Republic of the Philippines Nos. 116, 119, 121 and 128. The Board classified the There are some inconsistencies in SUPREME COURT series as "X" or not for public viewing on the ground the particular program as it is very Manila that they "offend and constitute an attack against surprising for this program to show other religions which is expressly prohibited by law." series of Catholic ceremonies and EN BANC also some religious sects and using Petitioner pursued two (2) courses of action against it in their discussion about the the respondent Board. On November 28, 1992, it bible. There are remarks which are appealed to the Office of the President the direct criticism which affect other G.R. No. 119673 July 26, 1996 classification of its TV Series No. 128. It succeeded religions. in its appeal for on December 18, 1992, the Office of IGLESIA NI CRISTO, (INC.), petitioner, the President reversed the decision of the respondent Need more opinions for this vs. Board. Forthwith, the Board allowed Series No. 128 particular program. Please subject THE HONORABLE COURT OF APPEALS, to be publicly telecast. to more opinions. BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and On December 14, 1992, petitioner also filed against (2) Exhibit "A-1," respondent HONORABLE HENRIETTA S. the respondent Board Civil Case No. Q-92-14280, Board's Voting Slip for Television MENDOZA, respondents. with the RTC, NCR Quezon City. 1 Petitioner alleged showing its September 11, 1992 that the respondent Board acted without jurisdiction subsequent action on petitioner's 3 or with grave abuse of discretion in requiring Series No. 115 as follows: petitioner to submit the VTR tapes of its TV program PUNO, J.:p and in x-rating them. It cited its TV Program Series REMARKS: Nos. 115, 119, 121 and 128. In their Answer, This is a petition for review of the Decision dated respondent Board invoked its power under PD No. This program is criticizing different March 24, 1995 of the respondent Court of Appeals 1986 in relation to Article 201 of the Revised Penal religions, based on their own affirming the action of the respondent Board of Code. interpretation of the Bible. Review for Moving Pictures and Television which x- rated the TV Program "Ang Iglesia ni Cristo." On January 4, 1993, the trial court held a hearing on We suggest that the program should petitioner's prayer for a writ of preliminary delve on explaining their own faith Petitioner Iglesia ni Cristo, a duly organized religious injunction. The parties orally argued and then marked and beliefs and avoid attacks on organization, has a television program entitled "Ang their documentary evidence. Petitioner submitted the other faith. Iglesia ni Cristo" aired on Channel 2 every Saturday following as its exhibits, viz.: and on Channel 13 every Sunday. The program (3) Exhibit "B," respondent Board's presents and propagates petitioner's religious beliefs, (1) Exhibit "A," respondent Board's Voting Slip for Television showing doctrines and practices often times in comparative Voting Slip for Television showing its October 9, 1992 action on studies with other religions. its September 9, 1992 action on petitioner's Series No. 119, as petitioner's Series No. 115 as follows: 4 2 Sometime in the months of September, October and follows: November 1992 petitioner submitted to the REMARKS: respondent Board of Review for Moving Pictures and REMARKS: Television the VTR tapes of its TV program Series The Iglesia ni Cristo insists on the The episode presented criticizes the We have viewed literal translation of the bible and religious beliefs of the Catholic and a tape of the says that our (Catholic) veneration Protestant's beliefs. television episode of the Virgin Mary is not to be in question, as condoned because nowhere it is We suggest a second review. well as studied found in the bible that we should do the passages so. (6) Exhibits "E," "E-1," petitioner's found by block time contract with ABS-CBN MTRCB to be This is intolerance and robs off all Broadcasting Corporation dated objectionable and sects of freedom of choice, worship September 1, 1992. 7 we find no and decision. indication that the (7) Exhibit "F," petitioner's Airtime episode poses any (4) Exhibit "C," respondent Board's Contract with Island Broadcasting clear and present Voting Slip for Television showing Corporation. 8 danger sufficient its October 20, 1992 action on to limit the said petitioner's Series No. 121 as (8) Exhibit "G," letter dated constitutional follows: 5 December 18, 1992 of former guarantee. Executive Secretary Edelmiro A. REMARKS: Amante, Sr., addressed for (9) Exhibits "H," "H-1," letter dated Henrietta S. Mendez reversing the November 26, 1992 of Teofilo C. I refuse to approve the telecast of decision of the respondent Board Ramos, Sr., addressed to President this episode for reasons of the which x-rated the showing of Fidel V. Ramos appealing the attacks, they do on, specifically, the petitioner's Series No. 129. The action of the respondent Board x- Catholic religion. letter reads in part: rating petitioner's Series No. 128.

I refuse to admit that they can tell, xxx xxx xxx On its part, respondent Board submitted the following dictate any other religion that they exhibits, viz.: are right and the rest are wrong, The television which they clearly present in this episode in (1) Exhibit "1," Permit Certificate episode. question is for Television Exhibition No. protected by the 15181 dated December 18, 1992 (5) Exhibit "D," respondent Board's constitutional allowing the showing of Series No. Voting Slip for Television showing guarantee of free 128 under parental guidance. its November 20, 1992 action on speech and petitioner's Series No. 128 as expression under (2) Exhibit "2," which is Exhibit follows: 6 Article III, "G" of petitioner. section 4 of the REMARKS: 1987 (3) Exhibit "3," letter dated October Constitution. 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era Broadcasting Service which reads show that after submission of memoranda, the trial religions in showing "Ang Iglesia in part: court rendered a Judgment, 10 on December 15, 1993, ni Cristo" program is hereby the dispositive portion of which reads: deleted and set aside. Respondents xxx xxx xxx are further prohibited from xxx xxx xxx requiring petitioner Iglesia ni Cristo In the matter of to submit for review VTR tapes of your television WHEREFORE, judgment is hereby its religious program "Ang Iglesia show "Ang rendered ordering respondent ni Cristo." Iglesia ni Cristo" Board of Review for Moving Series No. 119, Pictures and Television (BRMPT) Respondent Board appealed to the Court of please be to grant petitioner Iglesia ni Cristo Appeals after its motion for reconsideration informed that the the necessary permit for all the was denied. 14 Board was series of "Ang Iglesia ni Cristo" constrained to program. On March 5, 1995, the respondent Court of deny your show a Appeals 15 reversed the trial court. It ruled that: (1) the permit to exhibit. Petitioner Iglesia ni Cristo, respondent board has jurisdiction and power to The material however, is directed to refrain from review the TV program "Ang Iglesia ni Cristo," and involved offending and attacking other (2) the respondent Board did not act with grave abuse constitute an existing religions in showing "Ang of discretion when it denied permit for the exhibition attack against Iglesia ni Cristo" program. on TV of the three series of "Ang Iglesia ni Cristo" on another religion the ground that the materials constitute an attack which is SO ORDERED. against another religion. It also found the series expressly "indecent, contrary to law and contrary to good prohibited by Petitioner moved for reconsideration 11 praying: (a) customs. law. Please be for the deletion of the second paragraph of the guided in the dispositive portion of the Decision, and (b) for the In this petition for review on certiorari under Rule submission of Board to be perpetually enjoined from requiring 45, petitioner raises the following issues: future shows. petitioner to submit for review the tapes of its program. The respondent Board opposed the I After evaluating the evidence of the parties, motion. 12 On March 7, 1993, the trial court granted the trial court issued a writ of preliminary petitioner's Motion for Reconsideration. It ordered: 13 WHETHER OR NOT THE injunction on petitioner's bond o P10,000.00. HONORABLE COURT OF xxx xxx xxx APPEALS ERRED IN HOLDING The trial court set the pre-trial of the case and the THAT THE "ANG IGLESIA NI 9 parties submitted their pre-trial briefs. The pre-trial WHEREFORE, the Motion for CRISTO" PROGRAM IS NOT briefs show that the parties' evidence is basically the Reconsideration is granted. The CONSTITUTIONALLY evidence they submitted in the hearing of the issue of second portion of the Court's Order PROTECTED AS A FORM OF preliminary injunction. The trial of the case was set dated December 15, 1993, directing RELIGIOUS EXERCISE AND and reset several times as the parties tried to reach an petitioner to refrain from offending EXPRESSION. amicable accord. Their efforts failed and the records and attacking other existing II whether it gravely abused its discretion when it judgment of the BOARD applying prohibited the airing of petitioner's religious program, contemporary Filipino cultural WHETHER OR NOT THE series Nos. 115, 119 and 121, for the reason that they values as standard, are HONORABLE COURT OF constitute an attack against other religions and that objectionable for being immoral, APPEALS ERRED IN NOT they are indecent, contrary to law and good customs. indecent, contrary to law and/or HOLDING THAT BEING AN good customs, injurious to the EXERCISE OF RELIGIOUS The first issue can be resolved by examining the prestige of the Republic of the FREEDOM, THE "ANG IGLESIA powers of the Board under PD No. 1986. Its section 3 Philippines and its people, or with a NI CRISTO" PROGRAM IS pertinently provides: dangerous tendency to encourage SUBJECT TO THE POLICE the commission of violence or of a POWER OF THE STATE ONLY Sec. 3 Powers and Functions. -- wrong or crime, such as but not IN THE EXTREME CASE THAT The BOARD shall have the limited to: IT POSES A CLEAR AND following functions, powers and PRESENT DANGER. duties: i) Those which tend to incite III xxx xxx xxx subversion, insurrection, WHETHER OR NOT THE b) To screen, review and examine rebellion or HONORABLE COURT OF all motion pictures as herein sedition against APPEALS ERRED IN HOLDING defined, television programs, the State, or THAT THE MTRCB IS VESTED including publicity materials such otherwise WITH THE POWER TO CENSOR as advertisements, trailers and threaten the RELIGIOUS PROGRAMS. stills, whether such motion pictures economic and/or and publicity materials be for political stability IV theatrical or non-theatrical of the State; distribution for television broadcast WHETHER OR NOT THE or for general viewing, imported or ii) Those which HONORABLE COURT OF produced in the Philippines and in tend to APPEALS ERRED IN HOLDING the latter case, whether they be for undermine the THAT THE "ANG IGLESIA NI local viewing or for export. faith and CRISTO," A PURELY confidence of the RELIGIOUS PROGRAM IS c) To approve, delete objectionable people, their INDECENT AND CONTRARY portion from and/or prohibit the government TO LAW AND GOOD importation, exportation, and/or duly CUSTOMS. production, copying, distribution, constituted sale, lease, exhibition and/or authorities; The basic issues can be reduced into two: (1) first, television broadcast of the motion whether the respondent Board has the power to pictures, television programs and iii) Those which review petitioner's TV program "Ang Iglesia ni publicity materials, subject of the glorify criminals Cristo," and (2) second, assuming it has the power, preceding paragraph, which, in the or condone television broadcast of . . . television The right to religious profession crimes; programs . . ." The law also directs the and worship has a two-fold Board to apply "contemporary Filipino aspect, viz., freedom to believe and iv) Those which cultural values as standard" to determine freedom to act on one's beliefs. The serve no other those which are objectionable for being first is absolute as long as the belief purpose but to "immoral, indecent, contrary to law and/or is confined within the realm of satisfy the market good customs, injurious to the prestige of thought. The second is subject to for violence or the Republic of the Philippines and its regulation where the belief is pornography; people, or with a dangerous tendency to translated into external acts that encourage the commission of violence or of affect the public welfare. v) Those which a wrong or crime." tend to abet the (1) Freedom to Believe traffic in and use Petitioner contends that the term "television program" of prohibited should not include religious programs like its The individual is free to believe (or drugs; program "Ang Iglesia ni Cristo." A contrary disbelieve) as he pleases interpretation, it is urged, will contravene section 5, concerning the hereafter. He may vi) Those which Article III of the Constitution which guarantees that indulge his own theories about life are libelous or "no law shall be made respecting an establishment of and death; worship any god he defamatory to the religion, or prohibiting the free exercise thereof. The chooses, or none at all; embrace or good name and free exercise and enjoyment of religious profession reject any religion; acknowledge reputation of any and worship, without discrimination or preference, the divinity of God or of any being person, whether shall forever be allowed." that appeals to his reverence; living or dead; recognize or deny the immortality We reject petitioner's submission which need not set of his soul -- in fact, cherish any vii) Those which us adrift in a constitutional voyage towards an religious conviction as he and he may constitute uncharted sea. Freedom of religion has been accorded alone sees fit. However absurd his contempt of court a preferred status by the framers of our fundamental beliefs may be to others, even if or of any quasi- laws, past and present. We have affirmed this they be hostile and heretical to the judicial tribunal, preferred status well aware that it is "designed to majority, he has full freedom to or pertain to protect the broadest possible liberty of conscience, to believe as he pleases. He may not matters which are allow each man to believe as his conscience directs, be required to prove his beliefs. He subjudice in to profess his beliefs, and to live as he believes he may not be punished for his nature (emphasis ought to live, consistent with the liberty of others and inability to do so. Religion, after ours). with the common good." 16 We have also laboriously all, is a matter of faith. "Men may defined in our jurisprudence the intersecting umbras believe what they cannot prove." The law gives the Board the power to and penumbras of the right to religious profession Every one has a right to his beliefs screen, review and examine all "television and worship. To quote the summation of Mr. Justice and he may not be called to account 1 programs." By the clear terms of the law, the Isagani Cruz, our well-known constitutionalist: 7 because he cannot prove what he Board has the power to "approve, delete . . . believes. and/or prohibit the . . . exhibition and/or Religious Profession and Worship (2) Freedom to Act on One's Beliefs not offer the object of his piety a religious differences. Our country is still not safe human sacrifice, as this would be from the recurrence of this stultifying strife But where the individual murder. Those who literally considering our warring religious beliefs and the externalizes his beliefs in acts or interpret the Biblical command to fanaticism with which some of us cling and claw to omissions that affect the public, his "go forth and multiply" are these beliefs. Even now, we have yet to settle the near freedom to do so becomes subject nevertheless not allowed to contract century old strife in Mindanao, the roots of which to the authority of the State. As plural marriages in violation of the have been nourished by the mistrust and great as this liberty may be, laws against bigamy. A person misunderstanding between our Christian and Muslim religious freedom, like all the other cannot refuse to pay taxes on the brothers and sisters. The bewildering rise of weird rights guaranteed in the ground that it would be against his religious cults espousing violence as an article of Constitution, can be enjoyed only religious tenets to recognize any faith also proves the wisdom of our rule rejecting a with a proper regard for the rights authority except that of God alone. strict let alone policy on the exercise of religion. For of others. It is error to think that An atheist cannot express in his sure, we shall continue to subject any act pinching the mere invocation of religious disbelief in act of derision that the space for the free exercise of religion to a freedom will stalemate the State wound the feelings of the faithful. heightened scrutiny but we shall not leave its rational and render it impotent in protecting The police power can validly exercise to the irrationality of man. For when the general welfare. The inherent asserted against the Indian practice religion divides and its exercise destroys, the State police power can be exercised to of the suttee, born of deep religious should not stand still. prevent religious practices inimical conviction, that calls on the widow to society. And this is true even if to immolate herself at the funeral It is also petitioner's submission that the respondent such practices are pursued out of pile of her husband. appellate court gravely erred when it affirmed the sincere religious conviction and not ruling of the respondent Board x-rating its TV merely for the purpose of evading We thus reject petitioner's postulate that its religious Program Series Nos. 115, 119, 121 and 128. The the reasonable requirements or program is per se beyond review by the respondent records show that the respondent Board disallowed prohibitions of the law. Board. Its public broadcast on TV of its religious the program series for "attacking" other religions. program brings it out of the bosom of internal belief. Thus, Exhibits "A," "A-1," (respondent Board's Justice Frankfurter put it Television is a medium that reaches even the eyes and Voting Slip for Television) reveal that its reviewing succinctly: "The constitutional ears of children. The Court iterates the rule that the members x-rated Series 115 for ". . . criticizing provision on religious freedom exercise of religious freedom can be regulated by the different religions, based on their own interpretation terminated disabilities, it did not State when it will bring about the clear and present of the Bible." They suggested that the program should create new privileges. It gave danger of some substantive evil which the State is only explain petitioner's ". . . own faith and beliefs religious liberty, not civil duty bound to prevent, i.e., serious detriment to the and avoid attacks on other faiths." Exhibit "B" shows immunity. Its essence is freedom more overriding interest of public health, public that Series No. 119 was x-rated because "the Iglesia from conformity to religious morals, or public welfare. A laissez faire policy on ni Cristo insists on the literal translation of the bible dogma, not freedom from the exercise of religion can be seductive to the liberal and says that our Catholic veneration of the Virgin conformity to law because of mind but history counsels the Court against its blind Mary is not to be condoned because nowhere it is religious dogma. adoption as religion is and continues to be a volatile found in the bible that we should do so. This is area of concern in our country today. Across the sea intolerance . . ." Exhibit "C" shows that Series No. Accordingly, while one has lull and in our shore, the bloodiest and bitterest wars 121 was x-rated ". . . for reasons of the attacks, they freedom to believe in Satan, he may fought by men were caused by irreconcilable do on, specifically, the Catholic religion. . . . (T)hey can not tell, dictate any other religion that they are freedom of speech and interferes with its right to free Neutrality alone is its fixed and immovable right and the rest are wrong exercise of religion. It misappreciates the essence of stance. In fine, respondent board cannot . . ." Exhibit "D" also shows that Series No. 128 was freedom to differ as delineated in the benchmark case squelch the speech of petitioner Iglesia ni not favorably recommended because it ". . . outrages of Cantwell v. Connecticut, so viz.: 20 Cristo simply because it attacks other Catholic and Protestant's beliefs." On second review, religions, even if said religion happens to be it was x-rated because of its "unbalanced xxx xxx xxx the most numerous church in our country. In interpretations of some parts of the bible." 18 In sum, a State where there ought to be no difference the respondent Board x-rated petitioner's TV program In the realm of religious faith, and between the appearance and the reality of series Nos. 115, 119, 121 and 128 because of in that of political belief, sharp freedom of religion, the remedy against bad petitioner's controversial biblical interpretations and differences arise. In both fields, the theology is better theology. The bedrock of its "attacks" against contrary religious beliefs. The tenets of one man may seem the freedom of religion is freedom of thought respondent appellate court agreed and even held that rankest error to his neighbor. To and it is best served by encouraging the the said "attacks" are indecent, contrary to law and persuade others to his own point of marketplace of dueling ideas. When the good customs. view, the pleader, as we know, at luxury of time permits, the marketplace of times, resorts to exaggeration, to ideas demands that speech should be met by We reverse the ruling of the appellate court. vilification of men who have been, more speech for it is the spark of opposite or are prominent in church or state speech, the heat of colliding ideas that can First. Deeply ensconced in our fundamental law is its or even to false statements. But the fan the embers of truth. hostility against all prior restraints on speech, people of this nation have ordained including religious speech. Hence, any act that in the light of history that inspite of Third. The respondents cannot also rely on the ground restrains speech is hobbled by the presumption of the probability of excesses and "attacks against another religion" in x-rating the invalidity and should be greeted with furrowed abuses, these liberties are, in the religious program of petitioner. Even a sideglance at brows. 19 It is the burden of the respondent Board to long view, essential to enlightened section 3 of PD No. 1986 will reveal that it is not overthrow this presumption. If it fails to discharge opinion and right conduct on the among the grounds to justify an order prohibiting the this burden, its act of censorship will be struck down. part of the citizens of democracy. broadcast of petitioner's television program. The It failed in the case at bar. ground "attack against another religion" was merely The respondent Board may disagree with the added by the respondent Board in its Rules. 21 This Second. The evidence shows that the respondent criticisms of other religions by petitioner but rule is void for it runs smack against the hoary Board x-rated petitioners TV series for "attacking" that gives it no excuse to interdict such doctrine that administrative rules and regulations either religions, especially the Catholic church. An criticisms, however, unclean they may be. cannot expand the letter and spirit of the law they examination of the evidence, especially Exhibits "A," Under our constitutional scheme, it is not the seek to enforce. "A-1," "B," "C," and "D" will show that the so-called task of the State to favor any religion by "attacks" are mere criticisms of some of the deeply protecting it against an attack by another It is opined that the respondent board can still utilize" held dogmas and tenets of other religions. The religion. Religious dogmas and beliefs are attack against any religion" as a ground allegedly ". . . videotapes were not viewed by the respondent court often at war and to preserve peace among because section 3 (c) of PD No. 1986 prohibits the as they were not presented as evidence. Yet they were their followers, especially the fanatics, the showing of motion pictures, television programs and considered by the respondent court as indecent, establishment clause of freedom of religion publicity materials which are contrary to law and contrary to law and good customs, hence, can be prohibits the State from leaning towards any Article 201 (2) (b) (3) of the Revised Penal Code prohibited from public viewing under section 3(c) of religion. Vis-a-vis religious differences, the punishes anyone who exhibits "shows PD 1986. This ruling clearly suppresses petitioner's State enjoys no banquet of options. which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is not Filipino cultural values as the conclusion that the subject video tapes constitute synonymous with the word "offend." Moreover, standard." As stated, the intention impermissible attacks against another religion. There Article 201 (2) (b) (3) of the Revised Penal Code of the Board to subject the INC's is no showing whatsoever of the type of harm the should be invoked to justify the subsequent television program to "previewing tapes will bring about especially the gravity and punishment of a show which offends any religion. It and censorship is prompted by the imminence of the threatened harm. Prior restraint on cannot be utilized to justifyprior censorship of fact that its religious program speech, including religious speech, cannot be speech. It must be emphasized that E.O. 876, the law makes mention of beliefs and justified by hypothetical fears but only by the prior to PD 1986, included "attack against any practices of other religion." On the showing of a substantive and imminent evil which religion" as a ground for censorship. The ground was face of the law itself, there can has taken the life of a reality already on ground. not, however, carried over by PD 1986. Its deletion is conceivably be no basis for a decree to disuse it. There can be no other intent. censorship of said program by the It is suggested that we re-examine the application of Indeed, even the Executive Department espouses this Board as much as the alleged clear and present danger rule to the case at bar. In the view. reason cited by the Board does not United States, it is true that the clear and present appear to he within the danger test has undergone permutations. It was Mr. Thus, in an Opinion dated November 28, contemplation of the standards of Justice Holmes who formulated the test in Schenck v. 1985 then Minister of Justice, now President censorship set by law. (Emphasis US, 24 as follows: ". . . the question in every case is of the Senate, Neptali Gonzales explained: supplied). whether the words used are used in such circumstances and are of such a nature as to create xxx xxx xxx Fourth. In x-rating the TV program of the a clear and present danger that they will bring about petitioner, the respondents failed to apply the clear the substantive evils that Congress has a right to However, the question whether the and present danger rule. In American Bible Society prevent." Admittedly, the test was originally designed BRMPT (now MTRCB) may v. City of Manila, 22 this Court held: "The to determine the latitude which should be given to preview and censor the subject constitutional guaranty of free exercise and speech that espouses anti-government action. television program of INC should enjoyment of religious profession and worship carries Bannered by Justices Holmes and Brandeis, the test be viewed in the light of the with it the right to disseminate religious information. attained its full flowering in the decade of the forties, provision of Section 3, paragraph Any restraint of such right can be justified like other when its umbrella was used to protect speech other (c) of PD 1986, which is restraints on freedom of expression on the ground than subversive speech. 25 Thus, for instance, the test substantially the same as the that there is a clear and present danger of any was applied to annul a total ban on labor provision of Section 3, paragraph substantive evil which the State has the right to picketing. 26 The use of the test took a downswing in (c) of E.O. No. 876-A, which prevent." In Victoriano vs. Elizalde Rope Workers the 1950's when the US Supreme Court prescribes the standards of Union, 23we further ruled that ". . . it is only where it decided Dennis v. United States involving communist censorship, to wit: "immoral, is unavoidably necessary to prevent an immediate conspiracy. 27 In Dennis, the components of the test indecent, contrary to law and/or and grave danger to the security and welfare of the were altered as the High Court adopted Judge good customs, injurious to the community that infringement of religious freedom Learned Hand's formulation that ". . . in each case prestige of the Republic of the may be justified, and only to the smallest extent [courts] must ask whether the gravity of the 'evil,' Philippines or its people or with necessary to avoid the danger." discounted by its improbability, justifies such dangerous tendency to encourage invasion of free speech as is necessary to avoid the the commission of violence, or of a The records show that the decision of the respondent danger." The imminence requirement of the test was wrong" as determined by the Board, affirmed by the respondent appellate court, is thus diminished and to that extent, the protection of Board, "applying contemporary completely bereft of findings of facts to justify the rule was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg v. falls within or lies outside the boundaries of protected executive power, is extremely Ohio, 28 when the High Court restored in the test the speech or expression is a judicial function which delicate in nature and can only be imminence requirement, and even added an intent cannot be arrogated by an administrative body such justified where the statute is requirement which according to a noted commentator as a Board of Censors." He submits that a "system of unequivocably applicable to the ensured that only speech directed at inciting prior restraint may only be validly administered supposed objectionable publication. lawlessness could be punished. 29 Presently in the by judges and not left to administrative agencies. In excluding any publication for the United States, the clear and present danger test is not "The same submission is made by Mr. Justice mails, the object should be not to applied to protect low value speeches such as obscene Mendoza. interfere with the freedom of the speech, commercial speech and defamation. Be that press or with any other fundamental as it may, the test is still applied to four types of This thoughtful thesis is an attempt to transplant right of the people. This is the more speech: speech that advocates dangerous ideas, another American rule in our jurisdiction. Its seedbed true with reference to articles speech that provokes a hostile audience reaction, out was laid down by Mr. Justice Brennan in his supposedly libelous than to other of court contempt and release of information that concurring opinion in the 1962 case of Manual particulars of the law, since whether endangers a fair trial. 30 Hence, even following the Enterprise v. Day 31 By 1965, the US Supreme Court an article is or is not libelous, is drift of American jurisprudence, there is reason to in Freedman v. Maryland 32 was ready to hold that fundamentally a legal question. In apply the clear and present danger test to the case at "the teaching of cases is that, because only a judicial order for there to be due process of bar which concerns speech that attacks other religions determination in an adversary proceeding ensures the law, the action of the Director of and could readily provoke hostile audience necessary sensitivity to freedom of expression only a Posts must be subject to revision by reaction. It cannot be doubted that religious truths procedure requiring a judicial determination suffices the courts in case he had abused disturb and disturb tenribly. to impose a valid final restraint." 33 his discretion or exceeded his authority. (Ex parte Jackson It is also opined that it is inappropriate to apply the While the thesis has a lot to commend itself, we are [1878], 96 U.S., 727; clear and present danger test to the case at bar not ready to hold that it is unconstitutional for because the issue involves the content of speech and Congress to grant an administrative body quasi- Public Cleaning House not the time, place or manner of speech. Allegedly, judicial power to preview and classify TV programs vs. Coyne [1903], 194 U.S., unless the speech is first allowed, its impact cannot and enforce its decisionsubject to review by our 497; Post Publishing be measured, and the causal connection between the courts. As far back as 1921, we upheld this set-up Co. vs. Murray [1916]. 23 - Fed., speech and the evil apprehended cannot be in Sotto vs. Ruiz, 34 viz.: 773) established. The contention overlooks the fact that the case at bar involves videotapes that are pre-taped and The use of the mails by private As has been said, the performance hence, their speech content is known and not an X persons is in the nature of a of the duty of determining whether quantity. Given the specific content of the speech, it privilege which can be regulated in a publication contains printed is not unreasonable to assume that the respondent order to avoid its abuse. Persons matter of a libelous character rests Board, with its expertise, can determine whether its posses no absolute right to put into with the Director of Posts and sulphur will bring about the substantive evil feared by the mail anything they please, involves the exercise of his the law. regardless of its character. judgment and discretion. Every intendment of the law is in favor of Finally, it is also opined by Mr. Justice Kapunan that On the other hand, the exclusion of the correctness of his action. The ". . . the determination of the question as to whether newspaper and other publications rule is (and we go only to those or not such vilification, exaggeration or fabrication from the mails, in the exercise of cases coming from the United States Supreme Court and pertaining to the United States Postmaster-General), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy considerations and can be better addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No costs.

SO ORDERED. Republic of the Philippines importance of the question for the "constitution against Escritor because in his frequent visits to the SUPREME COURT commands the positive protection by government of Hall of Justice of Las Piñas City, he learned from Manila religious freedom -not only for a minority, however conversations therein that Escritor was living with a small- not only for a majority, however large- but for man not her husband and that she had an eighteen to 4 EN BANC each of us." twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that A.M. No. P-02-1651 August 4, 2003 I. Facts employees of the judiciary should be respectable and Escritor's live-in arrangement did not command respect.7 ALEJANDRO ESTRADA, complainant, The facts of the case will determine whether vs. respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the Respondent Escritor testified that when she entered SOLEDAD S. ESCRITOR, respondent. 8 facts in detail, careful not to omit the essentials. the judiciary in 1999, she was already a widow, her husband having died in 1998.9 She admitted that she PUNO, J.: In a sworn letter-complaint dated July 27, 2000, has been living with Luciano Quilapio, Jr. without the complainant Alejandro Estrada wrote to Judge Jose F. benefit of marriage for twenty years and that they The case at bar takes us to a most difficult area of have a son. But as a member of the religious sect constitutional law where man stands accountable to Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an known as the Jehovah's Witnesses and the Watch an authority higher than the state. To be held on Tower and Bible Tract Society, their conjugal balance are the state's interest and the respondent's investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with arrangement is in conformity with their religious religious freedom. In this highly sensitive area of law, beliefs. In fact, after ten years of living together, she the task of balancing between authority and liberty is a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not executed on July 28, 1991 a "Declaration of Pledging most delicate because to the person invoking Faithfulness," viz: religious freedom, the consequences of the case are personally related either to Escritor or her partner and not only temporal. The task is not made easier by the is a resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against DECLARATION OF PLEDGING American origin of our religion clauses and the FAITHFULNESS wealth of U.S. jurisprudence on these clauses for in Escritor as he believes that she is committing an the United States, there is probably no more intensely immoral act that tarnishes the image of the court, thus controverted area of constitutional interpretation than she should not be allowed to remain employed I, Soledad S. Escritor, do hereby declare that 1 therein as it might appear that the court condones her I have accepted Luciano D. Quilapio, Jr., as the religion clauses. The U.S. Supreme Court itself 5 has acknowledged that in this constitutional area, act. my mate in marital relationship; that I have there is "considerable internal inconsistency in the done all within my ability to obtain legal opinions of the Court."2 As stated by a professor of Judge Caoibes referred the letter to Escritor who recognition of this relationship by the proper law, "(i)t is by now notorious that legal doctrines and stated that "there is no truth as to the veracity of the public authorities and that it is because of judicial decisions in the area of religious freedom are allegation" and challenged Estrada to "appear in the having been unable to do so that I therefore in serious disarray. In perhaps no other area of open and prove his allegation in the proper make this public declaration pledging 6 constitutional law have confusion and inconsistency forum." Judge Caoibes set a preliminary conference faithfulness in this marital relationship. achieved such undisputed on October 12, 2000. Escritor moved for the sovereignty."3 Nevertheless, this thicket is the only inhibition of Judge Caoibes from hearing her case to I recognize this relationship as a binding tie path to take to conquer the mountain of a legal avoid suspicion and bias as she previously filed an before 'Jehovah' God and before all persons problem the case at bar presents. Both the penetrating administrative complaint against him and said case to be held to and honored in full accord with and panoramic view this climb would provide will was still pending in the Office of the Court the principles of God's Word. I will continue largely chart the course of religious freedom in Administrator (OCA). Escritor's motion was denied. to seek the means to obtain legal recognition Philippine jurisdiction. That the religious freedom The preliminary conference proceeded with both of this relationship by the civil authorities question arose in an administrative case involving Estrada and Escritor in attendance. Estrada confirmed and if at any future time a change in only one person does not alter the paramount that he filed the letter-complaint for immorality circumstances make this possible, I promise in full accord with the principles of God's execute a Public Declaration of Pledge of to legalize this union. Word. faithfulness.

Signed this 28th day of July 1991.10 xxx xxx xxx Q: What is that document?

Escritor's partner, Quilapio, executed a similar pledge Undersigned submits to the just, humane and A: Declaration of Pledge of on the same day.11 Both pledges were executed in fair discretion of the Court with verification faithfulness. Atimonan, Quezon and signed by three witnesses. At from the WATCH TOWER BIBLE and the time Escritor executed her pledge, her husband TRACT SOCIETY, Philippine Branch . . . to Q: What are the relations of the was still alive but living with another woman. which undersigned believes to be a high document Declaration of Pledge of 13 Quilapio was likewise married at that time, but had authority in relation to her case. faithfulness, who are suppose (sic) to been separated in fact from his wife. During her execute this document? testimony, Escritor volunteered to present members Deputy Court Administrator Christopher O. Lock of her congregation to confirm the truthfulness of recommended that the case be referred to Executive A: This must be signed, the document their "Declarations of Pledging Faithfulness," but Judge Bonifacio Sanz Maceda, RTC Branch 255, Las must be signed by the elders of the Judge Caoibes deemed it unnecessary and considered Piñas City for investigation, report and congregation; the couple, who is a member her identification of her signature and the signature of recommendation. In the course of Judge Maceda's 12 (sic) of the congregation, baptized member Quilapio sufficient authentication of the documents. investigation, Escritor again testified that her and true member of the congregation. congregation allows her conjugal arrangement with Judge Caoibes endorsed the complaint to Executive Quilapio and it does not consider it immoral. She Q: What standard rules and regulations Judge Manuel B. Fernandez, Jr., who, in turn, offered to supply the investigating judge some do you have in relation with this document? endorsed the same to Court Administrator Alfredo L. clippings which explain the basis of her Benipayo. On July 17, 2001, the Court, upon congregation's belief and practice regarding her recommendation of Acting Court Administrator conjugal arrangement. Escritor started living with A: Actually, sir, the signing of that Zenaida N. Elepaño, directed Escritor to comment on Quilapio twenty years ago when her husband was still document, ah, with the couple has consent to the charge against her. In her comment, Escritor alive but living with another woman. She met this marital relationship (sic) gives the Christian reiterated her religious congregation's approval of her woman who confirmed to her that she was living with Congregation view that the couple has put conjugal arrangement with Quilapio, viz: her (Escritor's) husband.14 themselves on record before God and man that they are faithful to each other. As if that relation is validated by God. Herein respondent does not ignore alleged Gregorio Salazar, a member of the Jehovah's accusation but she reiterates to state with Witnesses since 1985, also testified. He had been a candor that there is no truth as to the presiding minister since 1991 and in such capacity is Q: From your explanation, Minister, do veracity of same allegation. Included aware of the rules and regulations of their you consider it a pledge or a document herewith are documents denominated as congregation. He explained the import of and between the parties, who are members of the Declaration of Pledging Faithfulness procedure for executing a "Declaration of Pledging congregation? (Exhibit 1 and Exhibit 2) duly signed by Faithfulness", viz: both respondent and her mate in marital A: It is a pledge and a document. It is a relationship with the witnesses concurring Q: Now, insofar as the pre-marital declaration, pledge of a (sic) pledge of their acceptance to the arrangement as relationship is concern (sic), can you cite faithfulness. approved by the WATCH TOWER BIBLE some particular rules and regulations in your and TRACT SOCIETY, Philippine Branch. congregation? Q: And what does pledge mean to you?

Same marital arrangement is recognized as a A: Well, we of course, talk to the A: It means to me that they have binding tie before "JEHOVAH" God and persons with regards (sic) to all the parties contracted, let us say, I am the one who before all persons to be held to and honored involved and then we request them to contracted with the opposite member of my congregation, opposite sex, and that this been considered by the Atimonan Congregation when their marriage as authorized by Philippine law. In document will give us the right to a marital they executed their declarations. sum, therefore, insofar as the congregation is relationship. concerned, there is nothing immoral about the Escritor and Quilapio's declarations are recorded in conjugal arrangement between Escritor and Quilapio Q: So, in short, when you execute a the Watch Tower Central office. They were executed and they remain members in good standing in the 17 declaration of pledge of faithfulness, it is a in the usual and approved form prescribed by the congregation. preparation for you to enter a marriage? Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Salvador Reyes, a minister at the General de Leon, 16 A: Yes, Sir. Honor Before God and Men," in the March 15, 1977 Valenzuela City Congregation of the Jehovah's issue of the Watch Tower magazine, entitled The Witnesses since 1974 and member of the Q: But it does not necessarily mean that Watchtower. headquarters of the Watch Tower Bible and Tract the parties, cohabiting or living under the Society of the Philippines, Inc., presented the original same roof? The declaration requires the approval of the elders of copy of the magazine article entitled, "Maintaining the Jehovah's Witnesses congregation and is binding Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies. The A: Well, the Pledge of faithfulness within the congregation all over the world except in countries where divorce is allowed. The Jehovah's article appeared in the March 15, 1977 issue of the document is (sic) already approved as to the Watchtower magazine published in Pennsylvania, marital relationship. congregation requires that at the time the declarations are executed, the couple cannot secure the civil U.S.A. Felix S. Fajardo, President of the Watch authorities' approval of the marital relationship Tower Bible and Tract Society of the Philippines, Q: Do you mean to say, Minister, by because of legal impediments. It is thus standard Inc., authorized Reyes to represent him in executing this document the contracting practice of the congregation to check the couple's authenticating the article. The article is distributed to parties have the right to cohabit? marital status before giving imprimatur to the the Jehovah's Witnesses congregations which also 18 conjugal arrangement. The execution of the distribute them to the public. A: Can I sir, cite, what the Bible says, declaration finds scriptural basis in Matthew 5:32 that the basis of that Pledge of Faithfulness as we when the spouse commits adultery, the offended The parties submitted their respective memoranda to Christians follow. The basis is herein stated spouse can remarry. The marital status of the the investigating judge. Both stated that the issue for in the Book of Matthew, Chapter Five, Verse declarants and their respective spouses' commission resolution is whether or not the relationship between Twenty-two. So, in that verse of the Bible, of adultery are investigated before the declarations respondent Escritor and Quilapio is valid and binding Jesus said "that everyone divorcing his wife, are executed. Thus, in the case of Escritor, it is in their own religious congregation, the Jehovah's except on account of fornication, makes her presumed that the Atimonan Congregation conducted Witnesses. Complainant Estrada adds however, that a subject for adultery, and whoever marries a an investigation on her marital status before the the effect of the relationship to Escritor's divorced woman commits adultery.15 declaration was approved and the declaration is valid administrative liability must likewise be determined. everywhere, including the Almanza Congregation. Estrada argued, through counsel, that the Declaration Escritor and Quilapio transferred to Salazar's That Escritor's and Quilapio's declarations were of Pledging Faithfulness recognizes the supremacy of Congregation, the Almanza Congregation in Las approved are shown by the signatures of three the "proper public authorities" such that she bound Piñas, in May 2001. The declarations having been witnesses, the elders in the Atimonan Congregation. herself "to seek means to . . . legalize their union." executed in Atimonan, Quezon in 1991, Salazar had Salazar confirmed from the congregation's branch Thus, even assuming arguendo that the declaration is no personal knowledge of the personal circumstances office that these three witnesses are elders in the valid and binding in her congregation, it is binding of Escritor and Quilapio when they executed their Atimonan Congregation. Although in 1998 Escritor only to her co-members in the congregation and declarations. However, when the two transferred to was widowed, thereby lifting the legal impediment to serves only the internal purpose of displaying to the Almanza, Salazar inquired about their status from the marry on her part, her mate is still not capacitated to rest of the congregation that she and her mate are a Atimonan Congregation, gathered comments of the remarry. Thus, their declarations remain valid. Once respectable and morally upright couple. Their elders therein, and requested a copy of their all legal impediments for both are lifted, the couple religious belief and practice, however, cannot declarations. The Almanza Congregation assumed can already register their marriage with the civil override the norms of conduct required by law for that the personal circumstances of the couple had authorities and the validity of the declarations ceases. government employees. To rule otherwise would The elders in the congregations can then solemnize create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the an incestuous relationship with a member of matter in a balanced way, neither Jehovah's Witnesses congregation and use their one's immediate family, or a homosexual underestimating nor overestimating the religion as a defense against legal liability.19 relationship or other such situation validation offered by the political state. She condemned by God's Word. It is not the lack always gives primary concern to God's view On the other hand, respondent Escritor reiterates the of any legal validation that makes such of the union. Along with this, every effort validity of her conjugal arrangement with Quilapio relationships unacceptable; they are in should be made to set a fine example of based on the belief and practice of her religion, the themselves unscriptural and hence, immoral. faithfulness and devotion to one's mate, thus, Jehovah's Witnesses. She quoted portions of the Hence, a person involved in such a situation keeping the marriage "honorable among all." magazine article entitled, "Maintaining Marriage could not make any kind of "Declaration of Such course will bring God's blessing and Before God and Men," in her memorandum signed by Faithfulness," since it would have no merit result to the honor and praise of the author herself, viz: in God's eyes. of marriage, Jehovah God. (1 Cor. 10:31- 33)20 The Declaration of Pledging of Faithfulness If the relationship is such that it can have (Exhibits "1" and "2") executed by the God's approval, then, a second principle to Respondent also brought to the attention of the respondent and her mate greatly affect the consider is that one should do all one can to investigating judge that complainant's Memorandum 21 administrative liability of respondent. establish the honorableness of one's marital came from Judge Caoibes' chambers whom she Jehovah's Witnesses admit and recognize union in the eyes of all. (Heb. 13:4). If claims was merely using petitioner to malign her. (sic) the supremacy of the proper public divorce is possible, then such step should authorities in the marriage arrangement. now be taken so that, having obtained the In his Report and Recommendation, investigating However, it is helpful to understand the divorce (on whatever legal grounds may be judge Maceda found Escritor's factual allegations relative nature of Caesar's authority available), the present union can receive credible as they were supported by testimonial and regarding marriage. From country to civil validation as a recognized marriage. documentary evidence. He also noted that "(b)y strict country, marriage and divorce legislation Catholic standards, the live-in relationship of presents a multitude of different angles and Finally, if the marital relationship is not one respondent with her mate should fall within the aspects. Rather than becoming entangled in out of harmony with the principles of God's definition of immoral conduct, to wit: 'that which is a confusion of technicalities, the Christian, Word, and if one has done all that can willful, flagrant, or shameless, and which shows a or the one desiring to become a disciple of reasonably be done to have it recognized by moral indifference to the opinion of the good and God's Son, can be guided by basic Scriptural civil authorities and has been blocked in respectable members of the community' (7 C.J.S. principles that hold true in all cases. doing so, then, a Declaration Pledging 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." Faithfulness can be signed. In some cases, as He pointed out, however, that "the more relevant God's view is of first concern. So, first of all has been noted, the extreme slowness of question is whether or not to exact from respondent the person must consider whether that one's official action may make accomplishing of Escritor, a member of 'Jehovah's Witnesses,' the strict present relationship, or the relationship into legal steps a matter of many, many years of moral standards of the Catholic faith in determining which he or she contemplates entering, is effort. Or it may be that the costs represent a her administrative responsibility in the case at 22 one that could meet with God's approval, or crushingly heavy burden that the individual bar." The investigating judge acknowledged that whether in itself, it violates the standards of would need years to be able to meet. In such "religious freedom is a fundamental right which is God's Word. Take, for example, the situation cases, the declaration pledging faithfulness entitled to the highest priority and the amplest where a man lives with a wife but also will provide the congregation with the basis protection among human rights, for it involves the spends time living with another woman as a for viewing the existing union as honorable relationship of man to his Creator (at p. 270, concubine. As long as such a state of while the individual continues EBRALINAG supra, citing Chief Justice Enrique M. concubinage prevails, the relationship of the conscientiously to work out the legal aspects Fernando's separate opinion in German vs. Barangan, second woman can never be harmonized to the best of his ability. 135 SCRA 514, 530-531)" and thereby recommended 23 with Christian principles, nor could any the dismissal of the complaint against Escritor. declaration on the part of the woman or the Keeping in mind the basic principles man make it so. The only right course is presented, the respondent as a Minister of After considering the Report and Recommendation of cessation of the relationship. Similarly with Jehovah God, should be able to approach the Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator shall be suspended or dismissed except for In primitive times, all of life may be said to have (DCA) Lock and with the approval of Court cause as provided by law and after due been religious. Every significant event in the Administrator Presbitero Velasco, concurred with the process. primitive man's life, from birth to death, was marked factual findings of Judge Maceda but departed from by religious ceremonies. Tribal society survived his recommendation to dismiss the complaint. DCA (b) The following shall be grounds for because religious sanctions effectively elicited Lock stressed that although Escritor had become disciplinary action: adherence to social customs. A person who broke a capacitated to marry by the time she joined the custom violated a taboo which would then bring upon judiciary as her husband had died a year before, "it is xxx xxx xxx him "the wrathful vengeance of a superhuman due to her relationship with a married man, mysterious power."28 Distinction between the voluntarily carried on, that respondent may still be religious and non-religious would thus have been subject to disciplinary action."24 Considering the (5) Disgraceful and immoral conduct; xxx. meaningless to him. He sought protection from all ruling of the Court in Dicdican v. Fernan, et al.25 that kinds of evil - whether a wild beast or tribe enemy "court personnel have been enjoined to adhere to the Not represented by counsel, respondent, in layman's and lightning or wind - from the same person. The exacting standards of morality and decency in their terms, invokes the religious beliefs and practices and head of the clan or the Old Man of the tribe or the professional and private conduct in order to preserve moral standards of her religion, the Jehovah's king protected his wards against both human and the good name and integrity of the court of justice," Witnesses, in asserting that her conjugal arrangement superhuman enemies. In time, the king not only DCA Lock found Escritor's defense of freedom of with a man not her legal husband does not constitute interceded for his people with the divine powers, but religion unavailing to warrant dismissal of the charge disgraceful and immoral conduct for which she he himself was looked upon as a divine being and his of immorality. Accordingly, he recommended that should be held administratively liable. While not laws as divine decrees.29 respondent be found guilty of immorality and that she articulated by respondent, she invokes religious be penalized with suspension of six months and one freedom under Article III, Section 5 of the Time came, however, when the function of acting as day without pay with a warning that a repetition of a Constitution, which provides, viz: intermediary between human and spiritual powers similar act will be dealt with more severely in became sufficiently differentiated from the 26 accordance with the Civil Service Rules. Sec. 5. No law shall be made respecting an responsibility of leading the tribe in war and policing establishment of religion, or prohibiting the it in peace as to require the full-time services of a II. Issue free exercise thereof. The free exercise and special priest class. This saw the birth of the social enjoyment of religious profession and and communal problem of the competing claims of Whether or not respondent should be found guilty of worship, without discrimination or the king and priest. Nevertheless, from the beginning, the administrative charge of "gross and immoral preference, shall forever be allowed. No the king and not the priest was superior. The head of conduct." To resolve this issue, it is necessary to religious test shall be required for the the tribe was the warrior, and although he also determine the sub-issue of whether or not exercise of civil or political rights. performed priestly functions, he carried out these respondent's right to religious freedom should carve functions because he was the head and representative 30 out an exception from the prevailing jurisprudence on IV. Old World Antecedents of the American of the community. illicit relations for which government employees are Religion Clauses held administratively liable. There being no distinction between the religious and To understand the life that the religion clauses have the secular, the same authority that promulgated laws III. Applicable Laws taken, it would be well to understand not only its regulating relations between man and man birth in the United States, but its conception in the promulgated laws concerning man's obligations to the Respondent is charged with committing "gross and Old World. One cannot understand, much less supernatural. This authority was the king who was the immoral conduct" under Book V, Title I, Chapter VI, intelligently criticize the approaches of the courts and head of the state and the source of all law and who Sec. 46(b)(5) of the Revised Administrative Code the political branches to religious freedom in the only delegated performance of rituals and sacrifice to which provides, viz: recent past in the United States without a deep the priests. The Code of Hammurabi, king of appreciation of the roots of these controversies in the Babylonia, imposed penalties for homicide, larceny, ancient and medieval world and in the American perjury, and other crimes; regulated the fees of Sec. 46. Discipline: General Provisions. - (a) experience.27 This fresh look at the religion clauses is surgeons and the wages of masons and tailors and No officer or employee in the Civil Service proper in deciding this case of first impression. prescribed rules for inheritance of property;31 and also catalogued the gods and assigned them their places in between religion and state in the west. This fact is Augustus died, he also joined the ranks of the gods, the divine hierarchy so as to put Hammurabi's own acknowledged by many writers, among whom is as other emperors before him.40 god to a position of equality with existing gods.32 In Northcott who pointed out, viz: sum, the relationship of religion to the state (king) in The onset of Christianity, however, posed a difficulty pre-Hebreic times may be characterized as a union of Historically it was the Hebrew and Christian to the emperor as the Christians' dogmatic the two forces, with the state almost universally the conception of a single and universal God exclusiveness prevented them from paying homage to 33 dominant partner. that introduced a religious exclusivism publicly accepted gods. In the first two centuries after leading to compulsion and persecution in the the death of Jesus, Christians were subjected to With the rise of the Hebrew state, a new term had to realm of religion. Ancient religions were persecution. By the time of the emperor Trajan, be coined to describe the relation of the Hebrew state regarded as confined to each separate people Christians were considered outlaws. Their crime was with the Mosaic religion: theocracy. The authority believing in them, and the question of "hatred of the human race", placing them in the same and power of the state was ascribed to God.34 The change from one religious belief to another category as pirates and brigands and other "enemies Mosaic creed was not merely regarded as the religion did not arise. It was not until an exclusive of mankind" who were subject to summary of the state, it was (at least until Saul) the state itself. fellowship, that the questions of proselytism, punishments.41 Among the Hebrews, patriarch, prophet, and priest change of belief and liberty of religion 37 preceded king and prince. As man of God, Moses arose. (emphasis supplied) In 284, Diocletian became emperor and sought to decided when the people should travel and when to reorganize the empire and make its administration pitch camp, when they should make war and when The Hebrew theocracy existed in its pure form from more efficient. But the closely-knit hierarchically peace. Saul and David were made kings by the Moses to Samuel. In this period, religion was not controlled church presented a serious problem, being prophet Samuel, disciple of Eli the priest. Like the only superior to the state, but it was all of the state. a state within a state over which he had no control. Code of Hammurabi, the Mosaic code combined civil The Law of God as transmitted through Moses and He had two options: either to force it into submission laws with religious mandates, but unlike the his successors was the whole of government. and break its power or enter into an alliance with it Hammurabi Code, religious laws were not of and procure political control over it. He opted for secondary importance. On the contrary, religious With Saul, however, the state rose to be the rival and force and revived the persecution, destroyed the motivation was primary and all-embracing: sacrifices ultimately, the master, of religion. Saul and David churches, confiscated sacred books, imprisoned the 42 were made and Israel was prohibited from exacting each received their kingdom from Samuel the prophet clergy and by torture forced them to sacrifice. But usury, mistreating aliens or using false weights, all and disciple of Eli the priest, but soon the king his efforts proved futile. because God commanded these. dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of The later emperor, Constantine, took the second Moses of the Bible led not like the ancient kings. The God.38 Under Solomon, the subordination of religion option of alliance. Constantine joined with Galerius latter used religion as an engine to advance the to state became complete; he used religion as an and Licinius, his two co-rulers of the empire, in purposes of the state. Hammurabi unified engine to further the state's purposes. He reformed issuing an edict of toleration to Christians "on Mesopotamia and established Babylon as its capital the order of priesthood established by Moses because condition that nothing is done by them contrary to by elevating its city-god to a primary position over the high priest under that order endorsed the claim of discipline."43 A year later, after Galerius died, 35 the previous reigning gods. Moses, on the other his rival to the throne.39 Constantine and Licius jointly issued the epochal hand, capitalized on the natural yearnings of the Edict of Milan (312 or 313), a document of Hebrew slaves for freedom and independence to The subordination of religion to the state was also monumental importance in the history of religious further God's purposes. Liberation and Exodus were true in pre-Christian Rome which engaged in liberty. It provided "that liberty of worship shall not preludes to Sinai and the receipt of the Divine Law. emperor-worship. When Augustus became head of be denied to any, but that the mind and will of every The conquest of Canaan was a preparation for the individual shall be free to manage divine affairs 36 the Roman state and the priestly hierarchy, he placed building of the temple and the full worship of God. religion at a high esteem as part of a political plan to according to his own choice." (emphasis supplied) establish the real religion of pre-Christian Rome - the Thus, all restrictive statutes were abrogated and it Upon the monotheism of Moses was the theocracy of worship of the head of the state. He set his great was enacted "that every person who cherishes the Israel founded. This monotheism, more than anything uncle Julius Caesar among the gods, and commanded desire to observe the Christian religion shall freely else, charted not only the future of religion in western that worship of Divine Julius should not be less than and unconditionally proceed to observe the same civilization, but equally, the future of the relationship worship of Apollo, Jupiter and other gods. When without let or hindrance." Furthermore, it was provided that the "same free and open power to crown from the Pope, he himself crowned his own peoples in the interests of the state was an important follow their own religion or worship is granted also to son as successor to nullify the inference of consideration. Other personalities in the Reformation others, in accordance with the tranquillity of our supremacy.45 The whole history of medieval Europe such as Melanchton, Zwingli and Calvin strongly times, in order that every person may have free was a struggle for supremacy between prince and espoused theocracy or the use of the state as an opportunity to worship the object of his Pope and the resulting religious wars and persecution engine to further religion. In establishing theocracy in choice."