L., supra, p. 87. and Religion in America, 1774-1789 (1924), p. 379.

79
 Pfeffer, L., supra, p. 86.
94
 Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.

80
 Pfeffer, L., supra, pp. 88-89.  Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing
95

Eckenrode, N.J., The Separation of Church and State in Virginia

81
 Pfeffer, L., supra, p. 101. (1910), p. 86.

82
 Pfeffer, L., supra, p. 99.
96
 Beth, L., supra, p. 63.

 Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
83
97
 Id. at 81-82.
Government (edited by C.B: Macpherson), pp. 8-10.
98
 Id. at 74-75.
99
 Beth, L., supra, p. 63.  Weber, P., "Neutrality and first Amendment Interpretation" in
113

Equal Separation (1990), pp. 5-7. See also Kauper, P., Religion
100
 Id at 63-65. and the Constitution (1964), p. 99.

 Smith, S., "The Rise and Fall of Religious Freedom in

101 114
 Monsma, S., supra, p. 73.
Constitutional Discourse", University of Pennsylvania Law
Review, vol. 140(1), November 1991, p. 149, 160.  See Carter, S., "The Resurrection of Religious Freedom,"
115

Harvard Law Review (1993), vol. 107(1), p. 118, 128-129.

102
 Id. at 63-65.
116
 Emanuel, S., Constitutional Law (1992), p. 633.
 Smith, S., "The Rise and Fall of Religious Freedom in
103

Constitutional Discourse", University of Pennsylvania Law 117

 Carter, S., supra, p. 118, 140.
Review, vol. 140(1), November 1991, p. 149, 160.
 Sullivan, K., "Religion and Liberal Democracy," The University
118

104
 Beth, L., supra, pp. 63-65. of Chicago Law Review (1992), vol. 59(1), p. 195, 214-215.

105
 Id. at 69. 119
 Kauper, P., Religion and the Constitution (1964), pp, 24-25.

106
 Drakeman, D., supra, p. 59. 120
 133 U.S. 333 (1890).

 Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164;

107 121
 133 U.S. 333 (1890), p. 342.
Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., "The Fathers of
the Republic and Constitutional Establishment of Religious 122
 322 U.S. 78 (1944).
Liberty" (1930), pp. 692-693.
123
 United States v. Ballard, 322 U.S. 78 (1944), p. 86.
108
 Beth, L., supra, p. 71.
 Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional
124

 Berman, H., "Religious Freedom and the Challenge of the

109
Law, Second Edition (1999), pp. 522-523.
Modern State," Emory Law Journal, vol. 39, Winter 1990-Fall
1990, pp. 151-152. 125
 367 U.S. 488 (1961).

 Monsma, S., "The Neutrality Principle and a Pluralist Concept

110
126
 380 U.S. 163 (1965).
of Accommodation" in Weber, P., Equal Separation (1990), p. 74.
127
 Stephens, Jr., supra, p. 645.
111
 Berman, H., supra, pp. 151-152.
128
 Id. at 524.
 McCoy, T., "A Coherent Methodology for First Amendment
112

Speech and Religion Clause Cases," Vanderbilt Law Review, vol.

 Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department
129
48(5), October 1995, p. 1335, 1340.
of Employment Security, 489 U.S. 829 (1989).
  McCoy, T., "A Coherent Methodology for First Amendment
130 144
 Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
Speech and Religion Clause Cases," Vanderbilt Law Review, vol.
48(5), October 1995, p. 1335, 1336-1337. 145
 Id. at 163.

 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion"

131 146
 98 U.S. 145, 166.
in Weber, P., Equal Separation (1990), p. 20.
147
 McCoy, T., supra, p. 1335, 1344-45.
132
 Kauper, P., supra, p, 13.
 Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd
148

 Neuhaus, R., "A New Order of Religious Freedom," The

133
ed. (1986), p. 1069.
George Washington Law Review (1992), vol. 60 (2), p. 620, 626-
627. 149
 136 U.S. 1 (1890).

