Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 107383 February 20, 1 !

CECI"I# $U"UET#, petitioner, vs. COURT OF #PPE#"S a%& #"FREDO M#RTIN, respondents. DECISION MENDO$#, J.' This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch ! which ordered petitioner to return documents and papers ta"en b# her from private respondent$s clinic without the latter$s "nowledge and consent. The facts are as follows% Petitioner Cecilia &ulueta is the wife of private respondent Alfredo Martin. 'n March (), *+,(, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent$s secretar#, forcibl# opened the drawers and cabinet in her husband$s clinic and too" *-. documents consisting of private correspondence between /r. Martin and his alleged paramours, greetings cards, cancelled chec"s, diaries, /r. Martin$s passport, and photographs. The documents and papers were sei0ed for use in evidence in a case for legal separation and for dis1ualification from the practice of medicine which petitioner had filed against her husband. /r. Martin brought this action below for recover# of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch , which, after trial, rendered 2udgment for private respondent, /r. Alfredo Martin, declaring him 3the capital4e5clusive owner of the properties described in paragraph 6 of plaintiff$s Complaint or those further described in the Motion to Return and 7uppress3 and ordering Cecilia &ulueta and an# person acting in her behalf to a immediatel# return the properties to /r. Martin and to pa# him P-,888.88, as nominal damages9 P-,888.88, as moral damages and attorne#$s fees9 and to pa# the costs of the suit. The writ of preliminar# in2unction earlier issued was made final and petitioner Cecilia &ulueta and her attorne#s and representatives were en2oined from 3using or submitting4admitting as evidence3 the documents and papers in 1uestion. 'n appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. :ence this petition. There is no 1uestion that the documents and papers in 1uestion belong to private respondent, /r. Alfredo Martin, and that the# were ta"en b# his wife, the herein petitioner, without his "nowledge and consent. ;or that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and en2oined her from using them in evidence. <n appealing from the decision of the Court of Appeals affirming the trial court$s decision, petitioner$s onl# ground is that in Alfredo Martin v. Alfonso ;eli5, =r.,* this Court ruled that the documents and papers (mar"ed as Anne5es A>* to =>. of respondent$s comment in that case! were admissible in evidence and, therefore, their use b# petitioner$s attorne#, Alfonso ;eli5 did not constitute malpractice or gross misconduct, ;or this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent$s complaint. Petitioner$s contention has no merit. The case against Att#. ;eli5, =r. was for disbarment. Among other things, private respondent, /r. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Att#. ;eli5, =r. committed malpractice or gross misconduct because of the in2unctive order of the trial court. <n dismissing the complaint against Att#. ;eli5, =r., this Court too" note of the following defense of Att#. ;eli59 =r. which it found to be 3impressed with merit%3 (

'n the alleged malpractice or gross misconduct of respondent ?Alfonso ;eli5, =r.@, he maintains that% ....

A. Bhen respondent refiled Cecilia$s case for legal separation before the Pasig Regional Trial Court, there was admittedl# an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Anne5 3A>* to =>..3 'n 7eptember ), *+,6, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporaril# set aside the order of the trial court. :ence, during the enforceabilit# of this Court$s order, respondent$s re1uest for petitioner to admit the genuineness and authenticit# of the sub2ect anne5es cannot be loo"ed upon as malpractice. Cotabl#, petitioner /r. Martin finall# admitted the truth and authenticit# of the 1uestioned anne5es, At that point in time, would it have been malpractice for respondent to use petitioner$s admission as evidence against him in the legal separation case pending in the Regional Trial Court of Ma"atiD Respondent submits it is not malpractice. 7ignificantl#, petitioner$s admission was done not thru his counsel but b# /r. Martin himself under oath, 7uch verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound b# his admission. ;or Cecilia to avail herself of her husband$s admission and use the same in her action for legal separation cannot be treated as malpractice. Thus, the ac1uittal of Att#. ;eli5, =r. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing /r. Martin$s admission as to their genuiness and authenticit# did not constitute a violation of the in2unctive order of the trial court. B# no means does the decision in that case establish the admissibilit# of the documents and papers in 1uestion. <t cannot be overemphasi0ed that if Att#. ;eli5, =r. was ac1uitted of the charge of violating the writ of preliminar# in2unction issued b# the trial court, it was onl# because, at the time he used the documents and papers, enforcement of the order of the trial court was temporaril# restrained b# this Court. The TR' issued b# this Court was eventuall# lifted as the petition for certiorari filed b# petitioner against the trial court$s order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again.

<ndeed the documents and papers in 1uestion are inadmissible in evidence. The constitutional in2unction declaring 3the privac# of communication and correspondence ?to be@ inviolable3 6 is no less applicable simpl# because it is the wife (who thin"s herself aggrieved b# her husband$s infidelit#! who is the part# against whom the constitutional provision is to be enforced. The onl# e5ception to the prohibition in the Constitution is if there is a 3lawful order ?from a@ court or when public safet# or order re1uires otherwise, as prescribed b# law.3 A An# violation of this provision renders the evidence obtained inadmissible 3for an# purpose in an# proceeding.3 The intimacies between husband and wife do not 2ustif# an# one of them in brea"ing the drawers and cabinets of the other and in ransac"ing them for an# telltale evidence of marital infidelit#. A person, b# contracting marriage, does not shed his4her integrit# or his right to privac# as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses b# ma"ing it privileged. Ceither husband nor wife ma# testif# for or against the other without the consent of the affected spouse while the marriage subsists.) Ceither ma# be e5amined without the consent of the other as to an# communication received in confidence b# one from the other during the marriage, save for specified e5ceptions. . But one thing is freedom of communication9 1uite another is a compulsion for each one to share what one "nows with the other. And this has nothing to do with the dut# of fidelit# that each owes to the other. B:ERE;'RE, the petition for review is /EC<E/ for lac" of merit. 7' 'R/ERE/. Regalado, Romero and Puno, JJ., concur.

Foo(%o(e)
*

*)6 7CRA *** (*+,,!.

Id. at *(8>*(*, *(). *+.6 C'C7T., Art. <F, GA(*!9 *+,. C'C7T., Art. <<<, G6(*!. Id. *+.6 C'C7T., ART. <F, GA((!9 *+,. C'C7T., Art. <<<, G6((!. Rule *68, G((. Rule *68, G(A.

Republic of the Philippines SUPREME COURT Manila EC BACC

G.R. No. 127!8* +u,y 23, 1 -"#S F. OP"E, petitioner, vs.

RU-EN D. TORRES, #"E.#NDER #GUIRRE, /ECTOR VI""#NUEV#, CIE"ITO /#-ITO, RO-ERT -#R-ERS, C#RMENCIT# REODIC#, CES#R S#RINO, REN#TO V#"ENCI#, TOM#S P. #FRIC#, /E#D OF T/E N#TION#" COMPUTER CENTER a%& C/#IRM#N OF T/E COMMISSION ON #UDIT, respondents.

PUNO, J.: The petition at bar is a commendable effort on the part of 7enator Blas ;. 'ple to prevent the shrin"ing of the right to privac#, which the revered Mr. =ustice Brandeis considered as 3the most comprehensive of rights and the right most valued b# civili0ed men.3 1 Petitioner 'ple pra#s that we invalidate Administrative 'rder Co. 68, entitled 3Adoption of a Cational Computeri0ed <dentification Reference 7#stem3 on two important constitutional grounds, viz% one, it is a usurpation of the power of Congress to legislate, and two, it impermissibl# intrudes on our citi0enr#$s protected 0one of privac#. Be grant the petition for the rights sought to be vindicated b# the petitioner need stronger barriers against further erosion. A.'. Co. 68, was issued b# President ;idel F. Ramos 'n /ecember *(, *++) and reads as follows% A/'PT<'C '; A CAT<'CAH C'MPITER<&E/ </ECT<;<CAT<'C RE;ERECCE 7J7TEM B:EREA7, there is a need to provide ;ilipino citi0ens and foreign residents with the facilit# to convenientl# transact business with basic service and social securit# providers and other government instrumentalities9 B:EREA7, this will re1uire a computeri0ed s#stem to properl# and efficientl# identif# persons see"ing basic services on social securit# and reduce, if not totall# eradicate fraudulent transactions and misrepresentations9 B:EREA7, a concerted and collaborative effort among the various basic services and social securit# providing agencies and other government intrumentalities is re1uired to achieve such a s#stem9 C'B, T:ERE;'RE, <, ;</EH F. RAM'7, President of the Republic of the Philippines, b# virtue of the powers vested in me b# law, do hereb# direct the following% 7ec. *. Establishment of a National Compoterized Identification Reference S stem . A decentrali0ed <dentification Reference 7#stem among the "e# basic services and social securit# providers is hereb# established. 7ec. (. Inter!"genc Coordinating Committee. An <nter>Agenc# Coordinating Committee (<ACC! to draw>up the implementing guidelines and oversee the implementation of the 7#stem is hereb# created, chaired b# the E5ecutive 7ecretar#, with the following as members% :ead, Presidential Management 7taff

7ecretar#, Cational Economic /evelopment Authorit# 7ecretar#, /epartment of the <nterior and Hocal Kovernment 7ecretar#, /epartment of :ealth Administrator, Kovernment 7ervice <nsurance 7#stem, Administrator, 7ocial 7ecurit# 7#stem, Administrator, Cational 7tatistics 'ffice Managing /irector, Cational Computer Center. 7ec. 6. Secretariat. The Cational Computer Center (CCC! is hereb# designated as secretariat to the <ACC and as such shall provide administrative and technical support to the <ACC. 7ec. A. #in$age "mong "gencies. The Population Reference Cumber (PRC! generated b# the C7' shall serve as the common reference number to establish a lin"age among concerned agencies. The <ACC 7ecretariat shall coordinate with the different 7ocial 7ecurit# and 7ervices Agencies to establish the standards in the use of Biometrics Technolog# and in computer application designs of their respective s#stems. 7ec. -. Conduct of Information %issemination Campaign. The 'ffice of the Press 7ecretar#, in coordination with the Cational 7tatistics 'ffice, the K7<7 and 777 as lead agencies and other concerned agencies shall underta"e a massive tri>media information dissemination campaign to educate and raise public awareness on the importance and use of the PRC and the 7ocial 7ecurit# <dentification Reference. 7ec. ). &unding. The funds necessar# for the implementation of the s#stem shall be sourced from the respective budgets of the concerned agencies. 7ec. .. Submission of Regular Reports. The C7', K7<7 and 777 shall submit regular reports to the 'ffice of the President through the <ACC, on the status of implementation of this underta"ing. 7ec. ,. Effectivit . This Administrative 'rder shall ta"e effect immediatel#. /'CE in the Cit# of Manila, this *(th da# of /ecember in the #ear of 'ur Hord, Cineteen :undred and Cinet#>7i5. (7K/.! ;</EH F. RAM'7 A.'. Co. 68, was published in four newspapers of general circulation on =anuar# ((, *++. and =anuar# (6, *++.. 'n =anuar# (A, *++., petitioner filed the instant petition against respondents, then E5ecutive 7ecretar# Ruben Torres and the heads of the government agencies, who as members of the <nter>Agenc# Coordinating Committee, are charged with the implementation of A.'. Co. 68,. 'n April ,, *++., we issued a temporar# restraining order en2oining its implementation. Petitioner contends% A. T:E E7TABH<7CMECT '; A CAT<'CAH C'MPITER<&E/ </ECT<;<CAT<'C RE;ERECCE 7J7TEM RELI<RE7 A HEK<7HAT<FE ACT. T:E <77IACCE '; A.'. C'. 68, BJ T:E PRE7</ECT '; T:E REPIBH<C '; T:E P:<H<PP<CE7 <7, T:ERE;'RE, AC ICC'C7T<TIT<'CAH I7IRPAT<'C '; T:E HEK<7HAT<FE P'BER7 '; T:E C'CKRE77 '; T:E REPIBH<C '; T:E P:<H<PP<CE7. B. T:E APPR'PR<AT<'C '; PIBH<C ;IC/7 BJ T:E PRE7</ECT ;'R T:E <MPHEMECTAT<'C '; A.'. C'. 68, <7 AC ICC'C7T<TIT<'CAH I7IRPAT<'C '; T:E E CHI7<FE R<K:T '; C'CKRE77 T' APPR'PR<ATE PIBH<C ;IC/7 ;'R E PEC/<TIRE.

C. T:E <MPHEMECTAT<'C '; A.'. C'. 68, <C7</<'I7HJ HAJ7 T:E KR'IC/B'RM ;'R A 7J7TEM B:<C: B<HH F<'HATE T:E B<HH '; R<K:T7 EC7:R<CE/ <C T:E C'C7T<TIT<'C. 2 Respondents counter>argue% A. T:E <C7TACT PET<T<'C <7 C'T A =I7T<C<ABHE CA7E A7 B'IH/ BARRACT A =I/<C<AH REF<EB9 B. A.'. C'. 68, ?*++)@ BA7 <77IE/ B<T:<C T:E E ECIT<FE AC/ A/M<C<7TRAT<FE P'BER7 '; T:E PRE7</ECT B<T:'IT ECCR'AC:<CK 'C T:E HEK<7HAT<FE P'BER7 '; C'CKRE779 C. T:E ;IC/7 CECE77ARJ ;'R T:E <MPHEMECTAT<'C '; T:E </ECT<;<CAT<'C RE;ERECCE 7J7TEM MAJ BE 7'IRCE/ ;R'M T:E BI/KET7 '; T:E C'CCERCE/ AKECC<E79 /. A.'. C'. 68, ?*++)@ PR'TECT7 AC <C/<F</IAH$7 <CTERE7T <C PR<FACJ. Be now resolve. < As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the 2usticiabilit# of the case at bar. More specificall#, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.'. Co. 68, have #et to be promulgated. These submissions do not deserve our s#mpathetic ear. Petitioner 'ple is a distinguished member of our 7enate. As a 7enator, petitioner is possessed of the re1uisite standing to bring suit raising the issue that the issuance of A.'. Co. 68, is a usurpation of legislative power. 0 As ta5pa#er and member of the Kovernment 7ervice <nsurance 7#stem (K7<7!, petitioner can also impugn the legalit# of the misalignment of public funds and the misuse of K7<7 funds to implement A.'. Co. 68,. * The ripeness for ad2udication of the Petition at bar is not affected b# the fact that the implementing rules of A.'. Co. 68, have #et to be promulgated. Petitioner 'ple assails A.'. Co. 68, as invalid per se and as infirmed on its face. :is action is not premature for the rules #et to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.'. Co. 68, without waiting for the rules. As earl# as =anuar# *+, *++., respondent 7ocial 7ecurit# 7#stem (777! caused the publication of a notice to bid for the manufacture of the Cational <dentification (</! card. ! Respondent E5ecutive 7ecretar# Torres has publicl# announced that representatives from the K7<7 and the 777 have completed the guidelines for the national identification s#stem. 7 All signals from the respondents show their unswerving will to implement A.'. Co. 68, and we need not wait for the formalit# of the rules to pass 2udgment on its constitutionalit#. <n this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right. << Be now come to the core issues. Petitioner claims that A.'. Co. 68, is not a mere administrative order but a law and hence, be#ond the power of the President to issue. :e alleges that A.'. Co. 68, establishes a s#stem of identification that is all>encompassing in scope, affects the life and libert# of ever# ;ilipino citi0en and foreign resident, and more particularl#, violates their right to privac#. Petitioner$s sedulous concern for the E5ecutive not to trespass on the lawma"ing domain of Congress is understandable. The blurring of the demarcation line between the power of the Hegislature to ma"e laws and the power of the E5ecutive to e5ecute laws will disturb their delicate balance of power and cannot be allowed. :ence, the e5ercise b# one branch of government of power belonging to another will be given a stricter scrutin# b# this Court. The line that delineates Hegislative and E5ecutive power is not indistinct. Hegislative power is 3the authorit#, under the Constitution, to ma"e laws, and to alter and repeal them.3 8 The Constitution, as the will of the people in their original, sovereign and unlimited capacit#, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. 10 The legislative bod# possesses plenar# power for all purposes of civil government. 11 An# power, deemed to be legislative b# usage and tradition, is necessaril# possessed
3

b# Congress, unless the Constitution has lodged it elsewhere. 12 <n fine, e5cept as limited b# the Constitution, either e5pressl# or impliedl#, legislative power embraces all sub2ects and e5tends to matters of general concern or common interest. 13