(emphasis supplied)44 of heretics and nonconformists. At about the second Geneva, Calvin made absence from the sermon a quarter of the 13th century, the Inquisition was crime, he included criticism of the clergy in the crime Before long, not only did Christianity achieve equal established, the purpose of which was the discovery of blasphemy punishable by death, and to eliminate 51 status, but acquired privilege, then prestige, and and extermination of heresy. Accused heretics were heresy, he cooperated in the Inquisition. eventually, exclusive power. Religion became an tortured with the approval of the church in the bull engine of state policy as Constantine considered Ad extirpanda issued by Pope Innocent IV in 1252. There were, however, those who truly advocated Christianity a means of unifying his complex empire. religious liberty. Erasmus, who belonged to the Within seven years after the Edict of Milan, under the The corruption and abuses of the Catholic Church Renaissance than the Reformation, wrote that "(t)he emperor's command, great Christian edifices were spurred the Reformation aimed at reforming the terrible papal edict, the more terrible imperial edict, erected, the clergy were freed from public burdens Catholic Church and resulting in the establishment of the imprisonments, the confiscations, the others had to bear, and private heathen sacrifices Protestant churches. While Protestants are recantations, the fagots and burnings, all these things were forbidden. accustomed to ascribe to the Reformation the rise of I can see accomplish nothing except to make the evil religious liberty and its acceptance as the principle more widespread."52 The minority or dissident sects The favors granted to Christianity came at a price: governing the relations between a democratic state also ardently advocated religious liberty. The state interference in religious affairs. Constantine and and its citizens, history shows that it is more accurate Anabaptists, persecuted and despised, along with the his successors called and dismissed church councils, to say that the "same causes that gave rise to the Socinians (Unitarians) and the Friends of the Quakers and enforced unity of belief and practice. Until Protestant revolution also resulted in the widespread founded by George Fox in the 17th century, endorsed recently the church had been the victim of acceptance of the principle of religious liberty, and the supremacy and freedom of the individual persecution and repression, but this time it welcomed ultimately of the principle of separation of church and conscience. They regarded religion as outside the 46 53 the state's persecution and repression of the state." Pleas for tolerance and freedom of realm of political governments. The English nonconformist and the orthodox on the belief that it conscience can without doubt be found in the Baptists proclaimed that the "magistrate is not to was better for heretics to be purged of their error than writings of leaders of the Reformation. But just as meddle with religion or matters of conscience, nor 54 to die unsaved. Protestants living in the countries of papists pleaded compel men to this or that form of religion." for toleration of religion, so did the papists that lived 47 Both in theory as in practice, the partnership between where Protestants were dominant. Papist and Thus, out of the Reformation, three rationalizations of church and state was not easy. It was a constant Protestant governments alike accepted the idea of church-state relations may be distinguished: the struggle of one claiming dominance over the other. In cooperation between church and state and regarded as Erastian (after the German doctor Erastus), the essential to national unity the uniformity of at least theocratic, and the separatist. The first assumed state time, however, after the collapse and disintegration of 48 the Roman Empire, and while monarchical states the outward manifestations of religion. Certainly, superiority in ecclesiastical affairs and the use of were gradually being consolidated among the Luther, leader of the Reformation, stated that "neither religion as an engine of state policy as demonstrated numerous feudal holdings, the church stood as the pope, nor bishop, nor any man whatever has the right by Luther's belief that civic cohesion could not exist of making one syllable binding on a Christian man, without religious unity so that coercion to achieve one permanent, stable and universal power. Not 49 surprisingly, therefore, it claimed not merely equality unless it be done with his own consent." But when religious unity was justified. The second was founded but superiority over the secular states. This claim, the tables had turned and he was no longer the hunted on ecclesiastical supremacy and the use of state symbolized by Pope Leo's crowning of Charlemagne, heretic, he likewise stated when he made an alliance machinery to further religious interests as promoted became the church's accepted principle of its with the secular powers that "(h)eretics are not to be by Calvin. The third, which was yet to achieve relationship to the state in the Middle Ages. As disputed with, but to be condemned unheard, and ultimate and complete expression in the New World, viewed by the church, the union of church and state whilst they perish by fire, the faithful ought to pursue was discernibly in its incipient form in the arguments was now a union of the state in the church. The rulers the evil to its source, and bathe their hands in the of some dissident minorities that the magistrate blood of the Catholic bishops, and of the Pope, who should not intermeddle in religious affairs.55 After the of the states did not concede to this claim of 50 supremacy. Thus, while Charlemagne received his is a devil in disguise." To Luther, unity among the Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England, perhaps the principle was in its seminal form in the arguments In sum, this history shows two salient features: First, more than in any other country, Erastianism was at its of some dissident minorities and intellectual leaders with minor exceptions, the history of church-state height. To illustrate, a statute was enacted by of the Renaissance. The religious wars of 16th and relationships was characterized by persecution, Parliament in 1678, which, to encourage woolen 17th century Europe were a thing of the past by the oppression, hatred, bloodshed, and war, all in the trade, imposed on all clergymen the duty of seeing to time America declared its independence from the Old name of the God of Love and of the Prince of Peace. it that no person was buried in a shroud made of any World, but their memory was still vivid in the minds Second, likewise with minor exceptions, this history substance other than wool.56 Under Elizabeth, of the Constitutional Fathers as expressed by the witnessed the unscrupulous use of religion by secular supremacy of the crown over the church was United States Supreme Court, viz: powers to promote secular purposes and policies, and complete: ecclesiastical offices were regulated by her the willing acceptance of that role by the vanguards proclamations, recusants were fined and imprisoned, The centuries immediately before and of religion in exchange for the favors and mundane Jesuits and proselytizing priests were put to death for contemporaneous with the colonization of benefits conferred by ambitious princes and emperors high treason, the thirty-nine Articles of the Church of America had been filled with turmoil, civil in exchange for religion's invaluable service. This England were adopted and English Protestantism strife, and persecution generated in large was the context in which the unique experiment of 57 attained its present doctrinal status. Elizabeth was to part by established sects determined to the principle of religious freedom and separation of be recognized as "the only Supreme Governor of this maintain their absolute political and church and state saw its birth in American 63 realm . . . as well in all spiritual or ecclesiastical religious supremacy. With the power of constitutional democracy and in human history. things or causes as temporal." She and her successors government supporting them, at various were vested, in their dominions, with "all manner of times and places, Catholics had persecuted V. Factors Contributing to the Adoption of the jurisdictions, privileges, and preeminences, in any Protestants, Protestants had persecuted American Religion Clauses wise touching or concerning any spiritual or Catholics, Protestant sects had persecuted 58 ecclesiastical jurisdiction." Later, however, other protestant sects, Catholics of one shade Settlers fleeing from religious persecution in Europe, Cromwell established the constitution in 1647 which of belief had persecuted Catholics of another primarily in Anglican-dominated England, granted full liberty to all Protestant sects, but denied shade of belief, and all of these had from 59 established many of the American colonies. British toleration to Catholics. In 1689, William III issued time to time persecuted Jews. In efforts to thought pervaded these colonies as the immigrants the Act of Toleration which established a de facto force loyalty to whatever religious group brought with them their religious and political ideas toleration for all except Catholics. The Catholics happened to be on top and in league with the from England and English books and pamphlets achieved religious liberty in the 19th century when government of a particular time and place, largely provided their cultural fare.64But although the Roman Catholic Relief Act of 1829 was adopted. men and women had been fined, cast in jail, these settlers escaped from Europe to be freed from The Jews followed suit in 1858 when they were cruelly tortured, and killed. Among the 60 bondage of laws which compelled them to support finally permitted to sit in Parliament. offenses for which these punishments had and attend government favored churches, some of been inflicted were such things as speaking these settlers themselves transplanted into American When the representatives of the American states met disrespectfully of the views of ministers of soil the oppressive practices they escaped from. The in Philadelphia in 1787 to draft the constitutional government-established churches, non- charters granted by the English Crown to the foundation of the new republic, the theocratic state attendance at those churches, expressions of individuals and companies designated to make the which had flourished intermittently in Israel, Judea, non-belief in their doctrines, and failure to laws which would control the destinies of the 61 the Holy Roman Empire and Geneva was completely pay taxes and tithes to support them. colonials authorized them to erect religious gone. The prevailing church-state relationship in establishments, which all, whether believers or not, Europe was Erastianism embodied in the system of In 1784, James Madison captured in this statement were required to support or attend.65 At one time, six jurisdictionalism whereby one faith was favored as the entire history of church-state relations in Europe of the colonies established a state religion. Other the official state-supported religion, but other faiths up to the time the United States Constitution was colonies, however, such as Rhode Island and were permitted to exist with freedom in various adopted, viz: Delaware tolerated a high degree of religious degrees. No nation had yet adopted as the basis of its diversity. Still others, which originally tolerated only church-state relations the principle of the mutual Torrents of blood have been spilt in the a single religion, eventually extended support to 66 independence of religion and government and the world in vain attempts of the secular arm to several different faiths. concomitant principle that neither might be used as extinguish religious discord, by proscribing an engine to further the policies of the other, although all differences in religious opinions.62 This was the state of the American colonies when the But while there was a multiplicity of denomination, group became staunch advocates of separation of unique American experiment of separation of church paradoxically, there was a scarcity of adherents. Only church and state.75 and state came about. The birth of the experiment about four percent of the entire population of the cannot be attributed to a single cause or event. country had a church affiliation at the time the Then there was the Williams-Penn tradition. Roger 70 Rather, a number of interdependent practical and republic was founded. This might be attributed to the Williams was the founder of the colony of Rhode ideological factors contributed in bringing it forth. drifting to the American colonies of the skepticism Island where he established a community of Baptists, Among these were the "English Act of Toleration of that characterized European Quakers and other nonconformists. In this colony, 71 1689, the multiplicity of sects, the lack of church Enlightenment. Economic considerations might religious freedom was not based on practical affiliation on the part of most Americans, the rise of have also been a factor. The individualism of the considerations but on the concept of mutual commercial intercourse, the exigencies of the American colonist, manifested in the multiplicity of independence of religion and government. In 1663, Revolutionary War, the Williams-Penn tradition and sects, also resulted in much unaffiliated religion Rhode Island obtained a charter from the British the success of their experiments, the writings of which treated religion as a personal non-institutional crown which declared that settlers have it "much on Locke, the social contract theory, the Great matter. The prevalence of lack of church affiliation their heart to hold forth a livelie experiment that a Awakening, and the influence of European contributed to religious liberty and disestablishment most flourishing civil state may best be maintained . . 67 rationalism and deism." Each of these factors shall as persons who were not connected with any church . with full libertie in religious concernments."76 In be briefly discussed. were not likely to persecute others for similar Williams' pamphlet, The Bloudy Tenent of independence nor accede to compulsory taxation to Persecution for cause of Conscience, discussed in a 72 First, the practical factors. England's policy of support a church to which they did not belong. Conference between Truth and Peace,77 he articulated opening the gates of the American colonies to the philosophical basis for his argument of religious different faiths resulted in the multiplicity of sects in However, for those who were affiliated to churches, liberty. To him, religious freedom and separation of the colonies. With an Erastian justification, English the colonial policy regarding their worship generally church and state did not constitute two but only one lords chose to forego protecting what was considered followed the tenor of the English Act of Toleration of principle. Religious persecution is wrong because it to be the true and eternal church of a particular time 1689. In England, this Act conferred on Protestant "confounds the Civil and Religious" and because in order to encourage trade and commerce. The dissenters the right to hold public services subject to "States . . . are proved essentially Civil. The "power colonies were large financial investments which registration of their ministers and places of of true discerning the true fear of God" is not one of would be profitable only if people would settle there. worship.73 Although the toleration accorded to the powers that the people have transferred to Civil It would be difficult to engage in trade with persons Protestant dissenters who qualified under its terms Authority.78 Williams' Bloudy Tenet is considered an one seeks to destroy for religious belief, thus was only a modest advance in religious freedom, it epochal milestone in the history of religious freedom tolerance was a necessity. This tended to distract the nevertheless was of some influence to the American and the separation of church and state.79 colonies from their preoccupations over their religion experiment.74 Even then, for practical considerations, and its exclusiveness, encouraging them "to think less concessions had to be made to other dissenting William Penn, proprietor of the land that became of the Church and more of the State and of churches to ensure their cooperation in the War of Pennsylvania, was also an ardent advocate of 68 commerce." The diversity brought about by the Independence which thus had a unifying effect on the toleration, having been imprisoned for his religious colonies' open gates encouraged religious freedom colonies. convictions as a member of the despised Quakers. He and non-establishment in several ways. First, as there opposed coercion in matters of conscience because were too many dissenting sects to abolish, there was Next, the ideological factors. First, the Great "imposition, restraint and persecution for conscience no alternative but to learn to live together. Secondly, Awakening in mid-18th century, an evangelical sake, highly invade the Divine prerogative." Aside because of the daily exposure to different religions, religious revival originating in New England, caused from his idealism, proprietary interests made the passionate conviction in the exclusive rightness of a break with formal church religion and a resistance toleration in Pennsylvania necessary. He attracted one's religion, which impels persecution for the sake to coercion by established churches. This movement large numbers of settlers by promising religious of one's religion, waned. Finally, because of the great emphasized an emotional, personal religion that toleration, thus bringing in immigrants both from the diversity of the sects, religious uniformity was not appealed directly to the individual, putting emphasis Continent and Britain. At the end of the colonial possible, and without such uniformity, establishment on the rights and duties of the individual conscience period, Pennsylvania had the greatest variety of 69 could not survive. and its answerability exclusively to God. Thus, religious groups. Penn was responsible in large part although they had no quarrel with orthodox Christian for the "Concessions and agreements of the theology as in fact they were fundamentalists, this Proprietors, Freeholders, and inhabitants of West Jersey, in America", a monumental document in the obedience, to compel with the sword, belong American experiment of the First Amendment. history of civil liberty which provided among others, to none but the civil magistrate; and on this Virginia was the "first state in the history of the world for liberty of conscience.80 The Baptist followers of ground we affirm that the magistrate's power to proclaim the decree of absolute divorce between Williams and the Quakers who came after Penn extends not to establishing any articles of church and state."90 Many factors contributed to this, continued the tradition started by the leaders of their faith or forms of worship, by force of laws; among which were that half to two-thirds of the denominations. Aside from the Baptists and the for laws are of no force without penalties. population were organized dissenting sects, the Great Quakers, the Presbyterians likewise greatly The care of souls cannot belong to the civil Awakening had won many converts, the established contributed to the evolution of separation and magistrate, because his power consists only Anglican Church of Virginia found themselves on the freedom.81 The Constitutional fathers who convened in outward force; but pure and saving losing side of the Revolution and had alienated many in Philadelphia in 1787, and Congress and the states religion consists in the inward persuasion of influential laymen with its identification with the that adopted the First Amendment in 1791 were very the mind, without which nothing can be Crown's tyranny, and above all, present in Virginia familiar with and strongly influenced by the acceptable to God.84 (emphasis supplied) was a group of political leaders who were devoted to successful examples of Rhode Island and liberty generally,91 who had accepted the social 82 Pennsylvania. The idea that religion was outside the jurisdiction of contract as self-evident, and who had been greatly civil government was acceptable to both the influenced by Deism and Unitarianism. Among these Undeniably, John Locke and the social contract religionist and rationalist. To the religionist, God or leaders were Washington, Patrick Henry, George theory also contributed to the American experiment. Christ did not desire that government have that Mason, James Madison and above the rest, Thomas The social contract theory popularized by Locke was jurisdiction ("render unto Caesar that which is Jefferson. so widely accepted as to be deemed self-evident truth Caesar's"; "my kingdom is not of this world") and to in America's Declaration of Independence. With the the rationalist, the power to act in the realm of The first major step towards separation in Virginia doctrine of natural rights and equality set forth in the religion was not one of the powers conferred on was the adoption of the following provision in the Declaration of Independence, there was no room for government as part of the social contract.85 Bill of Rights of the state's first constitution: religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that Not only the social contract theory drifted to the That religion, or the duty which we owe to severed its political bonds with the English crown colonies from Europe. Many of the leaders of the our Creator, and the manner of discharging which violated the self-evident truth that all men are Revolutionary and post-revolutionary period were it, can be directed only by reason and 83 created equal. also influenced by European deism and conviction, not by force or violence; and rationalism,86 in general, and some were apathetic if therefore, all men are equally entitled to the The social contract theory was applied by many not antagonistic to formal religious worship and free exercise of religion according to the religious groups in arguing against establishment, institutionalized religion. Jefferson, Paine, John dictates of conscience; and that it is the putting emphasis on religion as a natural right that is Adams, Washington, Franklin, Madison, among mutual duty of all to practice Christian entirely personal and not within the scope of the others were reckoned to be among the Unitarians or forbearance, love, and charity towards each powers of a political body. That Locke and the social Deists. Unitarianism and Deism contributed to the other.92 (emphasis supplied) contract theory were influential in the development of emphasis on secular interests and the relegation of 87 religious freedom and separation is evident from the historic theology to the background. For these men The adoption of the Bill of Rights signified the memorial presented by the Baptists to the Continental of the enlightenment, religion should be allowed to beginning of the end of establishment. Baptists, Congress in 1774, viz: rise and fall on its own, and the state must be Presbyterians and Lutherans flooded the first protected from the clutches of the church whose legislative assembly with petitions for abolition of Men unite in society, according to the great entanglements has caused intolerance and corruption establishment. While the majority of the population 88 Mr. Locke, with an intention in every one as witnessed throughout history. Not only the were dissenters, a majority of the legislature were the better to preserve himself, his liberty and leaders but also the masses embraced rationalism at churchmen. The legislature compromised and enacted property. The power of the society, or the end of the eighteenth century, accounting for the a bill in 1776 abolishing the more oppressive features 89 Legislature constituted by them, can never popularity of Paine's Age of Reason. of establishment and granting exemptions to the be supposed to extend any further than the dissenters, but not guaranteeing separation. It common good, but is obliged to secure every Finally, the events leading to religious freedom and repealed the laws punishing heresy and absence from one's property. To give laws, to receive separation in Virginia contributed significantly to the worship and requiring the dissenters to contribute to the support of the establishment.93 But the dissenters reason and conviction, not by force or departure from the plan of the Holy Author were not satisfied; they not only wanted abolition of violence. The religion, then, of every man, of our religion, who being Lord both of body support for the establishment, they opposed the must be left to the conviction and conscience and mind, yet chose not to propagate it by compulsory support of their own religion as others. of every man; and it is the right of every coercions on either, as was in his Almighty As members of the established church would not man to exercise it as these may dictate. This power to do; allow that only they would pay taxes while the rest right is, in its nature, an unalienable right. It did not, the legislature enacted in 1779 a bill making is unalienable, because the opinions of men, xxx xxx xxx permanent the establishment's loss of its exclusive depending only on the evidence status and its power to tax its members; but those contemplated in their own minds, cannot Be it therefore enacted by the General who voted for it did so in the hope that a general follow the dictates of other men; it is Assembly. That no man shall be compelled assessment bill would be passed. Without the latter, unalienable, also, because what is here a to frequent or support any religious worship, the establishment would not survive. Thus, a bill was right towards men, is a duty towards the place or ministry whatsoever, nor shall be introduced in 1779 requiring every person to enroll creator. It is the duty of every man to render enforced, restrained, molested or burdened his name with the county clerk and indicate which the creator such homage, and such only as in his body or goods, nor shall otherwise "society for the purpose of Religious Worship" he he believes to be acceptable to him; this duty suffer on account of his religious opinions or wished to support. On the basis of this list, collections is precedent, both in order of time and beliefs, but that all men shall be free to were to be made by the sheriff and turned over to the degree of obligation, to the claims of civil profess, and by argument to maintain, their clergymen and teachers designated by the religious society. Before any man can be considered opinions in matters of religion, and that the congregation. The assessment of any person who as a member of civil society, he must be same shall in no wise diminish, enlarge or failed to enroll in any society was to be divided considered as a subject of the governor of 98 94 affect their civil capacities. (emphases proportionately among the societies. The bill the universe; and if a member of civil supplied) evoked strong opposition. society, who enters into any subordinate association, must always do it with a reservation of his duty to the general This statute forbade any kind of taxation in support of In 1784, another bill, entitled "Bill Establishing a religion and effectually ended any thought of a Provision for Teachers of the Christian Religion" was authority, much more must every man who 99 becomes a member of any particular civil general or particular establishment in Virginia. But introduced requiring all persons "to pay a moderate the passage of this law was obtained not only because tax or contribution annually for the support of the society do it with the saving his allegiance to the universal sovereign.97 (emphases of the influence of the great leaders in Virginia but Christian religion, or of some Christian church, also because of substantial popular support coming denomination or communion of Christians, or for supplied) 95 mainly from the two great dissenting sects, namely some form of Christian worship." This likewise the Presbyterians and the Baptists. The former were aroused the same opposition to the 1779 bill. The Madison articulated in the Memorial the widely held never established in Virginia and an underprivileged most telling blow against the 1784 bill was the beliefs in 1785 as indicated by the great number of minority of the population. This made them anxious monumental "Memorial and Remonstrance against signatures appended to the Memorial. The assessment to pull down the existing state church as they realized Religious Assessments" written by Madison and bill was speedily defeated. that it was impossible for them to be elevated to that widely distributed before the reconvening of 96 privileged position. Apart from these expediential legislature in the fall of 1785. It stressed natural Taking advantage of the situation, Madison called up considerations, however, many of the Presbyterians rights, the government's lack of jurisdiction over the a much earlier 1779 bill of Jefferson which had not were sincere advocates of separation100 grounded on domain of religion, and the social contract as the been voted on, the "Bill for Establishing Religious rational, secular arguments and to the language of ideological basis of separation while also citing Freedom", and it was finally passed in January 1786. natural religion.101 Influenced by Roger Williams, the practical considerations such as loss of population It provided, viz: Baptists, on the other hand, assumed that religion was through migration. He wrote, viz: essentially a matter of concern of the individual and Well aware that Almighty God hath created his God, i.e., subjective, spiritual and supernatural, Because we hold it for a 'fundamental and the mind free; that all attempts to influence having no relation with the social order.102 To them, undeniable truth,' that religion, or the duty it by temporal punishments or burdens, or by the Holy Ghost was sufficient to maintain and direct which we owe to our creator, and the manner civil incapacitations, tend not only to beget the Church without governmental assistance and of discharging it, can be directed only by habits of hypocrisy and meanness, and are a state-supported religion was contrary ti the spirit of the Gospel.103 Thus, separation was jurisprudence in this area is volatile and fraught with witnessed in pastoral letters on war and peace, necessary.104 Jefferson's religious freedom statute was inconsistencies whether within a Court decision or economic justice, and human life, or in ringing a milestone in the history of religious freedom. The across decisions. affirmations for racial equality on religious United States Supreme Court has not just once foundations. Inevitably, these developments have acknowledged that the provisions of the First One source of difficulty is the difference in the brought about substantial entanglement of religion Amendment of the U.S. Constitution had the same context in which the First Amendment was adopted and government. Likewise, the growth in population objectives and intended to afford the same protection and in which it is applied today. In the 1780s, religion density, mobility and diversity has significantly against government interference with religious liberty played a primary role in social life - i.e., family changed the environment in which religious as the Virginia Statute of Religious Liberty. responsibilities, education, health care, poor relief, organizations and activities exist and the laws and other aspects of social life with significant moral affecting them are made. It is no longer easy for Even in the absence of the religion clauses, the dimension - while government played a supportive individuals to live solely among their own kind or to principle that government had no power to legislate and indirect role by maintaining conditions in which shelter their children from exposure to competing in the area of religion by restricting its free exercise these activities may be carried out by religious or values. The result is disagreement over what laws 113 or establishing it was implicit in the Constitution of religiously-motivated associations. Today, should require, permit or prohibit; and agreement 1787. This could be deduced from the prohibition of government plays this primary role and religion plays that if the rights of believers as well as non-believers any religious test for federal office in Article VI of the supportive role.109 Government runs even family are all to be respected and given their just due, a the Constitution and the assumed lack of power of planning, sex education, adoption and foster care rigid, wooden interpretation of the religion clauses Congress to act on any subject not expressly programs.110 Stated otherwise and with some that is blind to societal and political realities must be 114 mentioned in the Constitution.105However, omission exaggeration, "(w)hereas two centuries ago, in avoided. of an express guaranty of religious freedom and other matters of social life which have a significant moral natural rights nearly prevented the ratification of the dimension, government was the handmaid of religion, Religion cases arise from different circumstances. Constitution.106 In the ratifying conventions of almost today religion, in its social responsibilities, as The more obvious ones arise from a government every state, some objection was expressed to the contrasted with personal faith and collective worship, action which purposely aids or inhibits religion. absence of a restriction on the Federal Government as is the handmaid of government."111 With government These cases are easier to resolve as, in general, these regards legislation on religion.107 Thus, in 1791, this regulation of individual conduct having become more actions are plainly unconstitutional. Still, this kind of restriction was made explicit with the adoption of the pervasive, inevitably some of those regulations would cases poses difficulty in ascertaining proof of intent religion clauses in the First Amendment as they are reach conduct that for some individuals are religious. to aid or inhibit religion.115The more difficult religion worded to this day, with the first part usually referred As a result, increasingly, there may be inadvertent clause cases involve government action with a secular to as the Establishment Clause and the second part, collisions between purely secular government actions purpose and general applicability which incidentally the Free Exercise Clause, viz: and religion clause values.112 or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions Congress shall make no law respecting an Parallel to this expansion of government has been the are referred to as those with "burdensome effect" on establishment of religion or prohibiting the expansion of religious organizations in population, religious exercise even if the government action is 116 free exercise thereof. physical institutions, types of activities undertaken, not religiously motivated. Ideally, the legislature and sheer variety of denominations, sects and cults. would recognize the religions and their practices and VI. Religion Clauses in the United States: Churches run day-care centers, retirement homes, would consider them, when practical, in enacting Concept, Jurisprudence, Standards hospitals, schools at all levels, research centers, laws of general application. But when the legislature settlement houses, halfway houses for prisoners, fails to do so, religions that are threatened and 117 sports facilities, theme parks, publishing houses and burdened turn to the courts for protection. Most of With the widespread agreement regarding the value these free exercise claims brought to the Court are for of the First Amendment religion clauses comes an mass media programs. In these activities, religious organizations complement and compete with exemption, not invalidation of the facially neutral law equally broad disagreement as to what these clauses that has a "burdensome" effect.118 specifically require, permit and forbid. No agreement commercial enterprises, thus blurring the line has been reached by those who have studied the between many types of activities undertaken by religion clauses as regards its exact meaning and the religious groups and secular activities. Churches have With the change in political and social context and paucity of records in Congress renders it difficult to also concerned themselves with social and political the increasing inadvertent collisions between law and ascertain its meaning.108 Consequently, the issues as a necessary outgrowth of religious faith as religious exercise, the definition of religion for purposes of interpreting the religion clauses has also Culture, and Secular Humanism. Four years later, the Amendment. First, there must be belief in God or been modified to suit current realities. Defining Court faced a definitional problem in United States v. some parallel belief that occupies a central place in religion is a difficult task for even theologians, Seeger126 which involved four men who claimed the believer's life. Second, the religion must involve a philosophers and moralists cannot agree on a "conscientious objector" status in refusing to serve in moral code transcending individual belief, i.e., it comprehensive definition. Nevertheless, courts must the Vietnam War. One of the four, Seeger, was not a cannot be purely subjective. Third, a demonstrable define religion for constitutional and other legal member of any organized religion opposed to war, sincerity in belief is necessary, but the court must not purposes.119 It was in the 1890 case of Davis v. but when specifically asked about his belief in a inquire into the truth or reasonableness of the Beason120 that the United States Supreme Court first Supreme Being, Seeger stated that "you could call (it) belief.127 Fourth, there must be some associational had occasion to define religion, viz: a belief in a Supreme Being or God. These just do not ties,128although there is also a view that religious happen to be the words that I use." Forest Peter, beliefs held by a single person rather than being part The term 'religion' has reference to one's another one of the four claimed that after of the teachings of any kind of group or sect are views of his relations to his Creator, and to considerable meditation and reflection "on values entitled to the protection of the Free Exercise 129 the obligations they impose of reverence for derived from the Western religious and philosophical Clause. his being and character, and of obedience to tradition," he determined that it would be "a violation his will. It is often confounded with the of his moral code to take human life and that he Defining religion is only the beginning of the difficult cultus or form of worship of a particular considered this belief superior to any obligation to the task of deciding religion clause cases. Having hurdled sect, but is distinguishable from the latter. state." The Court avoided a constitutional question by the issue of definition, the court then has to draw The First Amendment to the Constitution, in broadly interpreting not the Free Exercise Clause, but lines to determine what is or is not permissible under declaring that Congress shall make no law the statutory definition of religion in the Universal the religion clauses. In this task, the purpose of the respecting the establishment of religion, or Military Training and Service Act of 1940 which clauses is the yardstick. Their purpose is singular; forbidding the free exercise thereof, was exempt from combat anyone "who, by reason of they are two sides of the same coin.130 In devoting intended to allow everyone under the religious training and belief, is conscientiously two clauses to religion, the Founders were stating not jurisdiction of the United States to entertain opposed to participation in war in any form." two opposing thoughts that would cancel each other such notions respecting his relations to his Speaking for the Court, Justice Clark ruled, viz: out, but two complementary thoughts that apply in Maker and the duties they impose as may be different ways in different circumstances.131 The approved by his judgment and conscience, Congress, in using the expression 'Supreme purpose of the religion clauses - both in the restriction and to exhibit his sentiments in such form of Being' rather than the designation 'God,' was it imposes on the power of the government to worship as he may think proper, not merely clarifying the meaning of religious interfere with the free exercise of religion and the injurious to the equal rights of others, and to tradition and belief so as to embrace all limitation on the power of government to establish, prohibit legislation for the support of any religions and to exclude essentially political, aid, and support religion - is the protection and religious tenets, or the modes of worship of sociological, or philosophical views (and) promotion of religious liberty.132 The end, the goal, any sect.121 the test of belief 'in relation to a Supreme and the rationale of the religion clauses is this Being' is whether a given belief that is liberty.133 Both clauses were adopted to prevent The definition was clearly theistic which was sincere and meaningful occupies a place in government imposition of religious orthodoxy; the reflective of the popular attitudes in 1890. the life of its possessor parallel to the great evil against which they are directed is orthodox belief in God. (emphasis supplied) government-induced homogeneity.134 The Free In 1944, the Court stated in United States v. Exercise Clause directly articulates the common Ballard122 that the free exercise of religion "embraces The Court was convinced that Seeger, Peter and the objective of the two clauses and the Establishment the right to maintain theories of life and of death and others were conscientious objectors possessed of such Clause specifically addresses a form of interference of the hereafter which are rank heresy to followers of religious belief and training. with religious liberty with which the Framers were 123 most familiar and for which government historically the orthodox faiths." By the 1960s, American 135 pluralism in religion had flourished to include non- Federal and state courts have expanded the definition had demonstrated a propensity. In other words, free theistic creeds from Asia such as Buddhism and of religion in Seeger to include even non-theistic exercise is the end, proscribing establishment is a Taoism.124 In 1961, the Court, in Torcaso v. beliefs such as Taoism or Zen Buddhism. It has been necessary means to this end to protect the rights of 125 those who might dissent from whatever religion is Watkins, expanded the term "religion" to non- proposed that basically, a creed must meet four 136 theistic beliefs such as Buddhism, Taoism, Ethical criteria to qualify as religion under the First established. It has even been suggested that the sense of the First Amendment is captured if it were to understanding these two strains, the scope of to reach actions which were in violation of read as "Congress shall make no law respecting an protection of each clause, and the tests used in social duties or subversive of good order. . . establishment of religion or otherwise prohibiting the religious clause cases. Most of these cases are cited free exercise thereof" because the fundamental and as authorities in Philippine religion clause cases. Laws are made for the government of single purpose of the two religious clauses is to actions, and while they cannot interfere with "avoid any infringement on the free exercise of A. Free Exercise Clause mere religious belief and opinions, they may 137 religions" Thus, the Establishment Clause with practices. Suppose one believed that mandates separation of church and state to protect The Court first interpreted the Free Exercise Clause human sacrifice were a necessary part of each from the other, in service of the larger goal of in the 1878 case of Reynolds v. United States.143 This religious worship, would it be seriously preserving religious liberty. The effect of the landmark case involved Reynolds, a Mormon who contended that the civil government under separation is to limit the opportunities for any proved that it was his religious duty to have several which he lived could not interfere to prevent religious group to capture the state apparatus to the wives and that the failure to practice polygamy by a sacrifice? Or if a wife religiously believed disadvantage of those of other faiths, or of no faith at it was her duty to burn herself upon the 138 male members of his religion when circumstances all because history has shown that religious fervor would permit would be punished with damnation in funeral pile of her dead husband, would it be conjoined with state power is likely to tolerate far less the life to come. Reynolds' act of contracting a beyond the power of the civil government to religious disagreement and disobedience from those second marriage violated Section 5352, Revised prevent her carrying her belief into practice? who hold different beliefs than an enlightened secular 139 Statutes prohibiting and penalizing bigamy, for which state. In the words of the U.S. Supreme Court, the he was convicted. The Court affirmed Reynolds' So here, as a law of the organization of two clauses are interrelated, viz: "(t)he structure of conviction, using what in jurisprudence would be society under the exclusive dominion of the our government has, for the preservation of civil called the belief-action test which allows absolute United States, it is provided that plural liberty, rescued the temporal institutions from protection to belief but not to action. It cited marriages shall not be allowed. Can a man religious interference. On the other hand, it has Jefferson's Bill Establishing Religious Freedom excuse his practices to the contrary because secured religious liberty from the invasion of the civil 140 which, according to the Court, declares "the true of his religious belief? To permit this would authority." distinction between what properly belongs to the be to make the professed doctrines of Church and what to the State."144The bill, making a religious belief superior to the law of the In upholding religious liberty as the end goal in distinction between belief and action, states in land, and in effect to permit every citizen to religious clause cases, the line the court draws to relevant part, viz: become a law unto himself. Government ensure that government does not establish and instead could exist only in name under such 146 remains neutral toward religion is not absolutely That to suffer the civil magistrate to intrude circumstances. straight. Chief Justice Burger explains, viz: his powers into the field of opinion, and to restrain the profession or propagation of The construct was thus simple: the state was The course of constitutional neutrality in this principles on supposition of their ill absolutely prohibited by the Free Exercise Clause area cannot be an absolutely straight line; tendency, is a dangerous fallacy which at from regulating individual religious beliefs, but rigidity could well defeat the basic purpose once destroys all religious liberty; placed no restriction on the ability of the state to of these provisions, which is to insure that regulate religiously motivated conduct. It was logical no religion be sponsored or favored, none for belief to be accorded absolute protection because 141 that it is time enough for the rightful commanded and none inhibited. (emphasis purposes of civil government for its officers any statute designed to prohibit a particular religious supplied) to interfere when principles break out into belief unaccompanied by any conduct would most overt acts against peace and good certainly be motivated only by the legislature's Consequently, U.S. jurisprudence has produced two order.145 (emphasis supplied) preference of a competing religious belief. Thus, all identifiably different,142 even opposing, strains of cases of regulation of belief would amount to jurisprudence on the religion clauses: separation (in The Court then held, viz: regulation of religion for religious reasons violative the form of strict separation or the tamer version of of the Free Exercise Clause. On the other hand, most strict neutrality or separation) and benevolent state regulations of conduct are for public welfare neutrality or accommodation. A view of the landscape Congress was deprived of all legislative purposes and have nothing to do with the legislature's of U.S. religion clause cases would be useful in power over mere opinion, but was left free religious preferences. Any burden on religion that results from state regulation of conduct arises only Next to belief which enjoys virtually absolute The Court stated, however, that government had the when particular individuals are engaging in the protection, religious speech and expressive religious power to regulate the times, places, and manner of generally regulated conduct because of their conduct are accorded the highest degree of solicitation on the streets and assure the peace and particular religious beliefs. These burdens are thus protection. Thus, in the 1940 case of Cantwell v. safety of the community. usually inadvertent and did not figure in the belief- Connecticut,154 the Court struck down a state law action test. As long as the Court found that regulation prohibiting door-to-door solicitation for any religious Three years after Cantwell, the Court in Douglas v. address action rather than belief, the Free Exercise or charitable cause without prior approval of a state City of Jeanette,157 ruled that police could not 147 Clause did not pose any problem. The Free agency. The law was challenged by Cantwell, a prohibit members of the Jehovah's Witnesses from Exercise Clause thus gave no protection against the member of the Jehovah's Witnesses which is peaceably and orderly proselytizing on Sundays proscription of actions even if considered central to a committed to active proselytizing. The Court merely because other citizens complained. In another religion unless the legislature formally outlawed the invalidated the state statute as the prior approval case likewise involving the Jehovah's 148 belief itself. necessary was held to be a censorship of religion Witnesses, Niemotko v. Maryland,158 the Court prohibited by the Free Exercise Clause. The Court unanimously held unconstitutional a city council's This belief-action distinction was held by the Court held, viz: denial of a permit to the Jehovah's Witnesses to use for some years as shown by cases where the Court the city park for a public meeting. The city council's upheld other laws which burdened the practice of the In the realm of religious faith, and in that of refusal was because of the "unsatisfactory" answers Mormon religion by imposing various penalties on political belief, sharp differences arise. In of the Jehovah's Witnesses to questions about polygamy such as the Davis case and Church of both fields the tenets of one may seem the Catholicism, military service, and other issues. The Latter Day Saints v. United States.149 However, more rankest error to his neighbor. To persuade denial of the public forum was considered blatant than a century since Reynolds was decided, the Court others to his point of view, the pleader, as we censorship. While protected, religious speech in the has expanded the scope of protection from belief to know, resorts to exaggeration, to vilification public forum is still subject to reasonable time, place speech and conduct. But while the belief-action test of men who have been, or are, prominent in and manner regulations similar to non-religious has been abandoned, the rulings in the earlier Free church or state, and even to false statement. speech. Religious proselytizing in congested areas, Exercise cases have gone unchallenged. The belief- But the people of this nation have ordained for example, may be limited to certain areas to action distinction is still of some importance though in the light of history, that, in spite of the maintain the safe and orderly flow of pedestrians and as there remains an absolute prohibition of probability of excesses and abuses, these vehicular traffic as held in the case of Heffron v. governmental proscription of beliefs.150 liberties are, in the long view, essential to International Society for Krishna enlightened opinion and right conduct on the Consciousness.159 155 The Free Exercise Clause accords absolute protection part of citizens of a democracy. to individual religious convictions and beliefs151 and The least protected under the Free Exercise Clause is proscribes government from questioning a person's Cantwell took a step forward from the protection religious conduct, usually in the form of beliefs or imposing penalties or disabilities based afforded by the Reynolds case in that it not only unconventional religious practices. Protection in this solely on those beliefs. The Clause extends protection affirmed protection of belief but also freedom to act realm depends on the character of the action and the to both beliefs and unbelief. Thus, in Torcaso v. for the propagation of that belief, viz: government rationale for regulating the action.160 The Watkins,152 a unanimous Court struck down a state Mormons' religious conduct of polygamy is an law requiring as a qualification for public office an Thus the Amendment embraces two example of unconventional religious practice. As oath declaring belief in the existence of God. The concepts - freedom to believe and freedom discussed in the Reynolds case above, the Court did protection also allows courts to look into the good to act. The first is absolute but, in the nature not afford protection to the practice. Reynolds was faith of a person in his belief, but prohibits inquiry of things, the second cannot be. Conduct reiterated in the 1890 case of Davis again involving into the truth of a person's religious beliefs. As held remains subject to regulation for the Mormons, where the Court held, viz: "(c)rime is not 153 in United States v. Ballard, "(h)eresy trials are protection of society. . . In every case, the the less odious because sanctioned by what any 161 foreign to the Constitution. Men may believe what power to regulate must be so exercised as particular sect may designate as religion." they cannot prove. They may not be put to the proof not, in attaining a permissible end, unduly to of their religious doctrines or beliefs." infringe the protected freedom. (emphasis The belief-action test in Reynolds and Davis proved supplied)156 unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of scrutiny of the case, however, would show that it was overriding secular goal by the means which imposed religion and no matter how insignificant was the decided not on the issue of religious conduct as the the least burden on religious practices.170 The Court government's non-religious regulatory interest so Court said, "(n)or does the issue as we see it turn on found that the state had an overriding secular interest long as the government is proscribing action and not one's possession of particular religious views or the in setting aside a single day for rest, recreation and belief. Thus, the Court abandoned the simplistic sincerity with which they are held. While religion tranquility and there was no alternative means of belief-action distinction and instead recognized the supplies appellees' motive for enduring the pursuing this interest but to require Sunday as a deliberate-inadvertent distinction, i.e., the distinction discomforts of making the issue in this case, many uniform rest day. between deliberate state interference of religious citizens who do not share these religious views hold exercise for religious reasons which was plainly such a compulsory rite to infringe constitutional Two years after came the stricter compelling state 165 unconstitutional and government's inadvertent liberty of the individual." (emphasis supplied) The interest test in the 1963 case of Sherbert v. interference with religion in pursuing some secular Court pronounced, however, that, "freedoms of Verner.171 This test was similar to the two-part 162 objective. In the 1940 case of Minersville School speech and of press, of assembly, and of worship . . . balancing test in Braunfeld,172 but this latter test 163 District v. Gobitis, the Court upheld a local school are susceptible only of restriction only to prevent stressed that the state interest was not merely any board requirement that all public school students grave and immediate danger to interests which the colorable state interest, but must be paramount and 166 participate in a daily flag salute program, including state may lawfully protect." The Court seemed to compelling to override the free exercise claim. In this the Jehovah's Witnesses who were forced to salute the recognize the extent to which its approach in Gobitis case, Sherbert, a Seventh Day Adventist, claimed American flag in violation of their religious training, subordinated the religious liberty of political unemployment compensation under the law as her which considered flag salute to be worship of a minorities - a specially protected constitutional value employment was terminated for refusal to work on "graven image." The Court recognized that the - to the common everyday economic and public Saturdays on religious grounds. Her claim was general requirement of compulsory flag salute welfare objectives of the majority in the legislature. denied. She sought recourse in the Supreme Court. In inadvertently burdened the Jehovah Witnesses' This time, even inadvertent interference with religion laying down the standard for determining whether the practice of their religion, but justified the government must pass judicial scrutiny under the Free Exercise denial of benefits could withstand constitutional regulation as an appropriate means of attaining Clause with only grave and immediate danger scrutiny, the Court ruled, viz: national unity, which was the "basis of national sufficing to override religious liberty. But the seeds of security." Thus, although the Court was already aware this heightened scrutiny would only grow to a full 167 Plainly enough, appellee's conscientious of the deliberate-inadvertent distinction in flower in the 1960s. objection to Saturday work constitutes no government interference with religion, it continued to conduct prompted by religious principles of hold that the Free Exercise Clause presented no Nearly a century after Reynolds employed the belief- a kind within the reach of state legislation. problem to interference with religion that was action test, the Warren Court began the modern free If, therefore, the decision of the South 168 inadvertent no matter how serious the interference, no exercise jurisprudence. A two-part balancing test Carolina Supreme Court is to withstand 169 matter how trivial the state's non-religious objectives, was established in Braunfeld v. Brown where the appellant's constitutional challenge, it must and no matter how many alternative approaches were Court considered the constitutionality of applying be either because her disqualification as a available to the state to pursue its objectives with less Sunday closing laws to Orthodox Jews whose beliefs beneficiary represents no infringement by impact on religion, so long as government was acting required them to observe another day as the Sabbath the State of her constitutional rights of free in pursuit of a secular objective. and abstain from commercial activity on Saturday. exercise, or because any incidental burden Chief Justice Warren, writing for the Court, found on the free exercise of appellant's religion Three years later, the Gobitis decision was overturned that the law placed a severe burden on Sabattarian may be justified by a 'compelling state 164 in West Virginia v. Barnette which involved a retailers. He noted, however, that since the burden interest in the regulation of a subject within similar set of facts and issue. The Court recognized was the indirect effect of a law with a secular the State's constitutional power to that saluting the flag, in connection with the pledges, purpose, it would violate the Free Exercise Clause regulate. . .'NAACP v. Button, 371 US 415, was a form of utterance and the flag salute program only if there were alternative ways of achieving the 438 9 L ed 2d 405, 421, 83 S Ct was a compulsion of students to declare a belief. The state's interest. He employed a two-part balancing test 328.173 (emphasis supplied) Court ruled that "compulsory unification of opinions of validity where the first step was for plaintiff to leads only to the unanimity of the graveyard" and show that the regulation placed a real burden on his The Court stressed that in the area of religious liberty, exempt the students who were members of the religious exercise. Next, the burden would be upheld it is basic that it is not sufficient to merely show a Jehovah's Witnesses from saluting the flag. A close only if the state showed that it was pursuing an rational relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n Throughout the 1970s and 1980s under the Warren, dissenting and separate opinions in religious conduct this highly sensitive constitutional area, '[o]nly the and afterwards, the Burger Court, the rationale in cases, this general test established a strong gravest abuses, endangering paramount interests, give Sherbert continued to be applied. In Thomas v. presumption in favor of the free exercise of occasion for permissible limitation.' Thomas v. Review Board177 and Hobbie v. Unemployment religion.181 Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct Appeals Division,178for example, the Court reiterated 174 315." The Court found that there was no such the exemption doctrine and held that in the absence of Heightened scrutiny was also used in the 1972 case compelling state interest to override Sherbert's a compelling justification, a state could not withhold of Wisconsin v. Yoder182 where the Court upheld the religious liberty. It added that even if the state could unemployment compensation from an employee who religious practice of the Old Order Amish faith over show that Sherbert's exemption would pose serious resigned or was discharged due to unwillingness to the state's compulsory high school attendance law. detrimental effects to the unemployment depart from religious practices and beliefs that The Amish parents in this case did not permit secular compensation fund and scheduling of work, it was conflicted with job requirements. But not every education of their children beyond the eighth grade. incumbent upon the state to show that no alternative governmental refusal to allow an exemption from a Chief Justice Burger, writing for the majority, means of regulations would address such detrimental regulation which burdens a sincerely held religious held, viz: effects without infringing religious liberty. The state, belief has been invalidated, even though strict or however, did not discharge this burden. The Court heightened scrutiny is applied. In United States v. 179 It follows that in order for Wisconsin to thus carved out for Sherbert an exemption from the Lee, for instance, the Court using strict scrutiny compel school attendance beyond the eighth Saturday work requirement that caused her and referring to Thomas, upheld the federal grade against a claim that such attendance disqualification from claiming the unemployment government's refusal to exempt Amish employers interferes with the practice of a legitimate benefits. The Court reasoned that upholding the who requested for exemption from paying social religious belief, it must appear either that the denial of Sherbert's benefits would force her to security taxes on wages on the ground of religious State does not deny the free exercise of choose between receiving benefits and following her beliefs. The Court held that "(b)ecause the broad religious belief by its requirement, or that religion. This choice placed "the same kind of burden public interest in maintaining a sound tax system is of there is a state interest of sufficient upon the free exercise of religion as would a fine such a high order, religious belief in conflict with the magnitude to override the interest claiming imposed against (her) for her Saturday worship." This payment of taxes affords no basis for resisting the protection under the Free Exercise Clause. germinal case of Sherbert firmly established the tax."180 It reasoned that unlike in Sherbert, an 175 Long before there was general exemption doctrine, viz: exemption would significantly impair government's acknowledgement of the need for universal achievement of its objective - "the fiscal vitality of education, the Religion Clauses had It is certain that not every conscience can be the social security system;" mandatory participation specially and firmly fixed the right of free accommodated by all the laws of the land; is indispensable to attain this objective. The Court exercise of religious beliefs, and buttressing but when general laws conflict with scruples noted that if an exemption were made, it would be this fundamental right was an equally firm, of conscience, exemptions ought to be hard to justify not allowing a similar exemption from even if less explicit, prohibition against the granted unless some 'compelling state general federal taxes where the taxpayer argues that establishment of any religion. The values interest' intervenes. his religious beliefs require him to reduce or underlying these two provisions relating to eliminate his payments so that he will not contribute religion have been zealously protected, Thus, in a short period of twenty-three years from to the government's war-related activities, for sometimes even at the expense of other Gobitis to Sherbert (or even as early as Braunfeld), example. interests of admittedly high social the Court moved from the doctrine that inadvertent or importance. . . incidental interferences with religion raise no The strict scrutiny and compelling state interest test problem under the Free Exercise Clause to the significantly increased the degree of protection The essence of all that has been said and doctrine that such interferences violate the Free afforded to religiously motivated conduct. While not written on the subject is that only those Exercise Clause in the absence of a compelling state affording absolute immunity to religious activity, a interests of the highest order and those not interest - the highest level of constitutional scrutiny compelling secular justification was necessary to otherwise served can overbalance legitimate short of a holding of a per se violation. Thus, the uphold public policies that collided with religious claims to the free exercise of religion. . . problem posed by the belief-action test and the practices. Although the members of the Court often deliberate-inadvertent distinction was addressed.176 disagreed over which governmental interests should be considered compelling, thereby producing . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise They applied for unemployment compensation, but part of the decision. Although she concurred in the Clause. It is true that activities of the Oregon Employment Appeals Board denied their result that the Free Exercise Clause had not been individuals, even when religiously based, are application as they were discharged for job-related offended, she sharply criticized the majority opinion often subject to regulation by the States in misconduct. Justice Scalia, writing for the majority, as a dramatic departure "from well-settled First the exercise of their undoubted power to ruled that "if prohibiting the exercise of religion . . . is Amendment jurisprudence. . . and . . . (as) promote the health, safety, and general . . . merely the incidental effect of a generally incompatible with our Nation's fundamental welfare, or the Federal government in the applicable and otherwise valid law, the First commitment to religious liberty." This portion of her exercise of its delegated powers . . . But to Amendment has not been offended." In other words, concurring opinion was supported by Justices agree that religiously grounded conduct the Free Exercise Clause would be offended only if a Brennan, Marshall and Blackmun who dissented from must often be subject to the broad police particular religious practice were singled out for the Court's decision. Justice O'Connor asserted that power of the State is not to deny that there proscription. The majority opinion relied heavily on "(t)he compelling state interest test effectuates the are areas of conduct protected by the Free the Reynolds case and in effect, equated Oregon's First Amendment's command that religious liberty is Exercise Clause of the First Amendment and drug prohibition law with the anti-polygamy statute an independent liberty, that it occupies a preferred thus beyond the power of the State to in Reynolds. The relevant portion of the majority position, and that the Court will not permit control, even under regulations of general opinion held, viz: encroachments upon this liberty, whether direct or applicability. . . .This case, therefore, does indirect, unless required by clear and compelling not become easier because respondents were We have never invalidated any government interest 'of the highest order'." Justice convicted for their "actions" in refusing to governmental action on the basis of the Blackmun registered a separate dissenting opinion, send their children to the public high school; Sherbert test except the denial of joined by Justices Brennan and Marshall. He charged in this context belief and action cannot be unemployment compensation. the majority with "mischaracterizing" precedents and neatly confined in logic-tight compartments. "overturning. . . settled law concerning the Religion 183 . . Even if we were inclined to breathe into Clauses of our Constitution." He pointed out that the Sherbert some life beyond the Native American Church restricted and supervised The onset of the 1990s, however, saw a major setback unemployment compensation field, we the sacramental use of peyote. Thus, the state had no in the protection afforded by the Free Exercise would not apply it to require exemptions significant health or safety justification for regulating Clause. In Employment Division, Oregon from a generally applicable criminal law. . . the sacramental drug use. He also observed that Department of Human Resources v. Smith,184 the Oregon had not attempted to prosecute Smith or sharply divided Rehnquist Court dramatically Black, or any Native Americans, for that matter, for We conclude today that the sounder approach, and the the sacramental use of peyote. In conclusion, he said departed from the heightened scrutiny and approach in accord with the vast majority of our compelling justification approach and imposed that "Oregon's interest in enforcing its drug laws precedents, is to hold the test inapplicable to such against religious use of peyote (was) not sufficiently serious limits on the scope of protection of religious challenges. The government's ability to enforce freedom afforded by the First Amendment. In this compelling to outweigh respondents' right to the free generally applicable prohibitions of socially harmful exercise of their religion." case, the well-established practice of the Native conduct, like its ability to carry out other aspects of American Church, a sect outside the Judeo-Christian public policy, "cannot depend on measuring the mainstream of American religion, came in conflict effects of a governmental action on a religious The Court went back to the Reynolds and Gobitis with the state's interest in prohibiting the use of illicit objector's spiritual development." . . .To make an doctrine in Smith. The Court's standard in Smith drugs. Oregon's controlled substances statute made individual's obligation to obey such a law contingent virtually eliminated the requirement that the the possession of peyote a criminal offense. Two upon the law's coincidence with his religious beliefs government justify with a compelling state interest members of the church, Smith and Black, worked as except where the State's interest is "compelling" - the burdens on religious exercise imposed by laws drug rehabilitation counselors for a private social permitting him, by virtue of his beliefs, "to become a neutral toward religion. The Smith doctrine is highly service agency in Oregon. Along with other church law unto himself," . . . - contradicts both unsatisfactory in several respects and has been members, Smith and Black ingested peyote, a constitutional tradition and common sense. criticized as exhibiting a shallow understanding of hallucinogenic drug, at a sacramental ceremony free exercise jurisprudence.185 First, the First practiced by Native Americans for hundreds of years. amendment was intended to protect minority The social service agency fired Smith and Black Justice O'Connor wrote a concurring opinion pointing religions from the tyranny of the religious and citing their use of peyote as "job-related misconduct". out that the majority's rejection of the compelling political majority. A deliberate regulatory interference governmental interest test was the most controversial with minority religious freedom is the worst form of The RFRA prohibited government at all levels from law, could be accorded protection as shown in this tyranny. But regulatory interference with a substantially burdening a person's free exercise of Wisconsin.194 minority religion as a result of ignorance or religion, even if such burden resulted from a sensitivity of the religious and political majority is no generally applicable rule, unless the government B. Establishment Clause less an interference with the minority's religious could demonstrate a compelling state interest and the freedom. If the regulation had instead restricted the rule constituted the least restrictive means of 191 The Court's first encounter with the Establishment majority's religious practice, the majoritarian furthering that interest. RFRA, in effect, sought to Clause was in the 1947 case of Everson v. Board of legislative process would in all probability have overturn the substance of the Smith ruling and restore Education.195 Prior cases had made passing reference modified or rejected the regulation. Thus, the the status quo prior to Smith. Three years after the to the Establishment Clause196 and raised imposition of the political majority's non-religious RFRA was enacted, however, the Court, dividing 6 to establishment questions but were decided on other objectives at the expense of the minority's religious 3, declared the RFRA unconstitutional in City of 197 192 grounds. It was in the Everson case that the U.S. interests implements the majority's religious Boerne v. Flores. The Court ruled that "RFRA Supreme Court adopted Jefferson's metaphor of "a viewpoint at the expense of the minority's. Second, contradicts vital principles necessary to maintain wall of separation between church and state" as government impairment of religious liberty would separation of powers and the federal balance." It encapsulating the meaning of the Establishment most often be of the inadvertent kind as in Smith emphasized the primacy of its role as interpreter of Clause. The often and loosely used phrase "separation considering the political culture where direct and the Constitution and unequivocally rejected, on broad of church and state" does not appear in the U.S. deliberate regulatory imposition of religious institutional grounds, a direct congressional challenge Constitution. It became part of U.S. jurisprudence orthodoxy is nearly inconceivable. If the Free of final judicial authority on a question of when the Court in the 1878 case ofReynolds v. Exercise Clause could not afford protection to constitutional interpretation. United States198 quoted Jefferson's famous letter of inadvertent interference, it would be left almost 1802 to the Danbury Baptist Association in narrating meaningless. Third, the Reynolds-Gobitis-Smith After Smith came Church of the Lukumi Babalu the history of the religion clauses, viz: doctrine simply defies common sense. The state Aye, Inc. v. City of Hialeah193 which was ruled should not be allowed to interfere with the most consistent with the Smith doctrine. This case Believing with you that religion is a matter deeply held fundamental religious convictions of an involved animal sacrifice of the Santeria, a blend of individual in order to pursue some trivial state which lies solely between man and his God; Roman Catholicism and West African religions that he owes account to none other for his economic or bureaucratic objective. This is especially brought to the Carribean by East African slaves. An true when there are alternative approaches for the faith or his worship; that the legislative ordinance made it a crime to "unnecessarily kill, powers of the Government reach actions state to effectively pursue its objective without torment, torture, or mutilate an animal in public or serious inadvertent impact on religion.186 only, and not opinions, I contemplate with private ritual or ceremony not for the primary sovereign reverence that act of the whole purpose of food consumption." The ordinance came American people which declared that their Thus, the Smith decision has been criticized not only as a response to the local concern over the sacrificial Legislature should 'make no law respecting for increasing the power of the state over religion but practices of the Santeria. Justice Kennedy, writing for an establishment of religion or prohibiting as discriminating in favor of mainstream religious the majority, carefully pointed out that the questioned the free exercise thereof,' thus building a groups against smaller, more peripheral groups who ordinance was not a generally applicable criminal 187 wall of separation between Church and lack legislative clout, contrary to the original prohibition, but instead singled out practitioners of State.199(emphasis supplied) theory of the First Amendment.188 Undeniably, claims the Santeria in that it forbade animal slaughter only for judicial exemption emanate almost invariably insofar as it took place within the context of religious from relatively politically powerless minority rituals. Chief Justice Waite, speaking for the majority, then religions and Smith virtually wiped out their judicial added, "(c)oming as this does from an acknowledged 189 leader of the advocates of the measure, it may be recourse for exemption. Thus, the Smith decision It may be seen from the foregoing cases that under elicited much negative public reaction especially accepted almost as an authoritative declaration of the the Free Exercise Clause, religious belief is scope and effect of the amendment thus secured."200 from the religious community, and commentaries absolutely protected, religious speech and insisted that the Court was allowing the Free Exercise proselytizing are highly protected but subject to 190 Clause to disappear. So much was the uproar that a restraints applicable to non-religious speech, and The interpretation of the Establishment Clause has in majority in Congress was convinced to enact the unconventional religious practice receives less large part been in cases involving education, notably Religious Freedom Restoration Act (RFRA) of 1993. protection; nevertheless conduct, even if its violates a state aid to private religious schools and prayer in public schools.201 In Everson v. Board of Education, The First Amendment has erected a wall official prayers for any group of the American people for example, the issue was whether a New Jersey between church and state. That wall must be to recite as part of a religious program carried on by local school board could reimburse parents for kept high and impregnable. We could not government." In fact, history shows that this very expenses incurred in transporting their children to and approve the slightest breach. New Jersey has practice of establishing governmentally composed from Catholic schools. The reimbursement was part not breached it here.203 prayers for religious services was one of the reasons of a general program under which all parents of that caused many of the early colonists to leave children in public schools and nonprofit private By 1971, the Court integrated the different elements England and seek religious freedom in America. The schools, regardless of religion, were entitled to of the Court's Establishment Clause jurisprudence Court called to mind that the first and most reimbursement for transportation costs. Justice Hugo that evolved in the 1950s and 1960s and laid down a immediate purpose of the Establishment Clause Black, writing for a sharply divided Court, justified three-pronged test in Lemon v. Kurtzman204 in rested on the belief that a union of government and the reimbursements on the child benefit theory, i.e., determining the constitutionality of policies religion tends to destroy government and to degrade that the school board was merely furthering the state's challenged under the Establishment Clause. This case religion. The following year, the Engel decision was legitimate interest in getting children "regardless of involved a Pennsylvania statutory program providing reinforced in Abington School District v. 208 209 their religion, safely and expeditiously to and from publicly funded reimbursement for the cost of Schempp and Murray v. Curlett where the accredited schools." The Court, after narrating the teachers' salaries, textbooks, and instructional Court struck down the practice of Bible reading and history of the First Amendment in Virginia, materials in secular subjects and a Rhode Island the recitation of the Lord's prayer in the Pennsylvania interpreted the Establishment Clause,viz: statute providing salary supplements to teachers in and Maryland schools. The Court held that to parochial schools. The Lemon test requires a withstand the strictures of the Establishment Clause, The 'establishment of religion' clause of the challenged policy to meet the following criteria to a statute must have a secular legislative purpose and a First Amendment means at least this: pass scrutiny under the Establishment Clause. "First, primary effect that neither advances nor inhibits Neither a state nor the Federal Government the statute must have a secular legislative purpose; religion. It reiterated, viz: can set up a church. Neither can pass laws second, its primary or principal effect must be one which aid one religion, aid all religions, or that neither advances nor inhibits religion (Board of The wholesome 'neutrality' of which this prefer one religion over another. Neither can Education v. Allen, 392 US 236, 243, 20 L Ed 2d Court's cases speak thus stems from a force nor influence a person to go to or 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute recognition of the teachings of history that remain away from church against his will or must not foster 'an excessive entanglement with powerful sects or groups might bring about a force him to profess a belief or disbelief in religion.' (Walz v.Tax Commission, 397 US 664, 668, fusion of governmental and religious any religion. No person can be punished for 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" functions or a concert or dependency of one entertaining or professing religious beliefs or (emphasis supplied)205 Using this test, the Court held upon the other to the end that official disbeliefs, for church attendance or non- that the Pennsylvania statutory program and Rhode support of the State of Federal Government attendance. No tax in any amount, large or Island statute were unconstitutional as fostering would be placed behind the tenets of one or small, can be levied to support any religious excessive entanglement between government and of all orthodoxies. This the Establishment activities or institutions, whatever they may religion. Clause prohibits. And a further reason for be called, or whatever form they may adopt neutrality is found in the Free Exercise to teach or practice religion. Neither a state The most controversial of the education cases Clause, which recognizes the value of nor the Federal Government can, openly or involving the Establishment Clause are the school religious training, teaching and observance secretly participate in the affairs of any prayer decisions. "Few decisions of the modern and, more particularly, the right of every religious organizations or groups and vice Supreme Court have been criticized more intensely person to freely choose his own course with versa. In the words of Jefferson, the clause than the school prayer decisions of the early reference thereto, free of any compulsion 210 against establishment of religion by law was 1960s."206 In the 1962 case of Engel v. Vitale,207 the from the state. intended to erect "a wall of separation Court invalidated a New York Board of Regents 202 between Church and State." policy that established the voluntary recitation of a The school prayer decisions drew furious reactions. brief generic prayer by children in the public schools Religious leaders and conservative members of The Court then ended the opinion, viz: at the start of each school day. The majority opinion Congress and resolutions passed by several state written by Justice Black stated that "in this country it legislatures condemned these decisions.211 On several is no part of the business of government to compose occasions, constitutional amendments have been introduced in Congress to overturn the school prayer governmental assistance of all religions. In Zorach v. In the 1983 case of Marsh v. Chambers,218 the Court decisions. Still, the Court has maintained its position Clauson,214 however, the Court upheld released time refused to invalidate Nebraska's policy of beginning and has in fact reinforced it in the 1985 case programs allowing students in public schools to leave legislative sessions with prayers offered by a of Wallace v. Jaffree212 where the Court struck down campus upon parental permission to attend religious Protestant chaplain retained at the taxpayers' expense. an Alabama law that required public school students services while other students attended study hall. The majority opinion did not rely on the Lemon test to observe a moment of silence "for the purpose of Justice Douglas, the writer of the opinion, stressed and instead drew heavily from history and the need meditation or voluntary prayer" at the start of each that "(t)he First Amendment does not require that in for accommodation of popular religious beliefs, viz: school day. every and all respects there shall be a separation of Church and State." The Court distinguished Zorach In light of the unambiguous and unbroken Religious instruction in public schools has also from McCollum, viz: history of more than 200 years, there can be pressed the Court to interpret the Establishment no doubt that the practice of opening Clause. Optional religious instruction within public In the McCollum case the classrooms were legislative sessions with prayer has become school premises and instructional time were declared used for religious instruction and the force the fabric of our society. To invoke Divine offensive of the Establishment Clause in the 1948 of the public school was used to promote guidance on a public body entrusted with case of McCollum v. Board of that instruction. . . We follow the McCollum making the laws is not, in these Education,213 decided just a year after the seminal case. But we cannot expand it to cover the circumstances, an "establishment" of Everson case. In this case, interested members of the present released time program unless religion or a step toward establishment; it is Jewish, Roman Catholic and a few Protestant faiths separation of Church and State means that simply a tolerable acknowledgement of obtained permission from the Board of Education to public institutions can make no adjustments beliefs widely held among the people of this offer classes in religious instruction to public school of their schedules to accommodate the country. As Justice Douglas observed, "(w)e students in grades four to nine. Religion classes were religious needs of the people. We cannot are a religious people whose institutions attended by pupils whose parents signed printed cards read into the Bill of Rights such a presuppose a Supreme Being." (Zorach c. requesting that their children be permitted to attend. philosophy of hostility to religion.215 Clauson, 343 US 306, 313 The classes were taught in three separate groups by [1952])219(emphasis supplied) Protestant teachers, Catholic priests and a Jewish In the area of government displays or affirmations of rabbi and were held weekly from thirty to forty belief, the Court has given leeway to religious beliefs Some view the Marsh ruling as a mere aberration as minutes during regular class hours in the regular and practices which have acquired a secular meaning the Court would "inevitably be embarrassed if it were classrooms of the school building. The religious and have become deeply entrenched in history. For to attempt to strike down a practice that occurs in teachers were employed at no expense to the school instance, inMcGowan v. Maryland,216 the Court nearly every legislature in the United States, authorities but they were subject to the approval and upheld laws that prohibited certain businesses from including the U.S. Congress."220 That Marsh was not supervision of the superintendent of schools. Students operating on Sunday despite the obvious religious an aberration is suggested by subsequent cases. In the who did not choose to take religious instruction were underpinnings of the restrictions. Citing the secular 1984 case of Lynch v. Donnelly,221 the Court upheld required to leave their classrooms and go to some purpose of the Sunday closing laws and treating as a city-sponsored nativity scene in Rhode Island. By a other place in the school building for their secular incidental the fact that this day of rest happened to be 5-4 decision, the majority opinion hardly employed studies while those who were released from their the day of worship for most Christians, the Court the Lemon test and again relied on history and the secular study for religious instruction were required held, viz: fact that the creche had become a "neutral harbinger to attend the religious classes. The Court held that the of the holiday season" for many, rather than a symbol use of tax-supported property for religious instruction It is common knowledge that the first day of of Christianity. and the close cooperation between the school the week has come to have special authorities and the religious council in promoting significance as a rest day in this country. The Establishment Clause has also been interpreted in religious education amounted to a prohibited use of People of all religions and people with no the area of tax exemption. By tradition, church and tax-established and tax-supported public school religion regard Sunday as a time for family charitable institutions have been exempt from local system to aid religious groups spread their faith. The activity, for visiting friends and relatives, for property taxes and their income exempt from federal Court rejected the claim that the Establishment later sleeping, for passive and active and state income taxes. In the 1970 case of Walz v. Clause only prohibited government preference of one entertainments, for dining out, and the Tax Commission,222 the New York City Tax religion over another and not an impartial like.217 Commission's grant of property tax exemptions to churches as allowed by state law was challenged by Thus, as of today, it is constitutional for a government regulations. Rather, the cases discussed Walz on the theory that this required him to subsidize state to hire a Presbyterian minister to lead above suffice to show that, as legal scholars observe, those churches indirectly. The Court upheld the law the legislature in daily prayers (Marsh v. this area of jurisprudence has demonstrated two main stressing its neutrality, viz: Chambers, 463 US783, 792-93[1983]), but standards used by the Court in deciding religion unconstitutional for a state to set aside a clause cases: separation (in the form of strict It has not singled out one particular church moment of silence in the schools for separation or the tamer version of strict neutrality or or religious group or even churches as such; children to pray if they want to (Wallace v. separation) and benevolent neutrality or rather, it has granted exemptions to all Jaffree, 472 US 38, 56 [1985]). It is accommodation. The weight of current authority, houses of religious worship within a broad unconstitutional for a state to require judicial and in terms of sheer volume, appears to lie 227 class of property owned by non-profit, employers to accommodate their employees' with the separationists, strict or tame. But the quasi-public corporations . . . The State has work schedules to their sabbath observances accommodationists have also attracted a number of 228 an affirmative policy that considers these (Estate of Thornton v. Caldor, Inc., 472 US influential scholars and jurists. The two standards groups as beneficial and stabilizing 703, 709-10 [1985]) but constitutionally producing two streams of jurisprudence branch out influences in community life and finds this mandatory for a state to require employers to respectively from the history of the First Amendment classification useful, desirable, and in the pay workers compensation when the in England and the American colonies and climaxing public interest.223 resulting inconsistency between work and in Virginia as narrated in this opinion and officially sabbath leads to discharge (. . .Sherbert v. acknowledged by the Court in Everson, and from The Court added that the exemption was not Verner, 374 US 398, 403-4 [1963]). It is American societal life which reveres religion and establishing religion but "sparing the exercise of constitutional for the government to give practices age-old religious traditions. Stated religion from the burden of property taxation levied money to religiously-affiliated organizations otherwise, separation - strict or tame - protects the on private profit institutions"224 and preventing to teach adolescents about proper sexual principle of church-state separation with a rigid excessive entanglement between state and religion. At behavior (Bowen v. Kendrick, 487 US 589, reading of the principle while benevolent neutrality the same time, the Court acknowledged the long- 611 [1988]), but not to teach them science or protects religious realities, tradition and established history (Lemon v. Kurtzman, 403 US 602, practice with a flexible reading of the standing practice of religious tax exemption and the 229 Court's traditional deference to legislative bodies with 618-619 [1971]). It is constitutional for the principle. The latter also appeals to history in respect to the taxing power, viz: government to provide religious school support of its position, viz: pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not The opposing school of thought argues that (f)ew concepts are more deeply embedded in with maps (Wolman v. Walter, 433 US 229, the fabric of our national life, beginning the First Congress intended to allow 249-51 [1977]); with bus rides to religious government support of religion, at least as with pre-Revolutionary colonial times, than schools (Everson v. Board of Education, 330 for the government to exercise . . . this kind long as that support did not discriminate in US 1, 17 [1947]), but not from school to a favor of one particular religion. . . the of benevolent neutrality toward churches museum on a field trip (Wolman v. Walter, and religious exercise generally so long as Supreme Court has overlooked many 433 US 229, 252-55 [1977]); with cash to important pieces of history. Madison, for none was favored over others and none pay for state-mandated standardized tests suffered interference.225 (emphasis supplied) example, was on the congressional (Committee for Pub. Educ. and Religious committee that appointed a chaplain, he Liberty v. Regan, 444 US 646, 653-54 declared several national days of prayer and C. Strict Neutrality v. Benevolent Neutrality [1980]), but not to pay for safety-related fasting during his presidency, and he maintenance (Committee for Pub. Educ v. sponsored Jefferson's bill for punishing To be sure, the cases discussed above, while citing Nyquist, 413 US 756, 774-80 [1973]). It is a Sabbath breakers; moreover, while 226 many landmark decisions in the religious clauses mess. president, Jefferson allowed federal support area, are but a small fraction of the hundreds of of religious missions to the Indians. . . And religion clauses cases that the U.S. Supreme Court But the purpose of the overview is not to review the so, concludes one recent book, 'there is no has passed upon. Court rulings contrary to or making entirety of the U.S. religion clause jurisprudence nor support in the Congressional records that nuances of the above cases may be cited. Professor to extract the prevailing case law regarding particular either the First Congress, which framed the McConnell poignantly recognizes this, viz: religious beliefs or conduct colliding with particular First Amendment, or its principal author and sponsor, James Madison, intended that rationalistic belief in a natural religion and natural basis for classification for purposes of governmental Amendment to create a state of complete law divorced from its medieval connection with action, whether the action confers rights or privileges independence between religion and divine law, and instead adhering to a secular belief in or imposes duties or obligations. Only secular criteria government. In fact, the evidence in the a universal harmony.235 Thus, according to this may be the basis of government action. It does not public documents goes the other Jeffersonian view, the Establishment Clause being permit, much less require, accommodation of secular way.230 (emphasis supplied) meant to protect the state from the church, the state's programs to religious belief.243 Professor Kurland hostility towards religion allows no interaction wrote, viz: 236 To succinctly and poignantly illustrate the historical between the two. In fact, when Jefferson became basis of benevolent neutrality that gives room for President, he refused to proclaim fast or thanksgiving The thesis proposed here as the proper accommodation, less than twenty-four hours after days on the ground that these are religious exercises construction of the religion clauses of the Congress adopted the First Amendment's prohibition and the Constitution prohibited the government from first amendment is that the freedom and 237 on laws respecting an establishment of religion, intermeddling with religion. This approach erects separation clauses should be read as a single Congress decided to express its thanks to God an absolute barrier to formal interdependence of precept that government cannot utilize Almighty for the many blessings enjoyed by the religion and state. Religious institutions could not religion as a standard for action or inaction nation with a resolution in favor of a presidential receive aid, whether direct or indirect, from the state. because these clauses prohibit classification proclamation declaring a national day of Nor could the state adjust its secular programs to in terms of religion either to confer a benefit Thanksgiving and Prayer. Only two members of alleviate burdens the programs placed on or to impose a burden.244 238 Congress opposed the resolution, one on the ground believers. Only the complete separation of religion that the move was a "mimicking of European from politics would eliminate the formal influence of The Court has repeatedly declared that religious customs, where they made a mere mockery of religious institutions and provide for a free choice freedom means government neutrality in religious thanksgivings", the other on establishment clause among political views thus a strict "wall of 239 matters and the Court has also repeatedly interpreted concerns. Nevertheless, the salutary effect of separation" is necessary. Strict separation faces this policy of neutrality to prohibit government from thanksgivings throughout Western history was difficulties, however, as it is deeply embedded in acting except for secular purposes and in ways that acknowledged and the motion was passed without history and contemporary practice that enormous have primarily secular effects.245 further recorded discussion.231 Thus, amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts accommodationists also go back to the framers to Prayer in public schools is an area where the Court ascertain the meaning of the First Amendment, but of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of has applied strict neutrality and refused to allow any prefer to focus on acts rather than words. Contrary to form of prayer, spoken or silent, in the public schools the claim of separationists that rationalism pervaded claiming a constitutional principle that has never 246 existed and is never likely to.240 as in Engel and Schempp. The McCollum case America in the late 19th century and that America prohibiting optional religious instruction within was less specifically Christian during those years than public school premises during regular class hours also at any other time before or A tamer version of the strict separationist view, the 232 demonstrates strict neutrality. In these education since, accommodationaists claim that American strict neutrality or separationist view is largely used cases, the Court refused to uphold the government citizens at the time of the Constitution's origins were by the Court, showing the Court's tendency to press action as they were based not on a secular but on a a remarkably religious people in particularly relentlessly towards a more secular society.241 It finds 233 religious purpose. Strict neutrality was also used in Christian terms. basis in the Everson case where the Court declared Reynolds and Smith which both held that if that Jefferson's "wall of separation" encapsulated the government acts in pursuit of a generally applicable The two streams of jurisprudence - separationist or meaning of the First Amendment but at the same time law with a secular purpose that merely incidentally accommodationist - are anchored on a different held that the First Amendment "requires the state to burdens religious exercise, the First Amendment has reading of the "wall of separation." The strict be neutral in its relations with groups of religious not been offended. However, if the strict neutrality separtionist view holds that Jefferson meant the "wall believers and non-believers; it does not require the standard is applied in interpreting the Establishment of separation" to protect the state from the church. state to be their adversary. State power is no more to Clause, it could de facto void religious expression in Jefferson was a man of the Enlightenment Era of the be used so as to handicap religions than it is to favor 242 the Free Exercise Clause. As pointed out by Justice eighteenth century, characterized by the rationalism them." (emphasis supplied) While the strict Goldberg in his concurring opinion in Schempp, strict 234 and anticlericalism of that philosophic bent. He has neutrality approach is not hostile to religion, it is neutrality could lead to "a brooding and pervasive often been regarded as espousing Deism or the strict in holding that religion may not be used as a devotion to the secular and a passive, or even active, hostility to the religious" which is prohibited by the "evangelical" rationale for church-state separation Short of those expressly proscribed Constitution.247 Professor Laurence Tribe commented while the wall espoused by "enlightened" statesmen governmental acts there is room for play in in his authoritative treatise, viz: such as Jefferson and Madison, was a "political" the joints productive of a benevolent rationale seeking to protect politics from intrusions neutrality which will permit religious 254 To most observers. . . strict neutrality has by the church. But it has been asserted that this exercise to exist without sponsorship and 259 seemed incompatible with the very idea of a contrast between the Williams and Jeffersonian without interference. (emphasis supplied) free exercise clause. The Framers, whatever positions is more accurately described as a difference specific applications they may have in kinds or styles of religious thinking, not as a The Zorach case expressed the doctrine of intended, clearly envisioned religion as conflict between "religious" and "secular (political)"; accommodation,260 viz: something special; they enacted that vision the religious style was biblical and evangelical in into law by guaranteeing the free exercise of character while the secular style was grounded in The First Amendment, however, does not religion but not, say, of philosophy or natural religion, more generic and philosophical in its 255 say that in every and all respects there shall science. The strict neutrality approach all but religious orientation. be a separation of Church and State. Rather, erases this distinction. Thus it is not it studiously defines the manner, the specific surprising that the Supreme Court has The Williams wall is, however, breached for the ways, in which there shall be no concert or rejected strict neutrality, permitting and church is in the state and so the remaining purpose of union or dependency one or the other. That sometimes mandating religious the wall is to safeguard religious liberty. Williams' is the common sense of the matter. 248 classifications. view would therefore allow for interaction between Otherwise, the state and religion would be church and state, but is strict with regard to state aliens to each other - hostile, suspicious, and The separationist approach, whether strict or tame, is action which would threaten the integrity of religious even unfriendly. Churches could not be 256 caught in a dilemma because while the Jeffersonian commitment. His conception of separation is not required to pay even property taxes. wall of separation "captures the spirit of the American total such that it provides basis for certain Municipalities would not be permitted to ideal of church-state separation", in real life church interactions between church and state dictated by render police or fire protection to religious 257 and state are not and cannot be totally apparent necessity or practicality. This groups. Policemen who helped parishioners separate.249 This is all the more true in contemporary "theological" view of separation is found in Williams' into their places of worship would violate times when both the government and religion are writings, viz: the Constitution. Prayers in our legislative growing and expanding their spheres of involvement halls; the appeals to the Almighty in the and activity, resulting in the intersection of . . . when they have opened a gap in the messages of the Chief Executive; the government and religion at many points.250 hedge or wall of separation between the proclamations making Thanksgiving Day a garden of the church and the wilderness of holiday; "so help me God" in our courtroom Consequently, the Court has also decided cases the world, God hath ever broke down the oaths- these and all other references to the employing benevolent neutrality. Benevolent wall itself, removed the candlestick, and Almighty that run through our laws, our neutrality which gives room for accommodation is made his garden a wilderness, as this day. public rituals, our ceremonies would be buttressed by a different view of the "wall of And that therefore if He will eer please to flouting the First Amendment. A fastidious separation" associated with Williams, founder of the restore His garden and paradise again, it atheist or agnostic could even object to the Rhode Island colony. In Mark DeWolfe Howe's must of necessity be walled in peculiarly supplication with which the Court opens 258 classic, The Garden and the Wilderness, he asserts unto Himself from the world. . . each session: 'God save the United States that to the extent the Founders had a wall of and this Honorable Court. separation in mind, it was unlike the Jeffersonian wall Chief Justice Burger spoke of benevolent neutrality in that is meant to protect the state from the church; Walz, viz: xxx xxx xxx instead, the wall is meant to protect the church from 251 the state, i.e., the "garden" of the church must be The general principle deducible from the We are a religious people whose institutions walled in for its own protection from the "wilderness" First Amendment and all that has been said presuppose a Supreme Being. We guarantee 252 of the world with its potential for corrupting those by the Court is this: that we will not tolerate the freedom to worship as one chooses. . . values so necessary to religious either governmentally established religion or When the state encourages religious 253 commitment. Howe called this the "theological" or governmental interference with religion. instruction or cooperates with religious authorities by adjusting the schedule of Benevolent neutrality thus recognizes that religion purpose or effect therefore is to remove a burden on, public events, it follows the best of our plays an important role in the public life of the United or facilitate the exercise of, a person's or institution's traditions. For it then respects the religious States as shown by many traditional government religion. As Justice Brennan explained, the nature of our people and accommodates the practices which, to strict neutrality, pose "government [may] take religion into account…to public service to their spiritual needs. To Establishment Clause questions. Among these are the exempt, when possible, from generally applicable hold that it may not would be to find in the inscription of "In God We Trust" on American governmental regulation individuals whose religious Constitution a requirement that the currency, the recognition of America as "one nation beliefs and practices would otherwise thereby be government show a callous indifference to under God" in the official pledge of allegiance to the infringed, or to create without state involvement an religious groups. . . But we find no flag, the Supreme Court's time-honored practice of atmosphere in which voluntary religious exercise constitutional requirement which makes it opening oral argument with the invocation "God save may flourish."269 (emphasis supplied) necessary for government to be hostile to the United States and this honorable Court," and the Accommodation is forbearance and not alliance. it religion and to throw its weight against practice of Congress and every state legislature of does not reflect agreement with the minority, but efforts to widen their effective scope of paying a chaplain, usually of a particular Protestant respect for the conflict between the temporal and religious influence.261 (emphases supplied) denomination to lead representatives in spiritual authority in which the minority finds prayer.265 These practices clearly show the preference itself.270 Benevolent neutrality is congruent with the for one theological viewpoint -the existence of and sociological proposition that religion serves a potential for intervention by a god - over the contrary Accommodation is distinguished from strict function essential to the survival of society itself, thus theological viewpoint of atheism. Church and neutrality in that the latter holds that government there is no human society without one or more ways government agencies also cooperate in the building of should base public policy solely on secular of performing the essential function of religion. low-cost housing and in other forms of poor relief, in considerations, without regard to the religious Although for some individuals there may be no felt the treatment of alcoholism and drug addiction, in consequences of its actions. The debate between need for religion and thus it is optional or even foreign aid and other government activities with accommodation and strict neutrality is at base a 266 dispensable, for society it is not, which is why there strong moral dimension. The persistence of these question of means: "Is the freedom of religion best is no human society without one or more ways of de facto establishments are in large part explained by achieved when the government is conscious of the performing the essential function of religion. Even in the fact that throughout history, the evangelical effects of its action on the various religious practices ostensibly atheistic societies, there are vigorous theory of separation, i.e., Williams' wall, has of its people, and seeks to minimize interferences underground religion(s) and surrogate religion(s) in demanded respect for these de facto with those practices? Or is it best advanced through a 267 their ideology.262 As one sociologist wrote: establishments. But the separationists have a policy of 'religious blindness' - keeping government different explanation. To characterize these as de aloof from religious practices and issues?" An It is widely held by students of society that jure establishments according to the principle of the accommodationist holds that it is good public policy, there are certain functional prerequisites Jeffersonian wall, the U.S. Supreme Court, the many and sometimes constitutionally required, for the state without which society would not continue to dissenting and concurring opinions explain some of to make conscious and deliberate efforts to avoid exist. At first glance, this seems to be these practices as "'de minimis' instances of interference with religious freedom. On the other obvious - scarcely more than to say that an government endorsement or as historic governmental hand, the strict neutrality adherent believes that it is automobile could not exist, as a going practices that have largely lost their religious good public policy, and also constitutionally required, system, without a carburetor. . . Most writers significance or at least have proven not to lead the for the government to avoid religion-specific policy 268 271 list religion among the functional government into further involvement with religion. even at the cost of inhibiting religious exercise. prerequisites.263 With religion looked upon with benevolence and not There are strong and compelling reasons, however, to Another noted sociologist, Talcott Parsons, wrote: hostility, benevolent neutrality allows take the accommodationist position rather than the "There is no known human society without accommodation of religion under certain strict neutrality position. First, the accommodationist something which modern social scientists would circumstances. Accommodations are government interpretation is most consistent with the language of classify as a religion…Religion is as much a human policies that take religion specifically into account the First Amendment. The religion clauses contain universal as language."264 not to promote the government's favored form of two parallel provisions, both specifically directed at religion, but to allow individuals and groups to "religion." The government may not "establish" exercise their religion without hindrance. Their religion and neither may government "prohibit" it. Taken together, the religion clauses can be read most indifference and overt hostility to the minority. In a more reasonable than either of the alternative: no plausibly as warding off two equal and opposite democratic republic, laws are inevitably based on the exemption or no law.272 threats to religious freedom - government action that presuppositions of the majority, thus not infrequently, promotes the (political) majority's favored brand of they come into conflict with the religious scruples of Benevolent neutrality gives room for different kinds religion and government action that impedes religious those holding different world views, even in the of accommodation: those which are constitutionally practices not favored by the majority. The substantive absence of a deliberate intent to interfere with compelled, i.e., required by the Free Exercise Clause; end in view is the preservation of the autonomy of religious practice. At times, this effect is unavoidable and those which are discretionary or legislative, i.e., religious life and not just the formal process value of as a practical matter because some laws are so and those not required by the Free Exercise Clause ensuring that government does not act on the basis of necessary to the common good that exceptions are but nonetheless permitted by the Establishment religious bias. On the other hand, strict neutrality intolerable. But in other instances, the injury to Clause.273 Some Justices of the Supreme Court have interprets the religion clauses as allowing government religious conscience is so great and the advancement also used the term accommodation to describe to do whatever it desires to or for religion, as long as of public purposes so small or incomparable that only government actions that acknowledge or express it does the same to or for comparable secular entities. indifference or hostility could explain a refusal to prevailing religious sentiments of the community Thus, for example, if government prohibits all make exemptions. Because of plural traditions, such as display of a religious symbol on public alcoholic consumption by minors, it can prohibit legislators and executive officials are frequently property or the delivery of a prayer at public minors from taking part in communion. willing to make such exemptions when the need is ceremonial events.274 Stated otherwise, using Paradoxically, this view would make the religion brought to their attention, but this may not always be benevolent neutrality as a standard could result to clauses violate the religion clauses, so to speak, since the case when the religious practice is either three situations of accommodation: those where the religion clauses single out religion by name for unknown at the time of enactment or is for some accommodation is required, those where it is special protection. Second, the accommodationist reason unpopular. In these cases, a constitutional permissible, and those where it is prohibited. In the position best achieves the purposes of the First interpretation that allows accommodations prevents first situation, accommodation is required to preserve Amendment. The principle underlying the First needless injury to the religious consciences of those free exercise protections and not unconstitutionally Amendment is that freedom to carry out one's duties who can have an influence in the legislature; while a infringe on religious liberty or create penalties for to a Supreme Being is an inalienable right, not one constitutional interpretation that requires religious freedom. Contrary to the Smith declaration dependent on the grace of legislature. Although accommodations extends this treatment to religious that free exercise exemptions are "intentional inalienable, it is necessarily limited by the rights of faiths that are less able to protect themselves in the government advancement", these exemptions merely others, including the public right of peace and good political arena. Fourth, the accommodationist position relieve the prohibition on the free exercise thus order. Nevertheless it is a substantive right and not is practical as it is a commonsensical way to deal allowing the burdened religious adherent to be left merely a privilege against discriminatory legislation. with the various needs and beliefs of different faiths alone. The state must create exceptions to laws of The accomplishment of the purpose of the First in a pluralistic nation. Without accommodation, many general applicability when these laws threaten Amendment requires more than the "religion otherwise beneficial laws would interfere severely religious convictions or practices in the absence of a blindness" of strict neutrality. With the pervasiveness with religious freedom. Aside from laws against compelling state interest.275 By allowing such of government regulation, conflicts with religious serving alcoholic beverages to minors conflicting exemptions, the Free Exercise Clause does not give practices become frequent and intense. Laws that are with celebration of communion, regulations requiring believers the right or privilege to choose for suitable for secular entities are sometimes hard hats in construction areas can effectively themselves to override socially-prescribed decision; it inappropriate for religious entities, thus the exclude Amish and Sikhs from the workplace, or allows them to obey spiritual rather than temporal government must make special provisions to preserve employment anti-discrimination laws can conflict authority276 for those who seriously invoke the Free a degree of independence for religious entities for with the Roman Catholic male priesthood, among Exercise Clause claim to be fulfilling a solemn duty. them to carry out their religious missions according others. Exemptions from such laws are easy to craft Religious freedom is a matter less of rights than to their religious beliefs. Otherwise, religion will and administer and contribute much to promoting duties; more precisely, it is a matter of rights derived become just like other secular entities subject to religious freedom at little cost to public policy. from duties. To deny a person or a community the pervasive regulation by majoritarian institutions. Without exemptions, legislature would be frequently right to act upon such a duty can be justified only by Third, the accommodationist interpretation is forced to choose between violating religious appeal to a yet more compelling duty. Of course, particularly necessary to protect adherents of conscience of a segment of the population or those denied will usually not find the reason for the minority religions from the inevitable effects of dispensing with legislation it considers beneficial to denial compelling. "Because they may turn out to be majoritarianism, which include ignorance and society as a whole. Exemption seems manifestly right about the duty in question, and because, even if they are wrong, religion bears witness to that which prevail over potential accommodation interests. To belief is ascertained to avoid the mere claim of transcends the political order, such denials should be say that there are valid exemptions buttressed by the religious beliefs to escape a mandatory regulation. As rare and painfully reluctant."277 Free Exercise Clause does not mean that all claims evidence of sincerity, the U.S. Supreme Court has for free exercise exemptions are valid.282 An example considered historical evidence as in Wisconsin where The Yoder case is an example where the Court held where accommodation was prohibited is McCollum the Amish people had held a long-standing objection that the state must accommodate the religious beliefs where the Court ruled against optional religious to enrolling their children in ninth and tenth grades in 283 of the Amish who objected to enrolling their children instruction in the public school premises. In effect, public high schools. In another case, Dobkin v. 285 in high school as required by law. The Sherbert case the last situation would arrive at a strict neutrality District of Columbia, the Court denied the claim is another example where the Court held that the state conclusion. of a party who refused to appear in court on Saturday unemployment compensation plan must alleging he was a Sabbatarian, but the Court noted accommodate the religious convictions of In the first situation where accommodation is that he regularly conducted business on Saturday. Sherbert.278 In these cases of "burdensome effect", the required, the approach follows this basic framework: Although it is true that the Court might erroneously modern approach of the Court has been to apply strict deny some claims because of a misjudgment of scrutiny, i.e., to declare the burden as permissible, the If the plaintiff can show that a law or sincerity, this is not as argument to reject all claims Court requires the state to demonstrate that the government practice inhibits the free by not allowing accommodation as a rule. There regulation which burdens the religious exercise exercise of his religious beliefs, the burden might be injury to the particular claimant or to his pursues a particularly important or compelling religious community, but for the most part, the shifts to the government to demonstrate that 286 government goal through the least restrictive means. the law or practice is necessary to the injustice is done only in the particular case. Aside If the state's objective could be served as well or accomplishment of some important (or from the sincerity, the court may look into the almost as well by granting an exemption to those 'compelling') secular objective and that it is centrality of those beliefs, assessing them not on an whose religious beliefs are burdened by the the least restrictive means of achieving that objective basis but in terms of the opinion and belief 279 regulation, such an exemption must be given. This objective. If the plaintiff meets this burden of the person seeking exemption. In Wisconsin, for approach of the Court on "burdensome effect" was and the government does not, the plaintiff is example, the Court noted that the Amish people's only applied since the 1960s. Prior to this time, the entitled to exemption from the law or convictions against becoming involved in public high Court took the separationist view that as long as the practice at issue. In order to be protected, the schools were central to their way of life and faith. state was acting in pursuit of non-religious ends and claimant's beliefs must be 'sincere', but they Similarly, in Sherbert, the Court concluded that the regulating conduct rather than pure religious beliefs, prohibition against Saturday work was a "cardinal need not necessarily be consistent, coherent, 287 the Free Exercise Clause did not pose a hindrance clearly articulated, or congruent with those principle." Professor Lupu puts to task the person 280 such as in Reynolds. In the second situation where of the claimant's religious denomination. claiming exemption, viz: accommodation is permissible, the state may, but is 'Only beliefs rooted in religion are protected not required to, accommodate religious interests. The by the Free Exercise Clause'; secular beliefs, On the claimant's side, the meaning and Walz case illustrates this situation where the Court however sincere and conscientious, do not significance of the relevant religious practice upheld the constitutionality of tax exemption given suffice.284 must be demonstrated. Religious command by New York to church properties, but did not rule should outweigh custom, individual that the state was required to provide tax exemptions. In other words, a three-step process (also referred to conscience should count for more than The Court declared that "(t)he limits of permissible as the "two-step balancing process" supra when the personal convenience, and theological state accommodation to religion are by no means co- second and third steps are combined) as in Sherbert is principle should be of greater significance extensive with the noninterference mandated by the than institutional ease. Sincerity matters, 281 followed in weighing the state's interest and religious Free Exercise Clause." The Court held that New freedom when these collide. Three questions are (footnote omitted) and longevity of practice York could have an interest in encouraging religious answered in this process. First, "(h)as the statute or - both by the individual and within the values and avoiding threats to those values through government action created a burden on the free individual's religious tradition - reinforces the burden of property taxes. Other examples are the exercise of religion?" The courts often look into the sincerity. Most importantly, the law of free Zorach case allowing released time in public schools sincerity of the religious belief, but without inquiring exercise must be inclusive and expansive, and Marsh allowing payment of legislative chaplains into the truth of the belief because the Free Exercise recognizing non-Christian religions - from public funds. Finally, in the situation where Clause prohibits inquiring about its truth as held in eastern, Western, aboriginal and otherwise - accommodation is prohibited, establishment concerns Ballard and Cantwell. The sincerity of the claimant's as constitutionally equal to their Christian counterparts, and accepting of the intensity careful attention to context, both religious and 1899 upon the adoption of the Malolos Constitution and scope of fundamentalist creed.288 regulatory, to achieve refined judgment.292 of the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the Second, the court asks: "(i)s there a sufficiently In sum, as shown by U.S. jurisprudence on religion liberty and equality of all religion (de todos los compelling state interest to justify this infringement clause cases, the competing values of secular cultos) in the same manner as the separation of the of religious liberty?" In this step, the government has government and religious freedom create tensions Church and State." But the Malolos Constitution and to establish that its purposes are legitimate for the that make constitutional law on the subject of government was short-lived as the Americans took 298 state and that they are compelling. Government must religious liberty unsettled, mirroring the evolving over the reigns of government. do more than assert the objectives at risk if exemption views of a dynamic society.293 is given; it must precisely show how and to what With the Philippines under the American regime, extent those objectives will be undermined if VII. Religion Clauses in the Philippines President McKinley issued Instructions to the Second exemptions are granted.289 The person claiming Philippine Commission, the body created to take over religious freedom, on the other hand, will endeavor to A. History the civil government in the Philippines in 1900. The show that the interest is not legitimate or that the Instructions guaranteed religious freedom, viz: purpose, although legitimate, is not compelling compared to infringement of religious liberty. This Before our country fell under American rule, the blanket of Catholicism covered the archipelago. That no law shall be made respecting the step involves balancing, i.e., weighing the interest of establishment of religion or prohibiting the the state against religious liberty to determine which There was a union of church and state and Catholicism was the state religion under the Spanish free exercise thereof, and that the free is more compelling under the particular set of facts. exercise and enjoyment of religious The greater the state's interests, the more central the Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil profession and worship without religious belief would have to be to overcome it. In 294 discrimination or preference shall forever be assessing the state interest, the court will have to powers. Catholics alone enjoyed the right of engaging in public ceremonies of allowed ... that no form of religion and no determine the importance of the secular interest and 295 minister of religion shall be forced upon the the extent to which that interest will be impaired by worship. Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was community or upon any citizen of the an exemption for the religious practice. Should the Islands, that, on the other hand, no minister court find the interest truly compelling, there will be also the established church in our country under the Spanish rule. Catholicism was in fact protected by the of religion shall be interfered with or no requirement that the state diminish the molested in following his calling.299 effectiveness of its regulation by granting the Spanish Penal Code of 1884 which was in effect in exemption.290 the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and This provision was based on the First Amendment of Worship" referred to crimes against the state the United States Constitution. Likewise, the Third, the court asks: "(h)as the state in achieving its religion.296 The coming of the Americans to our Instructions declared that "(t)he separation between 300 legitimate purposes used the least intrusive means country, however, changed this state-church scheme State and Church shall be real, entire and absolute." possible so that the free exercise is not infringed any for with the advent of this regime, the unique more than necessary to achieve the legitimate goal of 291 American experiment of "separation of church and Thereafter, every organic act of the Philippines the state?" The analysis requires the state to show state" was transported to Philippine soil. contained a provision on freedom of religion. Similar that the means in which it is achieving its legitimate to the religious freedom clause in the Instructions, the state objective is the least intrusive means, i.e., it has Philippine Bill of 1902 provided that: chosen a way to achieve its legitimate state end that Even as early as the conclusion of the Treaty of Paris imposes as little as possible on religious liberties. In between the United States and Spain on December Cantwell, for example, the Court invalidated the 10, 1898, the American guarantee of religious No law shall be made respecting an establishment of license requirement for the door-to-door solicitation freedom had been extended to the Philippines. The religion or prohibiting the free exercise thereof, and as it was a forbidden burden on religious liberty, Treaty provided that "the inhabitants of the territories that free exercise and enjoyment of religious worship, noting that less drastic means of insuring peace and over which Spain relinquishes or cedes her without discrimination or preference, shall forever be sovereignty shall be secured in the free exercise of allowed. tranquility existed. As a whole, in carrying out the 297 compelling state interest test, the Court should give religion." Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, In U.S. v. Balcorta,301 the Court stated that the Committee on Bill of Rights acknowledged that "(i)t religious test shall be required for the Philippine Bill of 1902 "caused the complete was the Treaty of Paris of December 10, 1898, which exercise of civil or political rights. separation of church and state, and the abolition of all first introduced religious toleration in our country. special privileges and all restrictions theretofor President McKinley's Instructions to the Second This time, however, the General Provisions in Article conferred or imposed upon any particular religious Philippine Commission reasserted this right which XV added in Section 15 that "(t)he separation of 302 sect." later was incorporated into the Philippine Bill of 1902 church and state shall be inviolable." and in the Jones Law."304 In accordance with the The Jones Law of 1916 carried the same provision, Tydings-McDuffie Law, the 1935 Constitution Without discussion by the 1986 Constitutional but expanded it with a restriction against using public provided in the Bill of Rights, Article IV, Section 7, Commission, the 1973 religious clauses were money or property for religious purposes, viz: viz: reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the That no law shall be made respecting an Sec. 7. No law shall be made respecting an provision on separation of church and state was establishment of religion or prohibiting the establishment of religion, or prohibiting the included verbatim in the 1987 Constitution, but this free exercise thereof, and that the free free exercise thereof, and the free exercise time as a principle in Section 6, Article II entitled exercise and enjoyment of religious and enjoyment of religious profession and Declaration of Principles and State Policies. profession and worship without worship, without discrimination or discrimination or preference, shall forever preference, shall forever be allowed. No Considering the American origin of the Philippine be allowed; and no religious test shall be religious test shall be required for the religion clauses and the intent to adopt the historical required for the exercise of civil or political exercise of civil or political rights. background, nature, extent and limitations of the First rights. No public money or property shall Amendment of the U.S. Constitution when it was ever be appropriated, applied, donated, or This provision, borrowed from the Jones included in the 1935 Bill of Rights, it is not surprising used, directly or indirectly, for the use, Law, was readily approved by the that nearly all the major Philippine cases involving 305 benefit, or support of any sect, church, Convention. In his speech as Chairman of the religion clauses turn to U.S. jurisprudence in denomination, sectarian institution, or the Committee on Bill of Rights, Delegate explaining the nature, extent and limitations of these system of religion, or for the use, benefit or Laurel said that modifications in clauses. However, a close scrutiny of these cases support of any priest, preacher, minister, or phraseology of the Bill of Rights in the would also reveal that while U.S. jurisprudence on other religious teachers or dignitary as such. Jones Law were avoided whenever possible religion clauses flows into two main streams of because "the principles must remain interpretation - separation and benevolent neutrality - This was followed by the Philippine couched in a language expressive of their the well-spring of Philippine jurisprudence on this Independence Law or Tydings-McDuffie historical background, nature, extent and subject is for the most part, benevolent neutrality Law of 1934 which guaranteed limitations as construed and interpreted by which gives room for accommodation. independence to the Philippines and the great statesmen and jurists that vitalized 306 authorized the drafting of a Philippine them." B. Jurisprudence constitution. It enjoined Filipinos to include freedom of religion in drafting their The 1973 Constitution which superseded the 1935 In revisiting the landscape of Philippine constitution preparatory to the grant of Constitution contained an almost identical provision jurisprudence on the religion clauses, we begin with independence. The law prescribed that on religious freedom in the Bill of Rights in Article the definition of "religion". "Religion" is derived "(a)bsolute toleration of religious sentiment IV, Section 8, viz: from the Middle English religioun, from Old French shall be secured and no inhabitant or religion, from Latin religio, vaguely referring to a religious organization shall be molested in Sec. 8. No law shall be made respecting an "bond between man and the gods."308 This pre- person or property on account of religious establishment of religion, or prohibiting the 303 Christian term for the cult and rituals of pagan Rome belief or mode of worship." free exercise thereof. The free exercise and was first Christianized in the Latin translation of the enjoyment of religious profession and Bible.309 While the U.S. Supreme Court has had to The Constitutional Convention then began working worship, without discrimination or take up the challenge of defining the parameters and on the 1935 Constitution. In their proceedings, preference, shall forever be allowed. No contours of "religion" to determine whether a non- Delegate Jose P. Laurel as Chairman of the theistic belief or act is covered by the religion exercise of said belief, there is quite a stretch protect, whether the religious speech posed a clear clauses, this Court has not been confronted with the of road to travel.314 and present danger to this or other secular value same issue. In Philippine jurisprudence, religion, for protected by government, or whether there was purposes of the religion clauses, has thus far been The difficulty in interpretation sets in when belief is danger but it could not be characterized as clear and interpreted as theistic. In 1937, the Philippine case of externalized into speech and action. present. It is one thing to apply the test and find that Aglipay v. Ruiz310 involving the Establishment there is no clear and present danger, and quite another Clause, defined "religion" as a "profession of faith to Religious speech comes within the pale of the Free not to apply the test altogether. an active power that binds and elevates man to his Exercise Clause as illustrated in the American Bible Creator." Twenty years later, the Court cited the Society case. In that case, plaintiff American Bible Instead, the Court categorically held that the Aglipay definition in American Bible Society v. questioned ordinances were not applicable to plaintiff 311 Society was a foreign, non-stock, non-profit, religious City of Manila, a case involving the Free Exercise missionary corporation which sold bibles and gospel as it was not engaged in the business or occupation of clause. The latter also cited the American case of portions of the bible in the course of its ministry. The selling said "merchandise" for profit. To add, the 316 Davis in defining religion, viz: "(i)t has reference to defendant City of Manila required plaintiff to secure Court, citing Murdock v. Pennsylvania, ruled that one's views of his relations to His Creator and to the a mayor's permit and a municipal license as ordinarily applying the ordinance requiring it to secure a license obligations they impose of reverence to His being and required of those engaged in the business of general and pay a license fee or tax would impair its free character and obedience to His Will." The Beason merchandise under the city's ordinances. Plaintiff exercise of religious profession and worship and its definition, however, has been expanded in U.S. argued that this amounted to "religious censorship right of dissemination of religious beliefs "as the jurisprudence to include non-theistic beliefs. and restrained the free exercise and enjoyment of power to tax the exercise of a privilege is the power religious profession, to wit: the distribution and sale to control or suppress its enjoyment." Thus, in 1. Free Exercise Clause of bibles and other religious literature to the people of American Bible Society, the "clear and present the Philippines." danger" rule was laid down but it was not clearly Freedom of choice guarantees the liberty of the applied. religious conscience and prohibits any degree of After defining religion, the Court, citing Tanada and compulsion or burden, whether direct or indirect, in Fernando, made this statement, viz: In the much later case of Tolentino v. Secretary of the practice of one's religion. The Free Exercise Finance,317 also involving the sale of religious books, Clause principally guarantees voluntarism, although The constitutional guaranty of the free the Court distinguished the American Bible Society the Establishment Clause also assures voluntarism by exercise and enjoyment of religious case from the facts and issues in Tolentino and did placing the burden of the advancement of religious profession and worship carries with it the not apply the American Bible Society ruling. In groups on their intrinsic merits and not on the support Tolentino, the Philippine Bible Society challenged the 312 right to disseminate religious information. of the state. Any restraint of such right can only be validity of the registration provisions of the Value justified like other restraints of freedom of Added Tax (VAT) Law as a prior restraint. The Court In interpreting the Free Exercise Clause, the realm of expression on the grounds that there is a held, however, that the fixed amount of registration belief poses no difficulty. The early case of Gerona v. clear and present danger of any substantive fee was not imposed for the exercise of a privilege 313 Secretary of Education is instructive on the evil which the State has the right to prevent. like a license tax which American Bible Society ruled matter, viz: (Tanada and Fernando on the Constitution of was violative of religious freedom. Rather, the the Philippines, vol. 1, 4th ed., p. 297) registration fee was merely an administrative fee to The realm of belief and creed is infinite and (emphasis supplied) defray part of the cost of registration which was a limitless bounded only by one's imagination central feature of the VAT system. Citing Jimmy and thought. So is the freedom of belief, Swaggart Ministries v. Board of This was the Court's maiden unequivocal affirmation Equalization,318 the Court also declared prefatorily including religious belief, limitless and of the "clear and present danger" rule in the religious without bounds. One may believe in most that "the Free Exercise of Religion Clause does not freedom area, and in Philippine jurisprudence, for prohibit imposing a generally applicable sales and use anything, however strange, bizarre and 315 that matter. The case did not clearly show, however, tax on the sale of religious materials by a religious unreasonable the same may appear to others, whether the Court proceeded to apply the test to the even heretical when weighed in the scales of organization." In the Court's resolution of the motion facts and issues of the case, i.e., it did not identify the for reconsideration of the Tolentino decision, the orthodoxy or doctrinal standards. But secular value the government regulation sought to between the freedom of belief and the Court noted that the burden on religious freedom caused by the tax was just similar to any other which they, though in all sincerity and good faith, not; (2) religious freedom will not be upheld if it economic imposition that might make the right to may want to give to such ritual or ceremony.321 clashes with the established institutions of society and disseminate religious doctrines costly. with the law such that when a law of general It was held that the flag was not an image, the flag applicability (in this case the Department Order) Two years after American Bible Society came the salute was not a religious ceremony, and there was incidentally burdens the exercise of one's religion, 1959 case of Gerona v. Secretary of nothing objectionable about the singing of the one's right to religious freedom cannot justify Education,319 this time involving conduct expressive national anthem as it speaks only of love of country, exemption from compliance with the law. The Gerona of religious belief colliding with a rule prescribed in patriotism, liberty and the glory of suffering and ruling was reiterated in Balbuna, et al. v. Secretary 325 accordance with law. In this case, petitioners were dying for it. The Court upheld the questioned Order of Education, et al. members of the Jehovah's Witnesses. They and the expulsion of petitioner's children, stressing challenged a Department Order issued by the that: Fifteen years after Gerona came the 1974 case of Secretary of Education implementing Republic Act Victoriano v. Elizalde Rope Workers Union.