 McConnell, M., "Religious Freedom at a Crossroads," The

134
150
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
University of Chicago Law Review (1992), vol. 59(1), p. 115, 168.
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980),
151
135
 McCoy, T., supra, p. 1335, 1336-1337. p. 79.

 Neuhaus, R., "A New Order of Religious Freedom," The

136
152
 367 U.S. 488 (1961).
George Washington Law Review (1992), vol. 60 (2), p. 620, 626-
627. 153
 322 U.S. 78, 86 (1944).
 Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for
137
154
 310 U.S. 296 (1940).
the Future: Overcoming the Pfefferian Inversion," in The First
Amendment Religion Liberty Clauses and American Public Life,
p. 183.
155
 Id. at 310.

138
 Carter, S., supra, p. 118, 134-135.
156
 Id at 303-304.

 Lupu, I., "The Religion Clauses and Justice Brennan in Full,"

139
157
 319 U.S. 157 (1943).
California Law Review (1999), vol. 87(5), p. 1105, 1114.
158
 340 U.S. 268 (1951).
140
 Everson v. Board of Education, 330 US 1 (1946), p. 15.
159
 452 U.S. 640 (1981).
141
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
160
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
142
 See McCoy, T., supra, p. 1335, 1336.
161
 133 U.S. 333, 345.
 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for
143

Religious Liberty (1980), p. 49; Drakeman, Church-State

162
 McCoy, T., supra, p. 1335, 1344-45.
Constitutional Issues (1991), p. 2.
163
 310 U.S. 586 (1940).
164
 319 U.S. 624 (1943). 183
 Id. at 214-215, 219-220.

165
 Id. at 634. 184
 494 U.S. 872 (1990).

166
 Id. at 639. 185
 McConnell, M., supra, p. 685, 726.

167
 McCoy, T., supra, p. 1335, 1345-46. 186
 McCoy, T., supra, p. 1335, 1350-1351.

 See Bloostein, M., "The 'Core'-'Periphery' Dichotomy in First

168
 Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180
187

Amendment Free Exercise Clause Doctrine: Goldman v. and 1191. See also Sullivan, K., "Religion and Liberal
Weinberger, Bowen v. Roy, and O'Lone v. Estate of Shabbaz,z" Democracy", The University of Chicago Law Review (1992), vol.
Cornell Law Review, vol. 72 (4), p. 827, 828. 59(1), p. 195, 216.

169
 366 U.S. 599 (1961).  McConnell, M., "Religious Freedom at a Crossroads", The
188

University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.

170
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
 Sullivan, K., "Religion and Liberal Democracy," The University
189

171
 374 U.S. 398 (1963). of Chicago Law Review (1992), vol. 59(1), p. 195, 216.

172
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
190
 Carter, S., supra, p. 118.

173
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.  Rosenzweig, S., "Restoring Religious Freedom to the
191

Workplace: Title VII, RFRA and Religious Accommodation,"

174
 Id. at 406. University of Pennsylvania Law Review (1996), vol. 144(6), p.
2513, 2516.
175
 Lupu, I., supra, p. 1105, 1110. 192
 138 L.Ed. 2d 624 (1994).
176
 McCoy, T., supra, p. 1335, 1346-1347. 193
 508 U.S. 520 (1993).
177
 450 U.S. 707 (1981). 194
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
178
 480 U.S. 136 (1987). 195
 330 U.S. 1 (1946).
179
 455 U.S. 252 (1982). 196
 Drakeman, D., supra, p. 4-6.
180
 United States v. Lee, 455 U.S. 252 (1982), p. 260.
 Buzzard, L., Ericsson, S., The Battle for Religious Liberty
197

(1980), p. 53.
181
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
198
 98 U.S. 164 (1878).
182
 406 U.S. 205 (1972).
199
 Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
200
 Id. at 164. 221
 465 U.S. 668 (1984).

201
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532. 222
 397 U.S. 664 (1970).

202
 Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16. 223
 Id. at 673.

203
 Id. at 18. 224
 Id.

204
 403 U.S. 602 (1971). 225
 Id. at 676.