Bhile Congress is vested with the power to enact laws, the President e5ecutes the laws. 10 The e5ecutive power is vested in the Presidents. 1* <t is generall# defined as the power to enforce and administer the laws. 1! <t is the power of carr#ing the laws into practical operation and enforcing their due observance. 17 As head of the E5ecutive /epartment, the President is the Chief E5ecutive. :e represents the government as a whole and sees to it that all laws are enforced b# the officials and emplo#ees of his department. 18 :e has control over the e5ecutive department, bureaus and offices. This means that he has the authorit# to assume directl# the functions of the e5ecutive department, bureau and office or interfere with the discretion of its officials. 1 Corollar# to the power of control, the President also has the dut# of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectivel#. 20 Administrative power is concerned with the wor" of appl#ing policies and enforcing orders as determined b# proper governmental organs. 21 <t enables the President to fi5 a uniform standard of administrative efficienc# and chec" the official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations. Prescinding from these precepts, we hold that A.'. Co. 68, involves a sub2ect that is not appropriate to be covered b# an administrative order. An administrative order is% 7ec. 6. "dministrative 'rders. N Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. 23 An administrative order is an ordinance issued b# the President which relates to specific aspects in the administrative operation of government. <t must be in harmon# with the law and should be for the sole purpose of implementing the law and carr#ing out the legislative polic#. 20 Be re2ect the argument that A.'. Co. 68, implements the legislative polic# of the Administrative Code of *+,.. The Code is a general law and 3incorporates in a unified document the ma2or structural, functional and procedural principles of governance.3 2* and 3embodies changes in administrative structure and procedures designed to serve the people.3 2! The Code is divided into seven (.! Boo"s% Boo" < deals with 7overeignt# and Keneral Administration, Boo" << with the /istribution of Powers of the three branches of Kovernment, Boo" <<< on the 'ffice of the President, Boo" <F on the E5ecutive Branch, Boo" F on Constitutional Commissions, Boo" F< on Cational Kovernment Budgeting, and Boo" F<< on Administrative Procedure. These Boo"s contain provisions on the organi0ation, powers and general administration of the e5ecutive, legislative and 2udicial branches of government, the organi0ation and administration of departments, bureaus and offices under the e5ecutive branch, the organi0ation and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guideline for the e5ercise b# administrative agencies of 1uasi>legislative and 1uasi>2udicial powers. The Code covers both the internal administration of government, i.e, internal organi0ation, personnel and recruitment, supervision and discipline, and the effects of the functions performed b# administrative officials on private individuals or parties outside government. 27 <t cannot be simplisticall# argued that A.'. Co. 68, merel# implements the Administrative Code of *+,.. <t establishes for the first time a Cational Computeri0ed <dentification Reference 7#stem. 7uch a 7#stem re1uires a delicate ad2ustment of various contending state policies N the primac# of national securit#, the e5tent of privac# interest against dossier>gathering b# government, the choice of policies, etc. <ndeed, the dissent of Mr. =ustice Mendo0a states that the A.'. Co. 68, involves the all>important freedom of thought. As said administrative order redefines the parameters of some basic rights of our citi0enr# vis!a!vis the 7tate as well as the line that separates the administrative power of the President to ma"e rules and the legislative power of Congress, it ought to be evident that it deals with a sub2ect that should be covered b# law. Cor is it correct to argue as the dissenters do that A./. Co. 68, is not a law because it confers no right, imposes no dut#, affords no proctection, and creates no office. Inder A.'. Co. 68,, a citi0en cannot transact business with government agencies delivering basic services to the people without the contemplated identification card. Co citi0en will refuse to get this identification card for no one can avoid dealing with government. <t is thus clear as da#light that without the </, a citi0en will have difficult# e5ercising his rights and en2o#ing his privileges. Kiven this realit#, the contention that A.'. Co. 68, gives no right and imposes no dut# cannot stand. Again, with due respect, the dissenting opinions undul# e5pand the limits of administrative legislation and conse1uentl# erodes the plenar# power of Congress to ma"e laws. This is contrar# to the established approach

defining the traditional limits of administrative legislation. As well stated b# ;isher% 3. . . Man# regulations however, bear directl# on the public. <t is here that administrative legislation must he restricted in its scope and application. Regulations are not supposed to be a substitute for the general polic#>ma"ing that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authorit# to prescribe rules and regulations is not an independent source of power to ma"e laws.3 28 <<< Assuming, arguendo, that A.'. Co. 68, need not be the sub2ect of a law, still it cannot pass constitutional muster as an administrative legislation because faciall# it violates the right to privac#. The essence of privac# is the 3right to be let alone.3 2 <n the *+)- case of Kriswold v. Connecticut, 30 the Inited 7tates 7upreme Court gave more substance to the right of privac# when it ruled that the right has a constitutional foundation. <t held that there is a right of privac# which can be found within the penumbras of the ;irst, Third, ;ourth, ;ifth and Cinth Amendments, 31 viz% 7pecific guarantees in the Bill of Rights have penumbras formed b# emanations from these guarantees that help give them life and substance . . . various guarantees create 0ones of privac#. The right of association contained in the penumbra of the ;irst Amendment is one, as we have seen. The Third Amendment in its prohibition against the 1uartering of soldiers 3in an# house3 in time of peace without the consent of the owner is another facet of that privac#. The ;ourth Amendment e5plicitl# affirms the $$right of the people to be secure in their persons, houses and effects, against unreasonable searches and sei0ures.3 The ;ifth Amendment in its 7elf><ncrimination Clause enables the citi0en to create a 0one of privac# which government ma# not force him to surrender to his detriment. The Cinth Amendment provides% 3The enumeration in the Constitution, of certain rights, shall not be construed to den# or disparage others retained b# the people.3 <n the *+), case of (orfe v. (utuc, 32 we adopted the Kriswold ruling that there is a constitutional right to privac#. 7pea"ing thru Mr. =ustice, later Chief =ustice, Enri1ue ;ernando, we held% 555 555 555 The Kriswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence on the ground of its amounting to an unconstitutional invasion of the right of privac# of married persons9 rightfull# it stressed 3a relationship l#ing within the 0one of privac# created b# several fundamental constitutional guarantees.3 <t has wider implications though. The constitutional right to privac# has come into its own. 7o it is li"ewise in our 2urisdiction. The right to privac# as such is accorded recognition independentl# of its identification with libert#9 in itself, it is full# deserving of constitutional protection. The language of Prof. Emerson is particularl# apt% 3The concept of limited government has alwa#s included the idea that governmental powers stop short of certain intrusions into the personal life of the citi0en. This is indeed one of the basic distinctions between absolute and limited government. Iltimate and pervasive control of the individual, in all aspects of his life, is the hallmar" of the absolute state. <n contrast, a s#stem of limited government safeguards a private sector, which belongs to the individual, firml# distinguishing it from the public sector, which the state can control. Protection of this private sector N protection, in other words, of the dignit# and integrit# of the individual N has become increasingl# important as modern societ# has developed. All the forces of a technological age N industriali0ation, urbani0ation, and organi0ation N operate to narrow the area of privac# and facilitate intrusion into it. <n modern terms, the capacit# to maintain and support this enclave of private life mar"s the difference between a democratic and a totalitarian societ#.3 <ndeed, if we e5tend our 2udicial ga0e we will find that the right of privac# is recogni0ed and enshrined in several provisions of our Constitution. 33 <t is e5pressl# recogni0ed in section 6 (*! of the Bill of Rights% 7ec. 6. (*! The privac# of communication and correspondence shall be inviolable e5cept upon lawful order of the court, or when public safet# or order re1uires otherwise as prescribed b# law. 'ther facets of the right to privac# are protectad in various provisions of the Bill of Rights, viz% 30
7ec. *. Co person shall be deprived of life, libert#, or propert# without due process of law, nor shall an# person be denied the e1ual protection of the laws.

7ec. (. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and sei0ures of whatever nature and for an# purpose shall be inviolable, and no search warrant or warrant of arrest shall issue e5cept upon probable cause to be determined personall# b# the 2udge after e5amination under oath or affirmation of the complainant and the witnesses he ma# produce, and particularl# describing the place to be searched and the persons or things to be sei0ed. 555 555 555 7ec. ). The libert# of abode and of changing the same within the limits prescribed b# law shall not be impaired e5cept upon lawful order of the court. Ceither shall the right to travel be impaired e5cept in the interest of national securit#, public safet#, or public health as ma# be provided b# law. 555 555 555 7ec. ,. The right of the people, including those emplo#ed in the public and private sectors, to form unions, associations, or societies for purposes not contrar# to law shall not be abridged. 7ec. *.. Co person shall be compelled to be a witness against himself. &ones of privac# are li"ewise recogni0ed and protected in our laws. The Civil Code provides that 3?e@ver# person shall respect the dignit#, personalit#, privac# and peace of mind of his neighbors and other persons3 and punishes as actionable torts several acts b# a person of meddling and pr#ing into the privac# of another. 3* <t also holds a public officer or emplo#ee or an# private individual liable for damages for an# violation of the rights and liberties of another person, 3! and recogni0es the privac# of letters and other private communications. 37 The Revised Penal Code ma"es a crime the violation of secrets b# an officer, 38 the revelation of trade and industrial secrets, 3 and trespass to dwelling. 00<nvasion of privac# is an offense in special laws li"e the Anti>Biretapping Haw, 01 the 7ecrec# of Ban" /eposits Act 02 and the <ntellectual Propert# Code. 03 The Rules of Court on privileged communication li"ewise recogni0e the privac# of certain information. 00 Inli"e the dissenters, we prescind from the premise that the right to privac# is a fundamental right guaranteed b# the Constitution, hence, it is the burden of government to show that A.'. Co. 68, is 2ustified b# some compelling state interest and that it is narrowl# drawn. A.'. Co. 68, is predicated on two considerations% (*! the need to provides our citi0ens and foreigners with the facilit# to convenientl# transact business with basic service and social securit# providers and other government instrumentalities and ((! the need to reduce, if not totall# eradicate, fraudulent transactions and misrepresentations b# persons see"ing basic services. <t is debatable whether these interests are compelling enough to warrant the issuance of A.'. Co. 68,. But what is not arguable is the broadness, the vagueness, the overbreadth of A.'. Co. 68, which if implemented will put our people$s right to privac# in clear and present danger. The heart of A.'. Co. 68, lies in its 7ection A which provides for a Population Reference Cumber (PRC! as a 3common reference number to establish a lin"age among concerned agencies3 through the use of 3Biometrics Technolog#3 and 3computer application designs.3 Biometr# or biometrics is 3the science of the applicatin of statistical methods to biological facts9 a mathematical anal#sis of biological data.3 0* The term 3biometrics3 has evolved into a broad categor# of technologies which provide precise confirmation of an individual$s identit# through the use of the individual$s own ph#siological and behavioral characteristics. 0! A ph#siological characteristic is a relativel# stable ph#sical characteristic such as a fingerprint, retinal scan, hand geometr# or facial features. A behavioral characteristic is influenced b# the individual$s personalit# and includes voice print, signature and "e#stro"e. 07 Most biometric idenfication s#stems use a card or personal identificatin number (P<C! for initial identification. The biometric measurement is used to verif# that the individual holding the card or entering the P<C is the legitimate owner of the card or P<C. 08 A most common form of biological encoding is finger>scanning where technolog# scans a fingertip and turns the uni1ue pattern therein into an individual number which is called a biocr#pt. The biocr#pt is stored in computer data ban"s 0 and becomes a means of identif#ing an individual using a service. This technolog# re1uires one$s fingertip to be scanned ever# time service or access is provided. *0 Another method is the retinal scan. Retinal scan technolog# emplo#s optical technolog# to map the capillar# pattern of the retina of the e#e. This technolog# produces a uni1ue print similar to a finger print. *1 Another biometric method is "nown as the 3artificial nose.3 This device chemicall# anal#0es the uni1ue combination of substances e5creted from the s"in of people. *2 The latest on the list of biometric achievements is the thermogram. 7cientists have found that b# ta"ing pictures of a face using infra>red cameras, a uni1ue heat distribution pattern is seen. The different densities of bone, s"in, fat and blood vessels all contribute to the individual$s personal 3heat signature.3 *3

<n the last few decades, technolog# has progressed at a galloping rate. 7ome science fictions are now science facts. Toda#, biometrics is no longer limited to the use of fingerprint to identif# an individual. <t is a new science that uses various technologies in encoding an# and all biological characteristics of an individual for identification. <t is noteworth# that A.'. Co. 68, does not state what specific biological characteristics and what particular biometrics technolog# shall be used to identif# people who will see" its coverage. Considering the ban1uest of options available to the implementors of A.'. Co. 68,, the fear that it threatens the right to privac# of our people is not groundless. A.'. Co. 68, should also raise our antennas for a further loo" will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. <n fact, the 7olicitor Keneral claims that the adoption of the <dentification Reference 7#stem will contribute to the 3generation of population data for development planning.3 *0 This is an admission that the PRC will not be used solel# for identification but the generation of other data with remote relation to the avowed purposes of A.'. Co. 68,. Clearl#, the indefiniteness of A.'. Co. 68, can give the government the roving authorit# to store and retrieve information for a purpose other than the identification of the individual through his PRC. The potential for misuse of the data to be gathered under A.'. Co. 68, cannot be undarpla#ed as the dissenters do. Pursuant to said administrative order, an individual must present his PRC ever#time he deals with a government agenc# to avail of basic services and securit#. :is transactions with the government agenc# will necessaril# be recorded N whether it be in the computer or in the documentar# file of the agenc#. The individual$s file ma# include his transactions for loan availments, income ta5 returns, statement of assets and liabilities, reimbursements for medication, hospitali0ation, etc. The more fre1uent the use of the PRC, the better the chance of building a huge formidable informatin base through the electronic lin"age of the files. ** The data ma# be gathered for gainful and useful government purposes9 but the e5istence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that ma# be too great for some of our authorities to resist. *! Be can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal infomation about the individual. *7 Even that hospitable assumption will not save A.'. Co. 68, from constitutional infirmit# for again said order does not tell us in clear and categorical terms how these information gathered shall he handled. <t does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privac# and guarant# the integrit# of the information. *8 Bell to note, the computer lin"age gives other government agencies access to the information. Jet, there are no controls to guard against lea"age of information. Bhen the access code of the control programs of the particular computer s#stem is bro"en, an intruder, without fear of sanction or penalt#, can ma"e use of the data for whatever purpose, or worse, manipulate the data stored within the s#stem. * <t is plain and we hold that A.'. Co. 68, falls short of assuring that personal information which will be gathered about our people will onl# be processed for une1uivocall# specified purposes. !0 The lac" of proper safeguards in this regard of A.'. Co. 68, ma# interfere with the individual$s libert# of abode and travel b# enabling authorities to trac" down his movement9 it ma# also enable unscrupulous persons to access confidential information and circumvent the right against self>incrimination9 it ma# pave the wa# for 3fishing e5peditions3 b# government authorities and evade the right against unreasonable searches and sei0ures. !1 The possibilities of abuse and misuse of the PRC, biometrics and computer technolog# are accentuated when we consider that the individual lac"s control over what can be read or placed on his </, much less verif# the correctness of the data encoded. !2 The# threaten the ver# abuses that the Bill of Rights see"s to prevent. !3 The abilit# of sophisticated data center to generate a comprehensive cradle>to>grave dossier on an individual and transmit it over a national networ" is one of the most graphic threats of the computer revolution. !0 The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. !* <t can continue adding to the stored data and "eeping the information up to date. Retrieval of stored date is simple. Bhen information of a privileged character finds its wa# into the computer, it can be e5tracted together with other data on the sub2ect. !! 'nce e5tracted, the information is putt# in the hands of an# person. The end of privac# begins. Though A.'. Co. 68, is undoubtedl# not narrowl# drawn, the dissenting opinions would dismiss its danger to the right to privac# as speculative and h#pothetical. Again, we cannot countenance such a laidbac" posture. The Court will not be true to its role as the ultimate guardian of the people$s libert# if it would not immediatel# smother the spar"s that endanger their rights but would rather wait for the fire that could consume them. Be re2ect the argument of the 7olicitor Keneral that an individual has a reasonable e5pectation of privac# with regard to the Catioal </ and the use of biometrics technolog# as it stands on 1uic"sand. The reasonableness of a person$s e5pectation of privac# depends on a two>part test% (*! whether b# his conduct, the individual has e5hibited an e5pectation of privac#9 and ((! whether this e5pectation is one that societ# recogni0es as reasonable. !7 The factual circumstances of the case determines the reasonableness of the e5pectation. !8 :owever, other factors, such as

customs, ph#sical surroundings and practices of a particular activit#, ma# serve to create or diminish this e5pectation. ! The use of biometrics and computer technolog# in A.'. Co. 68, does not assure the individual of a reasonable e5pectation of privac#. 70 As technolog# advances, the level of reasonabl# e5pected privac# decreases. 71 The measure of protection granted b# the reasonable e5pectation diminishes as relevant technolog# becomes more widel# accepted. 72 The securit# of the computer data file depends not onl# on the ph#sical inaccessibilit# of the file but also on the advances in hardware and software computer technolog#. A.'. Co. 68, is so widel# drawn that a minimum standard for a reasonable e5pectation of privac#, regardless of technolog# used, cannot be inferred from its provisions.