[326] In No. 1265 which prescribed compulsory flag Men may differ and do differ on religious this unanimously decided en banc case, Victoriano ceremonies in all public schools. In violation of the beliefs and creeds, government policies, the was a member of the Iglesia ni Cristo which prohibits Order, petitioner's children refused to salute the wisdom and legality of laws, even the the affiliation of its members with any labor Philippine flag, sing the national anthem, or recite the correctness of judicial decisions and decrees; organization. He worked in the Elizalde Rope patriotic pledge, hence they were expelled from but in the field of love of country, reverence Factory, Inc. and was a member of the Elizalde Rope school. Seeking protection under the Free Exercise for the flag, national unity and patriotism, Workers Union which had with the company a closed Clause, petitioners claimed that their refusal was on they can hardly afford to differ, for these are shop provision pursuant to Republic Act No. 875 account of their religious belief that the Philippine matters in which they are mutually and allowing closed shop arrangements. Subsequently, flag is an image and saluting the same is contrary to vitally interested, for to them, they mean Republic Act No. 3350 was enacted exempting from their religious belief. The Court stated, viz: national existence and survival as a nation or the application and coverage of a closed shop national extinction.322 agreement employees belonging to any religious sect . . . If the exercise of religious belief clashes which prohibits affiliation of their members with any with the established institutions of society In support of its ruling, the Court cited Justice labor organization. Victoriano resigned from the and with the law, then the former must yield Frankfurter's dissent in the Barnette case, viz: union after Republic Act No. 3350 took effect. The to the latter. The Government steps in and union notified the company of Victoriano's either restrains said exercise or even resignation, which in turn notified Victoriano that The constitutional protection of religious unless he could make a satisfactory arrangement with prosecutes the one exercising it. (emphasis freedom x x x gave religious equality, not supplied)320 the union, the company would be constrained to civil immunity. Its essence is freedom from dismiss him from the service. Victoriano sought to conformity to religious dogma, not freedom The Court then proceeded to determine if the acts enjoin the company and the union from dismissing from conformity to law because of religious him. The court having granted the injunction, the involved constituted a religious ceremony in conflict dogma.323 with the beliefs of the petitioners with the following union came to this Court on questions of law, among justification: which was whether Republic Act No. 3350 was It stated in categorical terms, viz: unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of After all, the determination of whether a certain ritual The freedom of religious belief guaranteed by the the Establishment Clause. With respect to the first is or is not a religious ceremony must rest with the Constitution does not and cannot mean exemption issue, the Court ruled, viz: courts. It cannot be left to a religious group or sect, from or non-compliance with reasonable and non- much less to a follower of said group or sect; discriminatory laws, rules and regulations Religious freedom, although not unlimited, otherwise, there would be confusion and promulgated by competent authority.324 misunderstanding for there might be as many is a fundamental personal right and liberty interpretations and meaning to be given to a certain (Schneider v. Irgington, 308 U.S. 147, 161, ritual or ceremony as there are religious groups or Thus, the religious freedom doctrines one can derive 84 L.ed.155, 164, 60 S.Ct. 146) and has a sects or followers, all depending upon the meaning from Gerona are: (1) it is incumbent upon the Court preferred position in the hierarchy of values. to determine whether a certain ritual is religious or Contractual rights, therefore, must yield to freedom of religion. It is only where Ct. 144; McGowan v. Maryland, 366 U.S. ought to be granted unless some "compelling state unavoidably necessary to prevent an 420, 444-5 and 449)328 (emphasis supplied) interest" intervenes. The Court then abruptly added immediate and grave danger to the security that "(i)n the instant case, We see no compelling state 333 and welfare of the community that Quoting Aglipay v. Ruiz,329 the Court held that interest to withhold exemption." infringement of religious freedom may be "government is not precluded from pursuing valid justified, and only to the smallest extent objectives secular in character even if the incidental A close look at Victoriano would show that the Court 327 necessary. (emphasis supplied) result would be favorable to a religion or sect." It also mentioned several tests in determining when religious cited Board of Education v. Allen,330 which held that freedom may be validly limited. First, the Court As regards the Establishment Clause issue, the Court in order to withstand the strictures of constitutional mentioned the test of "immediate and grave danger to after citing the constitutional provision on prohibition, a statute must have a secular legislative the security and welfare of the community" and establishment and free exercise of religion, purpose and a primary effect that neither advances "infringement of religious freedom only to the declared, viz: nor inhibits religion. Using these criteria in upholding smallest extent necessary" to justify limitation of Republic Act No. 3350, the Court pointed out, viz: religious freedom. Second, religious exercise may be The constitutional provisions not only indirectly burdened by a general law which has for its prohibits legislation for the support of any (Republic Act No. 3350) was intended to purpose and effect the advancement of the state's religious tenets or the modes of worship of serve the secular purpose of advancing the secular goals, provided that there is no other means any sect, thus forestalling compulsion by constitutional right to the free exercise of by which the state can accomplish this purpose law of the acceptance of any creed or the religion, by averting that certain persons be without imposing such burden. Third, the Court practice of any form of worship (U.S. refused work, or be dismissed from work, or referred to the "compelling state interest" test which Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), be dispossessed of their right to work and of grants exemptions when general laws conflict with but also assures the free exercise of one's being impeded to pursue a modest means of religious exercise, unless a compelling state interest chosen form of religion within limits of livelihood, by reason of union security intervenes. utmost amplitude. It has been said that the agreements. . . . The primary effects of the religion clauses of the Constitution are all exemption from closed shop agreements in It is worth noting, however, that the first two tests designed to protect the broadest possible favor of members of religious sects that were mentioned only for the purpose of highlighting liberty of conscience, to allow each man to prohibit their members from affiliating with the importance of the protection of religious freedom believe as his conscience directs, to profess a labor organization, is the protection of said as the secular purpose of Republic Act No. 3350. his beliefs, and to live as he believes he employees against the aggregate force of the Upholding religious freedom was a secular purpose ought to live, consistent with the liberty of collective bargaining agreement, and insofar as it relieved the burden on religious freedom others and with the common good. (footnote relieving certain citizens of a burden on their caused by another law, i.e, the Industrial Peace Act omitted). Any legislation whose effect or religious beliefs, and . . . eliminating to a providing for union shop agreements. The first two purpose is to impede the observance of one certain extent economic insecurity due to tests were only mentioned in Victoriano but were not or all religions, or to discriminate unemployment.331 applied by the Court to the facts and issues of the invidiously between the religions, is invalid, case. The third, the "compelling state interest" test even though the burden may be The Court stressed that "(a)lthough the exemption was employed by the Court to determine whether the characterized as being only indirect. may benefit those who are members of religious sects exemption provided by Republic Act No. 3350 was (Sherbert v. Verner, 374 U.S. 398, 10 that prohibit their members from joining labor not unconstitutional. It upheld the exemption, stating L.ed.2d 965, 83 S. Ct. 1970) But if the state unions, the benefit upon the religious sects is merely that there was no "compelling state interest" to strike regulates conduct by enacting, within its incidental and indirect."332 In enacting Republic Act it down. However, after careful consideration of the power, a general law which has for its No. 3350, Congress merely relieved the exercise of Sherbert case from which Victoriano borrowed this purpose and effect to advance the state's religion by certain persons of a burden imposed by test, the inevitable conclusion is that the "compelling secular goals, the statute is valid despite its union security agreements which Congress itself also state interest" test was not appropriate and could not indirect burden on religious observance, imposed through the Industrial Peace Act. The Court find application in the Victoriano case. In Sherbert, unless the state can accomplish its purpose concluded the issue of exemption by citing Sherbert appellant Sherbert invoked religious freedom in without imposing such burden. (Braunfeld v. which laid down the rule that when general laws seeking exemption from the provisions of the South Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. conflict with scruples of conscience, exemptions Carolina Unemployment Compensation Act which disqualified her from claiming unemployment . . . Thus the (First) amendment embraces (125 SCRA 553[1983]) should guide us in benefits. It was the appellees, members of the South two concepts - freedom to believe and resolving the issues. Carolina Employment Commission, a government freedom to act. The first is absolute, but in 337 agency, who propounded the state interest to justify the nature of things, the second cannot be. 1. The right to freely exercise one's religion overriding Sherbert's claim of religious freedom. The is guaranteed in Section 8 of our Bill of U.S. Supreme Court, considering Sherbert's and the The Court reiterated the Gerona ruling, viz: Rights. (footnote omitted) Freedom of Commission's arguments, found that the state interest worship, alongside with freedom of was not sufficiently compelling to prevail over In the case at bar, petitioners are not denied expression and speech and peaceable Sherbert's free exercise claim. This situation did not or restrained of their freedom of belief or assembly "along with the other intellectual obtain in the Victoriano case where it was the choice of their religion, but only in the freedoms, are highly ranked in our scheme government itself, through Congress, which provided manner by which they had attempted to of constitutional values. It cannot be too the exemption in Republic Act No. 3350 to allow translate the same to action. This curtailment strongly stressed that on the judiciary - even Victoriano's exercise of religion. Thus, the is in accord with the pronouncement of this more so than on the other departments - rests government could not argue against the exemption on Court in Gerona v. Secretary of Education the grave and delicate responsibility of the basis of a compelling state interest as it would be (106 Phil. 2), thus: assuring respect for and deference to such arguing against itself; while Victoriano would not preferred rights. No verbal formula, no seek exemption from the questioned law to allow the . . . But between the freedom of belief and sanctifying phrase can, of course, dispense free exercose of religion as the law in fact provides with what has been so felicitously termed by such an exemption. In sum, although Victoriano the exercise of said belief, there is quite a stretch of road to travel. If the exercise of Justice Holmes 'as the sovereign prerogative involved a religious belief and conduct, it did not of judgment.' Nonetheless, the presumption involve a free exercise issue where the Free Exercise said religious belief clashes with the established institutions of society and with must be to incline the weight of the scales of Clause is invoked to exempt him from the burden justice on the side of such rights, enjoying as imposed by a law on his religious freedom. the law, then the former must yield and give way to the latter. The government steps in they do precedence and primacy.' (J.B.L. and either restrains said exercise or even Reyes, 125 SCRA at pp. 569-570) Victoriano was reiterated in several cases involving prosecutes the one exercising it. (italics the Iglesia ni Cristo, namely Basa, et al. v. supplied) 2. In the free exercise of such preferred Federacion Obrera de la Industria Tabaquera y rights, there is to be no prior restraint 334 Otros Trabajadores de Filipinas, Anucension v. although there may be subsequent 335 The majority found that the restriction imposed upon National Labor Union, et al., and Gonzales, et al. punishment of any illegal acts committed v. Central Azucarera de Tarlac Labor Union.336 petitioners was "necessary to maintain the smooth functioning of the executive branch of the during the exercise of such basic rights. The government, which petitioners' mass action would sole justification for a prior restraint or Then came German v. Barangan in 1985 at the height certainly disrupt"338and denied the petition. Thus, limitation on the exercise of these basic of the anti-administration rallies. Petitioners were without considering the tests mentioned in rights is the existence of a grave and present walking to St. Jude Church within the Malacanang Victoriano, German went back to the Gerona rule that danger of a character both grave and security area to pray for "an end to violence" when religious freedom will not be upheld if it clashes with imminent, of a serious evil to public safety, they were barred by the police. Invoking their the established institutions of society and the law. public morals, public health or any other constitutional freedom of religious worship and legitimate public interest, that the State has a locomotion, they came to the Court on a petition for right (and duty) to prevent (Idem, at pp. 560- mandamus to allow them to enter and pray inside the Then Associate Justice Teehankee registered a dissent 561).339 (emphasis supplied) St. Jude Chapel. The Court was divided on the issue. which in subsequent jurisprudence would be cited as The slim majority of six recognized their freedom of a test in religious freedom cases. His dissent stated in relevant part, viz: The J.B.L. Reyes v. Bagatsing case from which this religion but noted their absence of good faith and portion of Justice Teehankee's dissent was taken concluded that they were using their religious liberty involved the rights to free speech and assembly, and to express their opposition to the government. Citing A brief restatement of the applicable not the exercise of religious freedom. At issue in that Cantwell, the Court distinguished between freedom to constitutional principles as set forth in the case was a permit sought by retired Justice J.B.L. believe and freedom to act on matters of religion, viz: landmark case of J.B.L. Reyes v. Bagatsing Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally the globe and suddenly produce a nation In Victoriano vs. Elizalde Rope Workers' from the Luneta to the gates of the U.S. Embassy. 'untaught and uninculcated in and unimbued Union, 59 SCRA 54, 72-75, we upheld the Nevertheless Bagatsing was used by Justice with reverence for the flag, patriotism, love exemption of members of the Iglesia ni Teehankee in his dissent which had overtones of of country and admiration for national Cristo, from the coverage of a closed shop petitioner German and his companions' right to heroes' (Gerona v. Secretary of Education, agreement between their employer and a assemble and petition the government for redress of 106 Phil. 224). After all, what the petitioners union because it would violate the teaching grievances.340 seek only is exemption from the flag of their church not to join any group: ceremony, not exclusion from the public In 1993, the issue on the Jehovah's Witnesses' schools where they may study the 'x x x It is certain that not every participation in the flag ceremony again came before Constitution, the democratic way of life and conscience can be accommodated the Court inEbralinag v. The Division form of government, and learn not only the by all the laws of the land; but Superintendent of Schools.341 A unanimous Court arts, sciences, Philippine history and culture when general laws conflict with overturned the Gerona ruling after three decades. but also receive training for a vocation or scruples of conscience, exemptions Similar to Gerona, this case involved several profession and be taught the virtues of ought to be granted unless some Jehovah's Witnesses who were expelled from school 'patriotism, respect for human rights, 'compelling state interest' for refusing to salute the flag, sing the national appreciation of national heroes, the rights intervenes.' (Sherbert vs. Verner, anthem and recite the patriotic pledge, in violation of and duties of citizenship, and moral and 374 U.S. 398, 10 L. Ed. 2d 965, the Administrative Code of 1987. In resolving the spiritual values' (Sec. 3[2], Art. XIV, 1987 970, 83 S.Ct. 1790)' same religious freedom issue as in Gerona, the Court Constitution) as part of the curricula. this time transported the "grave and imminent Expelling or banning the petitioners from We hold that a similar exemption may be danger" test laid down in Justice Teehankee's dissent Philippine schools will bring about the very accorded to the Jehovah's Witnesses with in German, viz: situation that this Court has feared in regard to the observance of the flag Gerona. Forcing a small religious group, ceremony out of respect for their religious The sole justification for a prior restraint or through the iron hand of the law, to beliefs, however 'bizarre' those beliefs may limitation on the exercise of religious participate in a ceremony that violates their seem to others.345 freedom (according to the late Chief Justice religious beliefs, will hardly be conducive to Claudio Teehankee in his dissenting opinion love of country or respect for duly constituted authorities.343 The Court annulled the orders expelling petitioners in German v. Barangan, 135 SCRA 514, from school. 517) is the existence of a grave and present Barnette also found its way to the opinion, viz: danger of a character both grave and Thus, the "grave and imminent danger" test laid down imminent, of a serious evil to public safety, in a dissenting opinion in German which involved public morals, public health or any other Furthermore, let it be noted that coerced prior restraint of religious worship with overtones of legitimate public interest, that the State has a unity and loyalty even to the country, x x x- the right to free speech and assembly, was transported right (and duty) to prevent. Absent such a assuming that such unity and loyalty can be to Ebralinag which did not involve prior restraint of threat to public safety, the expulsion of the attained through coercion- is not a goal that religious worship, speech or assembly. Although, it petitioners from the schools is not is constitutionally obtainable at the expense 342 might be observed that the Court faintly implied that justified. (emphasis supplied) of religious liberty. A desirable end cannot Ebralinag also involved the right to free speech when be promoted by prohibited means. (Meyer in its preliminary remarks, the Court stated that The Court added, viz: vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 344 compelling petitioners to participate in the flag 1046). ceremony "is alien to the conscience of the present We are not persuaded that by exempting the generation of Filipinos who cut their teeth on the Bill Jehovah's Witnesses from saluting the flag, Towards the end of the decision, the Court also cited of Rights which guarantees their rights to free speech singing the national anthem and reciting the the Victoriano case and its use of the "compelling and the free exercise of religious profession and patriotic pledge, this religious group which state interest" test in according exemption to the worship;" the Court then stated in a footnote that the admittedly comprises a 'small portion of the Jehovah's Witnesses, viz: "flag salute, singing the national anthem and reciting school population' will shake up our part of the patriotic pledge are all forms of utterances."346 The "compelling state interest" test was not fully create new privileges. It gave religious liberty, not substantive and imminent evil which has applied by the Court in Ebralinag. In the Solicitor civil immunity. Its essence is freedom from taken the life of a reality already on ground. General's consolidated comment, one of the grounds conformity to religious dogma, not freedom from cited to defend the expulsion orders issued by the conformity to law because of religious Replying to the challenge on the applicability of the 349 public respondents was that "(t)he State's compelling dogma." Nevertheless, the Court was quick to add "clear and present danger" test to the case, the Court interests being pursued by the DEC's lawful the criteria by which the state can regulate the acknowledged the permutations that the test has regulations in question do not warrant exemption of exercise of religious freedom, that is, when the undergone, but stressed that the test is still applied to the school children of the Jehovah's Witnesses from exercise will bring about the "clear and present four types of speech: "speech that advocates the flag salute ceremonies on the basis of their own danger of some substantive evil which the State is dangerous ideas, speech that provokes a hostile 347 self-perceived religious convictions." The Court, duty bound to prevent, i.e., serious detriment to the audience reaction, out of court contempt and release however, referred to the test only towards the end of more overriding interest of public health, public of information that endangers a fair trial"351 and ruled, 350 the decision and did not even mention what the morals, or public welfare." viz: Solicitor General argued as the compelling state interest, much less did the Court explain why the In annulling the x-rating of the shows, the Court . . . even allowing the drift of American interest was not sufficiently compelling to override stressed that the Constitution is hostile to all prior jurisprudence, there is reason to apply the petitioners' religious freedom. restraints on speech, including religious speech and clear and present danger test to the case at the x-rating was a suppression of petitioner's freedom bar which concerns speech that attacks other Three years after Ebralinag, the Court decided the of speech as much as it was an interference with its religions and could readily provoke hostile 1996 case of Iglesia ni Cristo v. Court of Appeals, right to free exercise of religion. Citing Cantwell, the audience reaction. It cannot be doubted that 348 et al. Although there was a dissent with respect to Court recognized that the different religions may religious truths disturb and disturb terribly.352 the applicability of the "clear and present danger" test criticize one another and their tenets may collide, but in this case, the majority opinion in unequivocal the Establishment Clause prohibits the state from In Iglesia therefore, the Court went back to Gerona terms applied the "clear and present danger" test to protecting any religion from this kind of attack. insofar as holding that religious freedom cannot be religious speech. This case involved the television invoked to seek exemption from compliance with a program, "Ang Iglesia ni Cristo," regularly aired over The Court then called to mind the "clear and present law that burdens one's religious exercise. It also the television. Upon petitioner Iglesia ni Cristo's danger" test first laid down in the American Bible reiterated the "clear and present danger" test in submission of the VTR tapes of some of its episodes, Society case and the test of "immediate and grave American Bible Society and the "grave and imminent respondent Board of Review for Motion Pictures and danger" with "infringement only to the smallest danger" in Victoriano, but this time clearly justifying Television classified these as "X" or not for public extent necessary to avoid danger" in Victoriano and its applicability and showing how the test was applied viewing on the ground that they "offend and pointed out that the reviewing board failed to apply to the case. constitute an attack against other religions which is the "clear and present danger" test. Applying the test, expressly prohibited by law." Invoking religious the Court noted, viz: freedom, petitioner alleged that the Board acted In sum, the Philippine Supreme Court has adopted a without jurisdiction or with grave abuse of discretion posture of not invalidating a law offensive to The records show that the decision of the religious freedom, but carving out an exception or in requiring it to submit the VTR tapes of its respondent Board, affirmed by the television program and x-rating them. While upholding an exception to accommodate religious respondent appellate court, is completely exercise where it is justified.353 upholding the Board's power to review the Iglesia bereft of findings of facts to justify the television show, the Court was emphatic about the conclusion that the subject video tapes 2. Establishment Clause preferred status of religious freedom. Quoting Justice constitute impermissible attacks against Cruz' commentary on the constitution, the Court held another religion. There is no showing that freedom to believe is absolute but freedom to act whatsoever of the type of harm the tapes In Philippine jurisdiction, there is substantial on one's belief, where it affects the public, is subject will bring about especially the gravity and agreement on the values sought to be protected by the to the authority of the state. The commentary quoted imminence of the threatened harm. Prior Establishment Clause, namely, voluntarism and Justice Frankfurter's dissent in Barnette which was restraint on speech, including religious insulation of the political process from interfaith quoted in Gerona, viz: "(t)he constitutional provision speech, cannot be justified by hypothetical dissension. The first, voluntarism, has both a personal on religious freedom terminated disabilities, it did not fears but only by the showing of a and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as principle in our country, it is sufficient to say It is obvious that while the issuance and sale discussed above, is also protected by the free exercise that our history, not to speak of the history of the stamps in question may be said to be clause. From the religious perspective, religion of mankind, has taught us that the union of inseparably linked with an event of a requires voluntarism because compulsory faith lacks church and state is prejudicial to both, for religious character, the resulting propaganda, religious efficacy. Compelled religion is a occasions might arise when the state will use if any, received by the Roman Catholic contradiction in terms.354 As a social value, it means the church, and the church the state, as a Church, was not the aim and purpose of the that the "growth of a religious sect as a social force weapon in the furtherance of their respective Government. We are of the opinion that the must come from the voluntary support of its members ends and aims . . . It is almost trite to say Government should not be embarrassed in because of the belief that both spiritual and secular now that in this country we enjoy both its activities simply because of incidental society will benefit if religions are allowed to religious and civil freedom. All the officers results, more or less religious in character, if compete on their own intrinsic merit without benefit of the Government, from the highest to the the purpose had in view is one which could of official patronage. Such voluntarism cannot be lowest, in taking their oath to support and legitimately be undertaken by appropriate achieved unless the political process is insulated from defend the Constitution, bind themselves to legislation. The main purpose should not be religion and unless religion is insulated from recognize and respect the constitutional frustrated by its subordination to mere politics."355 Non-establishment thus calls for guarantee of religious freedom, with its incidental results not contemplated. (Vide government neutrality in religious matters to uphold inherent limitations and recognized Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. voluntarism and avoid breeding interfaith implications. It should be stated that what is Ct. Rep., 121; 44 Law. ed., 168)360(emphases dissension.356 guaranteed by our Constitution is religious supplied) liberty, not mere toleration. The neutrality principle was applied in the first In so deciding the case, the Court, citing U.S. significant non-establishment case under the 1935 Religious freedom, however, as a constitutional jurisprudence, laid down the doctrine that a law or Constitution. In the 1937 case of Aglipay v. mandate is not an inhibition of profound reverence government action with a legitimate secular purpose Ruiz,357 the Philippine Independent Church for religion and is not a denial of its influence in does not offend the Establishment Clause even if it challenged the issuance and sale of postage stamps human affairs. Religion as a profession of faith to an incidentally aids a particular religion. commemorating the Thirty-Third International active power that binds and elevates man to his Eucharistic Congress of the Catholic Church on the Creator is recognized. And, in so far as it instills into Almost forty-five years after Aglipay came Garces v. ground that the constitutional prohibition against the the minds the purest principles of morality, its Estenzo.361 Although the Court found that the use of public money for religious purposes has been influence is deeply felt and highly appreciated. When separation of church and state was not at issue as the violated. It appears that the Director of Posts issued the Filipino people, in the preamble of their controversy was over who should have custody of a the questioned stamps under the provisions of Act Constitution, implored "the aid of Divine Providence, saint's image, it nevertheless made pronouncements 358 No. 4052 which appropriated a sum for the cost of in order to establish a government that shall embody on the separation of church and state along the same plates and printing of postage stamps with new their ideals, conserve and develop the patrimony of line as the Aglipay ruling. The Court held that there designs and authorized the Director of Posts to the nation, promote the general welfare, and secure to was nothing unconstitutional or illegal in holding a dispose of the sum in a manner and frequency themselves and their posterity the blessings of fiesta and having a patron saint for the barrio. It "advantageous to the Government." The printing and independence under a regime of justice, liberty and adhered to the barrio resolutions of the barangay issuance of the postage stamps in question appears to democracy," they thereby manifested their intense involved in the case stating that the barrio fiesta is a have been approved by authority of the President. religious nature and placed unfaltering reliance upon socio-religious affair, the celebration of which is an Justice Laurel, speaking for the Court, took pains Him who guides the destinies of men and nations. "ingrained tradition in rural communities" that explaining religious freedom and the role of religion The elevating influence of religion in human society "relieves the monotony and drudgery of the lives of in society, and in conclusion, found no constitutional is recognized here as elsewhere. In fact, certain the masses." Corollarily, the Court found nothing infirmity in the issuance and sale of the stamps, viz: general concessions are indiscriminately accorded to illegal about any activity intended to facilitate the 359 religious sects and denominations. . . worship of the patron saint such as the acquisition The prohibition herein expressed is a direct and display of his image bought with funds obtained corollary of the principle of separation of xxx xxx xxx through solicitation from the barrio residents. The church and state. Without the necessity of Court pointed out that the image of the patron saint adverting to the historical background of this was "purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San First Amendment of the United States control over certain properties of the Philippine Vicente Ferrer, and not for the purpose of favoring Constitution by an appointee to the office of Independent Church, the resolution of which any religion nor interfering with religious matters or notary public in Maryland, who was refused necessitated the determination of who was the the religious beliefs of the barrio residents." Citing a commission as he would not declare a legitimate bishop of the church. The Court cited the Aglipay ruling, the Court declared, viz: belief in God. He failed in the Maryland American Jurisprudence,366 viz: Court of Appeals but prevailed in the United Not every governmental activity which States Supreme Court, which reversed the Where, however, a decision of an involves the expenditure of public funds and state court decision. It could not have been ecclesiastical court plainly violates the law it which has some religious tint is violative of otherwise. As emphatically declared by professes to administer, or is in conflict with the constitutional provisions regarding Justice Black: 'this Maryland religious test the law of the land, it will not be followed separation of church and state, freedom of for public office unconstitutionally invades by the civil courts. . . In some instances, not worship and banning the use of public the appellant's freedom of belief and religion only have the civil courts the right to inquire money or property. and therefore cannot be enforced against into the jurisdiction of the religious tribunals him. and the regularity of their procedure, but Then came the 1978 case of Pamil v. Teleron, et they have subjected their decisions to the al.362 which presented a novel issue involving the The analogy appears to be obvious. In that test of fairness or to the test furnished by the 367 religion clauses. In this case, Section 2175 of the case, it was lack of belief in God that was a constitution and the law of the church. . . Revised Administrative Code of 1917 disqualifying disqualification. Here being an ecclesiastic ecclesiastics from appointment or election as and therefore professing a religious faith The Court then ruled that petitioner Fonacier was municipal officer was challenged. After protracted suffices to disqualify for a public office. legitimately ousted and respondent de los Reyes was deliberation, the Court was sharply divided on the There is thus an incompatibility between the the duly elected head of the Church, based on their issue. Seven members of the Court, one short of the Administrative Code provision relied upon internal laws. To finally dispose of the property issue, number necessary to declare a law unconstitutional, by petitioner and an express constitutional the Court, citingWatson v. Jones,368 declared that the 364 approached the problem from a free exercise mandate. rule in property controversies within religious perspective and considered the law a religious test congregations strictly independent of any other offensive of the constitution. They were Justices On the other hand, the prevailing five other members superior ecclesiastical association (such as the Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., of the Court - Chief Justice Castro, Justices Barredo, Philippine Independent Church) is that the rules for Santos, Fernandez, and Guerrero. Then Associate Makasiar, Antonio and Aquino - approached the case resolving such controversies should be those of any Justice Fernando, the ponente, stated, viz: "The from a non-establishment perspective and upheld the voluntary association. If the congregation adopts the challenged Administrative Code provision, certainly law as a safeguard against the constant threat of union majority rule then the majority should prevail; if it insofar as it declares ineligible ecclesiastics to any of church and state that has marked Philippine adopts adherence to duly constituted authorities elective or appointive office, is, on its face, history. Justice Makasiar stated: "To allow an within the congregation, then that should be followed. inconsistent with the religious freedom guaranteed by ecclesiastic to head the executive department of a Applying these rules, Fonacier lost the case. While the Constitution." Citing Torcaso v. Watkins,363 the municipality is to permit the erosion of the principle the Court exercised jurisdiction over the case, it ponencia held, viz: of separation of Church and State and thus open the nevertheless refused to touch doctrinal and floodgates for the violation of the cherished liberty of disciplinary differences raised,viz: Torcaso v. Watkins, an American Supreme religion which the constitutional provision seeks to Court decision, has persuasive weight. What enforce and protect." Consequently, the Court upheld The amendments of the constitution, was there involved was the validity of a the validity of Section 2175 of the Revised restatement of articles of religion and provision in the Maryland Constitution Administrative Code and declared respondent priest abandonment of faith or abjuration alleged prescribing that 'no religious test ought ever ineligible for the office of municipal mayor. by appellant, having to do with faith, to be required as a disqualification for any practice, doctrine, form of worship, office or profit or trust in this State, other Another type of cases interpreting the establishment ecclesiastical law, custom and rule of a than a declaration of belief in the existence clause deals with intramural religious church and having reference to the power of of God ***.' Such a constitutional disputes. Fonacier v. Court of Appeals365 is the excluding from the church those allegedly requirement was assailed as contrary to the leading case. The issue therein was the right of unworthy of membership, are unquestionably ecclesiastical matters which face of religious differences, and does not Finally, in some cases, a practice is obviously are outside the province of the civil courts.369 represent that involvement of religious with violative of the Establishment Clause but the Court secular institutions which it is the object of nevertheless upholds it. In Schempp, Justice Brennan VIII. Free Exercise Clause vis-à-vis Establishment the Establishment Clause to stated: "(t)here are certain practices, conceivably 371 Clause forestall. (emphasis supplied) violative of the Establishment Clause, the striking down of which might seriously interfere with certain In both Philippine and U.S. jurisdiction, it is Tension also exists when a law of general application religious liberties also protected by the First recognized that there is a tension between the Free provides exemption in order to uphold free exercise Amendment." Exercise Clause and the Establishment Clause in their as in the Walz case where the appellant argued that application. There is a natural antagonism between a the exemption granted to religious organizations, in How the tension between the Establishment Clause command not to establish religion and a command effect, required him to contribute to religious bodies and the Free Exercise Clause will be resolved is a not to inhibit its practice; this tension between the in violation of the Establishment Clause. But the question for determination in the actual cases that religion clauses often leaves the courts with a choice Court held that the exemption was not a case of come to the Court. In cases involving both the between competing values in religion cases.370 establishing religion but merely upholding the Free Establishment Clause and the Free Exercise Clause, Exercise Clause by "sparing the exercise of religion the two clauses should be balanced against each One set of facts, for instance, can be differently from the burden of property taxation levied on private other. The courts must review all the relevant facts viewed from the Establishment Clause perspective profit institutions." Justice Burger wrote,viz: and determine whether there is a sufficiently strong and the Free Exercise Clause point of view, and free exercise right that should prevail over the decided in opposite directions. In Pamil, the majority (t)he Court has struggled to find a neutral Establishment Clause problem. In the United States, gave more weight to the religious liberty of the priest course between the two religion clauses, it has been proposed that in balancing, the free in holding that the prohibition of ecclesiastics to both of which are cast in absolute terms, and exercise claim must be given an edge not only assume elective or appointive government positions either of which, if expanded to a logical because of abundant historical evidence in the was violative of the Free Exercise Clause. On the extreme, would tend to clash with the colonial and early national period of the United States 372 other hand, the prevailing five justices gave other. that the free exercise principle long antedated any importance to the Establishment Clause in stating that broad-based support of disestablishment, but also the principle of separation of church and state Similarly, the Philippine Supreme Court in the because an Establishment Clause concern raised by justified the prohibition. Victoriano case held that the exemption afforded by merely accommodating a citizen's free exercise of law to religious sects who prohibit their members religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side Tension is also apparent when a case is decided to from joining unions did not offend the Establishment Clause. We ruled, viz: with the Establishment Clause in cases involving uphold the Free Exercise Clause and consequently tension between the two religion clauses, the courts exemptions from a law of general applicability are convey a message of hostility to the religion that in afforded by the Court to the person claiming religious We believe that in enacting Republic Act that case cannot be freely exercised.374 American freedom; the question arises whether the exemption No. 3350, Congress acted consistently with professor of constitutional law, Laurence Tribe, does not amount to support of the religion in violation the spirit of the constitutional provision. It similarly suggests that the free exercise principle of the Establishment Clause. This was the case in the acted merely to relieve the exercise of "should be dominant in any conflict with the anti- Free Exercise Clause case of Sherbert where the U.S. religion, by certain persons, of a burden that establishment principle." This dominance would be Supreme Court ruled, viz: is imposed by union security 373 the result of commitment to religious tolerance agreements. (emphasis supplied) instead of "thwarting at all costs even the faintest In holding as we do, plainly we are not appearance of establishment."375 In our jurisdiction, fostering the "establishment" of the Seventh- Fr. Joaquin Bernas, S.J. asserts that a literal day Adventist religion in South Carolina, for interpretation of the religion clauses does not suffice. the extension of unemployment benefits to Modern society is characterized by the expanding Sabbatarians in common with Sunday regulatory arm of government that reaches a variety worshippers reflects nothing more than the of areas of human conduct and an expanding concept governmental obligation of neutrality in the of religion. To adequately meet the demands of this modern society, the societal values the religion streams of U.S. jurisprudence. One might simply Before the advent of the 1935 Constitution, Section clauses are intended to protect must be considered in conclude that the Philippine Constitutions and 344 of the Administrative Code provided for a similar their interpretation and resolution of the tension. This, jurisprudence also inherited the disarray of U.S. exemption. To the same effect, the Tydings-McDuffie in fact, has been the approach followed by the religion clause jurisprudence and the two identifiable Law contained a limitation on the taxing power of the Philippine Court.376 streams; thus, when a religion clause case comes Philippine government during the Commonwealth before the Court, a separationist approach or a period.379 The original draft of the Constitution placed IX. Philippine Religion Clauses: Nature, Purpose, benevolent neutrality approach might be adopted and this provision in an ordinance to be appended to the Tests Based on Philippine and American Religion each will have U.S. authorities to support it. Or, one Constitution because this was among the provisions Clause History, Law and Jurisprudence might conclude that as the history of the First prescribed by the Tydings-McDuffie Law. However, Amendment as narrated by the Court in Everson in order to have a constitutional guarantee for such an The history of the religion clauses in the 1987 supports the separationist approach, Philippine exemption even beyond the Commonwealth period, Constitution shows that these clauses were largely jurisprudence should also follow this approach in the provision was introduced in the body of the adopted from the First Amendment of the U.S. light of the Philippine religion clauses' history. As a Constitution on the rationale that "if churches, Constitution. The religion clauses in the First result, in a case where the party claims religious convents [rectories or parsonages] and their Amendment were contained in every organic Act of liberty in the face of a general law that inadvertently accessories are always necessary for facilitating the the Philippines under the American regime. When the burdens his religious exercise, he faces an almost exercise of such [religious] freedom, it would also be insurmountable wall in convincing the Court that the natural that their existence be also guaranteed by delegates of the 1934 Constitutional Convention 380 adopted a Bill of Rights in the 1935 Constitution, wall of separation would not be breached if the Court exempting them from taxation." The amendment grants him an exemption. These conclusions, was readily approved with 83 affirmative votes they purposely retained the phraseology of the 381 religion clauses in the First Amendment as contained however, are not and were never warranted by the against 15 negative votes. in the Jones Law in order to adopt its historical 1987, 1973 and 1935 Constitutions as shown by other background, nature, extent and limitations. At that provisions on religion in all three constitutions. It is a The Philippine constitutional provision on tax time, there were not too many religion clause cases in cardinal rule in constitutional construction that the exemption is not found in the U.S. Constitution. In the United States as the U.S. Supreme Court decided constitution must be interpreted as a whole and the U.S. case of Walz, the Court struggled to justify an Establishment Clause issue only in the 1947 apparently conflicting provisions should be this kind of exemption to withstand Establishment reconciled and harmonized in a manner that will give Clause scrutiny by stating that church property was Everson case. The Free Exercise Clause cases were 377 also scarce then. Over the years, however, with the to all of them full force and effect. From this not singled out but was exempt along with property expanding reach of government regulation to a whole construction, it will be ascertained that the intent of owned by non-profit, quasi-public corporations gamut of human actions and the growing plurality the framers was to adopt a benevolent neutrality because the state upheld the secular policy "that and activities of religions, the number of religion approach in interpreting the religious clauses in the considers these groups as beneficial and stabilizing Philippine constitutions, and the enforcement of this influences in community life and finds this clause cases in the U.S. exponentially increased. With 378 this increase came an expansion of the interpretation intent is the goal of construing the constitution. classification useful, desirable, and in the public of the religion clauses, at times reinforcing prevailing interest." The Court also stated that the exemption case law, at other times modifying it, and still at other We first apply the hermeneutical scalpel to dissect the was meant to relieve the burden on free exercise times creating contradictions so that two main 1935 Constitution. At the same time that the 1935 imposed by property taxation. At the same time, streams of jurisprudence had become identifiable. Constitution provided for an Establishment Clause, it however, the Court acknowledged that the exemption The first stream employs separation while the second also provided for tax exemption of church property in was an exercise of benevolent neutrality to employs benevolent neutrality in interpreting the Article VI, Section 22, par. 3(b), viz: accommodate a long-standing tradition of exemption. religious clauses. Alongside this change in the With the inclusion of the church property tax landscape of U.S. religion clause jurisprudence, the (3) Cemeteries, churches, and parsonages or exemption in the body of the 1935 Constitution and Philippines continued to adopt the 1935 Constitution convents, appurtenant thereto, and all lands, not merely as an ordinance appended to the religion clauses in the 1973 Constitution and later, the buildings, and improvements used Constitution, the benevolent neutrality referred to in 1987 Constitution. Philippine jurisprudence and exclusively for religious, charitable, or the Walz case was given constitutional imprimatur commentaries on the religious clauses also continued educational purposes shall be exempt from under the regime of the 1935 Constitution. The to borrow authorities from U.S. jurisprudence without taxation. provision, as stated in the deliberations, was an articulating the stark distinction between the two acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby basis of a similar United States practice. But it was It shall be lawful, however, for the priest or evincing benevolence towards religious exercise. also pointed out that the U.S. Constitution did not minister of any church established in the contain a prohibition on appropriations similar to the town where a public school is situated, 384 Similarly, the 1935 Constitution provides in Article Jones Law. To settle the question on the either in person or by a designated teacher of VI, Section 23(3), viz: constitutionality of payment of salaries of religious religion, to teach religion for one-half hour officers in certain government institutions and to three times a week, in the school building, to (3) No public money, or property shall ever avoid the feared situation where the enumerated those public-school pupils whose parents or be appropriated, applied, or used, directly or government institutions could not employ religious guardians desire it and express their desire indirectly, for the use, benefit, or support of officials with compensation, the exception in the therefor in writing filed with the principal of any sect, church, denomination, sectarian 1935 provision was introduced and approved. The the school . . . provision garnered 74 affirmative votes against 34 institution or system of religion, for the use, 385 benefit or support of any priest, preacher, negative votes. As pointed out in the deliberations, During the debates of the Constitutional Convention, ministers or other religious teacher or the U.S. Constitution does not provide for this there were three positions on the issue of religious dignitary as such, except when such priest, exemption. However, the U.S. Supreme Court in instruction in public schools. The first held that the preacher, minister, or dignitary is assigned to Cruz v. Beto, apparently taking a benevolent teaching of religion in public schools should be the armed forces or to any penal institution, neutrality approach, implicitly approved the state of prohibited as this was a violation of the principle of orphanage, or leprosarium. (emphasis Texas' payment of prison chaplains' salaries as separation of church and state and the prohibition supplied) reasonably necessary to permit inmates to practice against the use of public funds for religious purposes. their religion. Also, in the Marsh case, the U.S. The second favored the proposed optional religious Supreme Court upheld the long-standing tradition of The original draft of this provision was a instruction as authorized by the Administrative Code beginning legislative sessions with prayers offered by and recognized that the actual practice of allowing reproduction of a portion of section 3 of the Jones legislative chaplains retained at taxpayers' expense. Law which did not contain the above exception, viz: religious instruction in the public schools was The constitutional provision exempting religious sufficient proof that religious instruction was not and officers in government institutions affirms the would not be a source of religious discord in the No public money or property shall ever be departure of the Philippine Constitution from the U.S. schools.386 The third wanted religion to be included as appropriated, applied, or used, directly or Constitution in its adoption of benevolent neutrality a course in the curriculum of the public schools but indirectly, for the use, benefit, or support of in Philippine jurisdiction. While the provision would only be taken by pupils at the option of their any sect, church denomination, sectarian prohibiting aid to religion protects the wall of parents or guardians. After several rounds of debate, institution, or system of religion, or for the separation between church and state, the provision at the second camp prevailed, thus raising to use, benefit or support of any priest, the same time gives constitutional sanction to a 382 constitutional stature the optional teaching of religion preacher, minister, or dignitary as such… breach in the wall. in public schools, despite the opposition to the provision on the ground of separation of church and In the deliberations of this draft provision, an To further buttress the thesis that benevolent state.387 As in the provisions on church property tax amendment was proposed to strike down everything neutrality is contemplated in the Philippine exemption and compensation of religious officers in after "church denomination."383 The proposal Establishment Clause, the 1935 Constitution provides government institutions, the U.S. Constitution does intended to imitate the silence of the U.S. for optional religious instruction in public schools in not provide for optional religious instruction in public Constitution on the subject of support for priests and Article XIII, Section 5, viz: schools. In fact, in the McCollum case, the Court, ministers. It was also an imitation of the silence of the using strict neutrality, prohibited this kind of religious Malolos Constitution to restore the situation under the . . . Optional religious instruction shall be instruction where the religion teachers would conduct Malolos Constitution and prior to the Jones Law, maintained in the public schools as now class within the school premises. The constitutional when chaplains of the revolutionary army received authorized by law. . . provision on optional religious instruction shows that pay from public funds with no doubt about its Philippine jurisdiction rejects the strict neutrality legality. It was pointed out, however, that even with The law then applicable was Section 928 of the approach which does not allow such accommodation the prohibition under the Jones Law, appropriations of religion. were made to chaplains of the national penitentiary Administrative Code, viz: and the Auditor General upheld its validity on the Finally, to make certain the Constitution's and the government." With the adoption of these Article VI, Section 28(3) of the 1987 Constitution. benevolence to religion, the Filipino people provisions in the 1973 Constitution, the benevolent The same is true with respect to the prohibition on the "implored (ing) the aid of Divine Providence (,) in neutrality approach continued to enjoy constitutional use of public money and property for religious order to establish a government that shall embody sanction. In Article XV, Section 15 of the General purposes and the salaries of religious officers serving their ideals, conserve and develop the patrimony of Provisions of the 1973 Constitution this provision in the enumerated government institutions, now the nation, promote the general welfare, and secure to made its maiden appearance: "(t)he separation of contained in Article VI, Section 29(2). Commissioner themselves and their posterity the blessings of church and state shall be inviolable." The 1973 Bacani, however, probed into the possibility of independence under a regime of justice, liberty, and Constitution retained the portion of the preamble allowing the government to spend public money for democracy, (in) ordain(ing) and promulgat(ing) this "imploring the aid of Divine Providence." purposes which might have religious connections but Constitution." A preamble is a "key to open the mind which would benefit the public generally. Citing the of the authors of the constitution as to the evil sought In the Report of the Ad Hoc Sub-Committee on Aglipay case, Commissioner Rodrigo explained that to be prevented and the objects sought to be Goals, Principles and Problems of the Committee on if a public expenditure would benefit the government 388 accomplished by the provisions thereof." There was Church and State of the 1971 Constitutional directly, such expense would be constitutional even if no debate on the inclusion of a "Divine Providence" Convention, the question arose as to whether the it results to an incidental benefit to religion. With that in the preamble. In Aglipay, Justice Laurel noted that "absolute" separation of Church and State as explanation, Commissioner Bacani no longer pursued 394 when the Filipino people implored the aid of Divine enunciated in the Everson case and reiterated in his proposal. Providence, "(t)hey thereby manifested their intense Schempp - i.e., neutrality not only as between one religious nature and placed unfaltering reliance upon religion and another but even as between religion and The provision on optional religious instruction was Him who guides the destinies of men and non-religion - is embodied in the Philippine also adopted in the 1987 Constitution in Article XIV, 389 nations." The 1935 Constitution's religion clauses, Constitution. The sub-committee's answer was that it Section 3(3) with the modification that it was understood alongside the other provisions on religion did not seem so. Citing the Aglipay case where expressly provided that optional instruction shall be in the Constitution, indubitably shows not hostility, Justice Laurel recognized the "elevating influence of conducted "within the regular class hours" and 390 but benevolence, to religion. religion in human society" and the Filipinos' "without additional cost to the government". There imploring of Divine Providence in the 1935 were protracted debates on what additional cost The 1973 Constitution contained in Article VI, Constitution, the sub-committee asserted that the state meant, i.e., cost over and above what is needed for Section 22(3) a provision similar to Article VI, may not prefer or aid one religion over another, but normal operations such as wear and tear, electricity, Section 22, par. 3(b) of the 1935 Constitution on may aid all religions equally or the cause of religion janitorial services,395 and when during the day exemption of church property from taxation, with the in general.391 Among the position papers submitted to instruction would be conducted.396 In deliberating on modification that the property should not only be the Committee on Church on State was a background the phrase "within the regular class hours," used directly, but also actually and exclusively for paper for reconsideration of the religion provisions of Commissioner Aquino expressed her reservations to religious or charitable purposes. Parallel to Article the constitution by Fr. Bernas, S.J. He stated therein this proposal as this would violate the time-honored VI, Section 23(3) of the 1935 Constitution, the 1973 that the Philippine Constitution is not hostile to principle of separation of church and state. She cited Constitution also contained a similar provision on religion and in fact recognizes the value of religion the McCullom case where religious instruction during salaries of religious officials employed in the and accommodates religious values.392 Stated regular school hours was stricken down as enumerated government institutions. Article XIII, otherwise, the Establishment Clause contemplates not unconstitutional and also cited what she considered Section 5 of the 1935 Constitution on optional a strict neutrality but benevolent neutrality. While the the most liberal interpretation of separation of church religious instruction was also carried to the 1973 Committee introduced the provision on separation of and state in Surach v. Clauson where the U.S. Constitution in Article XV, Section 8(8) with the church and state in the General Provisions of the Supreme Court allowed only release time for modification that optional religious instruction shall 1973 Constitution, this was nothing new as according religious instruction. Fr. Bernas replied, viz: be conducted "as may be provided by law" and not to it, this principle was implied in the 1935 "as now authorized by law" as stated in the 1935 Constitution even in the absence of a similar . . . the whole purpose of the provision was 393 Constitution. The 1973 counterpart, however, made provision. to provide for an exception to the rule on explicit in the constitution that the religious non-establishment of religion, because if it instruction in public elementary and high schools Then came the 1987 Constitution. The 1973 were not necessary to make this exception shall be done "(a)t the option expressed in writing by Constitutional provision on tax exemption of church for purposes of allowing religious the parents or guardians, and without cost to them property was retained with minor modification in instruction, then we could just drop the amendment. But, as a matter of fact, this is adopting these constitutions, did not intend to erect a cannot adopt a doctrinal formulation that can necessary because we are trying to introduce high and impregnable wall of separation between the eliminate the difficult questions of judgment in something here which is contrary to church and state.402 The strict neutrality approach determining the degree of burden on religious American practices.397 (emphasis supplied) which examines only whether government action is practice or importance of the state interest or the for a secular purpose and does not consider sufficiency of the means adopted by the state to "(W)ithin regular class hours" was approved. inadvertent burden on religious exercise protects such pursue its interest, the Court can set a doctrine on the a rigid barrier. By adopting the above constitutional ideal towards which religious clause jurisprudence 403 he provision on the separation of church and state provisions on religion, the Filipinos manifested their should be directed. We here lay down the doctrine was retained but placed under the Principles in the adherence to the benevolent neutrality approach in that in Philippine jurisdiction, we adopt the Declaration of Principles and State Policies in Article interpreting the religion clauses, an approach that benevolent neutrality approach not only because of its