205
 Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.  McConnell, M., "Religious Freedom at a Crossroads", The
226

University of Chicago Law Review (1992), vol. 59(1), p. 115, 119-

206
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540. 120.

207
 370 U.S. 421 (1962).
227
 Drakeman, D., supra, p. 51.

208
 374 U.S. 203 (1963).
228
 Id. at 53.

209
 Id.
229
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.

210
 Id. at 222.  Drakeman, supra, p. 52, citing Cord, R., Separation of Church
230

and State: Historical Fact and Current Fiction. p. 50.

211
 Witt, E. (ed.), supra, p. 93.
 Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton,
231

212
 472 U.S. 38 (1985). W., eds., The Debates and Proceedings in the Congress of the
United States, Compiled from Authentic Materials (Annala), vol. 1,
pp. 949-950.
213
 333 U.S. 203 (1948).
232
 Beth, L., supra, p. 74.
214
 343 U.S. 306 (1952).
233
 Drakeman, supra, pp. 57, 82.
215
 Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
234
 Buzzard, L., Ericsson, S., supra, p. 46.
216
 366 U.S. 420 (1961).
235
 Beth, L., supra, p. 72.
217
 Id. at 451-452.
236
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
218
 463 U.S. 783 (1983).
237
 Beth, L., supra, p. 71.
219
 Marsh v. Chambers, 463 US 783 (1983).
238
 The Constitution and Religion, p. 1541.
220
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
239
 Id. at 1539. 256
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.

 Weber, P., "Neutrality and First Amendment Interpretation" in

240
 Id. at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and
257

Equal Separation (1990), p. 3. Roemer: From Separation to Détente in Church-State Relations",

55 North Carolina Law Review (April 1977), 563-75.
 McConnell, M., "Religious Freedom at a Crossroads", The
241

University of Chicago Law Review (1992), vol. 59(1), p. 115, 120. 258
 Buzzard, L., Ericsson, S., supra, p. 51.

242
 Everson v. Board of Education, 330 U.S. 1 (1947), p. 18. 259
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.

 The Constitution and Religion, p. 1541, citing Kurland, Of

243 260
 Buzzard, L., Ericsson, S., supra, p. 61.
Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5
(1961). 261
 Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.

 Weber, P., Equal Separation (1990), p. 8, citing Kurland, P.,

244 262
 Kelley, D., supra, p. 34.
Religion and the Law (1962), p. 18.
 Id. at 34, citing Milton Yinger, J., The Scientific Study of
263

 Smith, S., "The Rise and Fall of Religious Freedom in

245
Religion (1970), p. 21.
Constitutional Discourse," University of Pennsylvania Law
Review, vol. 140(1), November 1991, p. 149, 186.  Id., citing Talcott Parsons, Introduction, Max Weber, Sociology
264

of Religion (1963), pp. xxvii, xxviii.

246
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
265
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
247
 Buzzard, L., Ericsson, S., supra, p. 60.
266
 Berman, H., supra, p. 162.
248
 Kelley, D., supra, p. 1189.
267
 The Constitution and Religion, p. 1569.
249
 Monsma, S., supra, p. 74.
268
 McCoy, T., supra, p. 1335, 1338-1339.
250
 Id. at 75.
 McConnell, M., "Accommodation of Religion: An Update and a
269
251
 Smith, S., supra, p. 149, 159. Response to the Critics", The George Washington Law Review
(1992), vol. 60 (3), p. 685, 688.
252
 Drakeman, supra, p. 54.
270
 Id.
253
 Grossman, J.B. and Wells, R.S., supra, p. 1276.
271
 Id. at 689.
254
 Smith, S., supra, p. 149, 159.
272
 Id. at 690-694, 715.
255
 Id. at 149, 159-160.
273
 Id. at 686.
  Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573,
274 288
 Lupu, I., supra, p. 743, 775.
659, 663, 679 (1989) (Kennedy, J., concurring); Lynch v.
Donnelly, 465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 289
 Id. at 775.
U.S. 783, 792 (1983).
290
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
 McConnell, M., "Religious Freedom at a Crossroads," The
275

University of Chicago Law Review (1992), vol. 59(1), p. 115, 139, 291
 Buzzard, L., Ericsson, S., supra, p. 68.
184.
292
 Lupu, I., supra, p. 743, 776.
276
 Id. at 174.
293
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
 Neuhaus, R., "A New Order of Religious Freedom," The
277

George Washington Law Review (1992), vol. 60 (2), p. 620, 631.