The rules and regulations to be b# the <ACC cannot remed# this fatal defect. Rules and regulations merel# implement the polic# of the law or order. 'n its face, A.'. Co. gives the <ACC virtuall# infettered discretion to determine the metes and bounds of the </ 7#stem. Cor do #our present laws prvide ade1uate safeguards for a reasonable e5pectation of privac#. Commonwealth Act. Co. -+* penali0es the disclosure b# an# person of data furnished b# the individual to the C7' with imprisonment and fine. 73 Republic Act. Co. **)* prohibits public disclosure of 777 emplo#ment records and reports. 70 These laws, however, appl# to records and data with the C7' and the 777. <t is not clear whether the# ma# be applied to data with the other government agencies forming part of the Cational </ 7#stem. The need to clarif# the penal aspect of A.'. Co. 68, is another reason wh# its enactment should be given to Congress. Ce5t, the 7olicitor Keneral urges us to validate A.'. Co. 68,$s abridgment of the right of privac# b# using the rational relationship test. 7* :e stressed that the purposes of A.'. Co. 68, are% (*! to streamline and speed up the implementation of basic government services, ((! eradicate fraud b# avoiding duplication of services, and (6! generate population data for development planning. :e cocludes that these purposes 2ustif# the incursions into the right to privac# for the means are rationall# related to the end. 7! Be are not impressed b# the argument. <n (orfe v. (utuc, 77 we upheld the constitutionalit# of R.A. 68*+, the Anti> Kraft and Corrupt Practices Act, as a valid police power measure. Be declared that the law, in compelling a public officer to ma"e an annual report disclosing his assets and liabilities, his sources of income and e5penses, did not infringe on the individual$s right to privac#. The law was enacted to promote moralit# in public administration b# curtailing and minimi0ing the opportunities for official corruption and maintaining a standard of honest# in the public service. 78 The same circumstances do not obtain in the case at bar. ;or one, R.A. 68*+ is a statute, not an administrative order. 7econdl#, R.A. 68*+ itself is sufficientl# detailed. The law is clear on what practices were prohibited and penali0ed, and it was narrowl# drawn to avoid abuses. <C the case at bar, A.'. Co. 68, ma# have been impelled b# a worth# purpose, but, it cannot pass constitutional scrutin# for it is not narrowl# drawn. And we now hod that when the integrit# of a fundamental right is at sta"e, this court will give the challenged law, administrative order, rule or regulation a stricter scrutin#. <t will not do for the authorities to invo"e the presumption of regularit# in the performance of official duties. Cor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationall#. The# must satisfactoril# show the presence of compelling state interests and that the law, rule or regulation is narrowl# drawn to preclude abuses. This approach is demanded b# the *+,. Constitution whose entire matri5 is designed to protect human rights and to prevent authoritarianism. <n case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected b# the Constitutions. The case of )halen v. Roe 7 cited b# the 7olicitor Keneral is also off>line. <n Bhalen, the Inited 7tates 7upreme Court was presented with the 1uestion of whether the 7tate of Cew Jor" could "eep a centrali0ed computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor$s prescription. The Cew Jor" 7tate Controlled 7ubstance Act of *+.( re1uired ph#sicians to identif# parties obtaining prescription drugs enumerated in the statute, i.e., drugs with a recogni0ed medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centrali0ed computer file of the 7tate /epartment of :ealth. The plaintiffs, who were patients and doctors, claimed that some people might decline necessar# medication because of their fear that the computeri0ed data ma# be readil# available and open to public disclosure9 and that once disclosed, it ma# stigmati0e them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionall# protected 0one of privac#, i.e., the individual interest in avoiding disclosure of personal matters, and the interest in independence in ma"ing certain "inds of important decisions. The I.7. 7upreme Court held that while an individual$s interest in avoiding disclosuer of personal matter is an aspect of the right to privac#, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessar# to aid in the enforcement of laws designed to minimi0e the misuse of dangerous drugs. The patient>identification re1uirement was a product of an orderl# and rational legislative decision made upon recommmendation b# a speciall# appointed commission which held e5tensive hearings on the matter. Moreover, the statute was narrowl# drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and re1uirements for the gathering, storage and retrieval of the informatin. <t ebumerated who were authori0ed to access the data. <t also prohibited public disclosure of the data b# imposing penalties for its violation. <n view of these safeguards, the infringement of the patients$ right to privac# was 2ustified b# a valid e5ercise of police power. As we discussed above, A.'. Co. 68, lac"s these vital safeguards.

Even while we stri"e down A.'. Co. 68,, we spell out in neon that the Court is not per se agains the use of computers to accumulate, store, process, retvieve and transmit data to improve our bureaucrac#. Computers wor" wonders to achieve the efficienc# which both government and private industr# see". Man# information s#stem in different countries ma"e use of the computer to facilitate important social ob2ective, such as better law enforcement, faster deliver# of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of financial activities. 81 Ised wisel#, data stored in the computer could help good administration b# ma"ing accurate and comprehensive information for those who have to frame polic# and ma"e "e# decisions. 82 The benefits of the computer has revolutioni0ed information technolog#. <t developed the internet, 83 introduced the concept of c#berspace 80 and the information superhighwa# where the individual, armed onl# with his personal computer, ma# surf and search all "inds and classes of information from libraries and databases connected to the net. <n no uncertain terms, we also underscore that the right to privac# does not bar all incursions into individual privac#. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. <t merel# re1uires that the law be narrowl# focused 8* and a compelling interest 2ustif# such intrusions. 8! <ntrusions into the right must be accompanied b# proper safeguards and well>defined standards to prevent unconstitutional invasions. Be reiterate that an# law or order that invades individual privac# will be sub2ected b# this Court to strict scrutin#. The reason for this stance was laid down in (orfe v. (utuc, to wit% The concept of limited government has alwa#s included the idea that governmental powers stop short of certain intrusions into the personal life of the citi0en. This is indeed one of the basic disctinctions between absolute and limited government. Iltimate and pervasive control of the individual, in all aspects of his life, is the hallmar" of the absolute state. <n contrast, a s#stem of limited government safeguards a private sector, which belongs to the individual, firml# distinguishing it from the public sector, which the state can control. Protection of this private sector N protection, in other words, of the dignit# and integrit# of the individual N has become increasingl# important as modern societ# has developed. All the forces of a technological age N industriali0ation, urbani0ation, and organi0ation N operate to narrow the area of privac# and facilitate intrusion into it. <n modern terms, the capacit# to maintain and support this enclave of private life mar"s the difference between a democratic and a totalitarian societ#. 87 <F The right to privac# is one of the most threatened rights of man living in a mass societ#. The threats emanate from various sources N governments, 2ournalists, emplo#ers, social scientists, etc. 88 <n th case at bar, the threat comes from the e5ecutive branch of government which b# issuing A.'. Co. 68, pressures the people to surrender their privac# b# giving information about themselves on the prete5t that it will facilitate deliver# of basic services. Kiven the record> "eeping power of the computer, onl# the indifferent fail to perceive the danger that A.'. Co. 68, gives the government the power to compile a devastating dossier against unsuspecting citi0ens. <t is timel# to ta"e note of the well>worded warning of Malvin, =r., 3the disturbing result could be that ever#one will live burdened b# an unerasable record of his past and his limitations. <n a wa#, the threat is that because of its record>"eeping, the societ# will have lost its benign capacit# to forget.3 8 'blivious to this counsel, the dissents still sa# we should not be too 1uic" in labelling the right to privac# as a fundamental right. Be close with the statement that the right to privac# was not engraved in our Constitution for flatter#. <C F<EB B:ERE';, the petition is granted and Adminisrative 'rder Co. 68, entitled 3Adoption of a Cational Computeri0ed <dentification Reference 7#stem3 declared null and void for being unconstitutional. 7' 'R/ERE/.

Republic of the Philippines SUPREME COURT Manila 7EC'C/ /<F<7<'C G.R. No. "1! 80 O2(ober 1!, 1 8! EDG#RDO #. G##N#N, petitioner, vs. INTERMEDI#TE #PPE""#TE COURT a%& PEOP"E OF T/E P/I"IPPINES, respondents.

GUTIERRE$, +R., J.: This petition for certiorari as"s for an interpretation of Republic Act (RA! Co. A(88, otherwise "nown as the Anti> Biretapping Act, on the issue of whether or not an e5tension telephone is among the prohibited devices in 7ection * of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. The facts presented b# the People and narrated in the respondent court$s decision are not disputed b# the petitioner. <n the morning of 'ctober ((, *+.-, complainant Att#. Tito Pintor and his client Manuel Montebon were in the living room of complainant$s residence discussing the terms for the withdrawal of the complaint for direct assault which the# filed with the 'ffice of the Cit# ;iscal of Cebu against Heonardo Haconico. After the# had decided on the proposed conditions, complainant made a telephone call to Haconico (tsn, August (), *+,*, pp. 6>-!. That same morning, Haconico telephoned appellant, who is a law#er, to come to his office and advise him on the settlement of the direct assault case because his regular law#er, Att#. Heon Kon0aga, went on a business trip. According to the re1uest, appellant went to the office of Haconico where he was briefed about the problem. (E5hibit $/$, tsn, April ((, *+,(, pp. A>-!. Bhen complainant called up, Haconico re1uested appellant to secretl# listen to the telephone conversation through a telephone e5tension so as to hear personall# the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault. (a! the P-,888.88 was no longer acceptable, and that the figure had been increased to P,,888.88. A brea"down of the P,,888.88 had been made together with other demands, to wit% (a! P-,888.88 no longer for the teacher Manuel Montebon, but for Att#. Pintor himself in persuading his client to withdraw the case for /irect Assault against Att#. Haconico before the Cebu Cit# ;iscal$s 'ffice9 (b! Public apolog# to be made b# Att#. Haconico before the students of /on Bosco Technical :igh 7chool9 (c! Pl,888.88 to be given to the /on Bosco ;acult# club9 (d! transfer of son of Att#. Haconico to another school or another section of /on Bosco Technical :igh 7chool9 (e! Affidavit of desistance b# Att#. Haconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu Cit# ;iscal$s 'ffice, whereas Montebon$s affidavit of desistance on the /irect Assault Case against Att#. Haconico to be filed later9 (f! Allow Manuel Montebon to continue teaching at the /on Bosco Technical 7chool9 (g! Cot to divulge the truth about the settlement of the /irect Assault Case to the mass media9

(h! P(,888.88 attorne# s fees for Att#. Pintor. (tsn, August (), *+,*, pp. A.>A,!. Twent# minutes later, complainant called up again to as" Haconico if he was agreeable to the conditions. Haconico answered $Jes$. Complainant then told Haconico to wait for instructions on where to deliver the mone#. (tsn, March *8, *+,6, pp. (>*(!. Complainant called up again and instructed Haconico to give the mone# to his wife at the office of the then /epartment of Public :ighwa#s. Haconico who earlier alerted his friend Colonel &ulueta of the Criminal <nvestigation 7ervice of the Philippine Constabular#, insisted that complainant himself should receive the mone#. (tsn, March *8, *+,(, pp. ()>66!. Bhen he received the mone# at the <gloo Restaurant, complainant was arrested b# agents of the Philippine Constabular#. Appellant e5ecuted on the following da# an affidavit stating that he heard complainant demand P,,888.88 for the withdrawal of the case for direct assault. Haconico attached the affidavit of appellant to the complainant for robber#4e5tortion which he filed against complainant. 7ince appellant listened to the telephone conversation without complainant$s consent, complainant charged appellant and Haconico with violation of the Anti>Biretapping Act. After trial on the merits, the lower court, in a decision dated Covember ((, *+,(, found both Kaanan and Haconico guilt# of violating 7ection * of Republic Act Co. A(88. The two were each sentenced to one (*! #ear imprisonment with costs. Cot satisfied with the decision, the petitioner appealed to the appellate court. 'n August *), *+,A, the <ntermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Haconico was private in nature and, therefore, covered b# Rep. Act Co. A(889 that the petitioner overheard such communication without the "nowledge and consent of the complainant9 and that the e5tension telephone which was used b# the petitioner to overhear the telephone conversation between complainant and Haconico is covered in the term 3device$ as provided in Rep. Act Co. A(88. <n this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues9 (a! whether or not the telephone conversation between the complainant and accused Haconico was private in nature9 (b! whether or not an e5tension telephone is covered b# the term 3device or arrangement3 under Rep. Act Co. A(889 (c! whether or not the petitioner had authorit# to listen or overhear said telephone conversation and (d! whether or not Rep. Act Co. A(88 is ambiguous and, therefore, should be construed in favor of the petitioner. 7ection * of Rep. Act Co. A(88 provides% 7ection *. <t shall be unlawful for an# person, not being authori0ed b# all the parties to an# private communication or spo"en word, to tap an# wire or cable or b# using an# other device or arrangement, to secretl# overhear, intercept, or record such communication or spo"en word b# using a device commonl# "nown as a dictaphone or dictagraph or detectaphone or wal"ie>tal"ie or tape>recorder, or however otherwise described% <t shall be unlawful for an# person, be he a participant or not in the act or acts penali0ed in the ne5t preceeding sentence, to "nowingl# possess an# tape record, wire record, disc record, or an# other such record, or copies thereof, of an# communication or spo"en word secured either before or after the effective date of this Act in the manner prohibited b# this law9 or to repla# the same for an# other person or persons9 or to communicate the contents thereof, either verball# or in writing, or to furnish transcriptions thereof, whether complete or partial, to an# other person% Provided, that the use of such record or an# copies thereof as evidence in an# civil, criminal investigation or trial of offenses mentioned in 7ection 6 hereof, shall not be covered b# this prohibition. Be rule for the petitioner. Be are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibilit# of evidence secured over an e5tension line of a telephone b# a third part#. The issue is whether or not the person called over the telephone and his law#er listening to the conversation on an e5tension line should both face prison sentences simpl# because the e5tension was used to enable them to both listen to an alleged attempt at e5tortion. There is no 1uestion that the telephone conversation between complainant Att#. Pintor and accused Att#. Haconico was 3private3 in the sense that the words uttered were made between one person and another as distinguished

from words between a spea"er and a public. <t is also undisputed that onl# one of the parties gave the petitioner the authorit# to listen to and overhear the caller$s message with the use of an e5tension telephone line. 'bviousl#, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P,,888.88 consideration in order to have his client withdraw a direct assault charge against Att#. Haconico filed with the Cebu Cit# ;iscal$s 'ffice if he "new that another law#er was also listening. Be have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller b# merel# using a telephone line can force the listener to secrec# no matter how obscene, criminal, or anno#ing the call ma# be. <t would be the word of the caller against the listener$s. Because of technical problems caused b# the sensitive nature of electronic e1uipment and the e5tra heav# loads which telephone cables are made to carr# in certain areas, telephone users often encounter what are called 3crossed lines3. An unwar# citi00en who happens to pic" up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he "nows that he could be accused under Rep. Act A(88 of using his own telephone to secretl# overhear the private communications of the would be criminals. 7urel# the law was never intended for such mischievous results. The main issue in the resolution of this petition, however, revolves around the meaning of the phrase 3an# other device or arrangement.3 <s an e5tension of a telephone unit such a device or arrangement as would sub2ect the user to imprisonment ranging from si5 months to si5 #ears with the accessor# penalt# of perpetual absolute dis1ualification for a public officer or deportation for an alienD Private secretaries with e5tension lines to their bosses$ telephones are sometimes as"ed to use answering or recording devices to record business conversations between a boss and another businessman. Bould transcribing a recorded message for the use of the boss be a proscribed offenseD or for that matter, would a 3part# line3 be a device or arrangement under the lawD The petitioner contends that telephones or e5tension telephones are not included in the enumeration of 3commonl# "nown3 listening or recording devices, nor do the# belong to the same class of enumerated electronic devices contemplated b# law. :e maintains that in *+)A, when 7enate Bill Co. + (later Rep. Act Co. A(88! was being considered in the 7enate, telephones and e5tension telephones were alread# widel# used instruments, probabl# the most popularl# "nown communication device. Bhether or not listening over a telephone part# line would be punishable was discussed on the floor of the 7enate. Jet, when the bill was finali0ed into a statute, no mention was made of telephones in the enumeration of devices 3commonl# "nown as a dictaphone or dictagraph, detectaphone or wal"ie tal"ie or tape recorder or however otherwise described.3 The omission was not a mere oversight. Telephone part# lines were intentionall# deleted from the provisions of the Act. The respondent People argue that an e5tension telephone is embraced and covered b# the term 3device3 within the conte5t of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. <t is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred awa# from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other part# or end. The law refers to a 3tap3 of a wire or cable or the use of a 3device or arrangement3 for the purpose of secretl# overhearing, intercepting, or recording the communication. There must be either a ph#sical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spo"en words. An e5tension telephone cannot be placed in the same categor# as a dictaphone, dictagraph or the other devices enumerated in 7ection * of RA Co. A(88 as the use thereof cannot be considered as 3tapping3 the wire or cable of a telephone line. The telephone e5tension in this case was not installed for that purpose. <t 2ust happened to be there for ordinar# office use. <t is a rule in statutor# construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be ta"en as detached and isolated e5pressions, but the whole and ever# part thereof must be considered in fi5ing the meaning of an# of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, <nc., )) 7CRA **6,*(8!. <n the case of Empire Insurance Com an v. Rufino (+8 7CRA A6., AA6>AAA!, we ruled% Hi"ewise, Article *6.( of the Civil Code stipulates that $however general the terms of a contract ma# be, the# shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.$ 7imilarl#, Article *6.A of the same Code