II, Section 6. In opting to retain the wording of the looks further than the secular purposes of government merits as discussed above, but more importantly, provision, Fr. Bernas stated, viz: action and examines the effect of these actions on because our constitutional history and interpretation religious exercise. Benevolent neutrality recognizes indubitably show that benevolent neutrality is the the religious nature of the Filipino people and the launching pad from which the Court should take off . . . It is true, I maintain, that as a legal elevating influence of religion in society; at the same in interpreting religion clause cases. The ideal statement the sentence 'The separation of time, it acknowledges that government must pursue towards which this approach is directed is the Church and State is inviolable,' is almost a its secular goals. In pursuing these goals, however, protection of religious liberty "not only for a useless statement; but at the same time it is a government might adopt laws or actions of general minority, however small- not only for a majority, harmless statement. Hence, I am willing to applicability which inadvertently burden religious however large- but for each of us" to the greatest tolerate it there, because, in the end, if we exercise. Benevolent neutrality gives room for extent possible within flexible constitutional limits. look at the jurisprudence on Church and accommodation of these religious exercises as State, arguments are based not on the required by the Free Exercise Clause. It allows these statement of separation of church and state Benevolent neutrality is manifest not only in the breaches in the wall of separation to uphold religious Constitution but has also been recognized in but on the non-establishment clause in the liberty, which after all is the integral purpose of the Bill of Rights.398 Philippine jurisprudence, albeit not expressly called religion clauses. The case at bar involves this first "benevolent neutrality" or "accommodation". In type of accommodation where an exemption is sought Aglipay, the Court not only stressed the "elevating The preamble changed "Divine Providence" in the from a law of general applicability that inadvertently influence of religion in human society" but 1935 and 1973 Constitutions to "Almighty God." burdens religious exercise. acknowledged the Constitutional provisions on There was considerable debate on whether to use exemption from tax of church property, salary of "Almighty God" which Commissioner Bacani said Although our constitutional history and interpretation religious officers in government institutions, and was more reflective of Filipino religiosity, but mandate benevolent neutrality, benevolent neutrality optional religious instruction as well as the provisions Commissioner Rodrigo recalled that a number of does not mean that the Court ought to grant of the Administrative Code making Thursday and atheistic delegates in the 1971 Constitutional exemptions every time a free exercise claim comes Friday of the Holy Week, Christmas Day and Convention objected to reference to a personal 399 before it. But it does mean that the Court will not Sundays legal holidays. In Garces, the Court not only God. "God of History", "Lord of History" and look with hostility or act indifferently towards recognized the Constitutional provisions "God" were also proposed, but the phrase "Almighty religious beliefs and practices and that it will strive to indiscriminately granting concessions to religious God" prevailed. Similar to the 1935 and 1971 accommodate them when it can within flexible sects and denominations, but also acknowledged that Constitutions, it is obvious that the 1987 Constitution constitutional limits; it does mean that the Court will government participation in long-standing traditions is not hostile nor indifferent to religion;400 its wall of 401 not simply dismiss a claim under the Free Exercise which have acquired a social character - "the barrio separation is not a wall of hostility or indifference. Clause because the conduct in question offends a law fiesta is a socio-religious affair" - does not offend the or the orthodox view for this precisely is the Establishment Clause. In Victoriano, the Court upheld The provisions of the 1935, 1973 and 1987 protection afforded by the religion clauses of the the exemption from closed shop provisions of constitutions on tax exemption of church property, Constitution, i.e., that in the absence of legislation members of religious sects who prohibited their salary of religious officers in government institutions, granting exemption from a law of general members from joining unions upon the justification optional religious instruction and the preamble all applicability, the Court can carve out an exception that the exemption was not a violation of the reveal without doubt that the Filipino people, in when the religion clauses justify it. While the Court Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, exercise could be used to countenance actions that "grave and immediate danger" tests were appropriate members of the Jehovah's Witnesses were exempt would undo the constitutional order that guarantees as speech has easily discernible or immediate effects. from saluting the flag as required by law, on the basis free exercise.405 The Gerona and German doctrine, aside from having not of a statute granting exemption but of the Free been overruled, is not congruent with the benevolent Exercise Clause without offending the Establishment The all important question then is the test that should neutrality approach, thus not appropriate in this Clause. be used in ascertaining the limits of the exercise of jurisdiction. Similar to Victoriano, the present case religious freedom. Philippine jurisprudence involves purely conduct arising from religious belief. While the U.S. and Philippine religion clauses are articulates several tests to determine these limits. The "compelling state interest" test is proper where similar in form and origin, Philippine constitutional Beginning with the first case on the Free Exercise conduct is involved for the whole gamut of human law has departed from the U.S. jurisprudence of Clause, American Bible Society, the Court mentioned conduct has different effects on the state's interests: employing a separationist or strict neutrality the "clear and present danger" test but did not employ some effects may be immediate and short-term while approach. The Philippine religion clauses have taken it. Nevertheless, this test continued to be cited in others delayed and far-reaching. A test that would a life of their own, breathing the air of benevolent subsequent cases on religious liberty. The Gerona protect the interests of the state in preventing a neutrality and accommodation. Thus, the wall of case then pronounced that the test of permissibility of substantive evil, whether immediate or delayed, is separation in Philippine jurisdiction is not as high and religious freedom is whether it violates the therefore necessary. However, not any interest of the impregnable as the wall created by the U.S. Supreme established institutions of society and law. The state would suffice to prevail over the right to Court in Everson.404 While the religion clauses are a Victoriano case mentioned the "immediate and grave religious freedom as this is a fundamental right that unique American experiment which understandably danger" test as well as the doctrine that a law of enjoys a preferred position in the hierarchy of rights - came about as a result of America's English general applicability may burden religious exercise "the most inalienable and sacred of all human rights", 406 background and colonization, the life that these provided the law is the least restrictive means to in the words of Jefferson. This right is sacred for an clauses have taken in this jurisdiction is the accomplish the goal of the law. The case also used, invocation of the Free Exercise Clause is an appeal to Philippines' own experiment, reflective of the albeit inappropriately, the "compelling state interest" a higher sovereignty. The entire constitutional order Filipinos' own national soul, history and tradition. test. After Victoriano, German went back to the of limited government is premised upon an 407 After all, "the life of the law. . . has been experience." Gerona rule. Ebralinag then employed the "grave and acknowledgment of such higher sovereignty, thus immediate danger" test and overruled the Gerona test. the Filipinos implore the "aid of Almighty God in But while history, constitutional construction, and The fairly recent case of Iglesia ni Cristo went back order to build a just and humane society and establish earlier jurisprudence unmistakably show that to the "clear and present danger" test in the maiden a government." As held in Sherbert, only the gravest benevolent neutrality is the lens with which the Court case of American Bible Society. Not surprisingly, all abuses, endangering paramount interests can limit ought to view religion clause cases, it must be the cases which employed the "clear and present this fundamental right. A mere balancing of interests stressed that the interest of the state should also be danger" or "grave and immediate danger" test which balances a right with just a colorable state afforded utmost protection. To do this, a test must be involved, in one form or another, religious speech as interest is therefore not appropriate. Instead, only a applied to draw the line between permissible and this test is often used in cases on freedom of compelling interest of the state can prevail over the forbidden religious exercise. It is quite paradoxical expression. On the other hand, the Gerona and fundamental right to religious liberty. The test that in order for the members of a society to exercise German cases set the rule that religious freedom will requires the state to carry a heavy burden, a their freedoms, including their religious liberty, the not prevail over established institutions of society and compelling one, for to do otherwise would allow the law. Gerona, however, which was the authority cited state to batter religion, especially the less powerful law must set a limit when their exercise offends the 408 higher interest of the state. To do otherwise is self- by German has been overruled by Ebralinag which ones until they are destroyed. In determining which employed the "grave and immediate danger" test. shall prevail between the state's interest and religious defeating for unlimited freedom would erode order in 409 the state and foment anarchy, eventually destroying Victoriano was the only case that employed the liberty, reasonableness shall be the guide. The the very state its members established to protect their "compelling state interest" test, but as explained "compelling state interest" serves the purpose of freedoms. The very purpose of the social contract by previously, the use of the test was inappropriate to the revering religious liberty while at the same time which people establish the state is for the state to facts of the case. affording protection to the paramount interests of the protect their liberties; for this purpose, they give up a state. This was the test used in Sherbert which portion of these freedoms - including the natural right The case at bar does not involve speech as in involved conduct, i.e. refusal to work on Saturdays. to free exercise - to the state. It was certainly not the American Bible Society, Ebralinag and Iglesia ni In the end, the "compelling state interest" test, by intention of the authors of the constitution that free Cristo where the "clear and present danger" and upholding the paramount interests of the state, seeks to protect the very state, without which, religious distinguishing factor that sets the case at bar apart embody this agreement in a constitution, hence liberty will not be preserved. from the cited precedents, i.e., as a defense, referred to as the fundamental law of the land. A respondent invokes religious freedom since her complete break of this fundamental agreement such X. Application of the Religion Clauses to the Case religion, the Jehovah's Witnesses, has, after thorough as by revolution destroys the old order and creates a 415 at Bar investigation, allowed her conjugal arrangement with new one. Similarly, in the realm of morality, the Quilapio based on the church's religious beliefs and breakdown of the fundamental agreement about the A. The Religion Clauses and Morality practices. This distinguishing factor compels the manner a society's members should behave and Court to apply the religious clauses to the case at bar. govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its In a catena of cases, the Court has ruled that Without holding that religious freedom is not in issue moral code by law as it does to preserve its government employees engaged in illicit relations are government and other essential institutions.416 From guilty of "disgraceful and immoral conduct" for in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate these propositions of Devlin, one cannot conclude which he/she may be held administratively that Devlin negates diversity in society for he is liable.410 In these cases, there was not one dissent to opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in merely saying that in the midst of this diversity, there the majority's ruling that their conduct was immoral. should nevertheless be a "fundamental agreement The respondents themselves did not foist the defense deciding the instant case. A discussion on morality is in order. about good and evil" that will govern how people in a that their conduct was not immoral, but instead society ought to live. His propositions, in fact, sought to prove that they did not commit the alleged At base, morality refers to, in Socrates' words, "how presuppose diversity hence the need to come to an act or have abated from committing the act. The facts agreement; his position also allows for change of 411 we ought to live" and why. Any definition of morality of the 1975 case of De Dios v. Alejo and the 1999 morality from time to time which may be brought 412 beyond Socrates' simple formulation is bound to case of Maguad v. De Guzman, are similar to the about by this diversity. In the same vein, a pluralistic case at bar - i.e., the complainant is a mere stranger offend one or another of the many rival theories 413 society lays down fundamental rights and principles and the legal wife has not registered any objection to regarding what it means to live morally. The answer to the question of how we ought to live in their constitution in establishing and maintaining the illicit relation, there is no proof of scandal or their society, and these fundamental values and offense to the moral sensibilities of the community in necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is principles are translated into legislation that governs which the respondent and the partner live and work, the order of society, laws that may be amended from and the government employee is capacitated to marry held together by a community of ideas, made up not only of political ideas but also of ideas about the time to time. Hart's argument propounded in Mr. while the partner is not capacitated but has long been Justice Vitug's separate opinion that, "Devlin's view separated in fact. Still, the Court found the manner its members should behave and govern their lives. The latter are their morals; they constitute the of people living in a single society as having common government employees administratively liable for moral foundation (is) overly simplistic" because "disgraceful and immoral conduct" and only public morality. Each member of society has ideas about what is good and what is evil. If people try to "societies have always been diverse" fails to considered the foregoing circumstances to mitigate recognize the necessity of Devlin's proposition in a the penalty. Respondent Escritor does not claim that create a society wherein there is no fundamental agreement about good and evil, they will fail; if democracy. Without fundamental agreement on there is error in the settled jurisprudence that an illicit political and moral ideas, society will fall into relation constitutes disgraceful and immoral conduct having established the society on common agreement, the agreement collapses, the society will disintegrate. anarchy; the agreement is necessary to the existence for which a government employee is held liable. Nor and progress of society. is there an allegation that the norms of morality with Society is kept together by the invisible bonds of respect to illicit relations have shifted towards common thought so that if the bonds are too loose, leniency from the time these precedent cases were the members would drift apart. A common morality is In a democracy, this common agreement on political decided. The Court finds that there is no such error or part of the bondage and the bondage is part of the and moral ideas is distilled in the public square. shift, thus we find no reason to deviate from these price of society; and mankind, which needs society, Where citizens are free, every opinion, every 414 rulings that such illicit relationship constitutes must pay its price. This design is parallel with the prejudice, every aspiration, and every moral "disgraceful and immoral conduct" punishable under social contract in the realm of politics: people give up discernment has access to the public square where the Civil Service Law. Respondent having admitted a portion of their liberties to the state to allow the people deliberate the order of their life together. the alleged immoral conduct, she, like the state to protect their liberties. In a constitutional Citizens are the bearers of opinion, including opinion respondents in the above-cited cases, could be held order, people make a fundamental agreement about shaped by, or espousing religious belief, and these administratively liable. However, there is a the powers of government and their liberties and citizens have equal access to the public square. In this representative democracy, the state is prohibited from in the words of Justice Holmes. This is not to say concubinage,430 is private in the sense that there is no determining which convictions and moral judgments though that law is all of morality. Law deals with the injured party or the offended spouse consents to the may be proposed for public deliberation. Through a minimum standards of human conduct while morality concubinage, the inescapable fact is that the constitutionally designed process, the people is concerned with the maximum. A person who legislature has taken concubinage out of the sphere of deliberate and decide. Majority rule is a necessary regulates his conduct with the sole object of avoiding private morals. The legislature included concubinage principle in this democratic governance.417 Thus, punishment under the law does not meet the higher as a crime under the Revised Penal Code and the when public deliberation on moral judgments is moral standards set by society for him to be called a constitutionality of this law is not being raised in the finally crystallized into law, the laws will largely morally upright person.424 Law also serves as "a case at bar. In the definition of the crime of reflect the beliefs and preferences of the majority, i.e., helpful starting point for thinking about a proper or concubinage, consent of the injured party, i.e., the the mainstream or median groups.418 Nevertheless, in ideal public morality for a society"425 in pursuit of legal spouse, does not alter or negate the crime unlike the very act of adopting and accepting a constitution moral progress. in rape431 where consent of the supposed victim and the limits it specifies -- including protection of negates the crime. If at all, the consent or pardon of religious freedom "not only for a minority, however In Magno v. Court of Appeals, et al.,426 we the offended spouse in concubinage negates the 432 small- not only for a majority, however large- but for articulated the relationship between law and public prosecution of the action, but does not alter the each of us" -- the majority imposes upon itself a self- morality. We held that under the utilitarian theory, the legislature's characterization of the act as a moral denying ordinance. It promises not to do what it "protective theory" in criminal law, "criminal law is disapprobation punishable by law. The separate otherwise could do: to ride roughshod over the founded upon the moral disapprobation x x x of opinion states that, "(t)he ponencia has taken pains to 419 dissenting minorities. In the realm of religious actions which are immoral, i.e., which are detrimental distinguish between secular and private morality, and exercise, benevolent neutrality that gives room for (or dangerous) to those conditions upon which reached the conclusion that the law, as an instrument accommodation carries out this promise, provided the depend the existence and progress of human society. of the secular State should only concern itself with compelling interests of the state are not eroded for the This disapprobation is inevitable to the extent that secular morality." The Court does not draw this preservation of the state is necessary to the morality is generally founded and built upon a certain distinction in the case at bar. The distinction relevant preservation of religious liberty. That is why concurrence in the moral opinions of all. x x x That to the case is not, as averred and discussed by the benevolent neutrality is necessary in a pluralistic which we call punishment is only an external means separate opinion, "between secular and private society such as the United States and the Philippines of emphasizing moral disapprobation: the method of morality," but between public and secular morality on to accommodate those minority religions which are punishment is in reality the amount of the one hand, and religious morality on the other, politically powerless. It is not surprising that Smith is punishment."427 Stated otherwise, there are certain which will be subsequently discussed. much criticized for it blocks the judicial recourse of standards of behavior or moral principles which the minority for religious accommodations. society requires to be observed and these form the Not every moral wrong is foreseen and punished by bases of criminal law. Their breach is an offense not law, criminal or otherwise. We recognized this reality The laws enacted become expressions of public only against the person injured but against society as in Velayo, et al. v. Shell Co. of the Philippine Islands, morality. As Justice Holmes put it, "(t)he law is the a whole.428 Thus, even if all involved in the misdeed et al., where we explained that for those wrongs witness and deposit of our moral life."420 "In a liberal are consenting parties, such as in the case at bar, the which are not punishable by law, Articles 19 and 21 democracy, the law reflects social morality over a injury done is to the public morals and the public in Chapter 2 of the Preliminary Title of the New Civil period of time."421Occasionally though, a interest in the moral order.429 Mr. Justice Vitug Code, dealing with Human Relations, provide for the disproportionate political influence might cause a law expresses concern on this point in his separate recognition of the wrong and the concomitant to be enacted at odds with public morality or opinion. He observes that certain immoral acts which punishment in the form of damages. Articles 19 and legislature might fail to repeal laws embodying appear private and not harmful to society such as 21 provide, viz: outdated traditional moral views.422 Law has also sexual congress "between a man and a prostitute, been defined as "something men create in their best though consensual and private, and with no injured Art. 19. Any person must, in the exercise of moments to protect themselves in their worst third party, remains illegal in this country." His his rights and in the performance of his 423 moments." Even then, laws are subject to opinion asks whether these laws on private morality duties, act with justice, give everyone his amendment or repeal just as judicial pronouncements are justified or they constitute impingement on one's due and observe honesty and good faith. are subject to modification and reversal to better freedom of belief. Discussion on private morality, reflect the public morals of a society at a given time. however, is not material to the case at bar for whether xxx xxx xxx After all, "the life of the law...has been experience," respondent's conduct, which constitutes Art. 21. Any person who willfully causes faith in the ability of the government to religious beliefs in formulating public policies and loss or injury to another in a manner that is afford him protection or relief. morals, the resulting policies and morals would contrary to morals, good customs or public require conformity to what some might regard as policy shall compensate the latter for the A provision similar to the one under religious programs or agenda. The non-believers damage. (emphasis supplied) consideration is embodied in article 826 of would therefore be compelled to conform to a the German Civil Code.433(emphases standard of conduct buttressed by a religious belief, We then cited in Velayo the Code Commission's supplied) i.e., to a "compelled religion," anathema to religious comment on Article 21: freedom. Likewise, if government based its actions The public morality expressed in the law is upon religious beliefs, it would tacitly approve or Thus at one stroke, the legislator, if the necessarily secular for in our constitutional order, the endorse that belief and thereby also tacitly disapprove foregoing rule is approved (as it was religion clauses prohibit the state from establishing a contrary religious or non-religious views that would approved), would vouchsafe adequate legal religion, including the morality it sanctions. Religious not support the policy. As a result, government will remedy for that untold numbers of moral morality proceeds from a person's "views of his not provide full religious freedom for all its citizens, wrongs which is impossible for human relations to His Creator and to the obligations they or even make it appear that those whose beliefs are foresight to provide for specifically in the impose of reverence to His being and character and disapproved are second-class citizens. Expansive statutes. obedience to His Will," in accordance with this religious freedom therefore requires that government Court's definition of religion in American Bible be neutral in matters of religion; governmental Society citing Davis. Religion also dictates "how we reliance upon religious justification is inconsistent But, it may be asked, would this proposed with this policy of neutrality.442 article obliterate the boundary line between ought to live" for the nature of religion is not just to morality and law? The answer is that, in the know, but often, to act in accordance with man's 434 last analysis, every good law draws its "views of his relations to His Creator." But the In other words, government action, including its breath of life from morals, from those Establishment Clause puts a negative bar against proscription of immorality as expressed in criminal principles which are written with words of establishment of this morality arising from one law like concubinage, must have a secular purpose. fire in the conscience of man. If this premise religion or the other, and implies the affirmative That is, the government proscribes this conduct is admitted, then the proposed rule is a "establishment" of a civil order for the resolution of because it is "detrimental (or dangerous) to those prudent earnest of justice in the face of the public moral disputes. This agreement on a secular conditions upon which depend the existence and impossibility of enumerating, one by one, all mechanism is the price of ending the "war of all sects progress of human society" and not because the wrongs which cause damages. When it is against all"; the establishment of a secular public conduct is proscribed by the beliefs of one religion or reflected that while codes of law and statutes moral order is the social contract produced by the other. Although admittedly, moral judgments 435 have changed from age to age, the religious truce. based on religion might have a compelling influence conscience of man has remained fixed to its on those engaged in public deliberations over what ancient moorings, one can not but feel that it Thus, when the law speaks of "immorality" in the actions would be considered a moral disapprobation is safe and salutary to transmute, as far as Civil Service Law or "immoral" in the Code of punishable by law. After all, they might also be may be, moral norms into legal rules, thus Professional Responsibility for lawyers436, or "public adherents of a religion and thus have religious imparting to every legal system that morals" in the Revised Penal Code,437 or "morals" in opinions and moral codes with a compelling enduring quality which ought to be one of its the New Civil Code,438 or "moral character" in the influence on them; the human mind endeavors to superlative attributes. Constitution,439 the distinction between public and regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with secular morality on the one hand, and religious 443 440 heaven. Succinctly put, a law could be religious or Furthermore, there is no belief of more morality, on the other, should be kept in mind. The morality referred to in the law is public and Kantian or Aquinian or utilitarian in its deepest roots, baneful consequence upon the social order but it must have an articulable and discernible secular than that a person may with impunity cause necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as purpose and justification to pass scrutiny of the damage to his fellow-men so long as he does religion clauses. Otherwise, if a law has an apparent not break any law of the State, though he expressed in public debate may influence the civil public order but public moral disputes may be secular purpose but upon closer examination shows a may be defying the most sacred postulates of discriminatory and prohibitory religious purpose, the morality. What is more, the victim loses resolved only on grounds articulable in secular terms."441 Otherwise, if government relies upon law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu monogamous marriage, but concludes that these the truth of religious beliefs. Similarly, in Fonacier, Aye, Inc. where the U.S. Supreme Court invalidated values and the purposes of the applicable laws should this Court declared that matters dealing with "faith, an ordinance prohibiting animal sacrifice of the be thoroughly examined and evidence in relation practice, doctrine, form of worship, ecclesiastical law, Santeria. Recognizing the religious nature of the thereto presented in the OCA. The accommodation custom and rule of a church…are unquestionably Filipinos and the elevating influence of religion in approach in the case at bar would also require a ecclesiastical matters which are outside the province society, however, the Philippine constitution's similar discussion of these values and presentation of of the civil courts."444 But while the state, including religion clauses prescribe not a strict but a benevolent evidence before the OCA by the state that seeks to the Court, accords such deference to religious belief neutrality. Benevolent neutrality recognizes that protect its interest on marriage and opposes the and exercise which enjoy protection under the government must pursue its secular goals and accommodation of the unconventional religious belief religious clauses, the social contract and the interests but at the same time strives to uphold and practice regarding marriage. constitutional order are designed in such a way that religious liberty to the greatest extent possible within when religious belief flows into speech and conduct flexible constitutional limits. Thus, although the The distinction between public and secular morality that step out of the religious sphere and overlap with morality contemplated by laws is secular, benevolent as expressed - albeit not exclusively - in the law, on the secular and public realm, the state has the power neutrality could allow for accommodation of morality the one hand, and religious morality, on the other, is to regulate, prohibit and penalize these expressions based on religion, provided it does not offend important because the jurisdiction of the Court and embodiments of belief insofar as they affect the compelling state interests. extends only to public and secular morality. Whatever interests of the state. The state's inroad on religion pronouncement the Court makes in the case at bar exercise in excess of this constitutional design is Mr. Justice Vitug's separate opinion embraces the should be understood only in this realm where it has prohibited by the religion clauses; the Old World, benevolent neutrality approach when it states that in authority. More concretely, should the Court declare European and American history narrated above bears deciding the case at bar, the approach should consider respondent's conduct as immoral and hold her out the wisdom of this proscription. that, "(a)s a rule . . . moral laws are justified only to administratively liable, the Court will be holding that the extent that they directly or indirectly serve to in the realm of public morality, her conduct is Having distinguished between public and secular protect the interests of the larger society. It is only reprehensible or there are state interests overriding morality and religious morality, the more difficult where their rigid application would serve to obliterate her religious freedom. For as long as her conduct is task is determining which immoral acts under this the value which society seeks to uphold, or defeat the being judged within this realm, she will be public and secular morality fall under the phrase purpose for which they are enacted would, a accountable to the state. But in so ruling, the Court "disgraceful and immoral conduct" for which a departure be justified." In religion clause parlance, does not and cannot say that her conduct should be government employee may be held administratively the separate opinion holds that laws of general made reprehensible in the realm of her church where liable. The line is not easy to draw for it is like "a line applicability governing morals should have a secular it is presently sanctioned and that she is answerable that divides land and sea, a coastline of irregularities purpose of directly or indirectly protecting the for her immorality to her Jehovah God nor that other and indentations."445 But the case at bar does not interests of the state. If the strict application of these religions prohibiting her conduct are correct. On the require us to comprehensively delineate between laws (which are the Civil Service Law and the laws other hand, should the Court declare her conduct those immoral acts for which one may be held on marriage) would erode the secular purposes of the permissible, the Court will be holding that under her administratively liable and those to which law (which the separate opinion identifies as unique circumstances, public morality is not offended administrative liability does not attach. We need not upholding the sanctity of marriage and the family), or that upholding her religious freedom is an interest concern ourselves in this case therefore whether then in a benevolent neutrality framework, an higher than upholding public morality thus her "laziness, gluttony, vanity, selfishness, avarice and accommodation of the unconventional religious belief conduct should not be penalized. But the Court is not cowardice" are immoral acts which constitute and practice (which the separate opinion holds should ruling that the tenets and practice of her religion are grounds for administrative liability. Nor need we be respected on the ground of freedom of belief) that correct nor that other churches which do not allow expend too much energy grappling with the would promote the very same secular purpose of respondent's conjugal arrangement should likewise propositions that not all immoral acts are illegal or upholding the sanctity of marriage and family allow such conjugal arrangement or should not find not all illegal acts are immoral, or different through the Declaration Pledging Faithfulness that anything immoral about it and therefore members of jurisdictions have different standards of morality as makes the union binding and honorable before God these churches are not answerable for immorality to discussed by the dissents and separate opinions, and men, is required by the Free Exercise Clause. The their Supreme Being. The Court cannot speak more although these observations and propositions are true separate opinion then makes a preliminary discussion than what it has authority to say. In Ballard, the U.S. and correct. It is certainly a fallacious argument that of the values society seeks to protect in adhering to Supreme Court held that courts cannot inquire about because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," immoral within the meaning of the statute is not to be of this defense by stating that "(a) clear and present then the rule is not true; in fact, that there are determined by respondent's concept of morality. The danger of a substantive evil, destructive to public exceptions only affirms the truth of the rule. law provides the standard; the offense is complete if morals, is a ground for the reasonable regulation of Likewise, the observation that morality is relative in respondent intended to perform, and did in fact the free exercise and enjoyment of religious different jurisdictions only affirms the truth that there perform, the act which it condemns." The Mann Act profession. (American Bible Society v. City of is morality in a particular jurisdiction; without, under consideration in the Cleveland case declares as Manila, 101 Phil. 386 [1957]). In addition to the however, discounting the truth that underneath the an offense the transportation in interstate commerce destruction of public morals, the substantive evil in moral relativism are certain moral absolutes such as of "any woman or girl for the purpose of prostitution this case is the tearing down of morality, good order, respect for life and truth-telling, without which no or debauchery, or for any other immoral and discipline in the judiciary." However, the society will survive. Only one conduct is in question purpose."447 The resolution of that case hinged on the foregoing discussion has shown that the "clear and before this Court, i.e., the conjugal arrangement of a interpretation of the phrase "immoral purpose." The present danger" test that is usually employed in cases government employee whose partner is legally U.S. Supreme Court held that the petitioner involving freedom of expression is not appropriate to married to another which Philippine law and Mormons' act of transporting at least one plural wife the case at bar which involves purely religious jurisprudence consider both immoral and illegal. Lest whether for the purpose of cohabiting with her, or for conduct. The dissent also cites Reynolds in the Court inappropriately engage in the impossible the purpose of aiding another member of their supporting its conclusion that respondent is guilty of task of prescribing comprehensively how one ought Mormon church in such a project, was covered by the "disgraceful and immoral conduct." The Reynolds to live, the Court must focus its attention upon the phrase "immoral purpose." In so ruling, the Court ruling, however, was reached with a strict neutrality sole conduct in question before us. relied on Reynolds which held that the Mormons' approach, which is not the approach contemplated by practice of polygamy, in spite of their defense of the Philippine constitution. As discussed above, In interpreting "disgraceful and immoral conduct," religious freedom, was "odious among the northern Philippine jurisdiction adopts benevolent neutrality in 448 the dissenting opinion of Mme. Justice Ynares- and western nations of Europe," "a return to interpreting the religion clauses. 449 Santiago groped for standards of morality and stated barbarism," "contrary to the spirit of Christianity that the "ascertainment of what is moral or immoral and of the civilization which Christianity has In the same vein, Mr. Justice Carpio's dissent which 450 calls for the discovery of contemporary community produced in the Western world," and thus employs strict neutrality does not reflect the standards" but did not articulate how these standards punishable by law. constitutional intent of employing benevolent are to be ascertained. Instead, it held that, "(f)or those neutrality in interpreting the Philippine religion in the service of the Government, provisions of law The Cleveland standard, however, does not throw clauses. His dissent avers that respondent should be and court precedents . . . have to be considered." It light to the issue in the case at bar. The held administratively liable not for "disgraceful and identified the Civil Service Law and the laws on pronouncements of the U.S. Supreme Court that immoral conduct" but "conduct prejudicial to the best adultery and concubinage as laws which respondent's polygamy is intrinsically "odious" or "barbaric" do interest of the service" as she is a necessary co- conduct has offended and cited a string of precedents not apply in the Philippines where Muslims, by law, accused of her partner in concubinage. The dissent where a government employee was found guilty of are allowed to practice polygamy. Unlike in stresses that being a court employee, her open committing a "disgraceful and immoral conduct" for Cleveland, there is no jurisprudence in Philippine violation of the law is prejudicial to the maintaining illicit relations and was thereby jurisdiction holding that the defense of religious administration of justice. Firstly, the dissent offends penalized. As stated above, there is no dispute that freedom of a member of the Jehovah's Witnesses due process as respondent was not given an under settled jurisprudence, respondent's conduct under the same circumstances as respondent will not opportunity to defend herself against the charge of constitutes "disgraceful and immoral conduct." prevail over the laws on adultery, concubinage or "conduct prejudicial to the best interest of the However, the cases cited by the dissent do not some other law. We cannot summarily conclude service." In addition, there is no evidence of the involve the defense of religious freedom which therefore that her conduct is likewise so "odious" and alleged prejudice to the best interest of the service. respondent in the case at bar invokes. Those cited "barbaric" as to be immoral and punishable by law. Most importantly, the dissent concludes that cases cannot therefore serve as precedents in settling respondent's plea of religious freedom cannot prevail the issue in the case at bar. While positing the view that the resolution of the case without so much as employing a test that would at bar lies more on determining the applicable moral balance respondent's religious freedom and the state's Mme. Justice Ynares-Santiago's dissent also standards and less on religious freedom, Mme. Justice interest at stake in the case at bar. The foregoing cites Cleveland v. United States446 in laying down Ynares-Santiago's dissent nevertheless discussed discussion on the doctrine of religious freedom, the standard of morality, viz: "(w)hether an act is respondent's plea of religious freedom and disposed however, shows that with benevolent neutrality as a framework, the Court cannot simply reject servants. Instead, the Free Exercise Clause is being for immorality was filed against her. The Declaration respondent's plea of religious freedom without even invoked to justify exemption. was issued to her by her congregation after ten years subjecting it to the "compelling state interest" test of living together with her partner, Quilapio, and ten that would balance her freedom with the paramount B. Application of Benevolent Neutrality and the years before she entered the judiciary. Ministers from interests of the state. The strict neutrality employed in Compelling State Interest Test to the Case at Bar her congregation testified on the authenticity of the the cases the dissent cites -Reynolds, Smith and Jehovah's Witnesses' practice of securing a People v. Bitdu decided before the 1935 Constitution The case at bar being one of first impression, we now Declaration and their doctrinal or scriptural basis for which unmistakably shows adherence to benevolent subject the respondent's claim of religious freedom to such a practice. As the ministers testified, the neutrality - is not contemplated by our constitution. the "compelling state interest" test from a benevolent Declaration is not whimsically issued to avoid legal neutrality stance - i.e. entertaining the possibility that punishment for illicit conduct but to make the Neither is Sulu Islamic Association of Masjid respondent's claim to religious freedom would "union" of their members under respondent's 451 Lambayong v. Judge Nabdar J. Malik cited in Mr. warrant carving out an exception from the Civil circumstances "honorable before God and men." It is Justice Carpio's dissent decisive of the immorality Service Law; necessarily, her defense of religious also worthy of notice that the Report and issue in the case at bar. In that case, the Court Recommendation of the investigating judge annexed freedom will be unavailing should the government 453 dismissed the charge of immorality against a Tausug succeed in demonstrating a more compelling state letters of the OCA to the respondent regarding her judge for engaging in an adulterous relationship with interest. request to be exempt from attending the flag another woman with whom he had three children ceremony after Circular No. 62-2001 was issued because "it (was) not 'immoral' by Muslim standards requiring attendance in the flag ceremony. The OCA's In applying the test, the first inquiry is whether letters were not submitted by respondent as evidence for Judge Malik to marry a second time while his first respondent's right to religious freedom has been marriage (existed)." Putting the quoted portion in its but annexed by the investigating judge in explaining burdened. There is no doubt that choosing between that he was caught in a dilemma whether to find proper context would readily show that the Sulu keeping her employment and abandoning her Islamic case does not provide a precedent to the case respondent guilty of immorality because the Court religious belief and practice and family on the one Administrator and Deputy Court Administrator had at bar. Immediately prior to the portion quoted by the hand, and giving up her employment and keeping her dissent, the Court stressed, viz: "(s)ince Art. 180 of different positions regarding respondent's request for religious practice and family on the other hand, puts a exemption from the flag ceremony on the ground of P.D. No. 1083, otherwise known as the Code of burden on her free exercise of religion. In Sherbert, Muslim Personal Laws of the Philippines, provides the Jehovah's Witnesses' contrary belief and practice. the Court found that Sherbert's religious exercise was Respondent's request for exemption from the flag that the penal laws relative to the crime of bigamy burdened as the denial of unemployment benefits 'shall not apply to a person married x x x under ceremony shows her sincerity in practicing the "forces her to choose between following the precepts Jehovah's Witnesses' beliefs and not using them Muslim Law,' it is not 'immoral' by Muslim standards of her religion and forfeiting benefits, on the one for Judge Malik to marry a second time while his first merely to escape punishment. She is a practicing 452 hand, and abandoning one of the precepts of her member of the Jehovah's Witnesses and the Jehovah marriage exists." It was by law, therefore, that the religion in order to accept work, on the other hand." Muslim conduct in question was classified as an ministers testified that she is a member in good The burden on respondent in the case at bar is even standing. Nevertheless, should the government, thru exception to the crime of bigamy and thus an greater as the price she has to pay for her exception to the general standards of morality. The the Solicitor General, want to further question the employment is not only her religious precept but also respondent's sincerity and the centrality of her constitutionality of P.D. No. 1083 when measured her family which, by the Declaration Pledging against the Establishment Clause was not raised as an practice in her faith, it should be given the Faithfulness, stands "honorable before God and opportunity to do so. The government has not been issue in the Sulu Islamic case. Thus, the Court did not men." determine whether P.D. No. 1083 suffered from a represented in the case at bar from its incipience until constitutional infirmity and instead relied on the this point. provision excepting the challenged Muslim conduct The second step is to ascertain respondent's sincerity from the crime of bigamy in holding that the in her religious belief. Respondent appears to be In any event, even if the Court deems sufficient challenged act is not immoral by Muslim standards. sincere in her religious belief and practice and is not respondent's evidence on the sincerity of her religious In contradistinction, in the case at bar, there is no merely using the "Declaration of Pledging belief and its centrality in her faith, the case at bar similar law which the Court can apply as basis for Faithfulness" to avoid punishment for immorality. cannot still be decided using the "compelling state treating respondent's conduct as an exception to the She did not secure the Declaration only after entering interest" test. The case at bar is one of first prevailing jurisprudence on illicit relations of civil the judiciary where the moral standards are strict and impression, thus the parties were not aware of the defined, much less only after an administrative case burdens of proof they should discharge in the Court's freedom, but must instead apply the "compelling state use of the "compelling state interest" test. We note interest" test. The government must be heard on the that the OCA found respondent's defense of religious issue as it has not been given an opportunity to freedom unavailing in the face of the Court's ruling in discharge its burden of demonstrating the state's Dicdican v. Fernan, et al., viz: compelling interest which can override respondent's religious belief and practice. To repeat, this is a case It bears emphasis that the image of a court of of first impression where we are applying the justice is mirrored in the conduct, official "compelling state interest" test in a case involving and otherwise, of the personnel who work purely religious conduct. The careful application of thereat, from the judge to the lowest of its the test is indispensable as how we will decide the personnel. Court personnel have been case will make a decisive difference in the life of the enjoined to adhere to the exacting standards respondent who stands not only before the Court but of morality and decency in their professional before her Jehovah God. and private conduct in order to preserve the good name and integrity of the courts of IN VIEW WHEREOF, the case is REMANDED to justice. the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it It is apparent from the OCA's reliance upon this will be given the opportunity (a) to examine the ruling that the state interest it upholds is the sincerity and centrality of respondent's claimed preservation of the integrity of the judiciary by religious belief and practice; (b) to present evidence maintaining among its ranks a high standard of on the state's "compelling interest" to override morality and decency. However, there is nothing in respondent's religious belief and practice; and (c) to the OCA's memorandum to the Court that show that the means the state adopts in pursuing its demonstrates how this interest is so compelling that it interest is the least restrictive to respondent's should override respondent's plea of religious religious freedom. The rehearing should be concluded freedom nor is it shown that the means employed by thirty (30) days from the Office of the Court the government in pursuing its interest is the least Administrator's receipt of this Decision. restrictive to respondent's religious exercise. SO ORDERED. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent's stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore simply take a passing look at respondent's claim of religious Republic of the Philippines of the court, thus she should not be allowed to remain For Jehovah’s Witnesses, the Declaration allows SUPREME COURT employed therein as it might appear that the court members of the congregation who have been Manila condones her act.2 Consequently, respondent was abandoned by their spouses to enter into marital charged with committing "disgraceful and immoral relations. The Declaration thus makes the resulting EN BANC conduct" under Book V, Title I, Chapter VI, Sec. union moral and binding within the congregation all 46(b)(5) of the Revised Administrative Code. 3 over the world except in countries where divorce is A.M. No. P-02-1651 June 22, 2006 allowed. As laid out by the tenets of their faith, the (Formerly OCA I.P.I. No. 00-1021-P) Respondent Escritor testified that when she entered Jehovah’s congregation requires that at the time the the judiciary in 1999, she was already a widow, her declarations are executed, the couple cannot secure 4 the civil authorities’ approval of the marital ALEJANDRO ESTRADA, Complainant, husband having died in 1998. She admitted that she started living with Luciano Quilapio, Jr. without the relationship because of legal impediments. Only vs. couples who have been baptized and in good standing SOLEDAD S. ESCRITOR, Respondent. benefit of marriage more than twenty years ago when her husband was still alive but living with another may execute the Declaration, which requires the woman. She also admitted that she and Quilapio have approval of the elders of the congregation. As a R E S O L U T I O N a son.5 But as a member of the religious sect known matter of practice, the marital status of the declarants as the Jehovah’s Witnesses and the Watch Tower and and their respective spouses’ commission of adultery PUNO, J.: Bible Tract Society, respondent asserted that their are investigated before the declarations are 8 conjugal arrangement is in conformity with their executed. Escritor and Quilapio’s declarations were While man is finite, he seeks and subscribes to the religious beliefs and has the approval of her executed in the usual and approved form prescribed 9 Infinite. Respondent Soledad Escritor once again congregation.6 In fact, after ten years of living by the Jehovah’s Witnesses, approved by elders of stands before the Court invoking her religious together, she executed on July 28, 1991, a the congregation where the declarations were 10 freedom and her Jehovah God in a bid to save her "Declaration of Pledging Faithfulness."7 executed, and recorded in the Watch Tower Central 11 family – united without the benefit of legal marriage - Office. and livelihood. The State, on the other hand, seeks to wield its power to regulate her behavior and protect Moreover, the Jehovah’s congregation believes that its interest in marriage and family and the integrity of once all legal impediments for the couple are lifted, the courts where respondent is an employee. How the the validity of the declarations ceases, and the couple Court will tilt the scales of justice in the case at bar should legalize their union. In Escritor’s case, will decide not only the fate of respondent Escritor although she was widowed in 1998, thereby lifting but of other believers coming to Court bearing the legal impediment to marry on her part, her mate grievances on their free exercise of religion. This case was still not capacitated to remarry. Thus, their comes to us from our remand to the Office of the declarations remained valid.12 In sum, therefore, Court Administrator on August 4, 2003.1 insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement I. THE PAST PROCEEDINGS between Escritor and Quilapio and they remain members in good standing in the congregation. In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose By invoking the religious beliefs, practices and moral F. Caoibes, Jr., presiding judge of Branch 253, standards of her congregation, in asserting that her Regional Trial Court of Las Piñas City, for an conjugal arrangement does not constitute disgraceful investigation of respondent Soledad Escritor, court and immoral conduct for which she should be held 13 interpreter in said court, for living with a man not her administratively liable, the Court had to determine husband, and having borne a child within this live-in the contours of religious freedom under Article III, arrangement. Estrada believes that Escritor is Section 5 of the Constitution, which provides, viz: committing an immoral act that tarnishes the image Sec. 5. No law shall be made respecting an (c) show that the means the state adopts in 1. Old World Antecedents establishment of religion, or prohibiting the free pursuing its interest is the least restrictive to 15 exercise thereof. The free exercise and enjoyment of respondent’s religious freedom. In our August 4, 2003 decision, we made a religious profession and worship, without painstaking review of Old World antecedents of the discrimination or preference, shall forever be It bears stressing, therefore, that the residual issues of religion clauses, because "one cannot understand, allowed. No religious test shall be required for the the case pertained NOT TO WHAT APPROACH much less intelligently criticize the approaches of the exercise of civil or political rights. THIS COURT SHOULD TAKE IN CONSTRUING courts and the political branches to religious freedom THE RELIGION CLAUSES, NOR TO THE in the recent past in the United States without a deep A. Ruling PROPER TEST APPLICABLE IN DETERMINING appreciation of the roots of these controversies in the CLAIMS OF EXEMPTION BASED ON FREEDOM ancient and medieval world and in the American 17 In our decision dated August 4, 2003, after a long and OF RELIGION. These issues have already been ruled experience." We delved into the conception of arduous scrutiny into the origins and development of upon prior to the remand, and constitute "the law of religion from primitive times, when it started out as the religion clauses in the United States (U.S.) and the case" insofar as they resolved the issues of which the state the Philippines, we held that in resolving claims framework and test are to be applied in this case, and involving religious freedom (1) benevolent neutrality no motion for its reconsideration having been itself, when the authority and power of the state were 16 or accommodation, whether mandatory or permissive, filed. The only task that the Court is left to do is to ascribed to God.18 Then, religion developed on its is the spirit, intent and framework underlying the determine whether the evidence adduced by the State own and became superior to the state,19 its religion clauses in our Constitution; and (2) in proves its more compelling interest. This issue subordinate,20 and even becoming an engine of state deciding respondent’s plea of exemption based on the involves a pure question of fact. policy.21 Free Exercise Clause (from the law with which she is administratively charged), it is the compelling state B. Law of the case We ascertained two salient features in the review of interest test, the strictest test, which must be religious history: First, with minor exceptions, the 14 applied. Mr. Justice Carpio’s insistence, in his dissent, in history of church-state relationships was attacking the ruling of this case interpreting the characterized by persecution, oppression, hatred, Notwithstanding the above rulings, the Court could religious clauses of the Constitution, made more than bloodshed, and war, all in the name of the God of not, at that time, rule definitively on the ultimate two years ago, is misplaced to say the least. Since Love and of the Prince of Peace. Second, likewise issue of whether respondent was to be held neither the complainant, respondent nor the with minor exceptions, this history witnessed the administratively liable for there was need to give the government has filed a motion for reconsideration unscrupulous use of religion by secular powers to State the opportunity to adduce evidence that it has a assailing this ruling, the same has attained finality promote secular purposes and policies, and the more "compelling interest" to defeat the claim of the and constitutes the law of the case. Any attempt to willing acceptance of that role by the vanguards of respondent to religious freedom. Thus, in the decision reopen this final ruling constitutes a crass religion in exchange for the favors and mundane dated August 4, 2003, we remanded the complaint to contravention of elementary rules of procedure. benefits conferred by ambitious princes and emperors the Office of the Court Administrator (OCA), and Worse, insofar as it would overturn the parties’ right in exchange for religion’s invaluable service. This ordered the Office of the Solicitor General (OSG) to to rely upon our interpretation which has long was the context in which the unique experiment of intervene in the case so it can: attained finality, it also runs counter to substantive the principle of religious freedom and separation of due process. church and state saw its birth in American 22 (a) examine the sincerity and centrality of constitutional democracy and in human history. respondent’s claimed religious belief and Be that as it may, even assuming that there were no practice; procedural and substantive infirmities in Mr. Justice Strictly speaking, the American experiment of Carpio’s belated attempts to disturb settled issues, freedom and separation was not translated in the First (b) present evidence on the state’s and that he had timely presented his arguments, the Amendment. That experiment had been launched four "compelling interest" to override results would still be the same. years earlier, when the founders of the republic respondent’s religious belief and practice; carefully withheld from the new national government and We review the highlights of our decision dated any power to deal with religion. As James Madison August 4, 2003. said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle" because the U.S. religion clauses are the precursors to receive aid, whether direct or indirect, from the state. with it. 23 the Philippine religion clauses, although we have Nor could the state adjust its secular programs to significantly departed from the U.S. interpretation as alleviate burdens the programs placed on 29 The omission of an express guaranty of religious will be discussed later on. believers. Only the complete separation of religion freedom and other natural rights, however, nearly from politics would eliminate the formal influence of prevented the ratification of the Constitution. The At the outset, it is worth noting that American religious institutions and provide for a free choice restriction had to be made explicit with the adoption jurisprudence in this area has been volatile and among political views, thus a strict "wall of 30 of the religion clauses in the First Amendment as they fraught with inconsistencies whether within a Court separation" is necessary. are worded to this day. Thus, the First Amendment decision or across decisions. For while there is did not take away or abridge any power of the widespread agreement regarding the value of the First Strict separation faces difficulties, however, as it is national government; its intent was to make express Amendment religion clauses, there is an equally deeply embedded in American history and the absence of power.24 It commands, in two parts broad disagreement as to what these clauses contemporary practice that enormous amounts of aid, (with the first part usually referred to as the specifically require, permit and forbid. No agreement both direct and indirect, flow to religion from Establishment Clause and the second part, the Free has been reached by those who have studied the government in return for huge amounts of mostly Exercise Clause), viz: religion clauses as regards its exact meaning and the indirect aid from religion.31 For example, less than paucity of records in the U.S. Congress renders it twenty-four hours after Congress adopted the First 27 Congress shall make no law respecting an difficult to ascertain its meaning. Amendment’s prohibition on laws respecting an establishment of religion or prohibiting the free establishment of religion, Congress decided to exercise thereof. 25 U.S. history has produced two identifiably different, express its thanks to God Almighty for the many even opposing, strains of jurisprudence on the blessings enjoyed by the nation with a resolution in religion clauses. First is the standard of separation, favor of a presidential proclamation declaring a The Establishment and Free Exercise Clauses, it 32 should be noted, were not designed to serve which may take the form of either (a) strict separation national day of Thanksgiving and Prayer. Thus, contradictory purposes. They have a single goal—to or (b) the tamer version of strict neutrality or strict separationists are caught in an awkward separation, or what Mr. Justice Carpio refers to as the position of claiming a constitutional principle that has promote freedom of individual religious beliefs and 33 practices. In simplest terms, the Free Exercise Clause second theory of governmental neutrality. Although never existed and is never likely to. prohibits government from inhibiting religious beliefs the latter form is not as hostile to religion as the with penalties for religious beliefs and practice, while former, both are anchored on the Jeffersonian premise The tamer version of the strict separationist view, the the Establishment Clause prohibits government from that a "wall of separation" must exist between the strict neutrality or separationist view, (or, the inhibiting religious belief with rewards for religious state and the Church to protect the state from the governmental neutrality theory) finds basis in 28 34 beliefs and practices. In other words, the two religion church. Both protect the principle of church-state Everson v. Board of Education, where the Court clauses were intended to deny government the power separation with a rigid reading of the principle. On declared that Jefferson’s "wall of separation" to use either the carrot or the stick to influence the other hand, the second standard, the benevolent encapsulated the meaning of the First Amendment. individual religious beliefs and practices.26 neutrality or accommodation, is buttressed by the However, unlike the strict separationists, the strict view that the wall of separation is meant to protect neutrality view believes that the "wall of separation" In sum, a review of the Old World antecedents of the church from the state. A brief review of each does not require the state to be their adversary. religion shows the movement of establishment of theory is in order. Rather, the state must be neutral in its relations with religion as an engine to promote state interests, to the groups of religious believers and non-believers. a. Strict Separation and Strict Neutrality/Separation "State power is no more to be used so as to handicap principle of non-establishment to allow the free 35 exercise of religion. religions than it is to favor them." The strict The Strict Separationist believes that the neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used as a 2. Religion Clauses in the U.S. Context Establishment Clause was meant to protect the state from the church, and the state’s hostility towards basis for classification for purposes of governmental action, whether the action confers rights or privileges The Court then turned to the religion clauses’ religion allows no interaction between the two. According to this Jeffersonian view, an absolute or imposes duties or obligations. Only secular criteria interpretation and construction in the United States, may be the basis of government action. It does not not because we are bound by their interpretation, but barrier to formal interdependence of religion and state needs to be erected. Religious institutions could not permit, much less require, accommodation of secular Jeffersonian wall that is meant to protect the state Benevolent neutrality recognizes that religion plays programs to religious belief.36 from the church, the wall is meant to protect the an important role in the public life of the United church from the state.41 This doctrine was expressed States as shown by many traditional government 42 The problem with the strict neutrality approach, in Zorach v. Clauson, which held, viz: practices which, to strict neutrality, pose however, is if applied in interpreting the Establishment Clause questions. Among these are the Establishment Clause, it could lead to a de facto The First Amendment, however, does not say that in inscription of "In God We Trust" on American voiding of religious expression in the Free Exercise every and all respects there shall be a separation of currency; the recognition of America as "one nation Clause. As pointed out by Justice Goldberg in his Church and State. Rather, it studiously defines the under God" in the official pledge of allegiance to the concurring opinion in Abington School District v. manner, the specific ways, in which there shall be no flag; the Supreme Court’s time-honored practice of Schempp,37 strict neutrality could lead to "a brooding concert or union or dependency one or the other. That opening oral argument with the invocation "God save and pervasive devotion to the secular and a passive, is the common sense of the matter. Otherwise, the the United States and this Honorable Court"; and the or even active, hostility to the religious" which is state and religion would be aliens to each other - practice of Congress and every state legislature of prohibited by the Constitution.38 Professor Laurence hostile, suspicious, and even unfriendly. Churches paying a chaplain, usually of a particular Protestant Tribe commented in his authoritative treatise, viz: could not be required to pay even property taxes. denomination, to lead representatives in prayer. These Municipalities would not be permitted to render practices clearly show the preference for one To most observers. . . strict neutrality has seemed police or fire protection to religious groups. theological viewpoint—the existence of and potential incompatible with the very idea of a free exercise Policemen who helped parishioners into their places for intervention by a god—over the contrary clause. The Framers, whatever specific applications of worship would violate the Constitution. Prayers in theological viewpoint of atheism. Church and they may have intended, clearly envisioned religion our legislative halls; the appeals to the Almighty in government agencies also cooperate in the building of as something special; they enacted that vision into the messages of the Chief Executive; the low-cost housing and in other forms of poor relief, in law by guaranteeing the free exercise of religion but proclamations making Thanksgiving Day a holiday; the treatment of alcoholism and drug addiction, in "so help me God" in our courtroom oaths- these and foreign aid and other government activities with not, say, of philosophy or science. The strict 44 neutrality approach all but erases this distinction. all other references to the Almighty that run through strong moral dimension. Thus it is not surprising that the [U.S.] Supreme our laws, our public rituals, our ceremonies would be Court has rejected strict neutrality, permitting and flouting the First Amendment. A fastidious atheist or Examples of accommodations in American sometimes mandating religious classifications.39 agnostic could even object to the supplication with jurisprudence also abound, including, but not limited which the Court opens each session: "God save the to the U.S. Court declaring the following acts as United States and this Honorable Court." constitutional: a state hiring a Presbyterian minister to Thus, the dilemma of the separationist approach, 45 whether in the form of strict separation or strict lead the legislature in daily prayers, or requiring neutrality, is that while the Jeffersonian wall of xxx xxx xxx employers to pay workers compensation when the resulting inconsistency between work and Sabbath separation "captures the spirit of the American ideal 46 of church-state separation," in real life, church and We are a religious people whose institutions leads to discharge; for government to give money to state are not and cannot be totally separate. This is all presuppose a Supreme Being. We guarantee the religiously-affiliated organizations to teach adolescents about proper sexual behavior;47 or to the more true in contemporary times when both the freedom to worship as one chooses. . . When the state 48 government and religion are growing and expanding encourages religious instruction or cooperates with provide religious school pupils with books; or bus rides to religious schools;49 or with cash to pay for their spheres of involvement and activity, resulting in religious authorities by adjusting the schedule of 50 the intersection of government and religion at many public events, it follows the best of our traditions. For state-mandated standardized tests. points.40 it then respects the religious nature of our people and accommodates the public service to their spiritual (1) Legislative Acts and the Free Exercise Clause b. Benevolent Neutrality/Accommodation needs. To hold that it may not would be to find in the Constitution a requirement that the government show As with the other rights under the Constitution, the The theory of benevolent neutrality or a callous indifference to religious groups. . . But we rights embodied in the Religion clauses are invoked accommodation is premised on a different view of the find no constitutional requirement which makes it in relation to governmental action, almost invariably "wall of separation," associated with Williams, necessary for government to be hostile to religion and in the form of legislative acts. founder of the Rhode Island colony. Unlike the to throw its weight against efforts to widen their effective scope of religious influence. 