 Martinez, H., "The High and Impregnable Wall of Separation
294

Between Church and State", Philippine Law Journal (1962), vol.

278
 Buzzard, L., Ericsson, S., supra, pp. 61-62. 37(5), p. 748, 766.

 Emanuel, S., supra, pp. 633-634, citing Tribe, L., American

279
295
 Article II.
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986),
 Bernas, J., The 1987 Constitution of the Republic of the
296
pp. 1067-1069.
Philippines: A Commentary (1995), p. 284.
280
 Id. at 633.
 Coquia, J., Church and State Law and Relations, p. 52, citing
297

Article X of the Treaty of Paris. The territories referred to were

281
 Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673. Cuba, Puerto Rico, Guam, the West Indies and the Philippine
Islands.
 McConnell, M., "Accommodation of Religion: An Update and a
282

Response to the Critics", The George Washington Law Review  Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica
298

(1992), vol. 60 (3), p. 685, 715. de la Republica Filipina promulgada el dia 22 de Enero de 1899
(Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
283
 Buzzard, L., Ericsson, S., supra, pp. 61-63.
 Bernas, J., A Historical and Juridical Study of the Philippine Bill
299

 McConnell, "The Origins and Historical Understanding of Free

284
of Rights (1971), pp. 13, 148.
Exercise of Religion," Harvard Law Review , vol. 103 (1990), p.
1410, 1416-7.  Coquia, J., supra, p. 77, citing Acts of the Philippine
300

Commission, With Philippine Organic Laws 10.

285
 Buzzard, L., Ericsson, S., supra, p. 70.
301
 25 Phil. 273 (1913).
 McConnell, M., "Accommodation of Religion: An Update and a
286

Response to the Critics," The George Washington Law Review 302

 Id. at 276.
(1992), vol. 60 (3), p. 685, 735.
 Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a),
303
287
 Buzzard, L., Ericsson, S., supra, pp. 68-71. 73rd Congress (1934).
  Laurel, S., Proceedings of the Philippine Constitutional
304 321
 Id. at 11-12.
Convention, vol. III (1966), pp. 654-655.
322
 Id. at 14.
 Aruego, J., The Framing of the Philippine Constitution, vol. I
305

(1949), p. 164. 323

 Id. at 25.
306
 Id. at 150. 324
 Id. at 24-25.

 Bernas, J., The Intent of the 1986 Constitution Writers (1995),

307 325
 110 Phil 150.
p. 182.
 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61
326

 Baddiri, E., "Islam and the 1987 Constitution: An Issue on the

308
SCRA 93 (1974); Gonzalez v. Central Azucarera de Tarlac Labor
Practice of Religion," 45 Ateneo Law Journal 161 (2001), p. 208, Union, 139 SCRA (1985).
citing Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism
46 (1978).  Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59
327

SCRA 54 (1974), p. 72.

309
 Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
328
 Id. at 73.
310
 64 Phil 201 (1937).
329
 64 Phil 201.
311
 101 Phil. 386 (1957).
330
 392 US 236.
 Bernas, Constitutional Rights and Social Demands, Part II, p.
312

268.  Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra,

331

p. 74.
313
 106 Phil. 2 (1959).
332
 Id. at 75.
314
 Id. at 9-10.
333
 Id.
 Bernas, J., The Constitution of the Republic of the Philippines:
315

A Commentary (1987), p. 225, Footnote 38. 334

 61 SCRA 93 (1974).
316
 319 U.S. 103. 335
 80 SCRA 350 (1977).
317
 234 SCRA 630 (1994). 336
 139 SCRA 30 (1985).
318
 493 U.S. 378 (1990).  German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p.
337

525, citing Cantwell v. Connecticut, 310 U.S. 296.