provides that $the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which ma# result from all of them ta"en 2ointl#. 555 555 555 Conse1uentl#, the phrase $all liabilities or obligations of the decedent$ used in paragraph -(c! and .(d! should be then restricted onl# to those listed in the <nventor# and should not be construed as to comprehend all other obligations of the decedent. The rule that $particulari0ation followed b# a general e5pression will ordinaril# be restricted to the former$ is based on the fact in human e5perience that usuall# the minds of parties are addressed speciall# to the particulari0ation, and that the generalities, though broad enough to comprehend other fields if the# stood alone, are used in contemplation of that upon which the minds of the parties are centered. (:offman v. Eastern Bisconsin R., etc., Co., *6A Bis. )86, )8., **- CB 6,6, cited in ;rancisco, Revised Rules of Court (Evidence!, *+.6 ed, pp. *,8>*,*!. :ence, the phrase 3device or arrangement3 in 7ection * of RA Co. A(88, although not e5clusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. <t refers to instruments whose installation or presence cannot be presumed b# the part# or parties being overheard because, b# their ver# nature, the# are not of common usage and their purpose is precisel# for tapping, intercepting or recording a telephone conversation. An e5tension telephone is an instrument which is ver# common especiall# now when the e5tended unit does not have to be connected b# wire to the main telephone but can be moved from place $ to place within a radius of a "ilometer or more. A person should safel# presume that the part# he is calling at the other end of the line probabl# has an e5tension telephone and he runs the ris" of a third part# listening as in the case of a part# line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. *nited States (6--, I.7. *8., ( H Ed (d *6.>*6,!% Common e5perience tells us that a call to a particular telephone number ma# cause the bell to ring in more than one ordinaril# used instrument. Each part# to a telephone conversation ta"es the ris" that the other part# ma# have an e5tension telephone and ma# allow another to overhear the conversation. Bhen such ta"es place there has been no violation of an# privac# of which the parties ma# complain. Conse1uentl#, one element of )8-, interception, has not occurred. <n the same case, the Court further ruled that the conduct of the part# would differ in no wa# if instead of repeating the message he held out his hand>set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an e5tension telephone for the same purpose. ;urthermore, it is a general rule that penal statutes must be construed strictl# in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an e5tension telephone is included in the phrase 3device or arrangement3, the penal statute must be construed as not including an e5tension telephone. <n the case of People v. Purisima, ,) 7CRA -A(, -)(, we e5plained the rationale behind the rule% American 2urisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals9 the ob2ect is to establish a certain rule b# conformit# to which man"ind would be safe, and the discretion of the court limited. (Inited 7tates v. :arris, *.. I7 68-, AA H Ed .,8, (8 7 Ct )8+9 Braffith v. Firgin <slands (CA6! () ;(d )A)9 Caudill v. 7tate, ((A <nd -6*, )+ CE(d9 =ennings v. Commonwealth, *8+ FA ,(*,)6 7E *8,8, all cited in .6 Am =ur (d A-(!. The purpose is not to enable a guilt# person to escape punishment through a technicalit# but to provide a precise definition of forbidden acts.3 (7tate v. &a00aro, (8 A (d .6., 1uoted in Martin$s :andboo" on 7tatutor# Construction, Rev. Ed. pp. *,6>*,A!. <n the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primar# rule is to search for and determine the intent and spirit of the law. A perusal of the 7enate Congressional Records will show that not onl# did our lawma"ers not contemplate the inclusion of an e5tension telephone as a prohibited device or arrangement3 but of greater importance, the# were more concerned with penali0ing the act of recording than the act of merel# listening to a telephone conversation. 555 555 555

7enator TaOada. Another possible ob2ection to that is entrapment which is certainl# ob2ectionable. <t is made possible b# special amendment which Jour :onor ma# introduce. 7enator /io"no.Jour :onor, < would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would onl# consist of government testimon# as against the testimon# of the defendant. Bith this amendment, the# would have the right, and the government officials and the person in fact would have the right to tape record their conversation. 7enator TaOada. <n case of entrapment, it would be the government. 7enator /io"no. <n the same wa#, under this provision, neither part# could record and, therefore, the court would be limited to sa#ing% 3'"a#, who is more credible, the police officers or the defendantD3 <n these cases, as e5perienced law#ers, we "now that the Court go with the peace offices. (Congressional Record, Fol. ***, Co. 66, p. )(,, March *(, *+)A!. 555 555 555 7enator /io"no. The point < have in mind is that under these conditions, with an agent outside listening in, he could falsif# the testimon# and there is no wa# of chec"ing it. But if #ou allow him to record or ma"e a recording in an# form of what is happening, then the chances of falsif#ing the evidence is not ver# much. 7enator TaOada. Jour :onor, this bill is not intended to prevent the presentation of false testimon#. <f we could devise a wa# b# which we could prevent the presentation of false testimon#, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court. (Congressional Record, Fol. <<<, Co. 66, March *(, *+)A, p. )(+!. <t can be readil# seen that our lawma"ers intended to discourage, through punishment, persons such as government authorities or representatives of organi0ed groups from installing devices in order to gather evidence for use in court or to intimidate, blac"mail or gain some unwarranted advantage over the telephone users. Conse1uentl#, the mere act of listening, in order to be punishable must strictl# be with the use of the enumerated devices in RA Co. A(88 or others of similar nature. Be are of the view that an e5tension telephone is not among such devices or arrangements. B:ERE;'RE, the petition is KRACTE/. The decision of the then <ntermediate Appellate Court dated August *), *+,A is ACCIHHE/ and 7ET A7</E. The petitioner is hereb# ACLI<TTE/ of the crime of violation of Rep. Act Co. A(88, otherwise "nown as the Anti>Biretapping Act.

Republic of the Philippines SUPREME COURT Manila 7EC'C/ /<F<7<'C G.R. No. 121087 #u3u)( 2!, 1

FE"IPE N#V#RRO, petitioner, vs. T/E COURT OF #PPE#"S a%& (4e PEOP"E OF T/E P/I"IPPINES, respondents. MENDO$#, J.: This is a petition for review on certiorari of the decision* of the Court of Appeals, dated /ecember *A, *++A, which affirmed the 2udgment of the Regional Trial Court, Branch -, Hucena Cit#, dated =ul# (., *++(, finding petitioner ;elipe Cavarro guilt# be#ond reasonable doubt of homicide and sentencing him to ten (*8! #ears of prision ma or, as minimum, and fourteen (*A! #ears and eight (,! months, and (*! da# of reclusion temporal, as ma5imum, but increased the death indemnit# awarded to the heirs of the victim, Enri1ue 3<"e3 Hingan, from P68,888.88 to P-8,888.88. The information against petitioner alleged N That on or about the Ath da# of ;ebruar#, *++8, in the nighttime, in the Cit# of Hucena, Province of Lue0on, Philippines, and within the 2urisdiction of this :onorable Court, the said accused, being then a member of the Hucena <ntegrated Cational Police, with intent to "ill, did then and there willfull#, unlawfull# and feloniousl# assault one <"e Hingan inside the Hucena police head1uarters, where authorities are supposed to be engaged in the discharge of their duties, b# bo5ing the said <"e Hingan in the head with the butt of a gun and thereafter when the said victim fell, b# banging his head against the concrete pavement, as a conse1uence of which said <"e Hingan suffered cerebral concussion and shoc" which directl# caused his death. The evidence show that, at around ,%A8 in the evening of ;ebruar# A, *++8, 7tanle# =albuena and Enri1ue 3<"e3 Hingan, who were reporters of the radio station /BT< in Hucena Cit#, together with one Mario <lagan, went to the Entertainment Cit# following reports that it was showing the nude dancers. After the three had seated themselves at a table and ordered beer, a scantil# clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, =albuena brought out his camera and too" a picture. ( At that point, the floor manager, /ante Hi1uin, with a securit# guard, Ale5 7ioco, approached =albuena and demanded to "now wh# he too" a picture.6 =albuena replied% 3Bala "ang pa"ialam, because this is m# 2ob.3 A 7ioco pushed =albuena towards the table as he warned the latter that he would "ill him. - Bhen =albuena saw that 7ioco was about to pull out his gun, he ran out of the 2oint followed b# his companions. ) =albuena and his companions went to the police station to report the matter. Three of the policeman on dut#, including petitioner Cavarro, were having drin"s in front of the police station, and the# as"ed =albuena and his companions to 2oin them. =albuena declined and went to the des" officer, 7gt. AOonuevo, to report the incident. <n a while, Hi1uin and 7ioco arrived on a motorc#cle.. 7ioco and Hi1uin were met b# petitioner Cavarro who tal"ed with them in a corner for around fifteen minutes.,Afterwards, petitioner Cavarro turned to =albuena and, pushing him to the wall, said to him% 3Putang ina, "ina"alaban mo si Mabo Hi1uin, ana" #an ni Mabo Hi1uin, hindi mo ba "ilalaD3 + Petitioner Cavarro then pulled out his firearm and coc"ed it, and, pressing it on the face of =albuena, said 3Ano, uutasin na "itaD3 *8 At this point, Hingan intervened and said to petitioner Cavarro% 3:uwag namang gan#an pumarito "ami para magpa> blotter, < am here to mediate.3** Petitoner Cavarro replied% 3Balang press, press, mag>sampu pa "a#o.3 *(:e then turned to 7gt. AOonuevo and told him to ma"e of record the behavior of =albuena and Hingan. *6 This angered Hingan, who said% 3', di ilaga# mo di#an3 *A Petitioner Cavarro retorted% 3Talagang ilalaga# "o.3*-The two then had a heated e5change. *) ;inall#, Hingan said% 3Mas#ado "ang abusado, alisin mo #ang baril mo at magsuntu"an na lang ta#o.3*. Petitioner Cavarro replied% 3Ah, ganoonD3 *,

As Hingan was about turn awa#, petitioner Cavarro hit him with the handle of the pistol above the left e#ebrow. Hingan fell on the floor, blood flowing down his face. :e tried to get up, but petitioner Cavarro gave him a fist blow on the forehead which floored him.*+ Petitioner Cavarro turned to =albuena and said% 3Mita mo #an ha, buha# "ang testigo, si <"e Hingan and naghamon.3(8 :e said to 7gt. AOonuevo% 3<laga# mo di#an sa blotter sa harap ni Ale5 7ioco at /ante Hi1uin, na si <"e Hingan ang naghamon.3(* :e then po"ed his gun at the right temple of =albuena and made him sign his name on the blotter.(( =albuena could not affi5 his signature. :is right hand was trembling and he simpl# wrote his name in print.(6 Capt. Coronado, the station commander, called petitioner Cavarro to his office, while a policeman too" Hingan to the Lue0on Memorial :ospital. The station manager of /BT<, Bo#, CasaOada, arrived and, learning that Hingan had been ta"en to the hospital, proceeded there. But Hingan died from his in2uries. (A In"nown to petitioner Cavarro, =albuena was able to record on tape the e5change between petitioner and the deceased.(- The following is an e5cerpt from the tape recording% Hingan% Pare, #ou are abusing #ourself. Cavarro% Bho is that abusingD Hingan% <$m here to mediate. /o not include me in the problem. <$m out of the problem. 555 Cavarro% Bala sa a"in #an. Ang "aso lang . . . Hingan% Malaban mo ang media, pare, A"o at si 7tanle#, dalawa "ami. '"a#. /o not fight with me. < 2ust came here to a#usin things. /o not sa# bad things against me. <$m the number one lo"o sa media. <$m the best media man. . . . Cavarro% :uwag ta#ong mag>lo"ohan sa gan#anP :uwag na ta#ong mag>ta"otanP :uwag mong sabihing lo"o "aP Hingan% <$m brave also. Cavarro% A# lalo na a"o. Tahimi" lang naman a"o. Bala "a namang masasabi sa a"in dahil nag>tatrabaho lang a"o ng a#on sa serbis#o "o. Hingan% Jou are challenging me and him. . . . Cavarro% A# walasti" "a naman <"eP Pag ma# problema "a dito sinasabihan "ita na ma# balita ta#ong maganda. Pambihira "a <"e. :uwag mong sabihin na . . . Parang minomonopol# mo eh. Hingan% Pati a"o "alaban nin#o. Cavarro% Talagang "alaban namin ang press. Hahat, hindi lang i"awP Hingan% Jou are wrong. Ba"it "alaban n#o ang pressD Cavarro% Pulis itoP AbaP Hingan% Alisin mo ang baril moP Alisin mo ang baril moP 7untu"an ta#o, sige. Cavarro% Ma#abang "a ahP (7ounds of a scuffle! Cavarro% :inamon a"o n#anP Pare hinamon a"o n#anP Pare hinamon a"o n#an, testigo "a#o. Alisin "o daw ang baril "o. :inamon a"o n#an. Pare, ilaga# mo di#an, hinamon a"o sa harap ni 7tanle#. Testigo "a#o, 555 555

hinamon a"o. Pulis ta#o eh. Puta, buti nga, sunto" lang ang inabot n#an. 7a harap ni Ale5, ni =oe, ni 7tanle#, hinamon a"o. Pare, hinamon a"o, "inig n#o ha. :inamon a"o n#an. 7ige, dalhin n#o sa hospital #an. Petitioner ;elipe Cavarro claims that it was the deceased who tried to hit him twice, but he (petitioner! was able to duc" both times, and that Hingan was so drun" he fell on the floor twice, each time hitting his head on the concrete.() <n giving credence to the evidence for the prosecution, the trial court stated% After a thorough and in>depth evaluation of the evidence adduced b# the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certaint# in the mind of the court that accused herein is criminall# responsible. The defense$s evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecution$s evidence. This court finds that the prosecution witnesses, more particularl# 7tanle# =albuena, lac"ed an# motive to ma"e false accusation, distort the truth, testif# falsehood or cause accusation of one who had neither brought him harm or in2ur#. Koing over the evidence on record, the postmortem report issued b# /ra. Eva Jamamoto confirms the detailed account given b# 7tanle# =albuena on how Hingan sustained head in2uries. 7aid post!mortem report together with the testimon# of =albuena sufficientl# belie the claim of the defense that the head in2uries of deceased Hingan were caused b# the latter$s falling down on the concrete pavement head first. The Court of Appeals affirmed% Be are far from being convinced b# appellant$s aforesaid dis1uisition. Be have carefull# evaluated the conflicting versions of the incident as presented b# both parties, and we find the trial court$s factual conclusions to have better and stronger evidentiar# support. <n the first place, the mere fact that =albuena was himself a victim of appellant$s aggression does not impair the probative worth of his positive and logical account of the incident in 1uestion. <n fact, far from proving his innocence, appellant$s unwarranted assault upon =albuena, which the defense has virtuall# admitted, clearl# betra#s his violent character or disposition and his capacit# to harm others. Apparentl#, the same motivation that led him into assailing =albuena must have provo"ed him into also attac"ing Hingan who had interceded for =albuena and humiliated him and further challenged to a fist fight.
+,-phi+.n.t

555

555

555

'n the other hand, appellant$s e5planation as how Hingan was in2ured is too tenuous and illogical to be accepted. <t is in fact contradicted b# the number, nature and location of Hingan$s in2uries as shown in thepost!mortem report (E5h. /!. According to the defense, Hingan fell two times when he was outbalanced in the course of bo5ing the appellant. And #et, Hingan suffered lacerated wounds in his left forehead, left e#ebrow, between his left and right e#ebrows, and contusion in the right temporal region of the head (E5h. E.!. Certainl#, these in2uries could not have been resulted from Hingan$s accidental fall. :ence, this appeal. Petitioner Cavarro contends% T:E :'C'RABHE C'IRT '; APPEAH7 :A7 /EC</E/ T:E CA7E C'T <C ACC'R/ B<T: HAB AC/ B<T: T:E APPH<CABHE /EC<7<'C7 '; T:E 7IPREME C'IRT. <T7 C'CCHI7<'C <7 A ;<C/<CK BA7E/ 'C 7PECIHAT<'C, 7IRM<7E 'R C'C=ECTIRE9 T:E <C;ERECCE <T MA/E <7 MAC<;E7THJ M<7TAMEC, AB7IR/ 'R <MP'77<BHE9 <T C'MM<TTE/ KRAFE ABI7E '; /<7CRET<'C9 <T7 =I/KMECT <7 BA7E/ 'C A M<7APPRE:EC7<'C '; ;ACT79 <T7 ;<C/<CK <7 C'CTRA/<CTE/ BJ EF</ECCE 'C REC'R/9 AC/ <T7 ;<C/<CK <7 /EF'</ '; 7IPP'RT <C T:E REC'R/. The appeal is without merit.