43 Generally speaking, a legislative act that purposely the facially neutral law that has a "burdensome" rational relationship of the substantial infringement to aids or inhibits religion will be challenged as effect.54 the religious right and a colorable state interest. "(I)n unconstitutional, either because it violates the Free this highly sensitive constitutional area, ‘[o]nly the Exercise Clause or the Establishment Clause or both. (2) Free Exercise Jurisprudence: Sherbert, Yoder and gravest abuses, endangering paramount interests, give 58 This is true whether one subscribes to the Smith occasion for permissible limitation.’" The Court separationist approach or the benevolent neutrality or found that there was no such compelling state interest accommodationist approach. The pinnacle of free exercise protection and the to override Sherbert’s religious liberty. It added that theory of accommodation in the U.S. blossomed in even if the state could show that Sherbert’s But the more difficult religion cases involve the case of Sherbert v. Verner,55 which ruled that state exemption would pose serious detrimental effects to legislative acts which have a secular purpose and regulation that indirectly restrains or punishes the unemployment compensation fund and scheduling general applicability, but may incidentally or religious belief or conduct must be subjected to strict of work, it was incumbent upon the state to show that inadvertently aid or burden religious exercise. scrutiny under the Free Exercise Clause.56 According no alternative means of regulations would address Though the government action is not religiously to Sherbert, when a law of general application such detrimental effects without infringing religious motivated, these laws have a "burdensome effect" on infringes religious exercise, albeit incidentally, the liberty. The state, however, did not discharge this religious exercise. state interest sought to be promoted must be so burden. The Court thus carved out for Sherbert an paramount and compelling as to override the free exemption from the Saturday work requirement that The benevolent neutrality theory believes that with exercise claim. Otherwise, the Court itself will carve caused her disqualification from claiming the respect to these governmental actions, out the exemption. unemployment benefits. The Court reasoned that accommodation of religion may be allowed, not to upholding the denial of Sherbert’s benefits would promote the government’s favored form of religion, force her to choose between receiving benefits and In this case, Sherbert, a Seventh Day Adventist, following her religion. This choice placed "the same but to allow individuals and groups to exercise their claimed unemployment compensation under the law religion without hindrance. The purpose of kind of burden upon the free exercise of religion as as her employment was terminated for refusal to would a fine imposed against (her) for her Saturday accommodations is to remove a burden on, or work on Saturdays on religious grounds. Her claim facilitate the exercise of, a person’s or institution’s worship." This germinal case of Sherbert firmly was denied. She sought recourse in the Supreme established the exemption doctrine, 59 viz: religion. As Justice Brennan explained, the Court. In laying down the standard for determining "government [may] take religion into account…to whether the denial of benefits could withstand exempt, when possible, from generally applicable constitutional scrutiny, the Court ruled, viz: It is certain that not every conscience can be governmental regulation individuals whose religious accommodated by all the laws of the land; but when beliefs and practices would otherwise thereby be general laws conflict with scruples of conscience, Plainly enough, appellee’s conscientious objection to exemptions ought to be granted unless some infringed, or to create without state involvement an Saturday work constitutes no conduct prompted by atmosphere in which voluntary religious exercise "compelling state interest" intervenes. 51 religious principles of a kind within the reach of state may flourish." In the ideal world, the legislature legislation. If, therefore, the decision of the South would recognize the religions and their practices and Carolina Supreme Court is to withstand appellant’s Thus, Sherbert and subsequent cases held that when would consider them, when practical, in enacting constitutional challenge, it must be either because her government action burdens, even inadvertently, a laws of general application. But when the legislature disqualification as a beneficiary represents no sincerely held religious belief or practice, the state fails to do so, religions that are threatened and must justify the burden by demonstrating that the law 52 infringement by the State of her constitutional right burdened may turn to the courts for protection. of free exercise, or because any incidental burden on embodies a compelling interest, that no less the free exercise of appellant’s religion may be restrictive alternative exists, and that a religious Thus, what is sought under the theory of justified by a "compelling state interest in the exemption would impair the state’s ability to accommodation is not a declaration of regulation of a subject within the State’s effectuate its compelling interest. As in other unconstitutionality of a facially neutral law, but an constitutional power to regulate. . . ."57 (emphasis instances of state action affecting fundamental rights, exemption from its application or its "burdensome supplied) negative impacts on those rights demand the highest effect," whether by the legislature or the level of judicial scrutiny. After Sherbert, this strict courts.53 Most of the free exercise claims brought to scrutiny balancing test resulted in court-mandated The Court stressed that in the area of religious liberty, religious exemptions from facially-neutral laws of the U.S. Court are for exemption, not invalidation of it is basic that it is not sufficient to merely show a general application whenever unjustified burdens government in the exercise of its delegated as the absolute language of the test of the Free were found. 60 powers . . . But to agree that religiously grounded Exercise Clause suggests. 64 conduct must often be subject to the broad police Then, in the 1972 case of Wisconsin v. Yoder,61 the power of the State is not to deny that there are areas Fourth, the strong language was backed by a U.S. Court again ruled that religious exemption was of conduct protected by the Free Exercise Clause of requirement that the government provide proof of the in order, notwithstanding that the law of general the First Amendment and thus beyond the power of important interest at stake and of the dangers to that application had a criminal penalty. Using heightened the State to control, even under regulations of general interest presented by the religious conduct at issue. scrutiny, the Court overturned the conviction of applicability. . . .This case, therefore, does not Fifth, in determining the injury to the government’s Amish parents for violating Wisconsin compulsory become easier because respondents were convicted interest, a court was required to focus on the effect school-attendance laws. The Court, in effect, granted for their "actions" in refusing to send their children to that exempting religious claimants from the exemption from a neutral, criminal statute that the public high school; in this context belief and regulation would have, rather than on the value of the punished religiously motivated conduct. Chief Justice action cannot be neatly confined in logic-tight regulation in general. Thus, injury to governmental 62 Burger, writing for the majority, held, viz: compartments. . . interest had to be measured at the margin: assuming the law still applied to all others, what would be the It follows that in order for Wisconsin to compel The cases of Sherbert and Yoder laid out the effect of exempting the religious claimant in this case school attendance beyond the eighth grade against a following doctrines: (a) free exercise clause claims and other similarly situated religious claimants in the claim that such attendance interferes with the practice were subject to heightened scrutiny or compelling future? Together, the fourth and fifth elements of a legitimate religious belief, it must appear either interest test if government substantially burdened the required that facts, rather than speculation, had to be that the State does not deny the free exercise of exercise of religion; (b) heightened scrutiny or presented concerning how the government’s interest religious belief by its requirement, or that there is a compelling interest test governed cases where the would be harmed by excepting religious conduct 65 state interest of sufficient magnitude to override the burden was direct, i.e., the exercise of religion from the law being challenged. interest claiming protection under the Free Exercise triggered a criminal or civil penalty, as well as cases Clause. Long before there was general where the burden was indirect, i.e., the exercise of Sherbert and Yoder adopted a balancing test for free acknowledgement of the need for universal religion resulted in the forfeiture of a government exercise jurisprudence which would impose a 63 education, the Religion Clauses had specially and benefit; and (c) the Court could carve out discipline to prevent manipulation in the balancing of firmly fixed the right of free exercise of religious accommodations or exemptions from a facially interests. The fourth and the fifth elements prevented beliefs, and buttressing this fundamental right was an neutral law of general application, whether general or the likelihood of exaggeration of the weight on the equally firm, even if less explicit, prohibition against criminal. governmental interest side of the balance, by not the establishment of any religion. The values allowing speculation about the effects of a decision underlying these two provisions relating to religion The Sherbert-Yoder doctrine had five main adverse to those interests nor accepting that those have been zealously protected, sometimes even at the components. First, action was protected—conduct interests would be defined at a higher level of expense of other interests of admittedly high social beyond speech, press, or worship was included in the generality than the constitutional interests on the importance. . . shelter of freedom of religion. Neither Sherbert’s other side of the balance. 66 refusal to work on the Sabbath nor the Amish parents’ The essence of all that has been said and written on refusal to let their children attend ninth and tenth Thus, the strict scrutiny and compelling state interest the subject is that only those interests of the highest grades can be classified as conduct protected by the test significantly increased the degree of protection order and those not otherwise served can overbalance other clauses of the First Amendment. Second, afforded to religiously motivated conduct. While not legitimate claims to the free exercise of religion. . . indirect impositions on religious conduct, such as the affording absolute immunity to religious activity, a denial of twenty-six weeks of unemployment compelling secular justification was necessary to . . . our decisions have rejected the idea that insurance benefits to Adel Sherbert, as well as direct uphold public policies that collided with religious religiously grounded conduct is always outside the restraints, such as the criminal prohibition at issue in practices. Although the members of the U.S. Court protection of the Free Exercise Clause. It is true that Yoder, were prohibited. Third, as the language in the often disagreed over which governmental interests activities of individuals, even when religiously based, two cases indicate, the protection granted was should be considered compelling, thereby producing are often subject to regulation by the States in the extensive. Only extremely strong governmental dissenting and separate opinions in religious conduct exercise of their undoubted power to promote the interests justified impingement on religious conduct, cases, this general test established a strong health, safety, and general welfare, or the Federal presumption in favor of the free exercise of religion.67 Most scholars and courts agreed that under Moreover, the Court said that the Sherbert line of Justice O’Connor also disagreed with the majority’s Sherbert and Yoder, the Free Exercise Clause cases applied only in the context of the denial of description of prior cases and especially its leaving provided individuals some form of heightened unemployment benefits; it did not create a basis for the protection of minority religions to the political scrutiny protection, if not always a compelling an exemption from criminal laws. Scalia wrote that process. She said that, "First Amendment was enacted interest one.68 The 1990 case of Employment "[e]ven if we were inclined to breathe into Sherbert precisely to protect the rights of those whose Division, Oregon Department of Human Resources v. some life beyond the unemployment compensation religious practice are not shared by the majority and Smith,69 drastically changed all that. field, we would not apply it to require exemptions may be viewed with hostility." 80 from a generally applicable criminal law." 75 Smith involved a challenge by Native Americans to Justice Blackmun wrote a dissenting opinion that was an Oregon law prohibiting use of peyote, a The Court expressly rejected the use of strict scrutiny joined by Justices Brennan and Marshall. The hallucinogenic substance. Specifically, individuals for challenges to neutral laws of general applicability dissenting Justices agreed with Justice O’Connor that challenged the state’s determination that their that burden religion. Justice Scalia said that the majority had mischaracterized precedents, such as religious use of peyote, which resulted in their "[p]recisely because ‘we are a cosmopolitan nation in describing Yoder as a "hybrid" case rather than as dismissal from employment, was misconduct made up of people of almost conceivable religious one under the free exercise clause. The dissent also disqualifying them from receipt of unemployment preference,’ and precisely because we value and argued that strict scrutiny should be used in compensation benefits. 70 protect that religious divergence, we cannot afford the evaluating government laws burdening religion. 81 luxury of deeming presumptively invalid, as applied Justice Scalia, writing for the majority, rejected the to the religious objector, every regulation of conduct Criticism of Smith was intense and claim that free exercise of religion required an that does not protect an interest of the highest order." widespread.82 Academics, Justices, and a bipartisan exemption from an otherwise valid law. Scalia said The Court said that those seeking religious majority of Congress noisily denounced the that "[w]e have never held that an individual’s exemptions from laws should look to the democratic decision.83 Smith has the rather unusual distinction of 76 religious beliefs excuse him from compliance with an process for protection, not the courts. being one case that is almost universally despised otherwise valid law prohibiting conduct that the State (and this is not too strong a word) by both the liberals is free to regulate. On the contrary, the record of more Smith thus changed the test for the free exercise and conservatives.84 Liberals chasten the Court for its than a century of our free exercise jurisprudence clause. Strict or heightened scrutiny and the hostility to minority faiths which, in light of Smith’s contradicts that proposition." 71 Scalia thus declared compelling justification approach were abandoned for general applicability rule, will allegedly suffer at the "that the right of free exercise does not relieve an evaluating laws burdening religion; neutral laws of hands of the majority faith whether through outright individual of the obligation to comply with a ‘valid general applicability only have to meet the rational hostility or neglect. Conservatives bemoan the and neutral law of general applicability of the ground basis test, no matter how much they burden decision as an assault on religious belief leaving that the law proscribes (or prescribes) conduct that religion. 77 religion, more than ever, subject to the caprice of an his religion prescribes (or proscribes).’" 72 ever more secular nation that is increasingly hostile to Justice O’Connor wrote a concurring opinion sharply religious belief as an oppressive and archaic 85 Justice Scalia’s opinion then reviewed the cases criticizing the rejection of the compelling state anachronism. where free exercise challenges had been upheld— interest test, asserting that "(t)he compelling state such as Cantwell, Murdock, Follet, Pierce, and Yoder interest test effectuates the First Amendment’s The Smith doctrine is highly unsatisfactory in several —and said that none involved the free exercise clause command that religious liberty is an independent respects and has been criticized as exhibiting a claims alone. All involved "the Free Exercise Clause liberty, that it occupies a preferred position, and that shallow understanding of free exercise in conjunction with other constitutional protections, the Court will not permit encroachments upon this jurisprudence.86 First, the First amendment was such as freedom of speech and of the press, or the liberty, whether direct or indirect, unless required by intended to protect minority religions from the right of parents to direct the education of their clear and compelling government interest ‘of the tyranny of the religious and political children." 73 The Court said that Smith was highest order.’"78 She said that strict scrutiny is majority. 87 Critics of Smith have worried about distinguishable because it did not involve such a appropriate for free exercise challenges because religious minorities, who can suffer "hybrid situation," but was a free exercise claim "[t]he compelling interest test reflects the First disproportionately from laws that enact majoritarian "unconnected with any communicative activity or Amendment’s mandate of preserving religious liberty mores.88 Smith, in effect would allow discriminating parental right." 74 to the fullest extent possible in a pluralistic in favor of mainstream religious groups against society." 79 smaller, more peripheral groups who lack legislative clout,89 contrary to the original theory of the First Constitution does not give the judiciary the option of Parenthetically, Smith’s characterization that the U.S. Amendment.90 Undeniably, claims for judicial simply refusing to interpret its provisions. The First Court has "never held that an individual’s religious exemption emanate almost invariably from relatively Amendment dictates that free exercise of "religion" beliefs excuse him from compliance with an politically powerless minority religions and Smith must be protected. Accordingly, the Constitution otherwise valid law prohibiting conduct that the state virtually wiped out their judicial recourse for compels the Court to struggle with the contours of is free to regulate"—an assertion which Mr. Justice exemption.91 Second, Smith leaves too much leeway what constitutes "religion." There is no constitutional Carpio adopted unequivocally in his dissent—has for pervasive welfare-state regulation to burden opt-out provision for constitutional words that are been sharply criticized even implicitly by its religion while satisfying neutrality. After all, laws not difficult to apply. supporters, as blatantly untrue. Scholars who aimed at religion can hinder observance just as supported Smith frequently did not do so by opposing 92 effectively as those that target religion. Government Nor does the Constitution give the Court the option of the arguments that the Court was wrong as a matter impairment of religious liberty would most often be simply ignoring constitutional mandates. A large area of original meaning [of the religion clauses] or that of the inadvertent kind as in Smith considering the of middle ground exists between the Court’s two the decision conflicted with precedent [i.e. the Smith political culture where direct and deliberate opposing alternatives for free exercise jurisprudence. decision made shocking use of precedent]—those 98 regulatory imposition of religious orthodoxy is nearly Unfortunately, this middle ground requires the Court points were often conceded. inconceivable. If the Free Exercise Clause could not to tackle difficult issues such as defining religion and afford protection to inadvertent interference, it would possibly evaluating the significance of a religious To justify its perversion of precedent, the Smith Court 93 be left almost meaningless. Third, the Reynolds- belief against the importance of a specific law. The attempted to distinguish the exemption made in 94 Gobitis-Smith doctrine simply defies common sense. Court describes the results of this middle ground Yoder, by asserting that these were premised on two The state should not be allowed to interfere with the where "federal judges will regularly balance against constitutional rights combined—the right of parents most deeply held fundamental religious convictions the importance of general laws the significance of to direct the education of their children and the right of an individual in order to pursue some trivial state religious practice," and then dismisses it as a "parade of free exercise of religion. Under the Court’s opinion economic or bureaucratic objective. This is especially of horribles" that is too "horrible to contemplate." in Smith, the right of free exercise of religion true when there are alternative approaches for the standing alone would not allow Amish parents to state to effectively pursue its objective without disregard the compulsory school attendance law, and 95 It is not clear whom the Court feels would be most serious inadvertent impact on religion. hurt by this "parade of horribles." Surely not religious under the Court’s opinion in Yoder, parents whose individuals; they would undoubtedly prefer their objection to the law was not religious would also At bottom, the Court’s ultimate concern in Smith religious beliefs to be probed for sincerity and have to obey it. The fatal flaw in this argument, appeared to be two-fold: (1) the difficulty in defining significance rather than acquiesce to the Court’s however, is that if two constitutional claims will fail 99 and limiting the term "religion" in today’s pluralistic approach of simply refusing to grant any on its own, how would it prevail if combined? As society, and (2) the belief that courts have no business constitutional significance to their beliefs at all. If the for Sherbert, the Smith Court attempted to limit its determining the significance of an individual’s Court is concerned about requiring lawmakers at doctrine as applicable only to denials of religious beliefs. For the Smith Court, these two times constitutionally to exempt religious individuals unemployment compensation benefits where the concerns appear to lead to the conclusion that the from statutory provisions, its concern is misplaced. It religiously-compelled conduct that leads to job loss is Free Exercise Clause must protect everything or it is the lawmakers who have sought to prevent the not a violation of criminal law. And yet, this is must protect virtually nothing. As a result, the Court Court from dismantling the Free Exercise Clause precisely why the rejection of Sherbert was so perceives its only viable options are to leave free through such legislation as the [Religious Freedom damaging in its effect: the religious person was more exercise protection to the political process or to allow Restoration Act of 1993], and in any case, the Court likely to be entitled to constitutional protection when a "system in which each conscience is a law unto should not be overly concerned about hurting forced to choose between religious conscience and 96 itself." The Court’s characterization of its choices legislature’s feelings by requiring their laws to going to jail than when forced to choose between 100 have been soundly rejected as false, viz: conform to constitutional dictates. Perhaps the Court religious conscience and financial loss. is concerned about putting such burden on judges. If If one accepts the Court’s assumption that these are so, it would truly be odd to say that Thus, the Smith decision elicited much negative the only two viable options, then admittedly, the public reaction especially from the religious Court has a stronger argument. But the Free Exercise requiring the judiciary to perform its appointed role community, and commentaries insisted that the Court Clause cannot be summarily dismissed as too difficult as constitutional interpreters is a burden no judge was allowing the Free Exercise Clause to 101 to apply and this should not be applied at all. The should be expected to fulfill.97 disappear. So much was the uproar that a majority in Congress was convinced to enact the Religious Congress. Contrary to the Court’s characterization of found in the Bill of Rights were deemed too Freedom Restoration Act (RFRA) of 1993.102 The the RFRA as a kind of usurpation of the judicial important to leave to the political process. Because RFRA was adopted to negate the Smith test and power to say what the Constitution means, the law mainstream religions generally have been successful require strict scrutiny for free exercise claims. Indeed, offered no definition of Free Exercise, and on its face in protecting their interests through the political the findings section of the Act notes that Smith appeared to be a procedural measure establishing a process, it is the non-mainstream religions that are "virtually eliminated the requirement that the standard of proof and allocating the duty of meeting adversely affected by Smith. In short, the U.S. government justify burdens on religious exercise it. In effect, the Court ruled that Congress had no Supreme Court has made it clear to such religions imposed by laws neutral toward religion."103 The Act power in the area of religion. And yet, Free Exercise that they should not look to the First Amendment for declares that its purpose is to restore the compelling exists in the First Amendment as a negative on religious freedom. 110 interest test as set forth in Sherbert v. Verner and Congress. The power of Congress to act towards the Wisconsin v. Yoder, and to guarantee its application states in matters of religion arises from the (3) Accommodation under the Religion Clauses in all cases where free exercise of religion is Fourteenth Amendment. 108 substantially burdened; and to provide a claim of A free exercise claim could result to three kinds of defense to a person whose religious exercise is From the foregoing, it can be seen that Smith, while 104 accommodation: (a) those which are found to be substantially burdened by government. The RFRA expressly recognizing the power of legislature to give constitutionally compelled, i.e., required by the Free thus sought to overrule Smith and make strict accommodations, is in effect contrary to the 105 Exercise Clause; (b) those which are discretionary or scrutiny the test for all free exercise clause claims. benevolent neutrality or accommodation approach. legislative, i.e., not required by the Free Exercise Moreover, if we consider the history of the Clause but nonetheless permitted by the 106 In the City of Boerne v. Flores, the U.S. Supreme incorporation of the religion clauses in the U.S., the Establishment Clause; and (c) those which the Court declared the RFRA unconstitutional, ruling that decision in Smith is grossly inconsistent with the religion clauses prohibit.111 Congress had exceeded its power under the importance placed by the framers on religious faith. Fourteenth Amendment in enacting the law. The Smith is dangerous precedent because it subordinates Mandatory accommodation results when the Court Court ruled that Congress is empowered to enact laws fundamental rights of religious belief and practice to finds that accommodation is required by the Free "to enforce the amendment," but Congress is not all neutral, general legislation. Sherbert recognized Exercise Clause, i.e, when the Court itself carves out "enforcing" when it creates new constitutional rights the need to protect religious exercise in light of the 107 an exemption. This accommodation occurs when all or expands the scope of rights. massive increase in the size of government, the three conditions of the compelling interest test are concerns within its reach, and the number of laws met, i.e, a statute or government action has burdened City of Boerne also drew public backlash as the U.S. administered by it. However, Smith abandons the claimant’s free exercise of religion, and there is no Supreme Court was accused of lack of judicial protection of religious exercise at a time when the doubt as to the sincerity of the religious belief; the respect for the constitutional decision-making by a scope and reach of government has never been state has failed to demonstrate a particularly coordinate branch of government. In Smith, Justice greater. It has been pointed out that Smith creates the important or compelling governmental goal in Scalia wrote: legal framework for persecution: through general, preventing an exemption; and that the state has failed neutral laws, legislatures are now able to force to demonstrate that it used the least restrictive means. conformity on religious minorities whose practice "Values that are protected against governmental 109 In these cases, the Court finds that the injury to interference through enshrinement in the Bill of irritate or frighten an intolerant majority. religious conscience is so great and the advancement Rights are not thereby banished from the political of public purposes is incomparable that only process. Just as society believes in the negative The effect of Smith is to erase entirely the concept of indifference or hostility could explain a refusal to protection accorded to the press by the First mandatory accommodations, thereby emasculating make exemptions. Thus, if the state’s objective could Amendment is likely to enact laws that affirmatively the Free Exercise Clause. Smith left religious be served as well or almost as well by granting an foster the dissemination of the printed word, so also a freedom for many in the hands of the political exemption to those whose religious beliefs are society that believes in the negative protection process, exactly where it would be if the religion burdened by the regulation, the Court must grant the accorded to religious belief can be expected to be clauses did not exist in the Bill of Rights. Like most exemption. The Yoder case is an example where the solicitous of that value in its legislation as well." protections found in the Bill of Rights, the religion Court held that the state must accommodate the clauses of the First Amendment are most important to religious beliefs of the Amish who objected to By invalidating RFRA, the Court showed a marked those who cannot prevail in the political process. The enrolling their children in high school as required by disrespect of the solicitude of a nearly unanimous Court in Smith ignores the fact that the protections law. The Sherbert case is another example where the Court held that the state unemployment compensation carry out one’s duties to a Supreme Being is an religion are protected by the Free Exercise Clause’; plan must accommodate the religious convictions of inalienable right, not one dependent on the grace of secular beliefs, however sincere and conscientious, Sherbert.112 legislature. Religious freedom is seen as a substantive do not suffice.122 right and not merely a privilege against In permissive accommodation, the Court finds that discriminatory legislation. With religion looked upon In sum, the U.S. Court has invariably decided claims the State may, but is not required to, accommodate with benevolence and not hostility, benevolent based on the religion clauses using either the religious interests. The U.S. Walz case illustrates this neutrality allows accommodation of religion under separationist approach, or the benevolent neutrality situation where the U.S. Supreme Court upheld the certain circumstances. approach. The benevolent neutrality approach has constitutionality of tax exemption given by New York also further been split by the view that the First to church properties, but did not rule that the state Considering that laws nowadays are rarely enacted Amendment requires accommodation, or that it only was required to provide tax exemptions. The Court specifically to disable religious belief or practice, free allows permissible legislative accommodations. The declared that "(t)he limits of permissible state exercise disputes arise commonly when a law that is current prevailing view as pronounced in Smith, accommodation to religion are by no means co- religiously neutral and generally applicable on its however, is that that there are no required extensive with the noninterference mandated by the face is argued to prevent or burden what someone’s accommodation under the First Amendment, although Free Exercise Clause."113 Other examples are Zorach religious faith requires, or alternatively, requires it permits of legislative accommodations. v. Clauson,114 allowing released time in public someone to undertake an act that faith would 115 schools and Marsh v. Chambers, allowing payment preclude. In essence, then, free exercise arguments 3. Religion Clauses in the Philippine Context: of legislative chaplains from public funds. contemplate religious exemptions from otherwise Constitution, Jurisprudence and Practice Parenthetically, the Court in Smith has ruled that this general laws.119 is the only accommodation allowed by the Religion a. US Constitution and jurisprudence vis-à-vis Clauses. Strict scrutiny is appropriate for free exercise Philippine Constitution challenges because "[t]he compelling interest test Finally, when the Court finds no basis for a reflects the First Amendment’s mandate of preserving By juxtaposing the American Constitution and mandatory accommodation, or it determines that the religious liberty to the fullest extent possible in a 120 jurisprudence against that of the Philippines, it is legislative accommodation runs afoul of the pluralistic society. Underlying the compelling state immediately clear that one cannot simply conclude establishment or the free exercise clause, it results to interest test is the notion that free exercise is a that we have adopted—lock, stock and barrel—the a prohibited accommodation. In this case, the Court fundamental right and that laws burdening it should 121 religion clauses as embodied in the First Amendment, finds that establishment concerns prevail over be subject to strict scrutiny. and therefore, the U.S. Court’s interpretation of the potential accommodation interests. To say that there same. Unlike in the U.S. where legislative are valid exemptions buttressed by the Free Exercise In its application, the compelling state interest test exemptions of religion had to be upheld by the U.S. Clause does not mean that all claims for free exercise follows a three-step process, summarized as follows: 116 Supreme Court as constituting permissive exemptions are valid. An example where accommodations, similar exemptions for religion are accommodation was prohibited is McCollum v. 117 If the plaintiff can show that a law or government mandatory accommodations under our own Board of Education, where the Court ruled against practice inhibits the free exercise of his religious constitutions. Thus, our 1935, 1973 and 1987 optional religious instruction in the public school 118 beliefs, the burden shifts to the government to Constitutions contain provisions on tax exemption of premises. demonstrate that the law or practice is necessary to church property,123 salary of religious officers in the accomplishment of some important (or government institutions,124 and optional religious Given that a free exercise claim could lead to three ‘compelling’) secular objective and that it is the least instruction.125 Our own preamble also invokes the aid different results, the question now remains as to how restrictive means of achieving that objective. If the of a divine being.126 These constitutional provisions the Court should determine which action to take. In plaintiff meets this burden and the government does are wholly ours and have no counterpart in the U.S. this regard, it is the strict scrutiny-compelling state not, the plaintiff is entitled to exemption from the law Constitution or its amendments. They all reveal interest test which is most in line with the benevolent or practice at issue. In order to be protected, the without doubt that the Filipino people, in adopting neutrality-accommodation approach. claimant’s beliefs must be ‘sincere’, but they need not these constitutions, manifested their adherence to the necessarily be consistent, coherent, clearly benevolent neutrality approach that requires Under the benevolent-neutrality theory, the principle articulated, or congruent with those of the claimant’s accommodations in interpreting the religion underlying the First Amendment is that freedom to religious denomination. ‘Only beliefs rooted in clauses.127 The argument of Mr. Justice Carpio that the August 4, breached if the Court grants him an exemption. These questioned ordinances were not applicable to plaintiff 2003 ponencia was erroneous insofar as it asserted conclusions, however, are not and were never as it was not engaged in the business or occupation of that the 1935 Constitution incorporates the Walz warranted by the 1987, 1973 and 1935 Constitutions selling said "merchandise" for profit, it also ruled that ruling as this case was decided subsequent to the as shown by other provisions on religion in all three applying the ordinance to plaintiff and requiring it to 1935 Constitution is a misreading of the ponencia. constitutions. It is a cardinal rule in constitutional secure a license and pay a license fee or tax would What the ponencia pointed out was that even as early construction that the constitution must be interpreted impair its free exercise of religious profession and as 1935, or more than three decades before the U.S. as a whole and apparently conflicting provisions worship and its right of dissemination of religious Court could validate the exemption in Walz as a form should be reconciled and harmonized in a manner beliefs "as the power to tax the exercise of a privilege or permissible accommodation, we have already that will give to all of them full force and effect. is the power to control or suppress its enjoyment." incorporated the same in our Constitution, as a From this construction, it will be ascertained that the The decision states in part, viz: mandatory accommodation. intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious The constitutional guaranty of the free exercise and There is no ambiguity with regard to the Philippine clauses in the Philippine constitutions, and the enjoyment of religious profession and worship carries Constitution’s departure from the U.S. Constitution, enforcement of this intent is the goal of construing with it the right to disseminate religious information. 129 insofar as religious accommodations are concerned. It the constitution. [citations omitted] Any restraint of such right can only be justified like is indubitable that benevolent neutrality- other restraints of freedom of expression on the accommodation, whether mandatory or permissive, is We therefore reject Mr. Justice Carpio’s total grounds that there is a clear and present danger of any the spirit, intent and framework underlying the adherence to the U.S. Court’s interpretation of the substantive evil which the State has the right to Philippine Constitution.128 As stated in our Decision, religion clauses to effectively deny accommodations prevent. (citations omitted, emphasis supplied) dated August 4, 2003: on the sole basis that the law in question is neutral and of general application. For even if it were true Another case involving mandatory accommodation is The history of the religion clauses in the 1987 that "an unbroken line of U.S. Supreme Court Ebralinag v. The Division Superintendent of Constitution shows that these clauses were largely decisions" has never held that "an individual’s Schools.132 The case involved several Jehovah’s adopted from the First Amendment of the U.S. religious beliefs [do not] excuse him from Witnesses who were expelled from school for Constitution xxxx Philippine jurisprudence and compliance with an otherwise valid law prohibiting refusing to salute the flag, sing the national anthem commentaries on the religious clauses also continued conduct that the State is free to regulate," our own and recite the patriotic pledge, in violation of the to borrow authorities from U.S. jurisprudence without Constitutions have made significant changes to Administrative Code of 1987. In resolving the articulating the stark distinction between the two accommodate and exempt religion. Philippine religious freedom issue, a unanimous Court streams of U.S. jurisprudence [i.e., separation and jurisprudence shows that the Court has allowed overturned an earlier ruling denying such benevolent neutrality]. One might simply conclude exemptions from a law of general application, in exemption,133 using the "grave and imminent danger" that the Philippine Constitutions and jurisprudence effect, interpreting our religion clauses to cover both test, viz: 130 also inherited the disarray of U.S. religion clause mandatory and permissive accommodations. jurisprudence and the two identifiable streams; thus, The sole justification for a prior restraint or limitation when a religion clause case comes before the Court, a To illustrate, in American Bible Society v. City of on the exercise of religious freedom (according to the 131 separationist approach or a benevolent neutrality Manila, the Court granted to plaintiff exemption late Chief Justice Claudio Teehankee in his dissenting approach might be adopted and each will have U.S. from a law of general application based on the Free opinion in German v. Barangan, 135 SCRA 514, 517) authorities to support it. Or, one might conclude that Exercise Clause. In this case, plaintiff was required is the existence of a grave and present danger of a as the history of the First Amendment as narrated by by an ordinance to secure a mayor’s permit and a character both grave and imminent, of a serious evil the Court in Everson supports the separationist municipal license as ordinarily required of those to public safety, public morals, public health or any approach, Philippine jurisprudence should also follow engaged in the business of general merchandise under other legitimate public interest, that the State has a this approach in light of the Philippine religion the city’s ordinances. Plaintiff argued that this right (and duty) to prevent. Absent such a threat to clauses’ history. As a result, in a case where the party amounted to "religious censorship and restrained the public safety, the expulsion of the petitioners from the claims religious liberty in the face of a general law free exercise and enjoyment of religious profession, schools is not justified.134(emphases supplied) that inadvertently burdens his religious exercise, he to wit: the distribution and sale of bibles and other faces an almost insurmountable wall in convincing religious literature to the people of the Philippines." the Court that the wall of separation would not be Although the Court categorically held that the In these two cases, the Court itself carved out an law of general applicability may burden religious "the most inalienable and sacred of all human rights", exemption from a law of general application, on the exercise provided the law is the least restrictive in the words of Jefferson. This right is sacred for an strength directly of the Free Exercise Clause. means to accomplish the goal of the law. The case invocation of the Free Exercise Clause is an appeal to also used, albeit inappropriately, the "compelling a higher sovereignty. The entire constitutional order We also have jurisprudence that supports permissive state interest" test. After Victoriano, German went of limited government is premised upon an accommodation. The case of Victoriano v. Elizalde back to the Gerona rule. Ebralinag then employed the acknowledgment of such higher sovereignty, thus the Rope Workers Union135 is an example of the "grave and immediate danger" test and overruled the Filipinos implore the "aid of Almighty God in order application of Mr. Justice Carpio’s theory of Gerona test. The fairly recent case of Iglesia ni Cristo to build a just and humane society and establish a permissive accommodation, where religious went back to the "clear and present danger" test in the government." As held in Sherbert, only the gravest exemption is granted by a legislative act. In maiden case of American Bible Society. Not abuses, endangering paramount interests can limit Victoriano, the constitutionality of Republic Act No. surprisingly, all the cases which employed the "clear this fundamental right. A mere balancing of interests 3350 was questioned. The said R.A. exempt and present danger" or "grave and immediate danger" which balances a right with just a colorable state employees from the application and coverage of a test involved, in one form or another, religious speech interest is therefore not appropriate. Instead, only a closed shop agreement—mandated in another law— as this test is often used in cases on freedom of compelling interest of the state can prevail over the based on religious objections. A unanimous Court expression. On the other hand, the Gerona and fundamental right to religious liberty. The test upheld the constitutionality of the law, holding that German cases set the rule that religious freedom will requires the state to carry a heavy burden, a "government is not precluded from pursuing valid not prevail over established institutions of society and compelling one, for to do otherwise would allow the objectives secular in character even if the incidental law. Gerona, however, which was the authority cited state to batter religion, especially the less powerful result would be favorable to a religion or sect." by German has been overruled by Ebralinag which ones until they are destroyed. In determining which Interestingly, the secular purpose of the challenged employed the "grave and immediate danger" test. shall prevail between the state’s interest and religious law which the Court upheld was the advancement of Victoriano was the only case that employed the liberty, reasonableness shall be the guide. The "the constitutional right to the free exercise of "compelling state interest" test, but as explained "compelling state interest" serves the purpose of religion."136 previously, the use of the test was inappropriate to the revering religious liberty while at the same time facts of the case. affording protection to the paramount interests of the Having established that benevolent neutrality- state. This was the test used in Sherbert which accommodation is the framework by which free The case at bar does not involve speech as in involved conduct, i.e. refusal to work on Saturdays. exercise cases must be decided, the next question American Bible Society, Ebralinag and Iglesia ni In the end, the "compelling state interest" test, by then turned to the test that should be used in Cristo where the "clear and present danger" and upholding the paramount interests of the state, seeks "grave and immediate danger" tests were appropriate to protect the very state, without which, religious ascertaining the limits of the exercise of religious 137 freedom. In our Decision dated August 4, 2003, we as speech has easily discernible or immediate effects. liberty will not be preserved. (citations omitted) reviewed our jurisprudence, and ruled that in cases The Gerona and German doctrine, aside from having involving purely conduct based on religious belief, as been overruled, is not congruent with the benevolent At this point, we take note of Mr. Justice Carpio’s in the case at bar, the compelling state interest test, is neutrality approach, thus not appropriate in this dissent, which, while loosely disputing the proper, viz: jurisdiction. Similar to Victoriano, the present case applicability of the benevolent neutrality framework involves purely conduct arising from religious belief. and compelling state interest test, states that "[i]t is Philippine jurisprudence articulates several tests to The "compelling state interest" test is proper where true that a test needs to be applied by the Court in determine these limits. Beginning with the first case conduct is involved for the whole gamut of human determining the validity of a free exercise claim of on the Free Exercise Clause, American Bible Society, conduct has different effects on the state’s interests: exemption as made here by Escritor." This assertion the Court mentioned the "clear and present danger" some effects may be immediate and short-term while is inconsistent with the position negating the test but did not employ it. Nevertheless, this test others delayed and far-reaching. A test that would benevolent neutrality or accommodation approach. If continued to be cited in subsequent cases on religious protect the interests of the state in preventing a it were true, indeed, that the religion clauses do not liberty. The Gerona case then pronounced that the test substantive evil, whether immediate or delayed, is require accommodations based on the free exercise of of permissibility of religious freedom is whether it therefore necessary. However, not any interest of the religion, then there would be no need for a test to violates the established institutions of society and state would suffice to prevail over the right to determine the validity of a free exercise claim, as any law. The Victoriano case mentioned the "immediate religious freedom as this is a fundamental right that and all claims for religious exemptions from a law of and grave danger" test as well as the doctrine that a enjoys a preferred position in the hierarchy of rights - general application would fail. Mr. Justice Carpio also asserts that "[m]aking a the belief because the Free Exercise Clause prohibits carve out an exemption from a law of general distinction between permissive accommodation and inquiring about its truth as held in Ballard and application. He posits the view that the law should mandatory accommodation is more critically Cantwell. The sincerity of the claimant’s belief is prevail in the absence of a legislative exemption, and important in analyzing free exercise exemption ascertained to avoid the mere claim of religious the Court cannot make the accommodation or claims because it forces the Court to confront how far beliefs to escape a mandatory regulation. xxx exemption. it can validly set the limits of religious liberty under the Free Exercise Clause, rather than presenting the xxx xxx xxx Mr. Justice Carpio’s position is clearly not supported separation theory and accommodation theory as by Philippine jurisprudence. The cases of American opposite concepts, and then rejecting relevant and Second, the court asks: "[I]s there a sufficiently Bible Society, Ebralinag, and Victoriano demonstrate instructive American jurisprudence (such as the compelling state interest to justify this infringement that our application of the doctrine of benevolent Smith case) just because it does not espouse the of religious liberty?" In this step, the government has neutrality-accommodation covers not only the grant theory selected." He then asserts that the Smith to establish that its purposes are legitimate for the of permissive, or legislative accommodations, but doctrine cannot be dismissed because it does not state and that they are compelling. Government must also mandatory accommodations. Thus, an exemption really espouse the strict neutrality approach, but more do more than assert the objectives at risk if exemption from a law of general application is possible, even if of permissive accommodation. is given; it must precisely show how and to what anchored directly on an invocation of the Free extent those objectives will be undermined if Exercise Clause alone, rather than a legislative Mr. Justice Carpio’s assertion misses the point. exemptions are granted. xxx exemption. Precisely because the doctrine in Smith is that only legislative accommodations are allowed under the xxx xxx xxx Moreover, it should be noted that while there is no Free Exercise Clause, it cannot be used in Philippine case as yet wherein the Court granted an determining a claim of religion exemption directly accommodation/exemption to a religious act from the anchored on the Free Exercise Clause. Thus, even Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means application of general penal laws, permissive assuming that the Smith doctrine actually espouses accommodation based on religious freedom has been the theory of accommodation or benevolent possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of granted with respect to one of the crimes penalized neutrality, the accommodation is limited to the under the Revised Penal Code, that of bigamy. permissive, or legislative exemptions. It, therefore, the state?" The analysis requires the state to show that the means in which it is achieving its legitimate state cannot be used as a test in determining the claims of In the U.S. case of Reynolds v. United States,139 the religious exemptions directly under the Free Exercise objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that U.S. Court expressly denied to Mormons an Clause because Smith does not recognize such exemption from a general federal law criminalizing exemption. Moreover, Mr. Justice Carpio’s advocacy imposes as little as possible on religious liberties xxx.138 [citations omitted] polygamy, even if it was proven that the practice of the Smith doctrine would effectively render the constituted a religious duty under their faith.140 In Free Exercise protection—a fundamental right under Again, the application of the compelling state interest contradistinction, Philippine law accommodates the our Constitution—nugatory because he would deny same practice among Moslems, through a legislative its status as an independent source of right. test could result to three situations of accommodation: First, mandatory accommodation act. For while the act of marrying more than one still constitutes bigamy under the Revised Penal Code, b. The Compelling State Interest Test would result if the Court finds that accommodation is required by the Free Exercise Clause. Second, if the Article 180 of P.D. No. 1083, otherwise known as the Court finds that the State may, but is not required to, Code of Muslim Personal Laws of the Philippines, As previously stated, the compelling state interest test accommodate religious interests, permissive provides that the penal laws relative to the crime of involves a three-step process. We explained this accommodation results. Finally, if the Court finds that bigamy "shall not apply to a person married…under process in detail, by showing the questions which that establishment concerns prevail over potential Muslim law." Thus, by legislative action, must be answered in each step, viz: accommodation interests, then it must rule that the accommodation is granted of a Muslim practice accommodation is prohibited. which would otherwise violate a valid and general …First, "[H]as the statute or government action criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision created a burden on the free exercise of religion?" One of the central arguments in Mr. Justice Carpio’s The courts often look into the sincerity of the dated August 4, 2003 and citing Sulu Islamic dissent is that only permissive accommodation can 141 religious belief, but without inquiring into the truth of Association of Masjid Lambayong v. Malik, he stated that a Muslim Judge "is not criminally liable American Bible Society, in cases involving criminal exceptions are intolerable. But in other instances, the for bigamy because Shari’a law allows a Muslim to laws of general application. injury to religious conscience is so great and the have more than one wife." advancement of public purposes so small or We hold that the Constitution itself mandates the incomparable that only indifference or hostility could From the foregoing, the weakness of Mr. Justice Court to do so for the following reasons. explain a refusal to make exemptions. Because of Carpio’s "permissive-accommodation only" advocacy plural traditions, legislators and executive officials in this jurisdiction becomes manifest. Having First, as previously discussed, while the U.S. religion are frequently willing to make such exemptions when anchored his argument on the Smith doctrine that "the clauses are the precursors to the Philippine religion the need is brought to their attention, but this may not guaranty of religious liberty as embodied in the Free clauses, the benevolent neutrality-accommodation always be the case when the religious practice is Exercise Clause does not require the grant of approach in Philippine jurisdiction is more either unknown at the time of enactment or is for exemptions from generally applicable laws to pronounced and given leeway than in the U.S. some reason unpopular. In these cases, a individuals whose religious practice conflict with constitutional interpretation that allows those laws," his theory is infirmed by the showing accommodations prevents needless injury to the Second, the whole purpose of the accommodation religious consciences of those who can have an that the benevolent neutrality approach which allows theory, including the notion of mandatory for both mandatory and permissive accommodations influence in the legislature; while a constitutional accommodations, was to address the "inadvertent interpretation that requires accommodations extends was unequivocally adopted by our framers in the burdensome effect" that an otherwise facially neutral Philippine Constitution, our legislature, and our this treatment to religious faiths that are less able to law would have on religious exercise. Just because protect themselves in the political arena. jurisprudence. the law is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise Clause. Parenthetically, it should be pointed out that a As stated by Justice O’Connor in her concurring Fourth, exemption from penal laws on account of "permissive accommodation-only" stance is the opinion in Smith, "[t]here is nothing talismanic about religion is not entirely an alien concept, nor will it be antithesis to the notion that religion clauses, like the neutral laws of general applicability or general applied for the first time, as an exemption of such other fundamental liberties found in the Bill or criminal prohibitions, for laws neutral towards nature, albeit by legislative act, has already been Rights, is a preferred right and an independent source religion can coerce a person to violate his religious granted to Moslem polygamy and the criminal law of of right. conscience or intrude upon his religious duties just as bigamy. effectively as laws aimed at religion."142 What Mr. Justice Carpio is left with is the argument, Finally, we must consider the language of the based on Smith, that the test in Sherbert is not Third, there is wisdom in accommodation made by Religion Clauses vis-à-vis the other fundamental applicable when the law in question is a generally the Court as this is the recourse of minority religions rights in the Bill of Rights. It has been noted that applicable criminal law. Stated differently, even if Mr. who are likewise protected by the Free Exercise unlike other fundamental rights like the right to life, Justice Carpio conceded that there is no question that Clause. Mandatory accommodations are particularly liberty or property, the Religion Clauses are stated in in the Philippine context, accommodations are made, necessary to protect adherents of minority religions absolute terms, unqualified by the requirement of the question remains as to how far the exemptions from the inevitable effects of majoritarianism, which "due process," "unreasonableness," or "lawful order." will be made and who would make these exemptions. include ignorance and indifference and overt hostility Only the right to free speech is comparable in its to the minority. As stated in our Decision, dated absolute grant. Given the unequivocal and On this point, two things must be clarified: first, in August 4, 2003: unqualified grant couched in the language, the Court relation to criminal statutes, only the question of cannot simply dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise that mandatory accommodation is uncertain, for ....In a democratic republic, laws are inevitably based 143 Philippine law and jurisprudence have, in fact, the law in question is a general criminal law. If the on the presuppositions of the majority, thus not burden is great and the sincerity of the religious belief allowed legislative accommodation. Second, the infrequently, they come into conflict with the power of the Courts to grant exemptions in general is not in question, adherence to the benevolent religious scruples of those holding different world neutrality-accommodation approach require that the (i.e., finding that the Free Exercise Clause required views, even in the absence of a deliberate intent to the accommodation, or mandatory accommodations) Court make an individual determination and not interfere with religious practice. At times, this effect dismiss the claim outright. has already been decided, not just once, but twice by is unavoidable as a practical matter because some the Court. Thus, the crux of the matter is whether this laws are so necessary to the common good that Court can make exemptions as in Ebralinag and the At this point, we must emphasize that the adoption of pertained to the final task of subjecting this case to 1. Exhibit "A-OSG" and submarking — The the benevolent neutrality-accommodation approach the careful application of the compelling state interest September 30, 2003 Letter to the OSG of Bro. does not mean that the Court ought to grant test, i.e., determining whether respondent is entitled Raymond B. Leach, Legal Representative of the exemptions every time a free exercise claim comes to exemption, an issue which is essentially factual or Watch Tower Bible and Tract Society of the before it. This is an erroneous reading of the evidentiary in nature. Philippines, Inc. framework which the dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality is After the termination of further proceedings with the Purpose: To show that the OSG exerted efforts to the lens with which the Court ought to view religion OCA, and with the transmittal of the Hearing examine the sincerity and centrality of respondent’s clause cases, the interest of the state should also be Officer’s report,146 along with the evidence submitted claimed religious belief and practice. afforded utmost protection. This is precisely the by the OSG, this case is once again with us, to purpose of the test—to draw the line between resolve the penultimate question of whether 2. Exhibit "B-OSG" and submarking — The duly mandatory, permissible and forbidden religious respondent should be found guilty of the notarized certification dated September 30, 2003 exercise. Thus, under the framework, the Court administrative charge of "disgraceful and immoral issued and signed by Bro. Leach. cannot simply dismiss a claim under the Free conduct." It is at this point then that we examine the Exercise Clause because the conduct in question report and documents submitted by the hearing PURPOSES: (1) To substantiate the sincerity and offends a law or the orthodox view, as proposed by officer of this case, and apply the three-step process Mr. Justice Carpio, for this precisely is the protection centrality of respondent’s claimed religious belief and of the compelling state interest test based on the practice; and (2) to prove that the Declaration of afforded by the religion clauses of the evidence presented by the parties, especially the Constitution.144 As stated in the Decision: Pledging Faithfulness, being a purely internal government. arrangement within the congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection xxx While the Court cannot adopt a doctrinal On the sincerity of religious belief, the Solicitor for respondent. formulation that can eliminate the difficult questions General categorically concedes that the sincerity and of judgment in determining the degree of burden on centrality of respondent’s claimed religious belief and In its Memorandum-In-Intervention, the OSG religious practice or importance of the state interest practice are beyond serious doubt.147 Thus, having or the sufficiency of the means adopted by the state to contends that the State has a compelling interest to previously established the preliminary conditions override respondent’s claimed religious belief and pursue its interest, the Court can set a doctrine on the required by the compelling state interest test, i.e., that ideal towards which religious clause jurisprudence practice, in order to protect marriage and the family a law or government practice inhibits the free as basic social institutions. The Solicitor General, should be directed. We here lay down the doctrine exercise of respondent’s religious beliefs, and there 148 that in Philippine jurisdiction, we adopt the quoting the Constitution and the Family being no doubt as to the sincerity and centrality of her Code,149 argues that marriage and the family are so benevolent neutrality approach not only because of its faith to claim the exemption based on the free merits as discussed above, but more importantly, crucial to the stability and peace of the nation that the exercise clause, the burden shifted to the government conjugal arrangement embraced in the Declaration of because our constitutional history and interpretation to demonstrate that the law or practice justifies a indubitably show that benevolent neutrality is the Pledging Faithfulness should not be recognized or compelling secular objective and that it is the least given effect, as "it is utterly destructive of the avowed launching pad from which the Court should take off restrictive means of achieving that objective. in interpreting religion clause cases. The ideal institutions of marriage and the family for it reduces to a mockery these legally exalted and socially towards which this approach is directed is the A look at the evidence that the OSG has presented protection of religious liberty "not only for a significant institutions which in their purity demand fails to demonstrate "the gravest abuses, endangering respect and dignity."150 minority, however small- not only for a majority, paramount interests" which could limit or override however large but for each of us" to the greatest respondent’s fundamental right to religious freedom. extent possible within flexible constitutional limits.145 Parenthetically, the dissenting opinion of Mr. Justice Neither did the government exert any effort to show Carpio echoes the Solicitor General in so far as he that the means it seeks to achieve its legitimate state II. THE CURRENT PROCEEDINGS asserts that the State has a compelling interest in the objective is the least intrusive means. preservation of marriage and the family as basic social institutions, which is ultimately the public We now resume from where we ended in our August The OSG merely offered the following as exhibits policy underlying the criminal sanctions against 4, 2003 Decision. As mentioned, what remained to be and their purposes: concubinage and bigamy. He also argues that in resolved, upon which remand was necessary, dismissing the administrative complaint against the cohabitation which respondent’s faith finds moral. The above arguments are mere reiterations of the respondent, "the majority opinion effectively In other words, the government must do more than arguments raised by Mme. Justice Ynares-Santiago in condones and accords a semblance of legitimacy to assert the objectives at risk if exemption is given; it her dissenting opinion to our Decision dated August her patently unlawful cohabitation..." and "facilitates must precisely show how and to what extent those 4, 2003, which she offers again in toto. These the circumvention of the Revised Penal Code." objectives will be undermined if exemptions are arguments have already been addressed in our According to Mr. Justice Carpio, by choosing to turn granted.151 This, the Solicitor General failed to do. decision dated August 4, 2003.154 In said Decision, we a blind eye to respondent’s criminal conduct, the noted that Mme. Justice Ynares-Santiago’s dissenting majority is in fact recognizing a practice, custom or To paraphrase Justice Blackmun’s application of the opinion dwelt more on the standards of morality, agreement that subverts marriage. He argues in a compelling interest test, the State’s interest in without categorically holding that religious freedom 155 similar fashion as regards the state’s interest in the enforcing its prohibition, in order to be sufficiently is not in issue. We, therefore, went into a discussion sound administration of justice. compelling to outweigh a free exercise claim, cannot on morality, in order to show that: be merely abstract or symbolic. The State cannot There has never been any question that the state has plausibly assert that unbending application of a (a) The public morality expressed in the law an interest in protecting the institutions of marriage criminal prohibition is essential to fulfill any is necessarily secular for in our and the family, or even in the sound administration of compelling interest, if it does not, in fact, attempt to constitutional order, the religion clauses justice. Indeed, the provisions by which respondent’s enforce that prohibition. In the case at bar, the State prohibit the state from establishing a relationship is said to have impinged, e.g., Book V, has not evinced any concrete interest in enforcing the religion, including the morality it Title I, Chapter VI, Sec. 46(b)(5) of the Revised concubinage or bigamy charges against respondent or sanctions.156 Thus, when the law speaks of Administrative Code, Articles 334 and 349 of the her partner. The State has never sought to prosecute "immorality" in the Civil Service Law or Revised Penal Code, and even the provisions on respondent nor her partner. The State’s asserted "immoral" in the Code of Professional marriage and family in the Civil Code and Family interest thus amounts only to the symbolic Responsibility for lawyers,157 or "public Code, all clearly demonstrate the State’s need to preservation of an unenforced prohibition. morals" in the Revised Penal Code,158 or protect these secular interests. Incidentally, as echoes of the words of Messrs. J. "morals" in the New Civil Code,159 or "moral Bellosillo and Vitug, in their concurring opinions in character" in the Constitution,160 the Be that as it may, the free exercise of religion is our Decision, dated August 4, 2003, to deny the distinction between public and secular specifically articulated as one of the fundamental exemption would effectively break up "an otherwise morality on the one hand, and religious rights in our Constitution. It is a fundamental right ideal union of two individuals who have managed to morality, on the other, should be kept in 161 that enjoys a preferred position in the hierarchy of stay together as husband and wife [approximately mind; rights — "the most inalienable and sacred of human twenty-five years]" and have the effect of defeating rights," in the words of Jefferson. Hence, it is not the very substance of marriage and the family. (b) Although the morality contemplated by enough to contend that the state’s interest is laws is secular, benevolent neutrality could important, because our Constitution itself holds the The Solicitor General also argued against allow for accommodation of morality based right to religious freedom sacred. The State must respondent’s religious freedom on the basis of on religion, provided it does not offend articulate in specific terms the state interest involved morality, i.e., that "the conjugal arrangement of compelling state interests;162 in preventing the exemption, which must be respondent and her live-in partner should not be compelling, for only the gravest abuses, endangering condoned because adulterous relationships are (c) The jurisdiction of the Court extends 152 paramount interests can limit the fundamental right to constantly frowned upon by society"; and "that only to public and secular morality. religious freedom. To rule otherwise would be to State laws on marriage, which are moral in nature, Whatever pronouncement the Court makes emasculate the Free Exercise Clause as a source of take clear precedence over the religious beliefs and in the case at bar should be understood only right by itself. practices of any church, religious sect or in this realm where it has authority.163 denomination on marriage. Verily, religious beliefs Thus, it is not the State’s broad interest in "protecting and practices should not be permitted to override (d) Having distinguished between public and the institutions of marriage and the family," or even laws relating to public policy such as those of 153 secular morality and religious morality, the "in the sound administration of justice" that must be marriage." more difficult task is determining which weighed against respondent’s claim, but the State’s immoral acts under this public and secular narrow interest in refusing to make an exception for morality fall under the phrase "disgraceful and immoral conduct" for which a considers cohabitation without marriage as immoral. the government (law) to assist their own religion or government employee may be held Second, but more important, the Jehovah’s Witnesses burden others—makes the most sense in the administratively liable.164 Only one conduct have standards and procedures which must be interpretation of the Bill of Rights, a document is in question before this Court, i.e., the followed before cohabitation without marriage is designed to protect minorities and individuals from conjugal arrangement of a government given the blessing of the congregation. This includes mobocracy in a democracy (the majority or a employee whose partner is legally married an investigative process whereby the elders of the coalition of minorities). 