319
 106 Phil. 2 (1959).
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp.
338
320
 106 Phil. 2 (1959), p. 10. 524-525.
339
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985).  Bernas, J., The Constitution of the Republic of the Philippines:
355

A Commentary (1987), p. 233.

 German, et al. v. Barangan, et al., 135 SCRA 514 (1985),
340

Dissenting Opinion of Justice Teehankee. 356

 Id. at 234.

341
 219 SCRA 256 (1993), March 1, 1993.  64 Phil. 201 (1937); Bernas, J., The Constitution of the
357

Republic of the Philippines: A Commentary (1987), p. 234.

342
 Id. at 270-271.
 An Act Appropriating the Sum of Sixty Thousand Pesos and
358

343
 Id. at 271-272. Making the Same Available out of any Funds in the Insular
Treasury not otherwise Appropriated for the Cost of Plates and
344
 Id. at 272. Printing of Postage Stamps with New Designs, and for other
Purposes.
345
 Id. at 272-273. 359
 Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
346
 Id. at 270.
 Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291
360

(1899).
347
 Id. at 269.
361
 104 SCRA 510 (1981).
348
 259 SCRA 529 (1996).
362
 86 SCRA 413 (1978).
349
 Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
363
 367 U.S. 488 (1961).
350
 Id., citing Cruz, I., Constitutional Law (1991), p. 544.
364
 Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
 Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing
351

Hentoff, Speech, Harm and Self-Government: Understanding the

Ambit of the Clear and Present Danger Test, 91 Col. Law Rev.
365
 96 Phil. 417 (1955).
No. 6, p. 1453 (1991).
366
 45 Am. Jur. 77.
352
 Id.
367
 96 Phil 417 (1955), p. 426.
 Bernas, Constitutional Rights and Social Demands, Part II, p.
353

314.
368
 Id. at 441, citing American authorities.

 This argument was a central theme in John Locke's A Letter

354  96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and
369

Concerning Toleration, which strongly influenced the thinking of 755.

many Americans, including Jefferson and Madison. (Smith, S.,
"The Rise and Fall of Religious Freedom in Constitutional 370
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
Discourse", University of Pennsylvania Law Review, vol. 140[1],
November 1991, p. 149, 155). 371
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
372
 Walz v. Tax Commission, supra, p. 668.  Aruego, J., The Framing of the Philippine Constitution, vol. 2
387

(1949), pp. 627-629.

 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra,
373

p. 75. 388
 Martin, supra, p. 218.

374
 Drakeman, D., supra, p. 127. 389
 Aglipay v. Ruiz, supra, p. 206.

375
 Buzzard, L. and Ericsson, S., supra, p. 75.  Tanada, L. and Fernando, E., Constitution of the Philippines,
390

vol. 1 (1952), pp. 269-270.

 Bernas, J., The 1987 Constitution of the Republic of the
376

Philippines: A Commentary (1995), pp. 288-289.  Report of the Ad Hoc Sub-Committee on Goals, Principles and
391

Problems of the Committee on Church and State of the 1971

377
 Ang-Angco v. Castillo, 9 SCRA 619 (1963). Constitutional Convention, p. 18.

378
 Martin, Statutory Construction (1979), p. 210.  Bernas, J., Background paper for reconsideration of the
392

religion provisions of the constitution (1971), pp. 41-43.

379
 Aruego, J., supra, pp. 331-337.
 Tingson, J., Report of the Committee on Church and State of
393

 Bernas, J., A Historical and Juridical Study of the Philippine Bill

380 the 1971 Constitutional Convention Report, p. 5.
of Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of
the Constitutional Convention of the Philippines, vol. 4, pp. 1550,  Bernas, J., The Intent of the 1986 Constitution Writers (1995),
394

1552. p. 406, citing Records of the Constitutional Commission, vol. II,

pp. 193-194.
381
 Aruego, J., supra, p. 337.
395
 Records of the Constitutional Commission, vol. 4, p. 362.
 Bernas, J., A Historical and Juridical Study of the Philippine Bill
382

of Rights (1971), p. 153.