&irst. Petitioner Cavarro 1uestions the credibilit# of the testimon# of =albuena on the ground that he was a biased witness, having a grudge against him. The testimon# of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.(. Trial courts, which have the opportunit# observe the facial e5pressions, gestures, and tones of voice of a witness while testif#ing, are competent to determine whether his or her testimon# should be given credence. (, <n the instant case, petitioner Cavarro has not shown that the trial court erred in according weight to the testimon# of =albuena. <ndeed, =albuena$s testimon# is confirmed b# the voice recording had made. <t ma# be as"ed whether the tape is admissible in view of R.A. Co. A(88, which prohibits wire tapping. The answer is in the affirmative. The law provides% 7ec. *. <t shall be unlawful for an# person, not being authori0ed b# all the parties to an# private communication or spo"en word, to tap an# wire or cable, or b# using an# other device or arrangement, to secretl# overhear, intercept, or record such communication or spo"en word b# using a device commonl# "nown as dictaphone or dictagraph of dectectaphone or wal"ie>tal"ie or tape>recorder, or however otherwise described% <t shall also be unlawful for an# person, be he a participant or not in the act or acts penali0ed in the ne5t preceding sentence, to "nowingl# possess an# tape record, wire record, disc record, or an# other such record, or copies thereof, of an# communication or spo"en word secured either before or after the effective date of this Act in the manner prohibited b# this law9 or to repla# the same for an# other person or persons9 or to communicate the contents thereof, either verball# or in writing, or to furnish transcriptions thereof, whether complete or partial, to an# other person% Provided, That the use of such record or an# copies thereof as evidence in an# civil, criminal investigation or trial of offenses mentioned in section 6 hereof, shall not be covered b# this prohibition. 555 555 555

7ec. A. An# communication or spo"en word, or the e5istence, contents, substance, purport, effect, or meaning of the same or an# part thereof, or an# information therein contained obtained or secured b# an# person in violation of the preceding sections of this Act shall not be admissible in evidence in an# 2udicial, 1uasi>2udicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications. (+ 7ince the e5change between petitioner Cavarro and Hingan was not private, its tape recording is not prohibited. Cor is there an# 1uestion that it was dul# authenticated. A voice recording is authenticated b# the testimon# of a witness (*! that he personall# recorded the conversations9 ((! that the tape pla#ed in the court was the one he recorded9 and (6! that the voices on the tape are those of the persons such are claimed to belong. 68 <n the instant case, =albuena testified that he personall# made the voice recording9 6* that the tape pla#ed in the court was the one he recorded96( and that the spea"ers on the tape were petitioner Cavarro and Hingan. 66 A sufficient foundation was thus laid for the authentication of the tape presented b# the prosecution. Second. The voice recording made b# =albuena established% (*! that there was a heated e5change between petitioner Cavarro and Hingan on the placing in the police blotter of an entr# against him and =albuena9 and ((! that some form of violence occurred involving petitioner Cavarro and Hingan, with the latter getting the worst of it. ;urthermore, /r. Eva Jamamoto, who performed the autops# on the bod# of Hingan, issued the medical certificate,6A dated ;ebruar# -, *++8, containing the following findings% Post (ortem ;indings% Q /ried blood, forehead R face Q Co blood oo0ed from the ears, nose R mouth Q 7welling, 6 cm 5 ( cm, temporal region, head, right Q Hacerated wound, ( cm in length, *>( in depth, lateral e#ebrow, Heft Q Hacerated wound, 8.- cm in length, superficial, between the left R right e#ebrow

Q Hacerated wound, ( cm in length, * cm in depth, forehead, Heft Q C#anosis of the tips of fingers R toes CAI7E '; /EAT:% Q CEREBRAH C'CCI77<'C R 7:'CM Q BH'B 'C T:E :EA/ /r. Jamamato testified% L Kive #our opinion as to what was the possible cause of this findings number one, which is oo0ing of blood from the foreheadD A <t ma# be due to a blow on the forehead or it bumped to a hard ob2ect, sir. L Could a metal li"e a butt of a gun have caused this wound Co. *.D A <t is possible, sir. L And in the alternative, could have it been caused b# bumping on a concrete floorD A Possible, sir. ;<7CAH% Bhat could have been the cause of the contusion and swelling under #our findings Co. ( doctorD B<TCE77% <t ma# be caused b# bumping to a hard ob2ect, sir. L Could a butt of a gun have caused it doctorD A The swelling is big so it could have not been caused b# a butt of a gun because the butt of a gun is small, sir. L :ow about this findings Co. AD A B# a bump or contact of the bod# to a hard ob2ect, sir. L And findings Co. - what could have caused itD A 7ame cause, sir. L This findings Co. ) what could have caused this woundD A 7ame thing sir. L :ow about the last finding, c#anosis of tips of fingers and toes, what could have caused it doctorD B<TCE77% <t indicates there was cardiac failure, sir. ;<7CAH% <n this same post mortem report and under the heading cause of death it states% Cause of /eath% Cerebral concussion and 7hoc", will #ou e5plain itD

A Cerebral concussion means in Tagalog 3naalog ang uta"3 or 2arring of the brain, sir. L Bhat could have been the cause of 2arring of the brainD A <t could have been caused b# a blow of a hard ob2ect, sir. L Bhat about the shoc", what could have caused itD A <t was due to peripheral circulator# failure, sir. L Could an# one of both caused the death of the victimD A Jes, sir. L Could cerebral concussion alone have caused the death of the deceasedD A Ma# be, sir. ;<7CAH% Bhich of these two more li"el#, to cause deathD B<TCE77% 7hoc", sir. L Please e5plain further the meaning of the medical term shoc"D A <t is caused b# peripheral circulator# failure as < have said earlier sir. 555 ;<7CAH% Could a bumping or pushing of one$s head against a concrete floor have caused shoc"D B<TCE77% Possible, sir. :ow about stri"ing with a butt of a gun, could it cause shoc"D A Possible, sir.6The above testimon# clearl# supports the claim of =albuena that petitioner Cavarro hit Hingan with the handle of his pistol above the left e#ebrow and struc" him on the forehead with his fist. /hird. <t is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended part# immediatel# preceding the act should have been appreciated in favor of petitioner Cavarro. Provocation is defined to be an# un2ust or improper conduct or act of the offended part#, capable of e5citing, inciting or irritating an#one.6) The provocation must be sufficient and should immediatel# precede the act. 6. To be sufficient, it must be ade1uate to e5cite a person to commit the wrong, which must accordingl# be proportionate in gravit#. 6, And it must immediatel# precede the act so much so that there is no interval between the provocation b# the offended part# and the commission of the crime b# the accused.6+ <n the present case, the remar"s of Hingan, which immediatel# preceded the act of petitioner, constituted sufficient provocation. <n People v. (acaso,A8 we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedl# taunted him with defiant words. :ence, this mitigating circumstance should be considered in favor of petitioner Cavarro. 555 555

;urthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic e5clamations of petitioner Cavarro after the scuffle that it was Hingan who provo"ed him shows that he had no intent to "ill the latter. Thus, this mitigating circumstance should be ta"en into account in determining the penalt# that should be imposed on petitioner Cavarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liabilit# shall be incurred b# an# person committing a felon# although the wrongful act done be different from that which he intended. A* <n People v. Castro,A( the mitigating circumstance of lac" of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilt# of homicide. :owever, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Cavarro. The offense in this case was committed right in the police station where policemen were discharging their public functions. A6 The crime committed as found b# the trial court and the Court of Appeals was homicide, for which the penalt# under Art. (A+ of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstances, the penalt# should be fi5ed in its minimum period. AA Appl#ing the <ndeterminate 7entence Haw, petitioner Cavarro should be sentenced to an indeterminate penalt#, the minimum of which is within the range of the penalt# ne5t lower degree, i.e., prision ma or, and the ma5imum of which is reclusion temporal in its minimum period.AThe indemnit# as increased b# the Court of Appeals from P68,888.88 to P-8,888.88 is in accordance with the current 2urisprudence.A) B:ERE;'RE, the decision of the Court of Appeals is A;;<RME/ with the modification that petitioner ;elipe Cavarro is hereb# 7ECTECCE/ to suffer a prison terms of *, #ears of prision ma or, as minimum, to *A #ears and , months of reclusion temporal, as ma5imum.

Republic of the Philippines SUPREME COURT Manila EC BACC G.R. No. 88211 Se5(e6ber 1*, 1 8 FERDIN#ND E. M#RCOS, IME"D# R. M#RCOS, FERDIN#ND R. M#RCOS, +R., IRENE M. #R#NET#, IMEE M#NOTOC, TOM#S M#NOTOC, GREGORIO #R#NET#, P#CIFICO E. M#RCOS, NIC#NOR 78IGUE$ a%& P/I"IPPINE CONSTITUTION #SSOCI#TION 9P/I"CONS#:, re5re)e%(e& by ;() Pre);&e%(, CONR#DO F. ESTRE""#, petitioners, vs. /ONOR#-"E R#U" M#NG"#PUS, C#T#"INO M#C#R#IG, SEDFRE7 ORDO8E$, MIRI#M DEFENSOR S#NTI#GO, FIDE" R#MOS, REN#TO DE VI""#, ;% (4e;r 2a5a2;(y a) Se2re(ary o< Fore;3% #<<a;r), E=e2u(;>e Se2re(ary, Se2re(ary o< +u)(;2e, I66;3ra(;o% Co66;));o%er, Se2re(ary o< Na(;o%a, De<e%)e a%& C4;e< o< S(a<<, re)5e2(;>e,y, respondents.

CORTES, J.: Before the Court is a contrevers# of grave national importance. Bhile ostensibl# onl# legal issues are involved, the Court$s decision in this case would undeniabl# have a profound effect on the political, economic and other aspects of national life. Be recall that in ;ebruar# *+,), ;erdinand E. Marcos was deposed from the presidenc# via the non>violent 3people power3 revolution and forced into e5ile. <n his stead, Cora0on C. A1uino was declared President of the Republic under a revolutionar# government. :er ascension to and consilidation of power have not been unchallenged. The failed Manila :otel coup in *+,) led b# political leaders of Mr. Marcos, the ta"eover of television station Channel . b# rebel troops led b# Col. Canlas with the support of 3Marcos lo#alists3 and the unseccessful plot of the Marcos spouses to surreptitiousl# return from :awii with mercenaries aboard an aircraft chartered b# a Hebanese arms dealer ?Manila Bulletin, =anuar# 68, *+,.@ awa"ened the nation to the capacit# of the Marcoses to stir trouble even from afar and to the fanaticism and blind lo#alt# of their followers in the countr#. The ratification of the *+,. Constitution enshrined the victor# of 3people power3 and also clearl# reinforced the constitutional moorings of Mrs. A1uino$s presidenc#. This did not, however, stop blood# challenges to the government. 'n August (,, *+,., Col. Kregorio :onasan, one of the ma2or pla#ers in the ;ebruar# Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There were several other armed sorties of lesser significance, but the message the# conve#ed was the same N a split in the ran"s of the militar# establishment that thraetened civilian supremac# over militar# and brought to the fore the reali0ation that civilian government could be at the merc# of a fractious militar#. But the armed threats to the Kovernment were not onl# found in misguided elements and among rabid followers of Mr. Marcos. There are also the communist insurgenc# and the seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to the e5tent that the communists have set up a parallel government of their own on the areas the# effectivel# control while the separatist are virtuall# free to move about in armed bands. There has been no let up on this groups$ determination to wrest power from the govermnent. Cot onl# through resort to arms but also to through the use of propaganda have the# been successful in dreating chaos and destabili0ing the countr#. Cor are the woes of the Republic purel# political. The accumulated foreign debt and the plunder of the nation attributed to Mr. Marcos and his cronies left the econom# devastated. The efforts at economic recover#, three #ears after Mrs. A1uino assumed office, have #et to show concrete results in alleviating the povert# of the masses, while the recover# of the ill>gotten wealth of the Marcoses has remained elusive. Cow, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. A1uino, considering the dire conse1uences to the nation of his return at a time when the stabilit# of government is threatened from various directions and the econom# is 2ust beginning to rise and move forward, has stood firml# on the decision to bar the return of Mr. Marcos and his famil#. /he Petition

This case is uni1ue. <t should not create a precedent, for the case of a dictator forced out of office and into e5ile after causing twent# #ears of political, economic and social havoc in the countr# and who within the short space of three #ears see"s to return, is in a class b# itself. This petition for mandamus and prohibition as"s the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his famil# and to en2oin the implementation of the President$s decision to bar their return to the Philippines. /he Issue Th issue is basicall# one of power% whether or not, in the e5ercise of the powers granted b# the Constitution, the President ma# prohibit the Marcoses from returning to the Philippines. According to the petitioners, the resolution of the case would depend on the resolution of the following issues% *. /oes the President have the power to bar the return of former President Marcos and famil# to the PhilippinesD a. <s this a political 1uestionD (. Assuming that the President has the power to bar former President Marcos and his famil# from returning to the Philippines, in the interest of 3national securit#, public safet# or public health a. :as the President made a finding that the return of former President Marcos and his famil# to the Philippines is a clear and present danger to national securit#, public safet# or public healthD b. Assuming that she has made that finding (*! :ave the re1uirements of due process been complied with in ma"ing such findingD ((! :as there been prior notice to petitionersD (6! :as there been a hearingD (A! Assuming that notice and hearing ma# be dispensed with, has the President$s decision, including the grounds upon which it was based, been made "nown to petitioners so that the# ma# controvert the sameD c. <s the President$s determination that the return of former President Marcos and his famil# to the Philippines is a clear and present danger to national securit#, public safet#, or public health a political 1uestionD d. Assuming that the Court ma# in1uire as to whether the return of former President Marcos and his famil# is a clear and present danger to national securit#, public safet#, or public health, have respondents established such factD 6. :ave the respondents, therefore, in implementing the President$s decision to bar the return of former President Marcos and his famil#, acted and would be acting without 2urisdiction, or in e5cess of 2urisdiction, or with grave abuse of discretion, in performing an# act which would effectivel# bar the return of former President Marcos and his famil# to the PhilippinesD ?Memorandum for Petitioners, pp. ->.9 Rollo, pp. (6A>(6).* The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit% 7ection *. Co person shall be deprived of life, libert#, or propert# without due process of law, nor shall an# person be denied the e1ual protection of the laws. 555 555 555

7ection ). The libert# of abode and of changing the same within the limits prescribed b# law shall not be impaired e5cept upon lawful order of the court. Ceither shall the right to travel be impaired e5cept in the interest of national securit#, public safet#, or public health, as ma# be provided b# law. The petitioners contend that the President is without power to impair the libert# of abode of the Marcoses because onl# a court ma# do so 3within the limits prescribed b# law.3 Cor ma# the President impair their right to travel because no law has authori0ed her to do so. The# advance the view that before the right to travel ma# be impaired b# an# authorit# or agenc# of the government, there must be legislation to that effect. The petitioners further assert that under international law, the right of Mr. Marcos and his famil# to return to the Philippines is guaranteed. The Iniversal /eclaration of :uman Rights provides% Article *6. (*! Ever#one has the right to freedom of movement and residence within the borders of each state. ((! Ever#one has the right to leave an# countr#, including his own, and to return to his countr#. Hi"ewise, the <nternational Covenant on Civil and Political Rights, which had been ratified b# the Philippines, provides% Article *( *! Ever#one lawfull# within the territor# of a 7tate shall, within that territor#, have the right to libert# of movement and freedom to choose his residence. (! Ever#one shall be free to leave an# countr#, including his own. 6! The above>mentioned rights shall not be sub2ect to an# restrictions e5cept those which are provided b# law, are necessar# to protect national securit#, public order (order public!, public health or morals or the rights and freedoms of others, and are consistent with the other rights recogni0ed in the present Covenant. A! Co one shall be arbitraril# deprived of the right to enter his own countr#. 'n the other hand, the respondents$ principal argument is that the issue in this case involves a political 1uestion which is non>2usticiable. According to the 7olicitor Keneral% As petitioners couch it, the 1uestion involved is simpl# whether or not petitioners ;erdinand E. Marcos and his famil# have the right to travel and libert# of abode. Petitioners invo"e these constitutional rights in vacuo without reference to attendant circumstances. Respondents submit that in its proper formulation, the issue is whether or not petitioners ;erdinand E. Marcos and famil# have the right to return to the Philippines and reside here at this time in the face of the determination b# the President that such return and residence will endanger national securit# and public safet#. <t ma# be conceded that as formulated b# petitioners, the 1uestion is not a political 1uestion as it involves merel# a determination of what the law provides on the matter and application thereof to petitioners ;erdinand E. Marcos and famil#. But when the 1uestion is whether the two rights claimed b# petitioners ;erdinand E. Marcos and famil# impinge on or collide with the more primordial and transcendental right of the 7tate to securit# and safet# of its nationals, the 1uestion becomes political and this :onorable Court can not consider it. There are thus gradations to the 1uestion, to wit% /o petitioners ;erdinand E. Marcos and famil# have the right to return to the Philippines and reestablish their residence hereD This is clearl# a 2usticiable 1uestion which this :onorable Court can decide.