170 to another which Philippine law and congregation verify the circumstances of the jurisprudence consider both immoral and declarants. Also, the Declaration is not a blanket As previously discussed, our Constitution adheres to 165 illegal. authority to cohabit without marriage because once the benevolent neutrality approach that gives room all legal impediments for the couple are lifted, the for accommodation of religious exercises as required (e) While there is no dispute that under validity of the Declaration ceases, and the by the Free Exercise Clause.171 Thus, in arguing that settled jurisprudence, respondent’s conduct congregation requires that the couple legalize their respondent should be held administratively liable as constitutes "disgraceful and immoral union. the arrangement she had was "illegal per se because, conduct," the case at bar involves the by universally recognized standards, it is inherently defense of religious freedom, therefore none At bottom, the slippery slope argument of Mr. Justice or by its very nature bad, improper, immoral and of the cases cited by Mme. Justice Ynares- Carpio is speculative. Nevertheless, insofar as he contrary to good conscience,"172 the Solicitor General Santiago apply.166 There is no jurisprudence raises the issue of equality among religions, we look failed to appreciate that benevolent neutrality could in Philippine jurisdiction holding that the to the words of the Religion Clauses, which clearly allow for accommodation of morality based on defense of religious freedom of a member of single out religion for both a benefit and a burden: religion, provided it does not offend compelling state the Jehovah’s Witnesses under the same "No law shall be made respecting an establishment of interests.173 circumstances as respondent will not prevail religion, or prohibiting the free exercise thereof…" over the laws on adultery, concubinage or On its face, the language grants a unique advantage to Finally, even assuming that the OSG has proved a some other law. We cannot summarily religious conduct, protecting it from governmental compelling state interest, it has to further demonstrate conclude therefore imposition; and imposes a unique disadvantage, that the state has used the least intrusive means preventing the government from supporting it. To possible so that the free exercise is not infringed any that her conduct is likewise so "odious" and understand this as a provision which puts religion on more than necessary to achieve the legitimate goal of "barbaric" as to be immoral and punishable by law.167 an equal footing with other bases for action seems to the state, i.e., it has chosen a way to achieve its be a curious reading. There are no "free exercise" of legitimate state end that imposes as little as possible 174 Again, we note the arguments raised by Mr. Justice "establishment" provisions for science, sports, on religious liberties. Again, the Solicitor General Carpio with respect to charging respondent with philosophy, or family relations. The language itself utterly failed to prove this element of the test. Other conduct prejudicial to the best interest of the service, thus seems to answer whether we have a paradigm of than the two documents offered as cited above which equality or liberty; the language of the Clause is established the sincerity of respondent’s religious and we reiterate that the dissent offends due process 169 as respondent was not given an opportunity to defend clearly in the form of a grant of liberty. belief and the fact that the agreement was an internal herself against the charge of "conduct prejudicial to arrangement within respondent’s congregation, no the best interest of the service." Indeed, there is no In this case, the government’s conduct may appear iota of evidence was offered. In fact, the records are evidence of the alleged prejudice to the best interest innocent and nondiscriminatory but in effect, it is bereft of even a feeble attempt to procure any such of the service.168 oppressive to the minority. In the interpretation of a evidence to show that the means the state adopted in document, such as the Bill of Rights, designed to pursuing this compelling interest is the least Mr. Justice Carpio’s slippery slope argument, on the protect the minority from the majority, the question of restrictive to respondent’s religious freedom. other hand, is non-sequitur. If the Court grants which perspective is appropriate would seem easy to respondent exemption from the laws which answer. Moreover, the text, history, structure and Thus, we find that in this particular case and under respondent Escritor has been charged to have values implicated in the interpretation of the clauses, these distinct circumstances, respondent Escritor’s violated, the exemption would not apply to Catholics all point toward this perspective. Thus, substantive conjugal arrangement cannot be penalized as she has who have secured church annulment of their marriage equality—a reading of the religion clauses which made out a case for exemption from the law based on even without a final annulment from a civil court. leaves both politically dominant and the politically her fundamental right to freedom of religion. The First, unlike Jehovah’s Witnesses, the Catholic faith weak religious groups equal in their inability to use Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED. Republic of the Philippines his stead, Corazon C. Aquino was declared President determination to wrest power from the govermnent. SUPREME COURT of the Republic under a revolutionary government. Not only through resort to arms but also to through Manila Her ascension to and consilidation of power have not the use of propaganda have they been successful in been unchallenged. The failed Manila Hotel coup in dreating chaos and destabilizing the country. EN BANC 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel Nor are the woes of the Republic purely political. The G.R. No. 88211 September 15, 1989 troops led by Col. Canlas with the support of "Marcos accumulated foreign debt and the plunder of the loyalists" and the unseccessful plot of the Marcos nation attributed to Mr. Marcos and his cronies left FERDINAND E. MARCOS, IMELDA R. spouses to surreptitiously return from Hawii with the economy devastated. The efforts at economic MARCOS, FERDINAND R. MARCOS, JR., mercenaries aboard an aircraft chartered by a recovery, three years after Mrs. Aquino assumed IRENE M. ARANETA, IMEE MANOTOC, Lebanese arms dealer [Manila Bulletin, January 30, office, have yet to show concrete results in alleviating TOMAS MANOTOC, GREGORIO ARANETA, 1987] awakened the nation to the capacity of the the poverty of the masses, while the recovery of the PACIFICO E. MARCOS, NICANOR YÑIGUEZ Marcoses to stir trouble even from afar and to the ill-gotten wealth of the Marcoses has remained and PHILIPPINE CONSTITUTION fanaticism and blind loyalty of their followers in the elusive. ASSOCIATION (PHILCONSA), represented by country. The ratification of the 1987 Constitution its President, CONRADO F. enshrined the victory of "people power" and also Now, Mr. Marcos, in his deathbed, has signified his ESTRELLA, petitioners, clearly reinforced the constitutional moorings of Mrs. wish to return to the Philipppines to die. But Mrs. vs. Aquino's presidency. This did not, however, stop Aquino, considering the dire consequences to the HONORABLE RAUL MANGLAPUS, bloody challenges to the government. On August 28, nation of his return at a time when the stability of CATALINO MACARAIG, SEDFREY 1987, Col. Gregorio Honasan, one of the major government is threatened from various directions and ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, players in the February Revolution, led a failed coup the economy is just beginning to rise and move FIDEL RAMOS, RENATO DE VILLA, in their that left scores of people, both combatants and forward, has stood firmly on the decision to bar the capacity as Secretary of Foreign Affairs, Executive civilians, dead. There were several other armed return of Mr. Marcos and his family. Secretary, Secretary of Justice, Immigration sorties of lesser significance, but the message they Commissioner, Secretary of National Defense and conveyed was the same — a split in the ranks of the The Petition Chief of Staff, respectively, respondents. military establishment that thraetened civilian supremacy over military and brought to the fore the This case is unique. It should not create a precedent, realization that civilian government could be at the for the case of a dictator forced out of office and into mercy of a fractious military. exile after causing twenty years of political, CORTES, J.: economic and social havoc in the country and who But the armed threats to the Government were not within the short space of three years seeks to return, Before the Court is a contreversy of grave national only found in misguided elements and among rabid is in a class by itself. importance. While ostensibly only legal issues are followers of Mr. Marcos. There are also the involved, the Court's decision in this case would communist insurgency and the seccessionist This petition for mandamus and prohibition asks the undeniably have a profound effect on the political, movement in Mindanao which gained ground during Courts to order the respondents to issue travel economic and other aspects of national life. the rule of Mr. Marcos, to the extent that the documents to Mr. Marcos and the immediate communists have set up a parallel government of members of his family and to enjoin the We recall that in February 1986, Ferdinand E. Marcos their own on the areas they effectively control while implementation of the President's decision to bar their was deposed from the presidency via the non-violent the separatist are virtually free to move about in return to the Philippines. "people power" revolution and forced into exile. In armed bands. There has been no let up on this groups' The Issue making such or public health, have respondents finding? established such fact? Th issue is basically one of power: whether or not, in the exercise of the powers granted by the (2) Has there 3. Have the respondents, therefore, Constitution, the President may prohibit the Marcoses been prior notice in implementing the President's from returning to the Philippines. to petitioners? decision to bar the return of former President Marcos and his family, According to the petitioners, the resolution of the (3) Has there acted and would be acting without case would depend on the resolution of the following been a hearing? jurisdiction, or in excess of issues: jurisdiction, or with grave abuse of (4) Assuming that discretion, in performing any act 1. Does the President have the notice and which would effectively bar the power to bar the return of former hearing may be return of former President Marcos President Marcos and family to the dispensed with, and his family to the Philippines? Philippines? has the [Memorandum for Petitioners, pp. President's 5-7; Rollo, pp. 234-236.1 a. Is this a political question? decision, including the The case for petitioners is founded on the assertion 2. Assuming that the President has grounds upon that the right of the Marcoses to return to the the power to bar former President which it was Philippines is guaranteed under the following Marcos and his family from based, been made provisions of the Bill of Rights, to wit: returning to the Philippines, in the known to interest of "national security, public petitioners so that Section 1. No person shall be safety or public health they may deprived of life, liberty, or property controvert the without due process of law, nor a. Has the President made a finding same? shall any person be denied the that the return of former President equal protection of the laws. Marcos and his family to the c. Is the President's determination Philippines is a clear and present that the return of former President xxx xxx xxx danger to national security, public Marcos and his family to the safety or public health? Philippines is a clear and present Section 6. The liberty of abode and danger to national security, public of changing the same within the b. Assuming that she has made that safety, or public health a political limits prescribed by law shall not finding question? be impaired except upon lawful order of the court. Neither shall the (1) Have the d. Assuming that the Court may right to travel be impaired except in requirements of inquire as to whether the return of the interest of national security, due process been former President Marcos and his public safety, or public health, as complied with in family is a clear and present danger may be provided by law. to national security, public safety, The petitioners contend that the President is without 3) The above-mentioned rights Respondents submit that in its power to impair the liberty of abode of the Marcoses shall not be subject to any proper formulation, the issue is because only a court may do so "within the limits restrictions except those which are whether or not petitioners prescribed by law." Nor may the President impair provided by law, are necessary to Ferdinand E. Marcos and family their right to travel because no law has authorized her protect national security, public have the right to return to the to do so. They advance the view that before the right order (order public), public health Philippines and reside here at this to travel may be impaired by any authority or agency or morals or the rights and time in the face of the of the government, there must be legislation to that freedoms of others, and are determination by the President that effect. consistent with the other rights such return and residence will recognized in the present Covenant. endanger national security and The petitioners further assert that under international public safety. law, the right of Mr. Marcos and his family to return 4) No one shall be arbitrarily to the Philippines is guaranteed. deprived of the right to enter his It may be conceded that as own country. formulated by petitioners, the The Universal Declaration of Human Rights question is not a political question provides: On the other hand, the respondents' principal as it involves merely a argument is that the issue in this case involves a determination of what the law Article 13. (1) Everyone has the political question which is non-justiciable. According provides on the matter and right to freedom of movement and to the Solicitor General: application thereof to petitioners residence within the borders of Ferdinand E. Marcos and family. each state. As petitioners couch it, the question But when the question is whether involved is simply whether or not the two rights claimed by (2) Everyone has the right to leave petitioners Ferdinand E. Marcos petitioners Ferdinand E. Marcos any country, including his own, and and his family have the right to and family impinge on or collide to return to his country. travel and liberty of abode. with the more primordial and Petitioners invoke these transcendental right of the State to Likewise, the International Covenant on Civil and constitutional rights in security and safety of its nationals, Political Rights, which had been ratified by the vacuo without reference to the question becomes political and Philippines, provides: attendant circumstances. this Honorable Court can not consider it. Article 12 There are thus gradations to the question, to wit: 1) Everyone lawfully within the territory of a State shall, within that Do petitioners Ferdinand E. Marcos territory, have the right to liberty of and family have the right to return movement and freedom to choose to the Philippines and reestablish his residence. their residence here? This is clearly a justiciable question which this 2) Everyone shall be free to leave Honorable Court can decide. any country, including his own. Do petitioners Ferdinand E. Marcos life, liberty, and property, and the to other countries or within the Philippines. These are and family have their right to return promotion of the general welfare what the right to travel would normally connote. to the Philippines and reestablish are essential for the enjoyment by Essentially, the right involved is the right to return to their residence here even if their all the people of the blessings of one's country, a totally distinct right under return and residence here will democracy. international law, independent from although related endanger national security and to the right to travel. Thus, the Universal Declaration public safety? this is still a Respondents also point out that the decision to ban of Humans Rights and the International Covenant on justiciable question which this Mr. Marcos and family from returning to the Civil and Political Rights treat the right to freedom of Honorable Court can decide. Philippines for reasons of national security and public movement and abode within the territory of a state, safety has international precedents. Rafael Trujillo of the right to leave a country, and the right to enter Is there danger to national security the Dominican Republic, Anastacio Somoza Jr. of one's country as separate and distinct rights. The and public safety if petitioners Nicaragua, Jorge Ubico of Guatemala, Fulgencio Declaration speaks of the "right to freedom of Ferdinand E. Marcos and family batista of Cuba, King Farouk of Egypt, Maximiliano movement and residence within the borders of each shall return to the Philippines and Hernandez Martinez of El Salvador, and Marcos state" [Art. 13(l)] separately from the "right to leave establish their residence here? This Perez Jimenez of Venezuela were among the deposed any country, including his own, and to return to his is now a political question which dictators whose return to their homelands was country." [Art. 13(2).] On the other hand, the this Honorable Court can not prevented by their governments. [See Statement of Covenant guarantees the "right to liberty of decide for it falls within the Foreign Affairs Secretary Raul S. Manglapus, quoted movement and freedom to choose his residence" [Art. exclusive authority and competence in Memorandum for Respondents, pp. 26-32; Rollo, 12(l)] and the right to "be free to leave any country, of the President of the Philippines. pp. 314-319.] including his own." [Art. 12(2)] which rights may be [Memorandum for Respondents, restricted by such laws as "are necessary to protect pp. 9-11; Rollo, pp. 297-299.] The parties are in agreement that the underlying issue national security, public order, public health or is one of the scope of presidential power and its morals or enter qqqs own country" of which one Respondents argue for the primacy of the right of the limits. We, however, view this issue in a different cannot be "arbitrarily deprived." [Art. 12(4).] It State to national security over individual rights. In light. Although we give due weight to the parties' would therefore be inappropriate to construe the support thereof, they cite Article II of the formulation of the issues, we are not bound by its limitations to the right to return to one's country in Constitution, to wit: narrow confines in arriving at a solution to the the same context as those pertaining to the liberty of controversy. abode and the right to travel. Section 4. The prime duty of the Government is to serve and protect At the outset, we must state that it would not do to The right to return to one's country is not among the the people. The Government may view the case within the confines of the right to travel rights specifically guaranteed in the Bill of Rights, call upon the people to defend the and the import of the decisions of the U.S. Supreme which treats only of the liberty of abode and the right State and, in the fulfillment thereof, Court in the leading cases of Kent v. Dulles [357 U.S. to travel, but it is our well-considered view that the all citizens may be required, under 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. right to return may be considered, as a generally conditions provided by law, to Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) accepted principle of international law and, under our render personal, military, or civil which affirmed the right to travel and recognized Constitution, is part of the law of the land [Art. II, service. exceptions to the exercise thereof, respectively. Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different Section 5. The maintenance of It must be emphasized that the individual right protection under the International Covenant of Civil peace and order, the protection of involved is not the right to travel from the Philippines and Political Rights, i.e., against being "arbitrarily in Angara v. Electoral Commission [63 Phil. 139 and pardons, the power to grant amnesty with the deprived" thereof [Art. 12 (4).] (1936)], "the Constitution has blocked but with deft concurrence of Congress, the power to contract or strokes and in bold lines, allotment of power to the guarantee foreign loans, the power to enter into Thus, the rulings in the cases Kent and Haig which executive, the legislative and the judicial departments treaties or international agreements, the power to refer to the issuance of passports for the purpose of of the government." [At 157.1 Thus, the 1987 submit the budget to Congress, and the power to effectively exercising the right to travel are not Constitution explicitly provides that "[the legislative address Congress [Art. VII, Sec. 14-23]. determinative of this case and are only tangentially power shall be vested in the Congress of the material insofar as they relate to a conflict between Philippines" Art VI, Sec. 11, "[t]he executive power The inevitable question then arises: by enumerating executive action and the exercise of a protected right. shall bevested in the President of the Philippines" certain powers of the President did the framers of the The issue before the Court is novel and without [Art. VII, Sec. 11, and "[te judicial power shall be Constitution intend that the President shall exercise precedent in Philippine, and even in American vested in one Supreme Court and in such lower courts those specific powers and no other? Are these se jurisprudence. as may be established by law" [Art. VIII, Sec. 1.] enumerated powers the breadth and scope of These provisions not only establish a separation of "executive power"? Petitioners advance the view that Consequently, resolution by the Court of the well- powers by actual division [Angara v. Electoral the President's powers are limited to those debated issue of whether or not there can be Commission, supra] but also confer plenary specifically enumerated in the 1987 Constitution. limitations on the right to travel in the absence of legislative, executive and judicial powers subject only Thus, they assert: "The President has enumerated legislation to that effect is rendered unnecessary. An to limitations provided in the Constitution. For as the powers, and what is not enumerated is impliedly appropriate case for its resolution will have to be Supreme Court in Ocampo v. Cabangis [15 Phil. 626 denied to her. Inclusion unius est exclusio awaited. (1910)] pointed out "a grant of the legislative power alterius[Memorandum for Petitioners, p. 4- Rollo p. means a grant of all legislative power; and a grant of 233.1 This argument brings to mind the institution of Having clarified the substance of the legal issue, we the judicial power means a grant of all the judicial the U.S. Presidency after which ours is legally find now a need to explain the methodology for its power which may be exercised under the patterned.** resolution. Our resolution of the issue will involve a government." [At 631-632.1 If this can be said of the two-tiered approach. We shall first resolve whether or legislative power which is exercised by two chambers Corwin, in his monumental volume on the President not the President has the power under the with a combined membership of more than two of the United States grappled with the same problem. Constitution, to bar the Marcoses from returning to hundred members and of the judicial power which is He said: the Philippines. Then, we shall determine, pursuant to vested in a hierarchy of courts, it can equally be said the express power of the Court under the Constitution of the executive power which is vested in one official Article II is the most loosely drawn in Article VIII, Section 1, whether or not the the President. chapter of the Constitution. To President acted arbitrarily or with grave abuse of those who think that a constitution discretion amounting to lack or excess of jurisdiction As stated above, the Constitution provides that "[t]he ought to settle everything when she determined that the return of the Marcose's executive power shall be vested in the President of beforehand it should be a to the Philippines poses a serious threat to national the Philippines." [Art. VII, Sec. 1]. However, it does nightmare; by the same token, to interest and welfare and decided to bar their return. not define what is meant by executive power" those who think that constitution although in the same article it touches on the exercise makers ought to leave considerable Executive Power of certain powers by the President, i.e., the power of leeway for the future play of control over all executive departments, bureaus and political forces, it should be a The 1987 Constitution has fully restored the offices, the power to execute the laws, the appointing vision realized. separation of powers of the three great branches of power, the powers under the commander-in-chief government. To recall the words of Justice Laurel clause, the power to grant reprieves, commutations We encounter this characteristic of order, therefore altered from one of the powers of the President. It also grants the Article 11 in its opening words: President to President. Above all, President other powers that do not involve the "The executive power shall be the way each President understood execution of any provision of law, e.g., his power vested in a President of the United it as his personal obligation to over the country's foreign relations. States of America." . . .. [The inform and involve the Congress, to President: Office and Powers, earn and hold the confidence of the On these premises, we hold the view that although 17871957, pp. 3-4.] electorate and to render an the 1987 Constitution imposes limitations on the accounting to the nation and exercise ofspecific powers of the President, it Reviewing how the powers of the U.S. President posterity determined whether he maintains intact what is traditionally considered as were exercised by the different persons who held the strengthened or weakened the within the scope of "executive power." Corollarily, office from Washington to the early 1900's, and the constitutional order. [At 212- 213.] the powers of the President cannot be said to be swing from the presidency by commission to limited only to the specific powers enumerated in the Lincoln's dictatorship, he concluded that "what the We do not say that the presidency is what Mrs. Constitution. In other words, executive power is more presidency is at any particular moment depends in Aquino says it is or what she does but, rather, that the than the sum of specific powers so enumerated, important measure on who is President." [At 30.] consideration of tradition and the development of presidential power under the different constitutions It has been advanced that whatever power inherent in This view is shared by Schlesinger who wrote in The are essential for a complete understanding of the the government that is neither legislative nor judicial Imperial Presidency: extent of and limitations to the President's powers has to be executive. Thus, in the landmark decision under the 1987 Constitution. The 1935 Constitution of Springer v. Government of the Philippine Islands, For the American Presidency was a created a strong President with explicitly broader 277 U.S. 189 (1928), on the issue of who between the peculiarly personal institution. it powers than the U.S. President. The 1973 Governor-General of the Philippines and the remained of course, an agency of Constitution attempted to modify the system of Legislature may vote the shares of stock held by the government subject to unvarying government into the parliamentary type, with the Government to elect directors in the National Coal demands and duties no remained, President as a mere figurehead, but through numerous Company and the Philippine National Bank, the U.S. of cas President. But, more than amendments, the President became even more Supreme Court, in upholding the power of the most agencies of government, it powerful, to the point that he was also the de facto Governor-General to do so, said: changed shape, intensity and ethos Legislature. The 1987 Constitution, however, brought according to the man in charge. back the presidential system of government and ...Here the members of the Each President's distinctive restored the separation of legislative, executive and legislature who constitute a temperament and character, his judicial powers by their actual distribution among majority of the "board" and values, standards, style, his habits, three distinct branches of government with provision "committee" respectively, are not expectations, Idiosyncrasies, for checks and balances. charged with the performance of compulsions, phobias recast the any legislative functions or with the WhiteHouse and pervaded the It would not be accurate, however, to state that doing of anything which is in aid of entire government. The executive "executive power" is the power to enforce the laws, performance of any such functions branch, said Clark Clifford, was a for the President is head of state as well as head of by the legislature. Putting aside for chameleon, taking its color from government and whatever powers inhere in such the moment the question whether the character and personality of the positions pertain to the office unless the Constitution the duties devolved upon these President. The thrust of the office, itself withholds it. Furthermore, the Constitution members are vested by the Organic its impact on the constitutional itself provides that the execution of the laws is only Act in the Governor-General, it is clear that they are not legislative in It does not seem to need argument arriving at a decision. More than that, having sworn character, and still more clear that to show that however we may to defend and uphold the Constitution, the President they are not judicial. The fact that disguise it by veiling words we do has the obligation under the Constitution to protect they do not fall within the authority not and cannot carry out the the people, promote their welfare and advance the of either of these two constitutes distinction between legislative and national interest. It must be borne in mind that the logical ground for concluding that executive action with mathematical Constitution, aside from being an allocation of power they do fall within that of the precision and divide the branches is also a social contract whereby the people have remaining one among which the into watertight compartments, were surrendered their sovereign powers to the State for powers of government are it ever so desirable to do so, which the common good. Hence, lest the officers of the divided ....[At 202-203; Emphasis I am far from believing that it is, or Government exercising the powers delegated by the supplied.] that the Constitution requires. [At people forget and the servants of the people become 210- 211.] rulers, the Constitution reminds everyone that We are not unmindful of Justice Holmes' strong "[s]overeignty resides in the people and all dissent. But in his enduring words of dissent we find The Power Involved government authority emanates from them." [Art. II, reinforcement for the view that it would indeed be a Sec. 1.] folly to construe the powers of a branch of The Constitution declares among the guiding government to embrace only what are specifically principles that "[t]he prime duty of theGovernment is The resolution of the problem is made difficult mentioned in the Constitution: to serve and protect the people" and that "[t]he because the persons who seek to return to the country maintenance of peace and order,the protection of life, are the deposed dictator and his family at whose door The great ordinances of the liberty, and property, and the promotion of the the travails of the country are laid and from whom Constitution do not establish and general welfare are essential for the enjoyment by all billions of dollars believed to be ill-gotten wealth are divide fields of black and white. the people of the blessings of democracy." [Art. II, sought to be recovered. The constitutional guarantees Even the more specific of them are Secs. 4 and 5.] they invoke are neither absolute nor inflexible. For found to terminate in a penumbra the exercise of even the preferred freedoms of speech shading gradually from one Admittedly, service and protection of the people, the and ofexpression, although couched in absolute extreme to the other. .... maintenance of peace and order, the protection of life, terms, admits of limits and must be adjusted to the liberty and property, and the promotion of the general requirements of equally important public interests xxx xxx xxx welfare are essentially ideals to guide governmental [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, action. But such does not mean that they are empty October 7, 1981.] words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing To the President, the problem is one of balancing the implementing action for these plans, or from another general welfare and the common good against the point of view, in making any decision as President of exercise of rights of certain individuals. The power the Republic, the President has to consider these involved is the President's residual power to protect principles, among other things, and adhere to them. the general welfare of the people. It is founded on the duty of the President, as steward of the people. To Faced with the problem of whether or not the time is paraphrase Theodore Roosevelt, it is not only the right to allow the Marcoses to return to the power of the President but also his duty to do Philippines, the President is, under the Constitution, anything not forbidden by the Constitution or the constrained to consider these basic principles in laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the return to the Philippines "as a genuine unselfish The present Constitution limits resort to the political President's duty to preserve and defend the gesture for true national reconciliation and as question doctrine and broadens the scope of judicial Constitution. It also may be viewed as a power irrevocable proof of our collective adherence to inquiry into areas which the Court, under previous implicit in the President's duty to take care that the uncompromising respect for human rights under the constitutions, would have normally left to the laws are faithfully executed [see Hyman, The Constitution and our laws." [House Resolution No. political departments to decide. But nonetheless there American President, where the author advances the 1342, Rollo, p. 321.1 The Resolution does not remain issues beyond the Court's jurisdiction the view that an allowance of discretionary power is question the President's power to bar the Marcoses determination of which is exclusively for the unavoidable in any government and is best lodged in from returning to the Philippines, rather, it appeals to President, for Congress or for the people themselves the President]. the President's sense of compassion to allow a man to through a plebiscite or referendum. We cannot, for come home to die in his country. example, question the President's recognition of a More particularly, this case calls for the exercise of foreign government, no matter how premature or the President's powers as protector of the peace. What we are saying in effect is that the request or improvident such action may appear. We cannot set Rossiter The American Presidency].The power of the demand of the Marcoses to be allowed to return to the aside a presidential pardon though it may appear to us President to keep the peace is not limited merely to Philippines cannot be considered in the light solely of that the beneficiary is totally undeserving of the exercising the commander-in-chief powers in times the constitutional provisions guaranteeing liberty of grant. Nor can we amend the Constitution under the of emergency or to leading the State against external abode and the right to travel, subject to certain guise of resolving a dispute brought before us and internal threats to its existence. The President is exceptions, or of case law which clearly never because the power is reserved to the people. not only clothed with extraordinary powers in times contemplated situations even remotely similar to the of emergency, but is also tasked with attending to the present one. It must be treated as a matter that is There is nothing in the case before us that precludes day-to-day problems of maintaining peace and order appropriately addressed to those residual unstated our determination thereof on the political question and ensuring domestic tranquility in times when no powers of the President which are implicit in and doctrine. The deliberations of the Constitutional foreign foe appears on the horizon. Wide discretion, correlative to the paramount duty residing in that Commission cited by petitioners show that the within the bounds of law, in fulfilling presidential office to safeguard and protect general welfare. In framers intended to widen the scope of judicial duties in times of peace is not in any way diminished that context, such request or demand should submit to review but they did not intend courts of justice to by the relative want of an emergency specified in the the exercise of a broader discretion on the part of the settle all actual controversies before them. When commander-in-chief provision. For in making the President to determine whether it must be granted or political questions are involved, the Constitution President commander-in-chief the enumeration of denied. limits the determination to whether or not there has powers that follow cannot be said to exclude the been a grave abuse of discretion amounting to lack or President's exercising as Commander-in- Chief The Extent of Review excess of jurisdiction on the part of the official whose powers short of the calling of the armed forces, or action is being questioned. If grave abuse is not suspending the privilege of the writ of habeas Under the Constitution, judicial power includes the established, the Court will not substitute its judgment corpus or declaring martial law, in order to keep the duty to determine whether or not there has been a for that of the official concerned and decide a matter peace, and maintain public order and security. grave abuse of discretion amounting to lack or excess which by its nature or by law is for the latter alone to of jurisdiction on the part of any branch or decide. In this light, it would appear clear that the That the President has the power under the instrumentality of the Government." [Art. VIII, Sec. second paragraph of Article VIII, Section 1 of the Constitution to bar the Marcose's from returning has 1] Given this wording, we cannot agree with the Constitution, defining "judicial power," which been recognized by memembers of the Legislature, Solicitor General that the issue constitutes a political specifically empowers the courts to determine and is manifested by the Resolution proposed in the question which is beyond the jurisdiction of the Court whether or not there has been a grave abuse of House of Representatives and signed by 103 of its to decide. discretion on the part of any branch or instrumentality members urging the President to allow Mr. Marcos to of the government, incorporates in the fundamental law the ruling inLansang v. Garcia [G.R. No. L- interest to bar the return of the Marcoses to the It will not do to argue that if the return of the 33964, December 11, 1971, 42 SCRA 4481 that:] Philippines. If such postulates do exist, it cannot be Marcoses to the Philippines will cause the escalation said that she has acted, or acts, arbitrarily or that she of violence against the State, that would be the time Article VII of the [1935] has gravely abused her discretion in deciding to bar for the President to step in and exercise the Constitution vests in the Executive their return. commander-in-chief powers granted her by the the power to suspend the privilege Constitution to suppress or stamp out such violence. of the writ of habeas corpus under We find that from the pleadings filed by the parties, The State, acting through the Government, is not specified conditions. Pursuant to from their oral arguments, and the facts revealed precluded from taking pre- emptive action against the principle of separation of during the briefing in chambers by the Chief of Staff threats to its existence if, though still nascent they are powers underlying our system of of the Armed Forces of the Philippines and the perceived as apt to become serious and direct. government, the Executive is National Security Adviser, wherein petitioners and Protection of the people is the essence of the duty of supreme within his own sphere. respondents were represented, there exist factual government. The preservation of the State the fruition However, the separation of powers, bases for the President's decision.. of the people's sovereignty is an obligation in the under the Constitution, is not highest order. The President, sworn to preserve and absolute. What is more, it goes The Court cannot close its eyes to present realities defend the Constitution and to see the faithful hand in hand with the system of and pretend that the country is not besieged from execution the laws, cannot shirk from that checks and balances, under which within by a well-organized communist insurgency, a responsibility. the Executive is supreme, as separatist movement in Mindanao, rightist regards the suspension of the conspiracies to grab power, urban terrorism, the We cannot also lose sight of the fact that the country privilege, but only if and when he murder with impunity of military men, police officers is only now beginning to recover from the hardships acts within the sphere alloted to and civilian officials, to mention only a few. The brought about by the plunder of the economy him by the Basic Law, and the documented history of the efforts of the Marcose's attributed to the Marcoses and their close associates authority to determine whether or and their followers to destabilize the country, as and relatives, many of whom are still here in the not he has so acted is vested in the earlier narrated in this ponencia bolsters the Philippines in a position to destabilize the country, Judicial Department, which, in this conclusion that the return of the Marcoses at this time while the Government has barely scratched the respect, is, in turn, constitutionally would only exacerbate and intensify the violence surface, so to speak, in its efforts to recover the supreme. In the exercise of such directed against the State and instigate more chaos. enormous wealth stashed away by the Marcoses in authority, the function of the Court foreign jurisdictions. Then, We cannot ignore the is merely to check — not to As divergent and discordant forces, the enemies of continually increasing burden imposed on the supplant the Executive, or to the State may be contained. The military economy by the excessive foreign borrowing during ascertain merely whether he has establishment has given assurances that it could the Marcos regime, which stifles and stagnates gone beyond the constitutional handle the threats posed by particular groups. But it is development and is one of the root causes of limits of his jurisdiction, not to the catalytic effect of the return of the Marcoses that widespread poverty and all its attendant ills. The exercise the power vested in him or may prove to be the proverbial final straw that would resulting precarious state of our economy is of to determine the wisdom of his act break the camel's back. With these before her, the common knowledge and is easily within the ambit of [At 479-480.] President cannot be said to have acted arbitrarily and judicial notice. capriciously and whimsically in determining that the Accordingly, the question for the Court to determine return of the Marcoses poses a serious threat to the The President has determined that the destabilization is whether or not there exist factual bases for the national interest and welfare and in prohibiting their caused by the return of the Marcoses would wipe President to conclude that it was in the national return. away the gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

SO ORDERED. Republic of the Philippines interest and welfare and in prohibiting their return to Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, SUPREME COURT the Philippines. On September 28, 1989, former Tommy Manotoc and Gregorio Araneta to return to Manila President Marcos died in Honolulu, Hawaii. In a the Philippines, and enjoin respondents from statement, President Aquino said: implementing President Aquino's decision to bar the EN BANC return of the remains of Mr. Marcos, and the other In the interest of the safety of those petitioners, to the Philippines. G.R. No. 88211 October 27, 1989 who will take the death of Mr. Marcos in widely and passionately Commenting on the motion for reconsideration, the FERDINAND E. MARCOS, IMELDA R. conflicting ways, and for the Solicitor General argued that the motion for MARCOS, FERDINAND R. MARCOS. JR., tranquility of the state and order of reconsideration is moot and academic as to the IRENE M. ARANETA, IMEE M. MANOTOC, society, the remains of Ferdinand E. deceased Mr. Marcos. Moreover, he asserts that "the TOMAS MANOTOC, GREGORIO ARANETA, Marcos will not be allowed to be 'formal' rights being invoked by the Marcoses under PACIFICO E. MARCOS, NICANOR YÑIGUEZ brought to our country until such the label 'right to return', including the label 'return of and PHILIPPINE CONSTITUTION time as the government, be it under Marcos' remains, is in reality or substance a 'right' to ASSOCIATION (PHILCONSA), represented by this administration or the destabilize the country, a 'right' to hide the Marcoses' its President, CONRADO F. succeeding one, shall otherwise incessant shadowy orchestrated efforts at ESTRELLA, petitioners, decide. [Motion for destabilization." [Comment, p. 29.] Thus, he prays vs. Reconsideration, p. 1; Rollo, p, that the Motion for Reconsideration be denied for HONORABLE RAUL MANGLAPUS, 443.] lack of merit. CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, On October 2, 1989, a Motion for Reconsideration We deny the motion for reconsideration. FIDEL RAMOS, RENATO DE VILLA, in their was filed by petitioners, raising the following major capacity as Secretary of Foreign Affairs, Executive arguments: 1. It must be emphasized that as in all motions for Secretary, Secretary of Justice, Immigration reconsideration, the burden is upon the movants, Commissioner, Secretary of National Defense and 1. to bar former President Marcos and his family petitioner herein, to show that there are compelling Chief of Staff, respectively, respondents. from returning to the Philippines is to deny them not reasons to reconsider the decision of the Court. only the inherent right of citizens to return to their R E S O L U T I O N country of birth but also the protection of the 2. After a thorough consideration of the matters raised Constitution and all of the rights guaranteed to in the motion for reconsideration, the Court is of the Filipinos under the Constitution; view that no compelling reasons have been established by petitioners to warrant a reconsideration EN BANC: 2. the President has no power to bar a Filipino from of the Court's decision. his own country; if she has, she had exercised it In its decision dated September 15,1989, the Court, arbitrarily; and The death of Mr. Marcos, although it may be viewed by a vote of eight (8) to seven (7), dismissed the as a supervening event, has not changed the factual petition, after finding that the President did not act 3. there is no basis for barring the return of the family scenario under which the Court's decision was arbitrarily or with grave abuse of discretion in of former President Marcos. Thus, petitioners prayed rendered. The threats to the government, to which the determining that the return of former President that the Court reconsider its decision, order return of the Marcoses has been viewed to provide a Marcos and his family at the present time and under respondents to issue the necessary travel documents catalytic effect, have not been shown to have ceased. present circumstances pose a threat to national to enable Mrs. Imelda R. Marcos, Ferdinand R. On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the mere shorthand for the specific concept suggests only that not all Marcoses, Mrs. Marcos reinforced the basis for the executive authorizations that follow powers granted in the Constitution decision to bar their return when she called President it in [sections] 2 and 3. Hamilton are themselves exhausted by Aquino "illegal," claiming that it is Mr. Marcos, not stressed the difference between the internal enumeration, so that, Mrs. Aquino, who is the "legal" President of the sweeping language of article II, within a sphere properly regarded Philippines, and declared that the matter "should be section 1, and the conditional as one of "executive' power, brought to all the courts of the world." [Comment, p. language of article I, [section] 1: authority is implied unless there or 1; Philippine Star, October 4, 1989.] "All legislative Powers herein elsewhere expressly limited. granted shall be vested in a [TRIBE, AMERICAN 3. Contrary to petitioners' view, it cannot be denied Congress of the United States . . ." CONSTITUTIONAL LAW 158- that the President, upon whom executive power is Hamilton submitted that "[t]he 159 (1978).] vested, has unstated residual powers which are [article III enumeration [in sections implied from the grant of executive power and which 2 and 31 ought therefore to be And neither can we subscribe to the view that a are necessary for her to comply with her duties under considered, as intended merely to recognition of the President's implied or residual the Constitution. The powers of the President are not specify the principal articles powers is tantamount to setting the stage for another limited to what are expressly enumerated in the implied in the definition of dictatorship. Despite petitioners' strained analogy, the article on the Executive Department and in scattered execution power; leaving the rest to residual powers of the President under the provisions of the Constitution. This is so, flow from the general grant of that Constitution should not be confused with the power notwithstanding the avowed intent of the members of power, interpreted in confomity of the President under the 1973 Constitution to the Constitutional Commission of 1986 to limit the with other parts of the legislate pursuant to Amendment No. 6 which powers of the President as a reaction to the abuses Constitution... provides: under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, In Myers v. United States, the Whenever in the judgment of the particularly those relating to the commander-in-chief Supreme Court — accepted President (Prime Minister), there clause, but not a diminution of the general grant of Hamilton's proposition, concluding exists a grave emergency or a threat executive power. that the federal executive, unlike or imminence thereof, or whenever the Congress, could exercise power the interim Batasang Pambansa or That the President has powers other than those from sources not enumerated, so the regular National Assembly fails expressly stated in the Constitution is nothing new. long as not forbidden by the or is unable to act adequately on This is recognized under the U.S. Constitution from constitutional text: the executive any matter for any reason that in his which we have patterned the distribution of power was given in general terms, judgment requires immediate governmental powers among three (3) separate strengthened by specific terms action, he may, in order to meet the branches. where emphasis was regarded as exigency, issue the necessary appropriate, and was limited by decrees, orders, or letters of Article II, [section] 1, provides that direct expressions where limitation instruction, which shall form part "The Executive Power shall be was needed. . ." The language of of the law of the land, vested in a President of the United Chief Justice Taft in Myers makes States of America." In Alexander clear that the constitutional concept There is no similarity between the residual powers of Hamilton's widely accepted view, of inherent power is not a synonym the President under the 1987 Constitution and the this statement cannot be read as for power without limit; rather, the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of thespecific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit." Republic of the Philippines beyond the sway of the officer’s own sense of what is The petitioners are high-ranking officers of the SUPREME COURT prudent or rash, or more elementally, of right or Armed Forces of the Philippines (AFP). Both Manila wrong. A self-righteous military invites itself as the petitioners, Brigadier General Francisco Gudani scoundrel’s activist solution to the "ills" of (Gen. Gudani) and Lieutenant Colonel Alexander EN BANC participatory democracy. Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both G.R. No. 170165 August 15, 2006 Petitioners seek the annulment of a directive from Gen. Gudani and Col. Balutan were assigned to the President Gloria Macapagal-Arroyo1 enjoining them Philippine Military Academy (PMA) in Baguio City, B/GEN. (RET.) FRANCISCO V. GUDANI AND and other military officers from testifying before the former as the PMA Assistant Superintendent, and 2 LT. COL. ALEXANDER F. Congress without the President’s consent. Petitioners the latter as the Assistant Commandant of Cadets. BALUTAN Petitioners, also pray for injunctive relief against a pending vs. preliminary investigation against them, in preparation On 22 September 2005, Senator Rodolfo Biazon LT./GEN. GENEROSO S. SENGA CORONA, AS for possible court-martial proceedings, initiated (Sen. Biazon) invited several senior officers of the CHIEF OF STAFF OF THE CARPIO- within the military justice system in connection with AFP to appear at a public hearing before the Senate MORALES, ARMED FORCES OF THE petitioners’ violation of the aforementioned directive. Committee on National Defense and Security (Senate CALLEJO, SR., PHILIPPINES, COL. Committee) scheduled on 28 September 2005. The GILBERTO AZCUNA, JOSE C. ROA AS THE The Court is cognizant that petitioners, in their hearing was scheduled after topics concerning the PRE-TRIAL TINGA, INVESTIGATING defense, invoke weighty constitutional principles that conduct of the 2004 elections emerged in the public OFFICER, THE CHICO-NAZARIO, PROVOST center on fundamental freedoms enshrined in the Bill eye, particularly allegations of massive cheating and MARSHALL GENERAL GARCIA, and OF THE of Rights. Although these concerns will not be the surfacing of copies of an audio excerpt ARMED FORCES OF THE PHILIPPINES AND purportedly of a phone conversation between THE GENERAL COURT- addressed to the satisfaction of petitioners, the Court President Gloria Macapagal Arroyo and an official of MARTIAL,Respondents. recognizes these values as of paramount importance the Commission on Elections (COMELEC) widely to our civil society, even if not determinative of the reputed as then COMELEC Commissioner Virgilio D E C I S I O N resolution of this petition. Had the relevant issue Garcillano. At the time of the 2004 elections, Gen. before us been the right of the Senate to compel the Gudani had been designated as commander, and Col. TINGA, J.: testimony of petitioners, the constitutional questions Balutan a member, of "Joint Task Force Ranao" by raised by them would have come to fore. Such a the AFP Southern Command. "Joint Task Force A most dangerous general proposition is foisted on scenario could have very well been presented to the Ranao" was tasked with the maintenance of peace the Court — that soldiers who defy orders of their Court in such manner, without the petitioners having and order during the 2004 elections in the provinces 3 superior officers are exempt had to violate a direct order from their commanding of Lanao del Norte and Lanao del Sur. ` officer. Instead, the Court has to resolve whether from the strictures of military law and discipline if petitioners may be subjected to military discipline on Gen. Gudani, Col. Balutan, and AFP Chief of Staff such defiance is predicated on an act otherwise valid account of their defiance of a direct order of the AFP Lieutenant General Generoso Senga (Gen. Senga) under civilian law. Obedience and deference to the Chief of Staff. were among the several AFP officers who received a military chain of command and the President as letter invitation from Sen. Biazon to attend the 28 commander-in-chief are the cornerstones of a The solicited writs of certiorari and prohibition do not September 2005 hearing. On 23 September 2005, professional military in the firm cusp of civilian avail; the petition must be denied. Gen. Senga replied through a letter to Sen. Biazon control. These values of obedience and deference that he would be unable to attend the hearing due to a expected of military officers are content-neutral, I. previous commitment in Brunei, but he nonetheless "directed other officers from the AFP who were The following day, Gen. Senga sent another letter to legal order, in violation of A[rticles of] W[ar] 65 invited to attend the hearing."4 Sen. Biazon, this time informing the senator that "no (Willfully Disobeying Superior Officer), hence they approval has been granted by the President to any will be subjected to General Court Martial On 26 September 2005, the Office of the Chief of AFP officer to appear" before the hearing scheduled proceedings x x x" Both Gen. Gudani and Col. Staff of the AFP issued a Memorandum addressed to on that day. Nonetheless, both Gen. Gudani and Col. Balutan were likewise relieved of their assignments the Superintendent of the PMA Gen. Cristolito P. Balutan were present as the hearing started, and they then.9 Baloing (Gen. Baloing). It was signed by Lt. Col. both testified as to the conduct of the 2004 elections. Hernando DCA Iriberri in behalf of Gen. On the very day of the hearing, 28 September 2005, Senga.5 Noting that Gen. Gudani and Col. Balutan The Office of the Solicitor General (OSG), President Gloria-Macapagal-Arroyo issued Executive had been invited to attend the Senate Committee representing the respondents before this Court, has Order No. 464 (E.O. 464). The OSG notes that the hearing on 28 September 2005, the Memorandum offered additional information surrounding the E.O. "enjoined officials of the executive department directed the two officers to attend the testimony of Gen. Gudani and Col. Balutan. The including the military establishment from appearing hearing.6Conformably, Gen. Gudani and Col. Balutan OSG manifests that the couriers of the AFP in any legislative inquiry without her filed their respective requests for travel authority Command Center had attempted to deliver the radio approval."10 This Court subsequently ruled on the addressed to the PMA Superintendent. message to Gen. Gudani’s residence in a subdivision constitutionality of the said executive order in Senate in Parañaque City late in the night of 27 September v. Ermita.11 The relevance of E.O. 464 andSenate to On 27 September 2005, Gen. Senga wrote a letter to 2005, but they were not permitted entry by the the present petition shall be discussed forthwith. Sen. Biazon, requesting the postponement of the subdivision guards. The next day, 28 September hearing scheduled for the following day, since the 2005, shortly before the start of the hearing, a copy of In the meantime, on 30 September 2005, petitioners AFP Chief of Staff was himself unable to attend said Gen. Senga’s letter to Sen. Biazon sent earlier that were directed by General Senga, through Col. Henry hearing, and that some of the invited officers also day was handed at the Senate by Commodore Amable A. Galarpe of the AFP Provost Marshal General, to could not attend as they were "attending to other B. Tolentino of the AFP Office for Legislative Affairs appear before the Office of the Provost Marshal urgent operational matters." By this time, both Gen. to Gen. Gudani, who replied that he already had a General (OPMG) on 3 October 2005 for Gudani and Col. Balutan had already departed copy. Further, Gen. Senga called Commodore investigation. During their appearance before Col. Baguio for Manila to attend the hearing. Tolentino on the latter’s cell phone and asked to talk Galarpe, both petitioners invoked their right to to Gen. Gudani, but Gen. Gudani refused. In remain silent.12 The following day, Gen. Gudani was Then on the evening of 27 September 2005, at around response, Gen. Senga instructed Commodore compulsorily retired from military service, having 10:10 p.m., a message was transmitted to the PMA Tolentino to inform Gen. Gudani that "it was an reached the age of 56.13 Superintendent from the office of Gen. Senga, stating order," yet Gen. Gudani still refused to take Gen. as follows: Senga’s call.8 In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged PER INSTRUCTION OF HER A few hours after Gen. Gudani and Col. Balutan had with violation of Article of War 65, on willfully EXCELLENCY PGMA, NO AFP concluded their testimony, the office of Gen. Senga disobeying a superior officer, in relation to Article of PERSONNEL SHALL APPEAR BEFORE issued a statement which noted that the two had War 97, on conduct prejudicial to the good order and ANY CONGRESSIONAL OR SENATE appeared before the Senate Committee "in spite of the military discipline.14 As recommended, the case was HEARING WITHOUT HER APPROVAL. fact that a guidance has been given that a Presidential referred to a Pre-Trial Investigation Officer (PTIO) INFORM BGEN FRANCISCO F GUDANI approval should be sought prior to such an preparatory to trial by the General Court Martial AFP AND LTC ALEXANDER BALUTAN appearance;" that such directive was "in keeping with (GCM).15 Consequently, on 24 October 2005, PA (GSC) ACCORDINGLY.7 the time[-]honored principle of the Chain of petitioners were separately served with Orders Command;" and that the two officers "disobeyed a respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial further argue that there was no law prohibiting them the day before, there was an order from Gen. Senga Investigating Officer of the PTIO. The Orders from testifying before the Senate, and in fact, they (which in turn was sourced "per instruction" from directed petitioners to appear in person before Col. were appearing in obeisance to the authority of President Arroyo) prohibiting them from testifying Roa at the Pre-Trial Investigation of the Charges for Congress to conduct inquiries in aid of legislation. without the prior approval of the President. violation of Articles 6516 and 9717 of Commonwealth Petitioners do not precisely admit before this Court Act No. 408,18 and to submit their counter-affidavits Finally, it is stressed in the petition that Gen. Gudani that they had learned of such order prior to their and affidavits of witnesses at the Office of the Judge was no longer subject to military jurisdiction on testimony, although the OSG asserts that at the very Advocate General.19 The Orders were accompanied account of his compulsory retirement on 4 October least, Gen. Gudani already knew of such order before by respective charge sheets against petitioners, 2005. It is pointed out that Article 2, Title I of the he testified.22 Yet while this fact may be ultimately accusing them of violating Articles of War 65 and 97. Articles of War defines persons subject to military material in the court-martial proceedings, it is not law as "all officers and soldiers in the active service" determinative of this petition, which as stated earlier, It was from these premises that the present petition of the AFP. does not proffer as an issue whether petitioners are for certiorari and prohibition was filed, particularly guilty of violating the Articles of War. seeking that (1) the order of President Arroyo coursed II. through Gen. Senga preventing petitioners from What the Court has to consider though is whether the testifying before Congress without her prior approval We first proceed to define the proper litigable issues. violation of the aforementioned order of Gen. Senga, be declared unconstitutional; (2) the charges stated in Notably, the guilt or innocence of petitioners in which emanated from the President, could lead to any the charge sheets against petitioners be quashed; and violating Articles 65 and 97 of the Articles of War is investigation for court-martial of petitioners. It has to (3) Gen. Senga, Col. Galarpe, Col. Roa, and their not an issue before this Court, especially considering be acknowledged as a general principle23 that AFP successors-in-interest or persons acting for and on that per records, petitioners have not yet been personnel of whatever rank are liable under military their behalf or orders, be permanently enjoined from subjected to court martial proceedings. Owing to the law for violating a direct order of an officer superior proceeding against petitioners, as a consequence of absence of such proceedings, the correct inquiry in rank. Whether petitioners did violate such an order their having testified before the Senate on 28 should be limited to whether respondents could is not for the Court to decide, but it will be necessary September 2005.20 properly initiate such proceedings preparatory to a to assume, for the purposes of this petition, that formal court-martial, such as the aforementioned petitioners did so. Petitioners characterize the directive from President preliminary investigation, on the basis of petitioners’ Arroyo requiring her prior approval before any AFP acts surrounding their testimony before the Senate on III. personnel appear before Congress as a "gag order," 28 September 2005. Yet this Court, consistent with which violates the principle of separation of powers the principle that it is not a trier of facts at first Preliminarily, we must discuss the effect of E.O. 464 in government as it interferes with the investigation instance,21 is averse to making any authoritative and the Court’s ruling in Senate on the present of the Senate Committee conducted in aid of findings of fact, for that function is first for the court- petition.Notably, it is not alleged that petitioners legislation. They also equate the "gag order" with martial court to fulfill. were in any way called to task for violating E.O. culpable violation of the Constitution, particularly in 464, but instead, they were charged for violating relation to the public’s constitutional right to Thus, we limit ourselves to those facts that are not the direct order of Gen. Senga not to appear information and transparency in matters of public controverted before the Court, having been before the Senate Committee, an order that stands concern. Plaintively, petitioners claim that "the commonly alleged by petitioners and the OSG (for independent of the executive order. Distinctions are Filipino people have every right to hear the respondents). Petitioners were called by the Senate called for, since Section 2(b) of E.O. 464 listed [petitioners’] testimonies," and even if the "gag Committee to testify in its 28 September 2005 "generals and flag officers of the Armed Forces of the order" were unconstitutional, it still was tantamount hearing. Petitioners attended such hearing and Philippines and such other officers who in the to "the crime of obstruction of justice." Petitioners testified before the Committee, despite the fact that judgment of the Chief of Staff are covered by the executive privilege," as among those public officials President, under the aegis of the commander-in-chief We have gone through the treatise of Colonel required in Section 3 of E.O. 464 "to secure prior powers26 to require military officials from securing Winthrop and We find the following passage which consent of the President prior to appearing before prior consent before appearing before Congress. The goes against the contention of the petitioners, viz — either House of Congress." The Court pertinent factors in considering that question are in Senate declared both Section 2(b) and Section 3 markedly outside of those which did become relevant 3. Offenders in general — Attaching of jurisdiction. It void,24 and the impression may have been left in adjudicating the issues raised in Senate. It is in this has further been held, and is now settled law, in following Senate that it settled as doctrine, that the petition that those factors come into play. regard to military offenders in general, that if the President is prohibited from requiring military military jurisdiction has once duly attached to them personnel from attending congressional hearings At this point, we wish to dispose of another previous to the date of the termination of their legal without having first secured prior presidential peripheral issue before we strike at the heart of the period of service, they may be brought to trial by consent. That impression is wrong. matter. General Gudani argues that he can no longer court-martial after that date, their discharge being fall within the jurisdiction of the court-martial, meanwhile withheld. This principle has mostly been Senate turned on the nature of executive privilege, a considering his retirement last 4 October 2005. He applied to cases where the offense was committed presidential prerogative which is encumbered by cites Article 2, Title I of Commonwealth Act No. 408, just prior to the end of the term. In such cases the significant limitations. Insofar as E.O. 464 compelled which defines persons subject to military law as, interests of discipline clearly forbid that the offender officials of the executive branch to seek prior among others, "all officers and soldiers in the active should go unpunished. It is held therefore that if presidential approval before appearing before service of the [AFP]," and points out that he is no before the day on which his service legally Congress, the notion of executive control also comes longer in the active service. terminates and his right to a discharge is into consideration.25 However, the ability of the complete, proceedings with a view to trial are President to require a military official to secure prior This point was settled against Gen. Gudani’s position commenced against him — as by arrest or the consent before appearing before Congress pertains to in Abadilla v. Ramos,27 where the Court declared that service of charges, — the military jurisdiction will a wholly different and independent specie of an officer whose name was dropped from the roll of fully attach and once attached may be continued presidential authority—the commander-in-chief officers cannot be considered to be outside the by a trial by court-martial ordered and held after powers of the President. By tradition and jurisdiction of military authorities when military the end of the term of the enlistment of the jurisprudence, the commander-in-chief powers of the justice proceedings were initiated against him before accused x x x 29 President are not encumbered by the same degree of the termination of his service. Once jurisdiction has restriction as that which may attach to executive been acquired over the officer, it continues until his Thus, military jurisdiction has fully attached to Gen. privilege or executive control. case is terminated. Thus, the Court held: Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred During the deliberations in Senate, the Court was The military authorities had jurisdiction over the before he compulsorily retired on 4 October 2005. very well aware of the pendency of this petition as person of Colonel Abadilla at the time of the alleged We see no reason to unsettle the Abadilla doctrine. well as the issues raised herein. The decision offenses. This jurisdiction having been vested in the The OSG also points out that under Section 28 of in Senate was rendered with the comfort that the military authorities, it is retained up to the end of the Presidential Decree No. 1638, as amended, "[a]n nullification of portions of E.O. 464 would bear no proceedings against Colonel Abadilla. Well-settled is officer or enlisted man carried in the retired list [of impact on the present petition since petitioners herein the rule that jurisdiction once acquired is not lost the Armed Forces of the Philippines] shall be subject were not called to task for violating the executive upon the instance of the parties but continues until the to the Articles of War x x x"30 To this citation, order. Moreover, the Court was then cognizant case is terminated.28 petitioners do not offer any response, and in fact have that Senate and this case would ultimately hinge on excluded the matter of Gen. Gudani’s retirement as an disparate legal issues. Relevantly, Senate purposely Citing Colonel Winthrop’s treatise on Military Law, issue in their subsequent memorandum. did not touch upon or rule on the faculty of the the Court further stated: IV. war.33 Congress is also empowered to revoke a gainsaid that certain liberties of persons in the proclamation of martial law or the suspension of the military service, including the freedom of speech, We now turn to the central issues. writ ofhabeas corpus.34 The approval of the may be circumscribed by rules of military Commission on Appointments is also required before discipline. Thus, to a certain degree, individual Petitioners wish to see annulled the "gag order" that the President can promote military officers from the rights may be curtailed, because the effectiveness required them to secure presidential consent prior to rank of colonel or naval captain.35 Otherwise, on the of the military in fulfilling its duties under the law their appearance before the Senate, claiming that it particulars of civilian dominance and administration depends to a large extent on the maintenance of violates the constitutional right to information and over the military, the Constitution is silent, except for discipline within its ranks. Hence, lawful orders transparency in matters of public concern; or if not, is the commander-in-chief clause which is fertile in must be followed without question and rules must tantamount at least to the criminal acts of obstruction meaning and be faithfully complied with, irrespective of a of justice and grave coercion. However, the proper soldier's personal views on the matter. It is from perspective from which to consider this issue entails implication as to whatever inherent martial authority this viewpoint that the restrictions imposed on the examination of the basis and authority of the the President may possess.36 petitioner Kapunan, an officer in the AFP, have to be President to issue such an order in the first place to considered.39 members of the AFP and the determination of The commander-in-chief provision in the whether such an order is subject to any limitations. Constitution is denominated as Section 18, Article Any good soldier, or indeed any ROTC cadet, can VII, which begins with the simple declaration that attest to the fact that the military way of life The vitality of the tenet that the President is the "[t]he President shall be the Commander-in-Chief of circumscribes several of the cherished freedoms of commander-in-chief of the Armed Forces is most all armed forces of the Philippines x x x"37 Outside civilian life. It is part and parcel of the military crucial to the democratic way of life, to civilian explicit constitutional limitations, such as those found package. Those who cannot abide by these limitations supremacy over the military, and to the general in Section 5, Article XVI, the commander-in-chief normally do not pursue a military career and instead stability of our representative system of government. clause vests on the President, as commander-in-chief, find satisfaction in other fields; and in fact many of The Constitution reposes final authority, control and absolute authority over the persons and actions of the those discharged from the service are inspired in their supervision of the AFP to the President, a civilian members of the armed forces. Such authority includes later careers precisely by their rebellion against the who is not a member of the armed forces, and whose the ability of the President to restrict the travel, regimentation of military life. Inability or duties as commander-in-chief represent only a part of movement and speech of military officers, activities unwillingness to cope with military discipline is not a the organic duties imposed upon the office, the other which may otherwise be sanctioned under civilian stain on character, for the military mode is a highly functions being clearly civil in nature.31 Civilian law. idiosyncratic path which persons are not generally supremacy over the military also countermands the conscripted into, but volunteer themselves to be part notion that the military may bypass civilian Reference to Kapunan, Jr. v. De Villa38 is useful in of. But for those who do make the choice to be a authorities, such as civil courts, on matters such as this regard. Lt. Col. Kapunan was ordered confined soldier, significant concessions to personal freedoms conducting warrantless searches and seizures.32 under "house arrest" by then Chief of Staff (later are expected. After all, if need be, the men and President) Gen. Fidel Ramos. Kapunan was also women of the armed forces may be commanded upon Pursuant to the maintenance of civilian supremacy ordered, as a condition for his house arrest, that he to die for country, even against their personal over the military, the Constitution has allocated may not issue any press statements or give any press inclinations. specific roles to the legislative and executive conference during his period of detention. The Court branches of government in relation to military affairs. unanimously upheld such restrictions, noting: It may be so that military culture is a remnant of a Military appropriations, as with all other less democratic era, yet it has been fully integrated appropriations, are determined by Congress, as is the [T]he Court is of the view that such is justified by the into the democratic system of governance. The power to declare the existence of a state of requirements of military discipline. It cannot be constitutional role of the armed forces is as protector of the people and of the State.40 Towards this end, the mobility.1âwphi1Kapunan is ample precedent in The Constitution, and indeed our modern democratic military must insist upon a respect for duty and a justifying that a soldier may be restrained by a order, frown in no uncertain terms on a politicized discipline without counterpart in civilian life.41 The superior officer from speaking out on certain matters. military, informed as they are on the trauma of laws and traditions governing that discipline have a As a general rule, the discretion of a military officer absolute martial rule. Our history might imply that a long history; but they are founded on unique military to restrain the speech of a soldier under his/her political military is part of the natural order, but this exigencies as powerful now as in the past.42 In the command will be accorded deference, with minimal view cannot be affirmed by the legal order. The end, it must be borne in mind that the armed forces regard if at all to the reason for such restraint. It is evolutionary path of our young democracy has a distinct subculture with unique needs, a integral to military discipline that the soldier’s speech necessitates a reorientation from this view, reliant as specialized society separate from civilian be with the consent and approval of the military our socio-political culture has become on it. At the society. 43 In the elegant prose of the eminent British commander. same time, evolution mandates a similar demand that military historian, John Keegan: our system of governance be more responsive to the The necessity of upholding the ability to restrain needs and aspirations of the citizenry, so as to avoid [Warriors who fight wars have] values and skills speech becomes even more imperative if the soldier an environment vulnerable to a military apparatus [which] are not those of politicians and diplomats. desires to speak freely on political matters. The able at will to exert an undue influence in our polity. They are those of a world apart, a very ancient world, Constitution requires that "[t]he armed forces shall be which exists in parallel with the everyday world but insulated from partisan politics," and that ‘[n]o Of possibly less gravitas, but of equal importance, is does not belong to it. Both worlds change over time, member of the military shall engage directly or the principle that mobility of travel is another and the warrior world adopts in step to the civilian. It indirectly in any partisan political activity, except to necessary restriction on members of the military. A follows it, however, at a distance. The distance can vote."47 Certainly, no constitutional provision or soldier cannot leave his/her post without the consent never be closed, for the culture of the warrior can military indoctrination will eliminate a soldier’s of the commanding officer. The reasons are self- never be that of civilization itself….44 ability to form a personal political opinion, yet it is evident. The commanding officer has to be aware at vital that such opinions be kept out of the public eye. all times of the location of the troops under Critical to military discipline is obeisance to the For one, political belief is a potential source of command, so as to be able to appropriately respond to military chain of command. Willful disobedience of a discord among people, and a military torn by political any exigencies. For the same reason, commanding superior officer is punishable by court-martial under strife is incapable of fulfilling its constitutional officers have to be able to restrict the movement or Article 65 of the Articles of War.45 "An individual function as protectors of the people and of the State. travel of their soldiers, if in their judgment, their soldier is not free to ignore the lawful orders or duties For another, it is ruinous to military discipline to presence at place of call of duty is necessary. At assigned by his immediate superiors. For there would foment an atmosphere that promotes an active dislike times, this may lead to unsentimental, painful be an end of all discipline if the seaman and marines of or dissent against the President, the commander-in- consequences, such as a soldier being denied on board a ship of war [or soldiers deployed in the chief of the armed forces. Soldiers are permission to witness the birth of his first-born, or to field], on a distant service, were permitted to act upon constitutionally obliged to obey a President they may attend the funeral of a parent. Yet again, military life their own opinion of their rights [or their opinion of dislike or distrust. This fundamental principle averts calls for considerable personal sacrifices during the the the country from going the way of banana republics. period of conscription, wherein the higher duty is not to self but to country. President’s intent], and to throw off the authority of Parenthetically, it must be said that the Court is well the commander whenever they supposed it to be aware that our country’s recent past is marked by Indeed, the military practice is to require a soldier to unlawfully exercised."46 regime changes wherein active military dissent from obtain permission from the commanding officer the chain of command formed a key, though not before he/she may leave his destination. A soldier Further traditional restrictions on members of the exclusive, element. The Court is not blind to history, who goes from the properly appointed place of duty armed forces are those imposed on free speech and yet it is a judge not of history but of the Constitution. or absents from his/her command, guard, quarters, station, or camp without proper leave is subject to the President has constitutional authority to do so, by chief. Congress holds significant control over the punishment by court-martial.48 It is even clear from virtue of her power as commander-in-chief, and that armed forces in matters such as budget appropriations the record that petitioners had actually requested for as a consequence a military officer who defies such and the approval of higher-rank promotions,51 yet it is travel authority from the PMA in Baguio City to injunction is liable under military justice. At the same on the President that the Constitution vests the title as Manila, to attend the Senate Hearing.49 Even time, we also hold that any chamber of Congress commander-in-chief and all the prerogatives and petitioners are well aware that it was necessary for which seeks the appearance before it of a military functions appertaining to the position. Again, the them to obtain permission from their superiors before officer against the consent of the President has exigencies of military discipline and the chain of they could travel to Manila to attend the Senate adequate remedies under law to compel such command mandate that the President’s ability to Hearing. attendance. Any military official whom Congress control the individual members of the armed forces summons to testify before it may be compelled to do be accorded the utmost respect. Where a military It is clear that the basic position of petitioners so by the President. If the President is not so inclined, officer is torn between obeying the President and impinges on these fundamental principles we have the President may be commanded by judicial order to obeying the Senate, the Court will without hesitation discussed. They seek to be exempted from military compel the attendance of the military officer. Final affirm that the officer has to choose the President. justice for having traveled to the Senate to testify judicial orders have the force of the law of the land After all, the Constitution prescribes that it is the before the Senate Committee against the express which the President has the duty to faithfully President, and not the Senate, who is the commander- orders of Gen. Senga, the AFP Chief of Staff. If execute.50 in-chief of the armed forces.52 petitioners’ position is affirmed, a considerable exception would be carved from the unimpeachable Explication of these principles is in order. At the same time, the refusal of the President to allow right of military officers to restrict the speech and members of the military to appear before Congress is movement of their juniors. The ruinous consequences As earlier noted, we ruled in Senate that the President still subject to judicial relief. The Constitution itself to the chain of command and military discipline may not issue a blanket requirement of prior consent recognizes as one of the legislature’s functions is the simply cannot warrant the Court’s imprimatur on on executive officials summoned by the legislature to conduct of inquiries in aid of legislation.53 Inasmuch petitioner’s position. attend a congressional hearing. In doing so, the Court as it is ill-advised for Congress to interfere with the recognized the considerable limitations on executive President’s power as commander-in-chief, it is V. privilege, and affirmed that the privilege must be similarly detrimental for the President to unduly formally invoked on specified grounds. However, the interfere with Congress’s right to conduct legislative Still, it would be highly myopic on our part to resolve ability of the President to prevent military officers inquiries. The impasse did not come to pass in this the issue solely on generalities surrounding military from testifying before Congress does not turn on petition, since petitioners testified anyway despite the discipline. After all, petitioners seek to impress on us executive privilege, but on the Chief Executive’s presidential prohibition. Yet the Court is aware that that their acts are justified as they were responding to power as commander-in-chief to control the with its pronouncement today that the President has an invitation from the Philippine Senate, a component actions and speech of members of the armed the right to require prior consent from members of the of the legislative branch of government. At the same forces. The President’s prerogatives as armed forces, the clash may soon loom or actualize. time, the order for them not to testify ultimately came commander-in-chief are not hampered by the from the President, the head of the executive branch same limitations as in executive privilege. We believe and hold that our constitutional and legal of government and the commander-in-chief of the order sanctions a modality by which members of the armed forces. Our ruling that the President could, as a general rule, military may be compelled to attend legislative require military officers to seek presidential approval inquiries even if the President desires otherwise, a Thus, we have to consider the question: may the before appearing before Congress is based foremost modality which does not offend the Chief Executive’s President prevent a member of the armed forces from on the notion that a contrary rule unduly diminishes prerogatives as commander-in-chief. The remedy testifying before a legislative inquiry? We hold that the prerogatives of the President as commander-in- lies with the courts. The fact that the executive branch is an equal, Senate affirmed both inquiry. The provision requires that the inquiry be coordinate branch of government to the legislative the Arnault and Bengzon rulings. It elucidated on the done in accordance with the Senate or House’s duly creates a wrinkle to any basic rule that persons constitutional scope and limitations on the published rules of procedure, necessarily implying summoned to testify before Congress must do so. constitutional power of congressional inquiry. Thus: the constitutional infirmity of an inquiry conducted There is considerable interplay between the without duly published rules of procedure. Section 21 legislative and executive branches, informed by due As discussed in Arnault, the power of inquiry, "with also mandates that the rights of persons appearing in deference and respect as to their various process to enforce it," is grounded on the necessity of or affected by such inquiries be respected, an constitutional functions. Reciprocal courtesy idealizes information in the legislative process. If the imposition that obligates Congress to adhere to the this relationship; hence, it is only as a last resort that information possessed by executive officials on the guarantees in the Bill of Rights. one branch seeks to compel the other to a particular operation of their offices is necessary for wise mode of behavior. The judiciary, the third coordinate legislation on that subject, by parity of reasoning, These abuses are, of course, remediable before the branch of government, does not enjoy a similar Congress has the right to that information and the courts, upon the proper suit filed by the persons dynamic with either the legislative or executive power to compel the disclosure thereof. affected, even if they belong to the executive branch. branches. Whatever weakness inheres on judicial Nonetheless, there may be exceptional power due to its inability to originate national As evidenced by the American experience during the circumstances… wherein a clear pattern of abuse of policies and legislation, such is balanced by the fact so-called "McCarthy era", however, the right of the legislative power of inquiry might be established, that it is the branch empowered by the Constitution to Congress to conduct inquirites in aid of legislation is, resulting in palpable violations of the rights compel obeisance to its rulings by the other branches in theory, no less susceptible to abuse than executive guaranteed to members of the executive department of government. or judicial power. It may thus be subjected to judicial under the Bill of Rights. In such instances, depending review pursuant to the Court’s certiorari powers on the particulars of each case, attempts by the As evidenced by Arnault v. Nazareno54 and Bengzon under Section 1, Article VIII of the Constitution. Executive Branch to forestall these abuses may be v. Senate Blue Ribbon Committee,55 among others, the accorded judicial sanction59 . Court has not shirked from reviewing the exercise by For one, as noted in Bengzon v. Senate Blue Ribbon Congress of its power of legislative Committee, the inquiry itself might not properly be in In Senate, the Court ruled that the President could not inquiry.56 Arnaultrecognized that the legislative aid of legislation, and thus beyond the constitutional impose a blanket prohibition barring executive power of inquiry and the process to enforce it, "is an power of Congress. Such inquiry could not usurp officials from testifying before Congress without the essential and appropriate auxiliary to the legislative judicial functions. Parenthetically, one possible way President’s consent notwithstanding the invocation of function."57 On the other for Congress to avoid such result as occurred executive privilege to justify such prohibition. The hand, Bengzon acknowledged that the power of both in Bengzon is to indicate in its invitations to the Court did not rule that the power to conduct houses of Congress to conduct inquiries in aid of public officials concerned, or to any person for that legislative inquiry ipso facto superseded the claim of legislation is not "absolute or unlimited", and its matter, the possible needed statute which prompted executive privilege, acknowledging instead that the exercise is circumscribed by Section 21, Article VI of the need for the inquiry. Given such statement in its viability of executive privilege stood on a case to case the Constitution.58 From these premises, the Court invitations, along with the usual indication of the basis. Should neither branch yield to the other enjoined the Senate Blue Ribbon Committee from subject of inquiry and the questions relative to and in branch’s assertion, the constitutional recourse is to requiring the petitioners in Bengzon from testifying furtherance thereof, there would be less room for the courts, as the final arbiter if the dispute. It is only and producing evidence before the committee, speculation on the part of the person invited on the courts that can compel, with conclusiveness, holding that the inquiry in question did not involve whether the inquiry is in aid of legislation. attendance or non-attendance in legislative inquiries. any intended legislation. Section 21, Article VI likewise establishes critical Following these principles, it is clear that if the safeguards that proscribe the legislative power of President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the And if emphasis be needed, if the courts so rule, Petitioners may have been of the honest belief that legislative body seeking such testimony may seek the duty falls on the shoulders of the President, as they were defying a direct order of their Commander- judicial relief to compel the attendance. Such judicial commander-in-chief, to authorize the appearance in-Chief and Commanding General in obeisance to a action should be directed at the heads of the executive of the military officers before Congress. Even if paramount idea formed within their consciences, branch or the armed forces, the persons who wield the President has earlier disagreed with the notion which could not be lightly ignored. Still, the Court, in authority and control over the actions of the officers of officers appearing before the legislature to turn, is guided by the superlative principle that is the concerned. The legislative purpose of such testimony, testify, the Chief Executive is nonetheless obliged Constitution, the embodiment of the national as well as any defenses against the same — whether to comply with the final orders of the courts. conscience. The Constitution simply does not permit grounded on executive privilege, national security or the infraction which petitioners have allegedly similar concerns — would be accorded due judicial Petitioners have presented several issues relating to committed, and moreover, provides for an orderly evaluation. All the constitutional considerations the tenability or wisdom of the President’s order on manner by which the same result could have been pertinent to either branch of government may be them and other military officers not to testify before achieved without offending constitutional principles. raised, assessed, and ultimately weighed against each Congress without the President’s consent. Yet these other. And once the courts speak with finality, both issues ultimately detract from the main point — that WHEREFORE, the petition is DENIED. No branches of government have no option but to they testified before the Senate despite an order from pronouncement as to costs. comply with the decision of the courts, whether the their commanding officer and their commander-in- effect of the decision is to their liking or disfavor. chief for them not to do so,61 in contravention of the SO ORDERED. traditions of military discipline which we affirm Courts are empowered, under the constitutional today.1âwphi1 The issues raised by petitioners could principle of judicial review, to arbitrate disputes have very well been raised and properly adjudicated between the legislative and executive branches of if the proper procedure was observed. Petitioners government on the proper constitutional parameters could have been appropriately allowed to testify of power.60 This is the fair and workable solution before the Senate without having to countermand implicit in the constitutional allocation of powers their Commander-in-chief and superior officer under among the three branches of government. The the setup we have prescribed. judicial filter helps assure that the particularities of each case would ultimately govern, rather than any We consider the other issues raised by petitioners overarching principle unduly inclined towards one unnecessary to the resolution of this petition. branch of government at the expense of the other. The procedure may not move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review does not preclude the legislative and executive branches from negotiating a mutually acceptable solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a salve of their own choosing. (3.) certification from the Statistics Division, with his wife and two sons, in a hotel in Hongkong Court Management Office, OCA as to the from September 13 to 15, 2009. They flew in to 2 Republic of the Philippines condition of the docket. Manila from Surigao City on September 9, 2009, SUPREME COURT intending to prepare the necessary papers for his Manila The complete requirements should be submitted to authority to travel at the Supreme Court the following and received by the OCA at least two weeks before day. However, sensing time constraint and thinking of the futility of completing the requirements before SECOND DIVISION the intended time of travel. No action shall be taken on requests for travel authority with incomplete their scheduled flight, he opted not to immediately requirements.3 complete the requirements and simply went ahead A.M. No. MTJ-10-1770 July 18, 2012 with their travel abroad. He thought of submitting his (Formerly A.M. OCA IPI No. 10-2255-MTJ) Judges and personnel who shall leave the country compliance upon his return to Manila. He without travel authority issued by the OCA shall be acknowledged his mistake and regretted his failure to OFFICE OF ADMINISTRATIVE SERVICES- subject to disciplinary action.4 comply with OCA Circular No. 49-2003. He OFFICE OF THE COURT promised not to commit the same infraction again. He ADMINISTRATOR, Complainant, further requested for reconsideration of the OCA’s vs. On August 13, 2009, the respondent wrote then Court intended action to deduct his salary corresponding to JUDGE IGNACIO B. MACARINE, Municipal Administrator, now Associate Justice Jose Portugal the seven (7) days that he was absent, instead of Circuit Trial Court, Gen. Luna, Surigao del Perez, requesting for authority to travel to Hongkong charging his absences to his leave credits. Norte, Respondent. with his family for the period of September 10 - 14, 2009 where he would celebrate his 65th birthday. The respondent stated that his travel abroad shall be In an Evaluation Report dated September 6, 2010, the D E C I S I O N charged to his annual forced leave. However, he did OCA found the respondent guilty of violation of OCA not submit the corresponding application for leave. Circular No. 49-2003 for traveling out of the country BRION, J.: For his failure to submit the complete requirements, without filing the necessary application for leave and his request for authority to travel remained unacted without first securing a travel authority from the The Office of the Court Administrator (OCA) filed upon. The respondent proceeded with his travel Court. The OCA recommended: the present administrative case against Judge Ignacio abroad without the required travel authority from the B. Macarine (respondent) for violation of OCA OCA. a) this matter be RE-DOCKETED as a Circular No. 49-20031 dated May 20, 2003. regular administrative matter; On January 28, 2010,5 the respondent was informed OCA Circular No. 49-2003 requires that all foreign by the OCA that his leave of absence for the period of b) Judge Ignacio B. Macarine, MCTC, Gen. travels of judges and court personnel, regardless of September 9-15, 2009 had been disapproved and his Luna, Surigao del Norte, be FINED in the the number of days, must be with prior permission travel considered unauthorized by the Court. His amount of P5,000.00 for Violation for from the Court. A travel authority must be secured absences shall not be deducted from his leave credits Circular No. 49-2003 dated May 20, 2003; from the OCA Judges must submit the following but from his salary corresponding to the seven (7) and c) the Financial Management Office, requirements: days that he was absent, pursuant to Section 50 of the Finance Division, OCA, be DIRECTED to Omnibus Rules on Leave.6 The respondent was also DEDUCT the amount equivalent to the (1.) application or letter-request addressed to required to submit his explanation on his failure to seven (7) days salary of Judge Ignacio the Court Administrator stating the purpose comply with OCA Circular No. 49-2003. Macarine as a result of his disapproved and of the travel abroad; unauthorized leave of absence pursuant to In his letter-explanation dated February 25, 2010, the Section 50, Omnibus Rules on Leave, respondent narrated that his daughter, a nurse without deducting his leave credits thereof. (2.) application for leave covering the period [emphases supplied] of the travel abroad, favorably working in New Jersey, USA, gave him a trip to recommended by the Executive Judge; and Hongkong as a gift for his 65th birthday. In the first week of September 2009, he received a call from his True, the right to travel is guaranteed by the daughter that she had already booked him, together Constitution.1âwphi1 However, the exercise of such right is not absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to length of service, acknowledgement of his or her Republic of the Philippines travel provided that such restriction is in the interest infractions and feelings of remorse for the same, SUPREME COURT of national security, public safety or public health as advanced age, family circumstances, and other Manila may be provided by law. This, however, should by no humanitarian and equitable considerations. means be construed as limiting the Court’s inherent EN BANC power of administrative supervision over lower In the present case, the respondent, after learning that courts. OCA Circular No. 49-2003 does not restrict his daughter had already booked him and his family but merely regulates, by providing guidelines to be in a hotel in Hongkong, immediately went to Manila A.M. No. P-11-2927 December 13, 2011 complied by judges and court personnel, before they to secure his travel authority from the Court. [Formerly A.M. OCA IPI No. 10-3532-P] can go on leave to travel abroad. To "restrict" is to However, with the short period of time from their restrain or prohibit a person from doing something; to arrival in Manila on September 9, 2009 up to the time LEAVE DIVISION, OFFICE OF "regulate" is to govern or direct according to rule. of their booking in Hongkong from September 13 to ADMINISTRATIVE SERVICES-Office of the 15, 2009, he was pressed for time and opted not to To ensure management of court dockets and to avoid complete the required travel authority, with the CourT Administrator (OCA),Complainant, disruption in the administration of justice, OCA intention of securing one after his travel. The vs. Circular No. 49-2003 requires a judge who wishes to respondent regretted his failure to comply with the WILMA SALVACION P. HEUSDENS, Clerk IV travel abroad to submit, together with his application requirements of OCA Circular No. 49-2003. He Municipal Trial Court in Cities, Tagum for leave of absence duly recommended for approval acknowledged his mistake and promised not to City, Respondent. by his Executive Judge, a certification from the commit the same infraction in the future. Statistics Division, Court Management Office of the D E C I S I O N OCA, as to the condition of his docket, based on his We consider the outlined circumstances as mitigating. Certificate of Service for the month immediately Following judicial precedents, the respondent preceding the date of his intended travel, that he has deserves some degree of leniency in imposing upon MENDOZA, J.: decided and resolved all cases or incidents within him the appropriate penalty. three (3) months from date of submission, pursuant to This case stemmed from the leave application for Section 15(1) and (2), Article VIII of the 1987 WHEREFORE, respondent Judge Ignacio B. foreign travel1 sent through mail by Wilma Salvacion Constitution.7 Macarine, Municipal Circuit Trial Court, Gen. Luna, P. Heusdens (respondent), Staff Clerk IV of the Surigao del Norte, is hereby given the Municipal Trial Court in Cities, Tagum City, Davao For traveling abroad without having been officially ADMONITION that he acted irresponsibly when he del Norte. allowed by the Court, the respondent is guilty of opted not to immediately secure a travel authority and violation of OCA Circular No. 49-2003. Under is saved only from the full force that his violation Section 9(4), Rule 140 of the Revised Rules of Court, carries by the attendant mitigating circumstances. He Records disclose that on July 10, 2009, the violation of Supreme Court directives and circular is is also WARNED that the commission of a similar Employees Leave Division, Office of Administrative considered a less serious charge and, therefore, violation in the future will merit a more severe Services, Office of the Court Administrator (OCA), punishable by suspension from office without salary penalty. The recommendation of the Office of the received respondent’s leave application for foreign and other benefits for not less than one (1) month nor Court Administration that his absences, which were travel from September 11, 2009 to October 11, 2009. more than three (3) months; or a fine of more than unauthorized, shall not be deducted from his leave 8 P10,000.00 but not exceeding P20,000.00. credits but from his salary is hereby APPROVED. Respondent left for abroad without waiting for the result of her application. It turned out that no travel Section 53, Rule IV of the Revised Rules on SO ORDERED. authority was issued in her favor because she was not Administrative Cases in the Civil Service grants the cleared of all her accountabilities as evidenced by the disciplining authority the discretion to consider Supreme Court Certificate of Clearance. Respondent mitigating circumstances in the imposition of the reported back to work on October 19, 2009.2 proper penalty. The Court had in several instances refrained from imposing the actual penalties in the presence of mitigating facts, such as the employee’s The OCA, in its Memorandum3 dated November 26, OCA Circular No. 49-2003 (B) specifically requires from his/her court and from the Court of 2009, recommended the disapproval of respondent’s that: Appeals; and leave application. It further advised that respondent be directed to make a written explanation of her B. Vacation Leave to be Spent Abroad. • Supreme Court clearance. failure to secure authority to travel abroad in violation of OCA Circular No. 49-2003. On Pursuant to the resolution in A.M. No. 99-12-08-SC 2. Complete requirements should be submitted to and December 7, 2009, then Chief Justice Reynato S. dated 6 November 2000,7 all foreign travels of judges received by the Office of the Court Administrator at Puno approved the OCA recommendation. and court personnel, regardless of the number of least two weeks before the intended period. No action days, must be with prior permission from the shall be taken on requests for travel authority with Accordingly, in a letter4 dated January 6, 2010, OCA Supreme Court through the Chief Justice and the incomplete requirements. Likewise, applications for Deputy Court Administrator Nimfa C. Vilches Chairmen of the Divisions. travel abroad received less than two weeks of the informed respondent that her leave application was intended travel shall not be favorably acted upon. disapproved and her travel was considered 1. Judges and court personnel who wish to travel [Underscoring supplied] unauthorized. Respondent was likewise directed to abroad must secure a travel authority from the Office explain within fifteen (15) days from notice her of the Court Administrator. The judge or court Paragraph 4 of the said circular also provides that failure to comply with the OCA circular. personnel must submit the following: "judges and personnel who shall leave the country without travel authority issued by the Office of the In her Comment5 dated February 2, 2010, respondent (a) For Judges Court Administrator shall be subject to disciplinary admitted having travelled overseas without the action." In addition, Section 67 of the Civil Service required travel authority. She explained that it was x x x Omnibus Rules on Leave8 expressly provides that not her intention to violate the rules as she, in fact, "any violation of the leave laws, rules or regulations, mailed her leave application which was approved by (b) For Court Personnel: or any misrepresentation or deception in connection her superior, Judge Arlene Lirag-Palabrica, as early with an application for leave, shall be a ground for as June 26, 2009. She honestly believed that her leave • application or letter-request addressed to disciplinary action." In fact, every government application would be eventually approved by the the Court Administrator stating the purpose employee who files an application for leave of Court. of the travel abroad; absence for at least thirty (30) calendar days is instructed to submit a clearance as to money and 6 9 The OCA, in its Report dated March 8, 2011, found • application for leave covering the period of property accountabilities. respondent to have violated OCA Circular No. 49- the travel abroad, favorably recommended 2003 for failing to secure the approval of her by the Presiding Judge or Executive Judge; In this case, respondent knew that she had to secure application for travel authority. the appropriate clearance as to money and property • clearance as to money and property accountability to support her application for travel Hence, the OCA recommended that the accountability; authority. She cannot feign ignorance of this administrative complaint be re-docketed as a regular requirement because she had her application for administrative matter and that respondent be deemed • clearance as to pending criminal and clearance circulated through the various divisions. guilty for violation of OCA Circular No. 49-2003 and administrative case filed against him/her, if She, however, failed to secure clearance from the be reprimanded with a warning that a repetition of the any; Supreme Court Savings and Loan Association same or similar offense in the future would be dealt (SCSLA) where she had an outstanding loan. with more severely. • for court stenographer, clearance as to pending stenographic notes for transcription There is no dispute, therefore, that although In fact, she was apologetic and openly admitted that 4] The Migrant Workers and Overseas respondent submitted her leave application for she went abroad without the required travel authority. Filipinos Act of 1995 or R. A. No. 8042, as foreign travel, she failed to comply with the clearance Hence, this is not the proper vehicle to thresh out amended by R.A. No. 10022. In and accountability requirements. As the OCA issues on one’s constitutional right to travel. enforcement of said law, the Philippine Circular specifically cautions that "no action shall be Overseas Employment Administration taken on requests for travel authority with incomplete Nonetheless, granting that it is an issue, the exercise (POEA) may refuse to issue deployment requirements," it was expected that her leave of one’s right to travel or the freedom to move from permit to a specific country that effectively application would, as a consequence, be disapproved one place to another,11 as assured by the Constitution, prevents our migrant workers to enter such by the OCA. is not absolute. There are constitutional, statutory country. and inherent limitations regulating the right to travel. Considering that respondent was aware that she was Section 6 itself provides that "neither shall the right 5] The Act on Violence against Women and not able to complete the requirements, her to travel be impaired except in the interest of national Children or R.A. No. 9262. The law restricts explanation that she honestly believed that her security, public safety or public health, as may be movement of an individual against whom application would be approved is unacceptable. Thus, provided by law." Some of these statutory limitations the protection order is intended. her leaving the country, without first awaiting the are the following: approval or non-approval of her application to travel 6] Inter-Country Adoption Act of 1995 abroad from the OCA, was violative of the rules. 1] The Human Security Act of 2010 or or R.A. No. 8043. Pursuant thereto, the Republic Act (R.A.) No. 9372. The law Inter-Country Adoption Board may issue On the Constitutional Right to Travel restricts the right to travel of an individual rules restrictive of an adoptee’s right to charged with the crime of terrorism even travel "to protect the Filipino child from It has been argued that OCA Circular No. 49-2003 though such person is out on bail. abuse, exploitation, trafficking and/or sale or (B) on vacation leave to be spent abroad unduly any other practice in connection with restricts a citizen’s right to travel guaranteed by 2] The Philippine Passport Act of 1996 or adoption which is harmful, detrimental, or Section 6, Article III of the 1987 R.A. No. 8239. Pursuant to said law, the prejudicial to the child." Constitution.10 Section 6 reads: Secretary of Foreign Affairs or his authorized consular officer may refuse the Inherent limitations on the right to travel are those Sec. 6. The liberty of abode and of changing the same issuance of, restrict the use of, or withdraw, that naturally emanate from the source. These are within the limits prescribed by law shall not be a passport of a Filipino citizen. very basic and are built-in with the power. An impaired except upon lawful order of the court. example of such inherent limitation is the power of Neither shall the right to travel be impaired except 3] The "Anti- Trafficking in Persons Act of the trial courts to prohibit persons charged with a in the interest ofnational security, public safety, 2003" or R.A. No. 9208. Pursuant to the crime to leave the country.13 In such a case, or public health, as may be provided by law. provisions thereof, the Bureau of permission of the court is necessary. Another is the [Emphases supplied] Immigration, in order to manage migration inherent power of the legislative department to and curb trafficking in persons, issued conduct a congressional inquiry in aid of legislation. Let there be no doubt that the Court recognizes a Memorandum Order Radjr No. 2011- In the exercise of legislative inquiry, Congress has the citizen’s constitutional right to travel. It is, however, 011,12 allowing its Travel Control and power to issue a subpoena and subpoena duces not the issue in this case. The only issue in this case is Enforcement Unit to "offload passengers tecum to a witness in any part of the country, signed the non-compliance with the Court’s rules and with fraudulent travel documents, doubtful by the chairperson or acting chairperson and the regulations. It should be noted that respondent, in her purpose of travel, including possible victims Speaker or acting Speaker of the House;14 or in the Comment, did not raise any constitutional concerns. of human trafficking" from our ports. case of the Senate, signed by its Chairman or in his absence by the Acting Chairman, and approved by the could be a disruption in the administration of justice. working days after its receipt, otherwise the leave Senate President.15 A situation where the employees go on mass leave application shall be deemed approved. Section 49, and travel together, despite the fact that their Rule XVI of the Omnibus Rules on Leave reads: Supreme Court has administrative supervision over invaluable services are urgently needed, could all courts and the personnel thereof possibly arise. For said reason, members and SEC. 49. Period within which to act on leave employees of the Judiciary cannot just invoke and applications. – Whenever the application for leave of With respect to the power of the Court, Section 5 (6), demand their right to travel. absence, including terminal leave, is not acted upon Article VIII of the 1987 Constitution provides that by the head of agency or his duly authorized the "Supreme Court shall have administrative To permit such unrestricted freedom can result in representative within five (5) working days after supervision over all courts and the personnel thereof." disorder, if not chaos, in the Judiciary and the society receipt thereof, the application for leave of absence This provision empowers the Court to oversee all as well. In a situation where there is a delay in the shall be deemed approved. matters relating to the effective supervision and dispensation of justice, litigants can get disappointed management of all courts and personnel under it. and disheartened. If their expectations are frustrated, Applying this provision, the Court held in the case Recognizing this mandate, Memorandum Circular they may take the law into their own hands which of Commission on Appointments v. Paler17 that an No. 26 of the Office of the President, dated July 31, results in public disorder undermining public safety. employee could not be considered absent without 1986,16 considers the Supreme Court exempt and with In this limited sense, it can even be considered that leave since his application was deemed approved. In authority to promulgate its own rules and regulations the restriction or regulation of a court personnel’s said case, there was no action on his application on foreign travels. Thus, the Court came out with right to travel is a concern for public safety, one of within five (5) working days from receipt thereof.18 OCA Circular No. 49-2003 (B). the exceptions to the non-impairment of one’s constitutional right to travel. The ruling in Paler, however, is not squarely Where a person joins the Judiciary or the government applicable in this case. First, the employee in said in general, he or she swears to faithfully adhere to, Given the exacting standard expected from each case was governed by CSC Rules only. In the case of and abide with, the law and the corresponding office individual called upon to serve in the Judiciary, it is respondent, like the others who are serving the rules and regulations. These rules and regulations, to imperative that every court employee comply with Judiciary, she is governed not only by CSC Rules but which one submits himself or herself, have been the travel notification and authority requirements as also by OCA Circular No. 49-2003 which imposes issued to guide the government officers and mandated by OCA Circular No. 49-2003. A court guidelines on requests for travel abroad for judges employees in the efficient performance of their employee who plans to travel abroad must file his and court personnel. Second, in Paler, the employee obligations. When one becomes a public servant, he leave application prior to his intended date of travel submitted his leave application with complete or she assumes certain duties with their concomitant with sufficient time allotted for his application to be requirements before his intended travel date. No responsibilities and gives up some rights like the processed and approved first by the Court. He cannot additional requirement was asked to be filed. In the absolute right to travel so that public service would leave the country without his application being case of respondent, she submitted her leave not be prejudiced. approved, much less assume that his leave application application but did not fully comply with the would be favorably acted upon. In the case at bench, clearance and accountability requirements As earlier stated, with respect to members and respondent should have exercised prudence and asked enumerated in OCA Circular No. 49-2003. Third, in employees of the Judiciary, the Court issued OCA for the status of her leave application before leaving Paler, there was no approval or disapproval of his Circular No. 49-2003 to regulate their foreign travel for abroad. application within 5 working days from the in an unofficial capacity. Such regulation is necessary submission of the requirements. In this case, there for the orderly administration of justice. If judges and Indeed, under the Omnibus Rules Implementing was no submission of the clearance requirements and, court personnel can go on leave and travel abroad at Book V of Executive Order (EO) No. 292, a leave hence, the leave application could not have been will and without restrictions or regulations, there application should be acted upon within five (5) favorably acted upon. SCSLA membership is voluntary join the SCSLA, she agreed to follow the penalized more severely. In that case, the Court requirements and regulations set forth by both stressed that unawareness of the circular was not an Regarding the requirement of the OCA that an offices. When she applied for a loan, she was not excuse from non-compliance therewith.25 employee must also seek clearance from the SCSLA, forced or coerced to accomplish the requirements. the Court finds nothing improper in it. OCA is not Everything was of her own volition. In Reyes v. Bautista,26 a court stenographer was found enforcing the collection of a loan extended to such guilty of violation of OCA Circular No. 49-2003 for employee.19 Although SCSLA is a private entity, it In this regard, having elected to become a member of traveling abroad without securing the necessary cannot be denied that its functions and operations are the SCSLA, respondent voluntarily and knowingly permission for foreign travel. She was also found inextricably connected with the Court. First, SCSLA committed herself to honor these undertakings. By guilty of dishonesty when she indicated in her was primarily established as a savings vehicle for accomplishing and submitting the said undertakings, application that her leave would be spent in the Supreme Court and lower court employees. The respondent has clearly agreed to the limitations that Philippines, when in truth it was spent abroad. membership, which is voluntary, is open only to would probably affect her constitutional right to Because of the employee’s numerous infractions, she Supreme Court justices, officials, and employees with travel. By her non-compliance with the requirement, was dismissed from the service with forfeiture of all permanent, coterminous, or casual appointment, as it can be said that she has waived, if not constricted, benefits and privileges, except accrued leave credits, well as to first and second-level court judges and their her right. An employee cannot be allowed to enjoy with prejudice to re-employment in any branch or personnel.20 An eligible employee who applies for the benefits and privileges of SCSLA membership instrumentality of the government, including membership with SCSLA must submit, together with and at the same time be exempted from her voluntary government owned or controlled corporations. his application, his latest appointment papers issued obligations and undertakings. by the Supreme Court.21 Second, when an employee- In Concerned Employees of the Municipal Trial member applies for a SCSLA loan, he or she is asked A judiciary employee who leaves for abroad without Court of Meycauayan, Bulacan v. Paguio-Bacani,27 a to authorize the Supreme Court payroll office to authority must be prepared to face the consequences branch clerk of court of the Municipal Trial Court of deduct the amount due and remit it to SCSLA. Third, Meycauayan, Bulacan, was found guilty of the employee-borrower likewise undertakes to assign Lest it be misunderstood, a judge or a member of the dishonesty for falsifying her Daily Time Record and in favor of SCSLA, in case of non-payment, his Judiciary, who is not being restricted by a criminal leaving the country without the requisite travel capital deposit, including earned dividends, all court or any other agency pursuant to any statutory authority. She was suspended from the service for one monies and monetary benefits due or would be due limitation, can leave for abroad without (1) year without pay, with a warning that a repetition from his office, Government Service Insurance permission but he or she must be prepared to face the of the same or similar offense would be dealt with System or from any government office or other consequences for his or her violation of the Court’s more severely.lavvphi1 sources, to answer the remaining balance of his rules and regulations. Stated otherwise, he or she loan.22 Fourth, every employee-borrower must should expect to be subjected to a disciplinary action. Following the Uniform Rules on Administrative procure SCSLA members to sign as co-makers for the In the past, the Court was not hesitant to impose the Cases in the Civil Service, the Court considers a loan23 and in case of leave applications that would appropriate sanctions and penalties. violation of reasonable office rules and regulations as require the processing of a Supreme Court clearance, a light offense and punishable with reprimand on the another co-maker’s undertaking would be needed. In Office of the Administrative Services (OAS)-Office first offense; suspension for one to thirty days on the of the Court Administrator (OCA) v. Calacal,24 a second; and dismissal from the service on the third The Court stresses that it is not sanctioning utility worker of the Metropolitan Trial Court was infraction. Considering that this appears to be respondent for going abroad with an unpaid debt but found guilty of violating OCA Circular No. 49-2003 respondent’s first infraction, the OCA recommended for failing to comply with the requirements laid down for going overseas without the required travel that she be penalized with a reprimand and warned by the office of which she is an employee. When authority and was reprimanded and warned that a that a repetition of the same or similar offense would respondent joined the Judiciary and volunteered to repetition of the same or similar offense would be be dealt with more severely. The Court, nonetheless, takes note of the belated action (4 months) of the Leave Division on her application for leave which she submitted two months before her intended departure date. The Leave Division should have acted on the application, favorably or unfavorably, before the intended date with sufficient time to communicate it to the applicant. If an applicant has not complied with the requirements, the Leave Division should deny the same and inform him or her of the adverse action. As respondent was not informed of the denial of her application within a reasonable time, respondent should only be admonished.

WHEREFORE, respondent Wilma Salvacion P. Heusdens, Clerk IV Municipal Trial Court in Cities, Tagum City, is hereby ADMONISHED for traveling abroad without any travel authority in violation of OCA Circular No. 49-2003, with a WARNING that a repetition of the same or similar offense would be dealt with more severely.

The Leave Division, OAS-OCA, is hereby directed to act upon applications for travel abroad at least five (5) working days before the intended date of departure.

SO ORDERED. CONSCIENTIOUS OBJECTOR hospital, head nurses, [P. 75] supervising midwives, should be equally protected by the conscientious A conscientious objector is a person who refuses to among others, who by virtue of their office are objection clause. The freedom to exercise one’s perform a legal role or responsibility because of specifically charged with the duty to implement the beliefs is inherent in everyone. This freedom, like religious beliefs or strong philosophical views. provisions of the RPRH Act and these Rules, cannot other freedoms, should be protected and respected. One example involving the concept of conscientious be considered as conscientious objectors. The conscientious objection clause is one of the objection is the Reproductive Health Law. The last This violates the equal protection clause which clauses that uphold the equal protection clause. paragraph of Section 5.24 of the Reproductive Health requires that all persons or things similarly situated Hence, strict scrutiny is required before one can Law-Implementing Rules and Regulations reads: should be treated alike, both as to rights conferred Provided, That skilled health professional such as and responsibilities imposed. The religious beliefs of provincial, city or municipal health officers, chiefs of all medical practitioners, without any distinction,