396
 Id. at 358.

 Id. at 153, citing Francisco (ed.), Journal of the Constitutional

383 397
 Id. at 359.
Convention of the Philippines, vol. 4, p. 1539.
398
 Id. at 973.
 Id. at 153-154, citing Francisco (ed.), Journal of the
384

Constitutional Convention of the Philippines, vol. 4, pp. 1541- 399

 Records of the Constitutional Commission, vol. 1, p. 102.
1543.
 Bernas, Constitutional Rights and Social Demands, Part II
400

385
 Aruego, J., supra, pp. 340-345. (1991), p. 268.

 Bernas, J., A Historical and Juridical Study of the Philippine Bill

386 401
 Cruz, I., Constitutional Law (1995), p. 167.
of Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention Record, vol. 10 (1967), p. 29. 402
 Martinez, H., supra, p. 768-772.
  McConnell, M., "Religious Freedom at a Crossroads", The
403
 Greenwalt, K., Conflicts of Law and Morality, p. 247, citing
420

University of Chicago Law Review (1992), vol. 59(1), p. 115, 169. Holmes, The Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).

404
 Martinez, H., supra, p. 773. 421
 Id. at 247.

405
 Neuhaus, R., supra, p. 630. 422
 Greenwalt, K., supra, p. 272.

 Smith, S., supra, p. 153, citing Jefferson, T., Freedom of

406 423
 Buzzard, L. and Ericsson, S., supra, p. 31.
Religion at the University of Virginia, in The Complete Jefferson
(Saul K. Padover ed., 1969), p. 957, 958. 424
 Devlin, P., supra, pp. 19-20.
407
 Neuhaus, R., supra, p. 630. 425
 Id. at 247.
408
 Carter, S., supra, pp. 140-142. 426
 210 SCRA 471 (1992).
409
 Cruz, I., Constitutional Law (1995), p. 178.  Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p.
427

478, citing Aquino, The Revised Penal Code, 1987 Edition, Vol. I,
 Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002;
410
pp. 11-12, citing People v. Roldan Zaballero, CA 54 O.G. 6904.
Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, Note also Justice Pablo's view in People v. Piosca and Peremne,
339 SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 86 Phil. 31.
(1997); Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v.
Navarro, 220 Phil. 49 (1985). 428
 Devlin, P., supra, pp. 6-7.
411
 68 SCRA 354 (1975). 429
 Id. at 19.
412
 305 SCRA 469 (1999). 430
 Article 334 of the Revised Penal Code provides, viz:
413
 Rachels, J., The Elements of Moral Philosophy (1986), p. 1. "Art. 334. Concubinage. – Any husband who shall keep a
mistress in the conjugal dwelling, or shall have sexual
414
 Devlin, P., The Enforcement of Morals (1965), p. 10. intercourse, under scandalous circumstances, with a woman who
is not his wife, or shall cohabit with her in any other place, shall
 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589
415 be punished by prision correccional in its minimum and medium
(1992). period.

416
 Devlin, P., supra, 13. The concubine shall suffer the penalty of destierro."

417
 Neuhaus, R., supra, pp. 621, 624-625.
431
 Article 266-A of the Revised Penal Code.

 McConnell, M., "Religious Freedom at a Crossroads", The

418  Rule 110 of the Revised Rules of Criminal Procedure, as
432

University of Chicago Law Review (1992), vol. 59(1), p. 115, 139. amended provides in relevant part, viz:

419
 Neuhaus, R., supra, pp. 624-625.
 "The crime of adultery and concubinage shall not be (1) Those whose cause, object or purpose is contrary to
prosecuted except upon a complaint filed by the offended law, morals, good customs, public order or public policy; x
spouse. The offended party cannot institute criminal x x" (emphasis supplied)
prosecution without including the guilty parties, if both are
alive, nor, in any case, if the offended party has 439
 Article XIV, Section 3 provides in relevant part, viz:
consented to the offense or pardoned the offenders."
All educational institutions shall include the study of the
 Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100
433
Constitution as part of the curricula.
Phil. 186 (1956), pp. 202-203, citing Report of the Code
Commission on the Proposed Civil Code of the Philippines, pp. They shall inculcate patriotism and nationalism, foster
40-41. love of humanity, respect for human rights, appreciation of
the role of national heroes in the historical development of
434
 Carter, S., supra, p. 138. the country, teach the rights and duties of citizenship,
strengthen ethical and spiritual values, develop moral
435
 Sullivan, K., supra, pp. 197-198. character and personal discipline, encourage critical and
creative thinking, broaden scientific and technological
 Rule 1.01 of the Code of Professional Responsibility provides
436 knowledge, and promote vocational efficiency. (emphasis
that, "(a) lawyer shall not engage in unlawful, dishonest, immoral supplied)
or deceitful conduct. (emphasis supplied)
440
 To illustrate the distinction between public or secular morality
 Title Six of the Revised Penal Code is entitled Crimes against
437 and religious morality, we take the example of a judge. If the
Public Morals and includes therein provisions on gambling and public morality of a society deems that the death penalty is
betting. (emphasis supplied) necessary to keep society together and thus crystallizes this
morality into law, a judge might find himself in a conflict between
438
 The New Civil Code provides, viz: public morality and his religious morality. He might discern that
after weighing all considerations, his religious beliefs compel him
not to impose the death penalty as to do so would be immoral. If
"Article 6. Rights may be waived, unless the waiver is
the judge refuses to impose the death penalty where the crime
contrary to law, public order, public policy, morals, or
warrants it, he will be made accountable to the state which is the
good customs or prejudicial to a third person with a right
authority in the realm of public morality and be held
recognized by law.
administratively liable for failing to perform his duty to the state. If
he refuses to act according to the public morality because he
Article 21. Any person who wilfully causes loss or injury to finds more compelling his religious morality where he is
another in a manner that is contrary to morals, good answerable to an authority he deems higher than the state, then
customs or public policy shall compensate the latter for his choice is to get out of the public morality realm where he has
the damage. the duty to enforce the public morality or continue to face the
sanctions of the state for his failure to perform his duty. See
Article 1306. The contracting parties may establish such Griffin, L., "The Relevance of Religion to a Lawyer's Work: Legal
stipulations, clauses, terms and conditions as they may Ethics", Fordham Law Review (1998), vol. 66(4), p. 1253 for a
deem convenient, provided that are not contrary to law, discussion of a similar dilemma involving lawyers.
morals, good customs, public order, or public policy.
441
 Sullivan, K., supra, p. 196.
Article 1409. The following contracts are inexistent and
void from the beginning:
  Smith, S., supra, pp. 184-185. For a defense of this view, see
442

William P. Marshall, We Know It When We See It": The Supreme

Court and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an
extended criticism of this position, see Steven D. Smith,
"Symbols, Perceptions, and Doctrinal Illusions: Establishment
Neutrality and the 'No Establishment' Test", 86 Mich. L. Rev. 266
(1987).

 Ostrom, V., "Religion and the Constitution of the American

443

Political System", Emory Law Journal, vol. 39(1), p. 165, citing 1

A. Tocqueville, Democracy in America (1945), p. 305.

 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and
444

755.

445
 Devlin, P., supra, p. 22.

446
 329 U.S. 14 (1946).

447
 Cleveland v. United States, 329 U.S. 14, p. 16.

448
 Reynolds v. United States, supra, p. 164.

449
 Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.

450
 Id.

451
 226 SCRA 193 (1993).

452
 Id. at 199.

 Annexes "A" and "B" of the Report and Recommendation of

453

Executive Judge Bonifacio Sanz Maceda.

454
 Cruz, I., supra, p. 176.