/o petitioners ;erdinand E. Marcos and famil# have their right to return to the Philippines and reestablish their residence here even if their return and residence here will endanger national securit# and public safet#D this is still a 2usticiable 1uestion which this :onorable Court can decide. <s there danger to national securit# and public safet# if petitioners ;erdinand E. Marcos and famil# shall return to the Philippines and establish their residence hereD This is now a political 1uestion which this :onorable Court can not decide for it falls within the e5clusive authorit# and competence of the President of the Philippines. ?Memorandum for Respondents, pp. +>**9 Rollo, pp. (+.>(++.@ Respondents argue for the primac# of the right of the 7tate to national securit# over individual rights. <n support thereof, the# cite Article << of the Constitution, to wit% 7ection A. The prime dut# of the Kovernment is to serve and protect the people. The Kovernment ma# call upon the people to defend the 7tate and, in the fulfillment thereof, all citi0ens ma# be re1uired, under conditions provided b# law, to render personal, militar#, or civil service. 7ection -. The maintenance of peace and order, the protection of life, libert#, and propert#, and the promotion of the general welfare are essential for the en2o#ment b# all the people of the blessings of democrac#. Respondents also point out that the decision to ban Mr. Marcos and famil# from returning to the Philippines for reasons of national securit# and public safet# has international precedents. Rafael Tru2illo of the /ominican Republic, Anastacio 7omo0a =r. of Cicaragua, =orge Ibico of Kuatemala, ;ulgencio batista of Cuba, Ming ;arou" of Eg#pt, Ma5imiliano :ernande0 Martine0 of El 7alvador, and Marcos Pere0 =imene0 of Fene0uela were among the deposed dictators whose return to their homelands was prevented b# their governments. ?7ee 7tatement of ;oreign Affairs 7ecretar# Raul 7. Manglapus, 1uoted in Memorandum for Respondents, pp. ()>6(9 Rollo, pp. 6*A>6*+.@ The parties are in agreement that the underl#ing issue is one of the scope of presidential power and its limits. Be, however, view this issue in a different light. Although we give due weight to the parties$ formulation of the issues, we are not bound b# its narrow confines in arriving at a solution to the controvers#. At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of the decisions of the I.7. 7upreme Court in the leading cases of 0ent v. %ulles ?6-. I.7. **), ., 7Ct ***6, ( H Ed. (d *(8A@ and 1aig v. "gee ?A-6 I.7. (,8, *8* 7Ct (.)), )+ H Ed. (d )A8! which affirmed the right to travel and recogni0ed e5ceptions to the e5ercise thereof, respectivel#. <t must be emphasi0ed that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normall# connote. Essentiall#, the right involved is the right to return to one$s countr#, a totall# distinct right under international law, independent from although related to the right to travel. Thus, the Iniversal /eclaration of :umans Rights and the <nternational Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territor# of a state, the right to leave a countr#, and the right to enter one$s countr# as separate and distinct rights. The /eclaration spea"s of the 3right to freedom of movement and residence within the borders of each state3 ?Art. *6(l!@ separatel# from the 3right to leave an# countr#, including his own, and to return to his countr#.3 ?Art. *6((!.@ 'n the other hand, the Covenant guarantees the 3right to libert# of movement and freedom to choose his residence3 ?Art. *((l!@ and the right to 3be free to leave an# countr#, including his own.3 ?Art. *(((!@ which rights ma# be restricted b# such laws as 3are necessar# to protect national securit#, public order, public health or morals or enter 111s own countr#3 of which one cannot be 3arbitraril# deprived.3 ?Art. *((A!.@ <t would therefore be inappropriate to construe the limitations to the right to return to one$s countr# in the same conte5t as those pertaining to the libert# of abode and the right to travel. The right to return to one$s countr# is not among the rights specificall# guaranteed in the Bill of Rights, which treats onl# of the libert# of abode and the right to travel, but it is our well>considered view that the right to return ma# be considered, as a generall# accepted principle of international law and, under our Constitution, is part of the law of the land ?Art. <<, 7ec. ( of the Constitution.@ :owever, it is distinct and separate from the right to travel and en2o#s a different protection under the <nternational Covenant of Civil and Political Rights, i.e., against being 3arbitraril# deprived3 thereof ?Art. *( (A!.@ Thus, the rulings in the cases 0ent and 1aig which refer to the issuance of passports for the purpose of effectivel# e5ercising the right to travel are not determinative of this case and are onl# tangentiall# material insofar as the# relate to a conflict between e5ecutive action and the e5ercise of a protected right. The issue before the Court is novel and without precedent in Philippine, and even in American 2urisprudence.

Conse1uentl#, resolution b# the Court of the well>debated issue of whether or not there can be limitations on the right to travel in the absence of legislation to that effect is rendered unnecessar#. An appropriate case for its resolution will have to be awaited. :aving clarified the substance of the legal issue, we find now a need to e5plain the methodolog# for its resolution. 'ur resolution of the issue will involve a two>tiered approach. Be shall first resolve whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the e5press power of the Court under the Constitution in Article F<<<, 7ection *, whether or not the President acted arbitraril# or with grave abuse of discretion amounting to lac" or e5cess of 2urisdiction when she determined that the return of the Marcose$s to the Philippines poses a serious threat to national interest and welfare and decided to bar their return. E2ecutive Po-er The *+,. Constitution has full# restored the separation of powers of the three great branches of government. To recall the words of =ustice Haurel in "ngara v. Electoral Commission ?)6 Phil. *6+ (*+6)!@, 3the Constitution has bloc"ed but with deft stro"es and in bold lines, allotment of power to the e5ecutive, the legislative and the 2udicial departments of the government.3 ?At *-..* Thus, the *+,. Constitution e5plicitl# provides that 3?the legislative power shall be vested in the Congress of the Philippines3 Art F<, 7ec. **, 3?t@he e5ecutive power shall bevested in the President of the Philippines3 ?Art. F<<, 7ec. **, and 3?te 2udicial power shall be vested in one 7upreme Court and in such lower courts as ma# be established b# law3 ?Art. F<<<, 7ec. *.@ These provisions not onl# establish a separation of powers b# actual division ?Angara v. Electoral Commission, supra@ but also confer plenar# legislative, e5ecutive and 2udicial powers sub2ect onl# to limitations provided in the Constitution. ;or as the 7upreme Court in'campo v. Cabangis ?*- Phil. )() (*+*8!@ pointed out 3a grant of the legislative power means a grant of all legislative power9 and a grant of the 2udicial power means a grant of all the 2udicial power which ma# be e5ercised under the government.3 ?At )6*>)6(.* <f this can be said of the legislative power which is e5ercised b# two chambers with a combined membership of more than two hundred members and of the 2udicial power which is vested in a hierarch# of courts, it can e1uall# be said of the e5ecutive power which is vested in one official the President. As stated above, the Constitution provides that 3?t@he e5ecutive power shall be vested in the President of the Philippines.3 ?Art. F<<, 7ec. *@. :owever, it does not define what is meant b# e5ecutive power3 although in the same article it touches on the e5ercise of certain powers b# the President, i.e., the power of control over all e5ecutive departments, bureaus and offices, the power to e5ecute the laws, the appointing power, the powers under the commander>in>chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnest# with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress ?Art. F<<, 7ec. *A>(6@. The inevitable 1uestion then arises% b# enumerating certain powers of the President did the framers of the Constitution intend that the President shall e5ercise those specific powers and no otherD Are these se enumerated powers the breadth and scope of 3e5ecutive power3D Petitioners advance the view that the President$s powers are limited to those specificall# enumerated in the *+,. Constitution. Thus, the# assert% 3The President has enumerated powers, and what is not enumerated is impliedl# denied to her. Inclusion unius est e2clusio alterius?Memorandum for Petitioners, p. A> Rollo p. (66.* This argument brings to mind the institution of the I.7. Presidenc# after which ours is legall# patterned.SS Corwin, in his monumental volume on the President of the Inited 7tates grappled with the same problem. :e said% Article << is the most loosel# drawn chapter of the Constitution. To those who thin" that a constitution ought to settle ever#thing beforehand it should be a nightmare9 b# the same to"en, to those who thin" that constitution ma"ers ought to leave considerable leewa# for the future pla# of political forces, it should be a vision reali0ed. Be encounter this characteristic of Article ** in its opening words% 3The e5ecutive power shall be vested in a President of the Inited 7tates of America.3 . . .. ?/he President3 'ffice and Po-ers, +454+674, pp. 8!9.@ Reviewing how the powers of the I.7. President were e5ercised b# the different persons who held the office from Bashington to the earl# *+88$s, and the swing from the presidenc# b# commission to Hincoln$s dictatorship, he concluded that 3what the presidenc# is at an# particular moment depends in important measure on who is President.3 ?At 68.@

This view is shared b# 7chlesinger who wrote in /he Imperial Presidenc % ;or the American Presidenc# was a peculiarl# personal institution. it remained of course, an agenc# of government sub2ect to unvar#ing demands and duties no remained, of cas President. But, more than most agencies of government, it changed shape, intensit# and ethos according to the man in charge. Each President$s distinctive temperament and character, his values, standards, st#le, his habits, e5pectations, <dios#ncrasies, compulsions, phobias recast the Bhite:ouse and pervaded the entire government. The e5ecutive branch, said Clar" Clifford, was a chameleon, ta"ing its color from the character and personalit# of the President. The thrust of the office, its impact on the constitutional order, therefore altered from President to President. Above all, the wa# each President understood it as his personal obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to render an accounting to the nation and posterit# determined whether he strengthened or wea"ened the constitutional order. ?At (*(> (*6.@ Be do not sa# that the presidenc# is what Mrs. A1uino sa#s it is or what she does but, rather, that the consideration of tradition and the development of presidential power under the different constitutions are essential for a complete understanding of the e5tent of and limitations to the President$s powers under the *+,. Constitution. The *+6Constitution created a strong President with e5plicitl# broader powers than the I.7. President. The *+.6 Constitution attempted to modif# the s#stem of government into the parliamentar# t#pe, with the President as a mere figurehead, but through numerous amendments, the President became even more powerful, to the point that he was also the de facto Hegislature. The *+,. Constitution, however, brought bac" the presidential s#stem of government and restored the separation of legislative, e5ecutive and 2udicial powers b# their actual distribution among three distinct branches of government with provision for chec"s and balances. <t would not be accurate, however, to state that 3e5ecutive power3 is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. ;urthermore, the Constitution itself provides that the e5ecution of the laws is onl# one of the powers of the President. <t also grants the President other powers that do not involve the e5ecution of an# provision of law, e.g., his power over the countr#$s foreign relations. 'n these premises, we hold the view that although the *+,. Constitution imposes limitations on the e5ercise ofspecific powers of the President, it maintains intact what is traditionall# considered as within the scope of 3e5ecutive power.3 Corollaril#, the powers of the President cannot be said to be limited onl# to the specific powers enumerated in the Constitution. <n other words, e5ecutive power is more than the sum of specific powers so enumerated, <t has been advanced that whatever power inherent in the government that is neither legislative nor 2udicial has to be e5ecutive. Thus, in the landmar" decision of Springer v. :overnment of the Philippine Islands , (.. I.7. *,+ (*+(,!, on the issue of who between the Kovernor>Keneral of the Philippines and the Hegislature ma# vote the shares of stoc" held b# the Kovernment to elect directors in the Cational Coal Compan# and the Philippine Cational Ban", the I.7. 7upreme Court, in upholding the power of the Kovernor>Keneral to do so, said% ...:ere the members of the legislature who constitute a ma2orit# of the 3board3 and 3committee3 respectivel#, are not charged with the performance of an# legislative functions or with the doing of an#thing which is in aid of performance of an# such functions b# the legislature. Putting aside for the moment the 1uestion whether the duties devolved upon these members are vested b# the 'rganic Act in the Kovernor>Keneral, it is clear that the# are not legislative in character, and still more clear that the# are not 2udicial. /he fact that the do not fall -ithin the authorit of either of these t-o constitutes logical ground for concluding that the do fall -ithin that of the remaining one among -hich the po-ers of government are divided ....?At (8(>(869 Emphasis supplied.@ Be are not unmindful of =ustice :olmes$ strong dissent. But in his enduring words of dissent we find reinforcement for the view that it would indeed be a foll# to construe the powers of a branch of government to embrace onl# what are specificall# mentioned in the Constitution% The great ordinances of the Constitution do not establish and divide fields of blac" and white. Even the more specific of them are found to terminate in a penumbra shading graduall# from one e5treme to the other. .... 555 555 555

<t does not seem to need argument to show that however we ma# disguise it b# veiling words we do not and cannot carr# out the distinction between legislative and e5ecutive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which < am far from believing that it is, or that the Constitution re1uires. ?At (*8> (**.@ /he Po-er Involved The Constitution declares among the guiding principles that 3?t@he prime dut# of theKovernment is to serve and protect the people3 and that 3?t@he maintenance of peace and order,the protection of life, libert#, and propert#, and the promotion of the general welfare are essential for the en2o#ment b# all the people of the blessings of democrac#.3 ?Art. <<, 7ecs. A and -.@ Admittedl#, service and protection of the people, the maintenance of peace and order, the protection of life, libert# and propert#, and the promotion of the general welfare are essentiall# ideals to guide governmental action. But such does not mean that the# are empt# words. Thus, in the e5ercise of presidential functions, in drawing a plan of government, and in directing implementing action for these plans, or from another point of view, in ma"ing an# decision as President of the Republic, the President has to consider these principles, among other things, and adhere to them. ;aced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. <t must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereb# the people have surrendered their sovereign powers to the 7tate for the common good. :ence, lest the officers of the Kovernment e5ercising the powers delegated b# the people forget and the servants of the people become rulers, the Constitution reminds ever#one that 3?s@overeignt# resides in the people and all government authorit# emanates from them.3 ?Art. <<, 7ec. *.@ The resolution of the problem is made difficult because the persons who see" to return to the countr# are the deposed dictator and his famil# at whose door the travails of the countr# are laid and from whom billions of dollars believed to be ill>gotten wealth are sought to be recovered. The constitutional guarantees the# invo"e are neither absolute nor infle5ible. ;or the e5ercise of even the preferred freedoms of speech and ofe5pression, although couched in absolute terms, admits of limits and must be ad2usted to the re1uirements of e1uall# important public interests ?&aldivar v. 7andiganba#an, K.R. Cos. .+)+8>.8., 'ctober ., *+,*.@ To the President, the problem is one of balancing the general welfare and the common good against the e5ercise of rights of certain individuals. The power involved is the President$s residual power to protect the general welfare of the people. <t is founded on the dut# of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not onl# the power of the President but also his dut# to do an#thing not forbidden b# the Constitution or the laws that the needs of the nation demand ?7ee Corwin, supra, at *-6@. <t is a power borne b# the President$s dut# to preserve and defend the Constitution. <t also ma# be viewed as a power implicit in the President$s dut# to ta"e care that the laws are faithfull# e5ecuted ?see :#man, /he "merican President, where the author advances the view that an allowance of discretionar# power is unavoidable in an# government and is best lodged in the President@. More particularl#, this case calls for the e5ercise of the President$s powers as protector of the peace. Rossiter /he "merican Presidenc @.The power of the President to "eep the peace is not limited merel# to e5ercising the commander>in>chief powers in times of emergenc# or to leading the 7tate against e5ternal and internal threats to its e5istence. The President is not onl# clothed with e5traordinar# powers in times of emergenc#, but is also tas"ed with attending to the da#>to>da# problems of maintaining peace and order and ensuring domestic tran1uilit# in times when no foreign foe appears on the hori0on. Bide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in an# wa# diminished b# the relative want of an emergenc# specified in the commander>in> chief provision. ;or in ma"ing the President commander>in>chief the enumeration of powers that follow cannot be said to e5clude the President$s e5ercising as Commander>in> Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to "eep the peace, and maintain public order and securit#. That the President has the power under the Constitution to bar the Marcose$s from returning has been recogni0ed b# memembers of the Hegislature, and is manifested b# the Resolution proposed in the :ouse of Representatives and signed b# *86 of its members urging the President to allow Mr. Marcos to return to the Philippines 3as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for human rights under the Constitution and our laws.3 ?:ouse Resolution Co. *6A(, Rollo,

p. 6(*.* The Resolution does not 1uestion the President$s power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President$s sense of compassion to allow a man to come home to die in his countr#. Bhat we are sa#ing in effect is that the re1uest or demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solel# of the constitutional provisions guaranteeing libert# of abode and the right to travel, sub2ect to certain e5ceptions, or of case law which clearl# never contemplated situations even remotel# similar to the present one. <t must be treated as a matter that is appropriatel# addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount dut# residing in that office to safeguard and protect general welfare. <n that conte5t, such re1uest or demand should submit to the e5ercise of a broader discretion on the part of the President to determine whether it must be granted or denied. /he E2tent of RevieInder the Constitution, 2udicial power includes the dut# to determine whether or not there has been a grave abuse of discretion amounting to lac" or e5cess of 2urisdiction on the part of an# branch or instrumentalit# of the Kovernment.3 ?Art. F<<<, 7ec. *@ Kiven this wording, we cannot agree with the 7olicitor Keneral that the issue constitutes a political 1uestion which is be#ond the 2urisdiction of the Court to decide. The present Constitution limits resort to the political 1uestion doctrine and broadens the scope of 2udicial in1uir# into areas which the Court, under previous constitutions, would have normall# left to the political departments to decide. But nonetheless there remain issues be#ond the Court$s 2urisdiction the determination of which is e5clusivel# for the President, for Congress or for the people themselves through a plebiscite or referendum. Be cannot, for e5ample, 1uestion the President$s recognition of a foreign government, no matter how premature or improvident such action ma# appear. Be cannot set aside a presidential pardon though it ma# appear to us that the beneficiar# is totall# undeserving of the grant. Cor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people. There is nothing in the case before us that precludes our determination thereof on the political 1uestion doctrine. The deliberations of the Constitutional Commission cited b# petitioners show that the framers intended to widen the scope of 2udicial review but the# did not intend courts of 2ustice to settle all actual controversies before them. Bhen political 1uestions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lac" or e5cess of 2urisdiction on the part of the official whose action is being 1uestioned. <f grave abuse is not established, the Court will not substitute its 2udgment for that of the official concerned and decide a matter which b# its nature or b# law is for the latter alone to decide. <n this light, it would appear clear that the second paragraph of Article F<<<, 7ection * of the Constitution, defining 32udicial power,3 which specificall# empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of an# branch or instrumentalit# of the government, incorporates in the fundamental law the ruling in #ansang v. :arcia ?K.R. Co. H>66+)A, /ecember **, *+.*, A( 7CRA AA,* that%@ Article F<< of the ?*+6-@ Constitution vests in the E5ecutive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underl#ing our s#stem of government, the E5ecutive is supreme within his own sphere. :owever, the separation of powers, under the Constitution, is not absolute. Bhat is more, it goes hand in hand with the s#stem of chec"s and balances, under which the E5ecutive is supreme, as regards the suspension of the privilege, but onl# if and when he acts within the sphere alloted to him b# the Basic Haw, and the authorit# to determine whether or not he has so acted is vested in the =udicial /epartment, which, in this respect, is, in turn, constitutionall# supreme. <n the e5ercise of such authorit#, the function of the Court is merel# to chec" N not to supplant the E5ecutive, or to ascertain merel# whether he has gone be#ond the constitutional limits of his 2urisdiction, not to e5ercise the power vested in him or to determine the wisdom of his act ?At A.+>A,8.@ Accordingl#, the 1uestion for the Court to determine is whether or not there e5ist factual bases for the President to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. <f such postulates do e5ist, it cannot be said that she has acted, or acts, arbitraril# or that she has gravel# abused her discretion in deciding to bar their return. Be find that from the pleadings filed b# the parties, from their oral arguments, and the facts revealed during the briefing in chambers b# the Chief of 7taff of the Armed ;orces of the Philippines and the Cational 7ecurit# Adviser, wherein petitioners and respondents were represented, there e5ist factual bases for the President$s decision..

The Court cannot close its e#es to present realities and pretend that the countr# is not besieged from within b# a well>organi0ed communist insurgenc#, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunit# of militar# men, police officers and civilian officials, to mention onl# a few. The documented histor# of the efforts of the Marcose$s and their followers to destabili0e the countr#, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would onl# e5acerbate and intensif# the violence directed against the 7tate and instigate more chaos. As divergent and discordant forces, the enemies of the 7tate ma# be contained. The militar# establishment has given assurances that it could handle the threats posed b# particular groups. But it is the catal tic effect of the return of the Marcoses that ma# prove to be the proverbial final straw that would brea" the camel$s bac". Bith these before her, the President cannot be said to have acted arbitraril# and capriciousl# and whimsicall# in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return. <t will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the 7tate, that would be the time for the President to step in and e5ercise the commander>in>chief powers granted her b# the Constitution to suppress or stamp out such violence. The 7tate, acting through the Kovernment, is not precluded from ta"ing pre> emptive action against threats to its e5istence if, though still nascent the# are perceived as apt to become serious and direct. Protection of the people is the essence of the dut# of government. The preservation of the 7tate the fruition of the people$s sovereignt# is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful e5ecution the laws, cannot shir" from that responsibilit#. Be cannot also lose sight of the fact that the countr# is onl# now beginning to recover from the hardships brought about b# the plunder of the econom# attributed to the Marcoses and their close associates and relatives, man# of whom are still here in the Philippines in a position to destabili0e the countr#, while the Kovernment has barel# scratched the surface, so to spea", in its efforts to recover the enormous wealth stashed awa# b# the Marcoses in foreign 2urisdictions. Then, Be cannot ignore the continuall# increasing burden imposed on the econom# b# the e5cessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread povert# and all its attendant ills. The resulting precarious state of our econom# is of common "nowledge and is easil# within the ambit of 2udicial notice. The President has determined that the destabili0ation caused b# the return of the Marcoses would wipe awa# the gains achieved during the past few #ears and lead to total economic collapse. Kiven what is within our individual and common "nowledge of the state of the econom#, we cannot argue with that determination. B:ERE;'RE, and it being our well>considered opinion that the President did not act arbitraril# or with grave abuse of discretion in determining that the return of former President Marcos and his famil# 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 hereb# /<7M<77E/. 7' 'R/ERE/.

Republic of the Philippines SUPREME COURT Manila EC BACC G.R. No. "10*0* Mar24 13, 1 37

GREGORIO #G"IP#7, petitioner, vs. +U#N RUI$, respondent. ;icente Sotto for petitioner. 'ffice of the Solicitor!:eneral /uason for respondent. "#URE", J.: The petitioner, Mons. Kregorio Aglipa#, 7upreme :ead of the Philippine <ndependent Church, see"s the issuance from this court of a writ of prohibition to prevent the respondent /irector of Posts from issuing and selling postage stamps commemorative of the Thirt#>third <nternational Eucharistic Congress. <n Ma#, *+6), the /irector of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the Cit# of Manila of the Thirt#>third international Eucharistic Congress, organi0ed b# the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic dut#, re1uested Ficente 7otto, Es1., member of the Philippine Bar, to denounce the matter to the President of the Philippines. <n spite of the protest of the petitioner$s attorne#, the respondent publicl# announced having sent to the Inited 7tates the designs of the postage stamps for printing as follows% 3<n the center is chalice, with grape vine and stal"s of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, * inch b# *,8+A inches. The denominations are for (, ), *), (8, 6) and -8 centavos.3 The said stamps were actuall# issued and sold though the greater part thereof, to this da#, remains unsold. The further sale of the stamps is sought to be prevented b# the petitioner herein. The 7olicitor>Keneral contends that the writ of prohibition is not the proper legal remed# in the instant case, although he admits that the writ ma# properl# restrain ministerial functions. Bhile, generall#, prohibition as an e5traordinar# legal writ will not issue to restrain or control the performance of other than 2udicial or 1uasi>2udicial functions (-8 C. =., )-,8, its issuance and enforcement are regulated b# statute and in this 2urisdiction ma# issue to . . . inferior tribunals, corporations, boards, or persons, whether e5cercising functions 2udicial or ministerial, which are without or in e5cess of the 2urisdiction of such tribunal, corporation, board, or person, . . . .3 (7ecs. -*) and ((), Code of Civil Procedure.! The terms 32udicial3 and 3ministerial3 used with reference to 3functions3 in the statute are undoubtedl# comprehensive and include the challenged act of the respondent /irector of Posts in the present case, which act because alleged to be violative of the Constitution is a fortiorari 3without or in e5cess of . . . 2urisdiction.3 The statutor# rule, therefore, in the 2urisdiction is that the writ of prohibition is not confined e5clusivel# to courts or tribunals to "eep them within the limits of their own 2urisdiction and to prevent them from encroaching upon the 2urisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in e5cess of his authorit#. Cot infre1uentl#, 3the writ is granted, where it is necessar# for the orderl# administration of 2ustice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicit# of actions.3 (/ima#uga and ;a2ardo vs. ;ernande0 ?*+(6@, A6 Phil., 68A, 68..! The more important 1uestion raised refers to the alleged violation of the Constitution b# the respondent in issuing and selling postage stamps commemorative of the Thirt#>third <nternational Eucharistic Congress. <t is alleged that this action of the respondent is violative of the provisions of section (6, subsection 6, Article F<, of the Constitution of the Philippines, which provides as follows% Co public mone# or propert# shall ever be appropriated, applied, or used, directl# or indirectl#, for the use, benefit, or support of an# sect, church, denomination, secretarian, institution, or s#stem of religion, or for the use, benefit, or support of an# priest, preacher, minister, or other religious teacher or dignitar# as such, e5cept when such priest, preacher, minister, or dignitar# is assigned to the armed forces or to an# penal institution, orphanage, or leprosarium.

The prohibition herein e5pressed is a direct corollar# of the principle of separation of church and state. Bithout the necessit# of adverting to the historical bac"ground of this principle in our countr#, it is sufficient to sa# that our histor#, not to spea" of the histor# of man"ind, has taught us that the union of church and state is pre2udicial to both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recogni0ed this principle of separation of church and state in the earl# stages of our constitutional development9 it was inserted in the Treat# of Paris between the Inited 7tates and 7pain of /ecember *8, *,+,, reiterated in President McMinle#$s <nstructions of the Philippine Commission, reaffirmed in the Philippine Bill of *+8( and in the autonom# Act of August (+, *+*), and finall# embodied in the constitution of the Philippines as the supreme e5pression of the ;ilipino people. <t is almost trite to sa# now that in this countr# we en2o# both religious and civil freedom. All the officers of the Kovernment, from the highest to the lowest, in ta"ing their oath to support and defend the constitution, bind themselves to recogni0e and respect the constitutional guarantee of religious freedom, with its inherent limitations and recogni0ed implications. <t should be stated that what is guaranteed b# our Constitution is religious libert#, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recogni0ed. And, in so far as it instills into the minds the purest principles of moralit#, its influence is deepl# felt and highl# appreciated. Bhen the ;ilipino people, in the preamble of their Constitution, implored 3the aid of %ivine Providence, in order to establish a government that shall embod# their ideals, conserve and develop the patrimon# of the nation, promote the general welfare, and secure to themselves and their posterit# the blessings of independence under a regime of 2ustice, libert# and democrac#,3 the# thereb# manifested reliance upon :im who guides the destinies of men and nations. The elevating influence of religion in human societ# is recogni0ed here as elsewhere. <n fact, certain general concessions are indiscriminatel# accorded to religious sects and denominations. 'ur Constitution and laws e5empt from ta5ation properties devoted e5clusivel# to religious purposes (sec. *A, subsec. 6, Art. F<, Constitution of the Philippines and sec. *, subsec. A, 'rdinance appended thereto9 Assessment Haw, sec. 6AA, par. ?c@. Adm. Code!. 7ectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitar# as such is assigned to the armed forces or to an# penal institution, orphanage or leprosarium + sec. *6, subsec. 6, Art. F<, Constitution of the Philippines!. 'ptional religious instruction in the public schools is b# constitutional mandate allowed (sec. -, Art. <<<, Constitution of the Philippines, in relation to sec. +(,, Adm. Code!. Thursda# and ;rida# of :ol# Bee", Than"sgiving /a#, Christmas /a#, and 7unda#s and made legal holida#s (sec. (+, Adm. Code! because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes pol#gam# and bigam#9 and certain crimes against religious worship are considered crimes against the fundamental laws of the state ( see arts. *6( and *66, Revised Penal Code!. <n the case at bar, it appears that the respondent /irector of Posts issued the postage stamps in 1uestion under the provisions of Act Co. A8-( of the Philippine Hegislature. This Act is as follows% Co. A8-(. N AC ACT APPR'PR<AT<CK T:E 7IM '; 7< TJ T:'I7AC/ PE7'7 AC/ MAM<CK T:E 7AME AFA<HABHE 'IT '; ACJ ;IC/7 <C T:E <C7IHAR TREA7IRJ C'T 'T:ERB<7E APPR'PR<ATE/ ;'R T:E C'7T '; PHATE7 AC/ PR<CT<CK '; P'7TAKE 7TAMP7 B<T: CEB /E7<KC7, AC/ ;'R 'T:ER PIRP'7E7. <e it enacted b the Senate and 1ouse of Representatives of the Philippines in #egislature assembled and b the authorit of the same% 7ECT<'C *. The sum of si5t# thousand pesos is hereb# appropriated and made immediatel# available out of an# funds in the <nsular Treasur# not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other e5penses incident thereto. 7EC. (. The /irector of Posts, with the approval of the 7ecretar# of Public Bor"s and Communications, is hereb# authori0ed to dispose of the whole or an# portion of the amount herein appropriated in the manner indicated and as often as ma# be deemed advantageous to the Kovernment. 7EC. 6. This amount or an# portion thereof not otherwise e5pended shall not revert to the Treasur#. 7EC. A. This act shall ta"e effect on its approval. Approved, ;ebruar# (*, *+66. <t will be seen that the Act appropriates the sum of si5t# thousand pesos for the costs of plates and printing of postage stamps with new designs and other e5penses incident thereto, and authori0es the /irector of Posts, with

the approval of the 7ecretar# of Public Bor"s and Communications, to dispose of the amount appropriated in the manner indicated and 3as often as ma# be deemed advantageous to the Kovernment3. The printing and issuance of the postage stamps in 1uestion appears to have been approved b# authorit# of the President of the Philippines in a letter dated 7eptember *, *+6), made part of the respondent$s memorandum as E5hibit A. The respondent alleges that the Kovernment of the Philippines would suffer losses if the writ pra#ed for is granted. :e estimates the revenue to be derived from the sale of the postage stamps in 1uestion at P*,)*,,*..*8 and states that there still remain to be sold stamps worth P*,A8(,(.+.8(. Act Co. A8-( contemplates no religious purpose in view. Bhat it gives the /irector of Posts is the discretionar# power to determine when the issuance of special postage stamps would be 3advantageous to the Kovernment.3 'f course, the phrase 3advantageous to the Kovernment3 does not authori0e the violation of the Constitution. <t does not authori0e the appropriation, use or application of public mone# or propert# for the use, benefit or support of a particular sect or church. <n the present case, however, the issuance of the postage stamps in 1uestion b# the /irector of Posts and the 7ecretar# of Public Bor"s and Communications was not inspired b# an# sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Cor were mone# derived from the sale of the stamps given to that church. 'n the contrar#, it appears from the latter of the /irector of Posts of =une -, *+6), incorporated on page ( of the petitioner$s complaint, that the onl# purpose in issuing and selling the stamps was 3to advertise the Philippines and attract more tourist to this countr#.3 The officials concerned merel#, too" advantage of an event considered of international importance 3to give publicit# to the Philippines and its people3 (Hetter of the Indersecretar# of Public Bor"s and Communications to the President of the Philippines, =une +, *+6)9 p. 6, petitioner$s complaint!. <t is significant to note that the stamps as actuall# designed and printed (E5hibit (!, instead of showing a Catholic Church chalice as originall# planned, contains a map of the Philippines and the location of the Cit# of Manila, and an inscription as follows% 37eat <<< <nternational Eucharistic Congress, ;eb. 6>.,*+6..3 Bhat is emphasi0ed is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. <t is obvious that while the issuance and sale of the stamps in 1uestion ma# be said to be inseparabl# lin"ed with an event of a religious character, the resulting propaganda, if an#, received b# the Roman Catholic Church, was not the aim and purpose of the Kovernment. Be are of the opinion that the Kovernment should not be embarassed in its activities simpl# because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimatel# be underta"en b# appropriate legislation. The main purpose should not be frustrated b# its subordinate to mere incidental results not contemplated. (Fide Bradfield vs. Roberts, *.- I. 7., (+-9 (8 7up. Ct. Rep., *(*9 AA Haw. ed., *),.! Be are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb an# attempt to infringe b# indirection a constitutional inhibition. <ndeed, in the Philippines, once the scene of religious intolerance and prescription, care should be ta"en that at this stage of our political development nothing is done b# the Kovernment or its officials that ma# lead to the belief that the Kovernment is ta"ing sides or favoring a particular religious sect or institution. But, upon ver# serious reflection, e5amination of Act Co. A8-(, and scrutin# of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act Co. A8-( grants the /irector of Posts, with the approval of the 7ecretar# of Public Bor"s and Communications, discretion to misuse postage stamps with new designs 3as often as ma# be deemed advantageous to the Kovernment.3 Even if we were to assume that these officials made use of a poor 2udgment in issuing and selling the postage stamps in 1uestion still, the case of the petitioner would fail to ta"e in weight. Between the e5ercise of a poor 2udgment and the unconstitutionalit# of the step ta"en, a gap e5ists which is #et to be filled to 2ustif# the court in setting aside the official act assailed as coming within a constitutional inhibition. The petition for a writ of prohibition is hereb# denied, without pronouncement as to costs. 7o ordered.

Republic of the Philippines SUPREME COURT Manila EC BACC G.R. No. "1!8828 Mar24 27, 1 8* RE"I GERM#N, R#MON PEDROS#, TIRSO S#NTI""#N, +R., M#. "UIS# #ND#", NIEV# M#"INIS, RIC#RDO "#VI8#, CES#R CORTES, D#NI"O RE7ES, +OSE RE7ES, +OSEFIN# M#TE, "OURDES C#"M#, MI"DRED +U#N, O"IVE GU#N$ON, FERN#NDO COC/ICO, S/ERM#N CID, N#$#RENO -ENTU"#N, ROS"IN# DON#IRE, M#RIO M#RTINE$, -E#TRI$ TE7"#N, #NGE"IN# "#PID, ROSEM#RIE F"ORES, D#NIE" V#N SOTO, EDG#RDO MERC#DER, NE""7 #GUSTIN, M#RI"7 M#GC#"#S, D#VID C/#N, #RSENIO S#"#NS#NG, NE"SON DE GU$M#N, M#RCI#NO #R#NET#, CES#R MENESES, DIONISIO RE""OS#, M#RIO S#NTI#GO, SEVERINO S#NTOS, "EONOR# S#NTOS, NIMF# DORONI""#, F"ORENCE GUINTO, ROS#"IN# M#N#NS#"#, PERCIV#" OSTON#", TOMM7 M#C#R#N#S, ROGER NIC#NDRO , petitioners, vs. GEN. S#NTI#GO -#R#NG#N a%& M#. +OR IS#-E"O "#RIOS#, respondents.

ESCO"IN, ? J.: <nvo"ing their constitutional freedom to religious worship and locomotion, petitioners see" the issuance of ?*@ a writ of mandamus to compel respondents to allow them to enter and pra# inside 7t. =ude Chapel located at =.P. Haurel 7treet, Manila9 and ?(@ a writ of in2unction to en2oin respondents from preventing them from getting into and pra#ing in said church. The facts to be considered are the following% At about -%88 in the afternoon of 'ctober (, *+,A, petitioners, composed of about -8 businessmen, students and office emplo#ees converged at =.P. Haurel 7treet, Manila, for the ostensible purpose of hearing Mass at the 7t. =ude Chapel which ad2oins the MalacaOang grounds located in the same street. Bearing the now familiar inscribed #ellow T>shirts, the# started to march down said street with raised clenched fists 1 and shouts of anti>government invectives. Along the wa#, however, the# were barred b# respondent Ma2or lsabelo Hariosa, upon orders of his superior and co>respondent Ken. 7antiago Barangan, from proceeding an# further, on the ground that 7t. =ude Chapel was located within the MalacaOang securit# area. Bhen petitioners$ protestations and pleas to allow them to get inside the church proved unavailing, the# decided to leave. :owever, because of the alleged warning given them b# respondent Ma2or Hariosa that an# similar attempt b# petitioners to enter the church in the future would li"ewise be prevented, petitioners too" this present recourse. Petitioners$ alleged purpose in converging at =.P. Haurel 7treet was to pra# and hear mass at 7t. =ude church. At the hearing of this petition, respondents assured petitioners and the Court that the# have never restricted, and will never restrict, an# person or persons from entering and worshipping at said church. The# maintain, however, that petitioners$ intention was not reall# to perform an act of religious worship, but to conduct an anti>government demonstration at a place close to the ver# residence and offices of the President of the Republic. Respondents further lament petitioners$ attempt to disguise their true motive with a ritual as sacred and solemn as the :ol# 7acrifice of the Mass. Indoubtedl#, the #ellow T>shirts worn b# some of the marchers, their raised clenched fists, and chants of anti>government slogans strongl# tend to substantiate respondents allegation. Thus, =.P. ;eni5, commenting on the motive of petitioners$ mass action of 'ctober (, *+,A, wrote the following in his article entitled 3Mission <mpossible3, published in the 'ctober *(>*,, *+,A issue of the 3Mr. R Mrs.3 maga0ine% The# couldn$t go through Mendiola Bridge, and so the# dared to get even closer to the heart of the matter. But as in Mendiola , the barbed wire barricades and the arra# of sheet metal shields got in the wa# of the members of the August Twent#>'ne Movement (AT'M! as the# tried last 'ctober ( to get to the pearl# gates of power via the 7t. =ude Chapel on Haurel 7t. 7t. =ude happens to be a neighbor of President Marcos, his (sic! chapel being ad2acent to MalacaOang. ... The foregoing cannot but cast serious doubts on the sincerit# and good faith of petitioners in invo"ing the constitutional guarantee of freedom of religious worship and of locomotion. Bhile it is be#ond debate that ever# citi0en has the undeniable and inviolable right to religious freedom, the e5ercise thereof, and of all fundamental

rights for that matter, must be done in good faith. As Article *+ of the Civil Code admonishes% 3Ever# person must in the e5ercise of his rights and in the performance of his duties ... observe honest# and good faith.3 Even assuming that petitioners$ claim to the free e5ercise of religion is genuine and valid, still respondents reaction to the 'ctober (, *+,A mass action ma# not be characteri0ed as violative of the freedom of religious worship. 7ince *+.(, when mobs of demonstrators crashed through the MalacaOang gates and scaled its perimeter fence, the use b# the public of =.P. Haurel 7treet and the streets approaching it have been restricted. Bhile travel to and from the affected thoroughfares has not been absolutel# prohibited, passers>b# have been sub2ected to courteous, unobtrusive securit# chec"s. The reasonableness of this restriction is readil# perceived and appreciated if it is considered that the same is designed to protect the lives of the President and his famil#, as well as other government officials, diplomats and foreign guests transacting business with MalacaOang. The need to secure the safet# of heads of state and other government officials cannot be overemphasi0ed. The threat to their lives and safet# is constant, real and felt throughout the world. Fivid illustrations of this grave and serious problem are the gruesome assassinations, "idnappings and other acts of violence and terrorism that have been perpetrated against heads of state and other public officers of foreign nations. 7aid restriction is moreover intended to secure the several e5ecutive offices within the MalacaOang grounds from possible e5ternal attac"s and disturbances. These offices include communications facilities that lin" the central government to all places in the land. In1uestionabl#, the restriction imposed is necessar# to maintain the smooth functioning of the e5ecutive branch of the government, which petitioners$ mass action would certainl# disrupt. ;reedom of religious worship is guaranteed under 7ection ,, Article <F of the *+.6 Constitution, thus% Co law shall be made respecting an establishment of religion, or prohibiting the free e5ercise thereof. The free e5ercise and en2o#ment of religious profession and worship, without discrimination or preference, shall forever be allowed. Co religious test shall be re1uired for the e5ercise of civil or political rights. Elucidating on the meaning and scope of freedom of religion, the I.7. 7upreme Court in Cant-ell v. Connecticut 2said% The constitutional inhibition on legislation on the sub2ect of religion has a double aspect. 'n the one hand, it forestalls compulsion b# law of the acceptance of an# creed or the practice of an# form of worship. ;reedom of conscience and freedom to adhere to such religious organi0ation or form of worship as the individual ma# choose cannot be restricted b# law. 'n the other hand, it safeguards the free e5ercise of the chosen form of religion. Thus the amendment embraces two concepts> freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. <n the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but onl# in the manner b# which the# had attempted to translate the same into action. This curtailment is in accord with the pronouncement of this Court in :erona v. Secretar of Education, 3 thus% The realm of belief and creed is infinite and limitless bounded onl# b# one$s imagination and thought. 7o is the freedom of belief, including religious belief, limitless and without bounds. 'ne ma# believe in most an#thing, however strange, bi0arre and unreasonable the same ma# appear to others, even heretical when weighed in the scales of orthodo5# or doctrinal standards. But between the freedom of belief and the e5ercise of said belief, there is 1uite a stretch of road to travel. If the e2ercise of said religious belief clashes -ith the established institutions of societ and with the law, then the former must #ield and give wa# to the latter. The government steps in and either restrains said e5ercise or even prosecutes the one e5ercising it. (Emphasis supplied! Petitioners li"ewise invo"e their freedom of locomotion under 7ection -, Article <F of the Constitution, which provides% The libert# of abode and of travel shall not be impaired e5cept upon lawful order of the court, or when necessar# in the interest of national securit#, public safet#, or public health. 7uffice it to sa# that the restriction imposed on the use of =.P. Haurel 7treet, the wisdom and reasonableness of which have alread# been discussed, is allowed under the fundamental law, the same having been established in the interest of national securit#.

B:ERE;'RE, the instant petition is hereb# dismissed. Co costs.

Republic of the Philippines SUPREME COURT Manila EC BACC #.M. No. P10211!*1 #u3u)( 0, 2003

#"E+#NDRO ESTR#D#, complainant, vs. SO"ED#D S. ESCRITOR, respondent. PUNO, J.' The case at bar ta"es us to a most difficult area of constitutional law where man stands accountable to an authorit# higher than the state. To be held on balance are the state$s interest and the respondent$s religious freedom. <n this highl# sensitive area of law, the tas" of balancing between authorit# and libert# is most delicate because to the person invo"ing religious freedom, the conse1uences of the case are not onl# temporal. The tas" is not made easier b# the American origin of our religion clauses and the wealth of I.7. 2urisprudence on these clauses for in the Inited 7tates, there is probabl# no more intensel# controverted area of constitutional interpretation than the religion clauses.* The I.7. 7upreme Court itself has ac"nowledged that in this constitutional area, there is 3considerable internal inconsistenc# in the opinions of the Court.3 ( As stated b# a professor of law, 3(i!t is b# now notorious that legal doctrines and 2udicial decisions in the area of religious freedom are in serious disarra#. <n perhaps no other area of constitutional law have confusion and inconsistenc# achieved such undisputed sovereignt#.36 Cevertheless, this thic"et is the onl# path to ta"e to con1uer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largel# chart the course of religious freedom in Philippine 2urisdiction. That the religious freedom 1uestion arose in an administrative case involving onl# one person does not alter the paramount importance of the 1uestion for the 3constitution commands the positive protection b# government of religious freedom >not onl# for a minorit#, however small> not onl# for a ma2orit#, however large> but for each of us.3A I. Fa2() The facts of the case will determine whether respondent will prevail in her plea of religious freedom. <t is necessar# therefore to la# down the facts in detail, careful not to omit the essentials. <n a sworn letter>complaint dated =ul# (., (888, complainant Ale2andro Estrada wrote to =udge =ose ;. Caoibes, =r., presiding 2udge of Branch (-6, Regional Trial Court of Has PiOas Cit#, re1uesting for an investigation of rumors that respondent 7oledad Escritor, court interpreter in said court, is living with a man not her husband. The# allegedl# have a child of eighteen to twent# #ears old. Estrada is not personall# related either to Escritor or her partner and is a resident not of Has PiOas Cit# but of Bacoor, Cavite. Cevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain emplo#ed therein as it might appear that the court condones her act. =udge Caoibes referred the letter to Escritor who stated that 3there is no truth as to the veracit# of the allegation3 and challenged Estrada to 3appear in the open and prove his allegation in the proper forum.3 ) =udge Caoibes set a preliminar# conference on 'ctober *(, (888. Escritor moved for the inhibition of =udge Caoibes from hearing her case to avoid suspicion and bias as she previousl# filed an administrative complaint against him and said case was still pending in the 'ffice of the Court Administrator ('CA!. Escritor$s motion was denied. The preliminar# conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter> complaint for immoralit# against Escritor because in his fre1uent visits to the :all of =ustice of Has PiOas Cit#, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twent#>#ear old son b# this man. This prompted him to write to =udge Caoibes as he believed that emplo#ees of the 2udiciar# should be respectable and Escritor$s live>in arrangement did not command respect. . Respondent Escritor testified that when she entered the 2udiciar# in *+++, , she was alread# a widow, her husband having died in *++,.+ 7he admitted that she has been living with Huciano Luilapio, =r. without the benefit of marriage for twent# #ears and that the# have a son. But as a member of the religious sect "nown as the =ehovah$s Bitnesses and the Batch Tower and Bible Tract 7ociet#, their con2ugal arrangement is in conformit# with their religious beliefs. <n fact, after ten #ears of living together, she e5ecuted on =ul# (,, *++* a 3/eclaration of Pledging ;aithfulness,3 viz%

/ECHARAT<'C '; PHE/K<CK ;A<T:;IHCE77 <, 7oledad 7. Escritor, do hereb# declare that < have accepted Huciano /. Luilapio, =r., as m# mate in marital relationship9 that < have done all within m# abilit# to obtain legal recognition of this relationship b# the proper public authorities and that it is because of having been unable to do so that < therefore ma"e this public declaration pledging faithfulness in this marital relationship. < recogni0e this relationship as a binding tie before $=ehovah$ Kod and before all persons to be held to and honored in full accord with the principles of Kod$s Bord. < will continue to see" the means to obtain legal recognition of this relationship b# the civil authorities and if at an# future time a change in circumstances ma"e this possible, < promise to legali0e this union. 7igned this (,th da# of =ul# *++*.*8 Escritor$s partner, Luilapio, e5ecuted a similar pledge on the same da#. ** Both pledges were e5ecuted in Atimonan, Lue0on and signed b# three witnesses. At the time Escritor e5ecuted her pledge, her husband was still alive but living with another woman. Luilapio was li"ewise married at that time, but had been separated in fact from his wife. /uring her testimon#, Escritor volunteered to present members of her congregation to confirm the truthfulness of their 3/eclarations of Pledging ;aithfulness,3 but =udge Caoibes deemed it unnecessar# and considered her identification of her signature and the signature of Luilapio sufficient authentication of the documents. *( =udge Caoibes endorsed the complaint to E5ecutive =udge Manuel B. ;ernande0, =r., who, in turn, endorsed the same to Court Administrator Alfredo H. Benipa#o. 'n =ul# *., (88*, the Court, upon recommendation of Acting Court Administrator &enaida C. ElepaOo, directed Escritor to comment on the charge against her. <n her comment, Escritor reiterated her religious congregation$s approval of her con2ugal arrangement with Luilapio, vi0% :erein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracit# of same allegation. <ncluded herewith are documents denominated as /eclaration of Pledging ;aithfulness (E5hibit * and E5hibit (! dul# signed b# both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved b# the BATC: T'BER B<BHE and TRACT 7'C<ETJ, Philippine Branch. 7ame marital arrangement is recogni0ed as a binding tie before 3=E:'FA:3 Kod and before all persons to be held to and honored in full accord with the principles of Kod$s Bord. 555 555 555

Indersigned submits to the 2ust, humane and fair discretion of the Court with verification from the BATC: T'BER B<BHE and TRACT 7'C<ETJ, Philippine Branch . . . to which undersigned believes to be a high authorit# in relation to her case.*6 /eput# Court Administrator Christopher '. Hoc" recommended that the case be referred to E5ecutive =udge Bonifacio 7an0 Maceda, RTC Branch (--, Has PiOas Cit# for investigation, report and recommendation. <n the course of =udge Maceda$s investigation, Escritor again testified that her congregation allows her con2ugal arrangement with Luilapio and it does not consider it immoral. 7he offered to suppl# the investigating 2udge some clippings which e5plain the basis of her congregation$s belief and practice regarding her con2ugal arrangement. Escritor started living with Luilapio twent# #ears ago when her husband was still alive but living with another woman. 7he met this woman who confirmed to her that she was living with her (Escritor$s! husband. *A Kregorio 7ala0ar, a member of the =ehovah$s Bitnesses since *+,-, also testified. :e had been a presiding minister since *++* and in such capacit# is aware of the rules and regulations of their congregation. :e e5plained the import of and procedure for e5ecuting a 3/eclaration of Pledging ;aithfulness3, vi0% L% Cow, insofar as the pre>marital relationship is concern (sic!, can #ou cite some particular rules and regulations in #our congregationD A% Bell, we of course, tal" to the persons with regards (sic! to all the parties involved and then we re1uest them to e5ecute a Public /eclaration of Pledge of faithfulness. L% Bhat is that documentD

A%

/eclaration of Pledge of faithfulness.

L% Bhat are the relations of the document /eclaration of Pledge of faithfulness, who are suppose (sic! to e5ecute this documentD A% This must be signed, the document must be signed b# the elders of the congregation9 the couple, who is a member (sic! of the congregation, bapti0ed member and true member of the congregation. L% Bhat standard rules and regulations do #ou have in relation with this documentD

A% Actuall#, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic! gives the Christian Congregation view that the couple has put themselves on record before Kod and man that the# are faithful to each other. As if that relation is validated b# Kod. L% ;rom #our e5planation, Minister, do #ou consider it a pledge or a document between the parties, who are members of the congregationD A% L% <t is a pledge and a document. <t is a declaration, pledge of a (sic! pledge of faithfulness. And what does pledge mean to #ouD

A% <t means to me that the# have contracted, let us sa#, < am the one who contracted with the opposite member of m# congregation, opposite se5, and that this document will give us the right to a marital relationship. L% 7o, in short, when #ou e5ecute a declaration of pledge of faithfulness, it is a preparation for #ou to enter a marriageD A% L% A% Jes, 7ir. But it does not necessaril# mean that the parties, cohabiting or living under the same roofD Bell, the Pledge of faithfulness document is (sic! alread# approved as to the marital relationship.

L% /o #ou mean to sa#, Minister, b# e5ecuting this document the contracting parties have the right to cohabitD A% Can < sir, cite, what the Bible sa#s, the basis of that Pledge of ;aithfulness as we Christians follow. The basis is herein stated in the Boo" of Matthew, Chapter ;ive, Ferse Twent#>two. 7o, in that verse of the Bible, =esus said 3that ever#one divorcing his wife, e5cept on account of fornication, ma"es her a sub2ect for adulter#, and whoever marries a divorced woman commits adulter#. *Escritor and Luilapio transferred to 7ala0ar$s Congregation, the Alman0a Congregation in Has PiOas, in Ma# (88*. The declarations having been e5ecuted in Atimonan, Lue0on in *++*, 7ala0ar had no personal "nowledge of the personal circumstances of Escritor and Luilapio when the# e5ecuted their declarations. :owever, when the two transferred to Alman0a, 7ala0ar in1uired about their status from the Atimonan Congregation, gathered comments of the elders therein, and re1uested a cop# of their declarations. The Alman0a Congregation assumed that the personal circumstances of the couple had been considered b# the Atimonan Congregation when the# e5ecuted their declarations. Escritor and Luilapio$s declarations are recorded in the Batch Tower Central office. The# were e5ecuted in the usual and approved form prescribed b# the Batch Tower Bible and Tract 7ociet# which was lifted from the article, 3Maintaining Marriage in :onor Before Kod and Men,3*) in the March *-, *+.. issue of the Batch Tower maga0ine, entitled The Batchtower. The declaration re1uires the approval of the elders of the =ehovah$s Bitnesses congregation and is binding within the congregation all over the world e5cept in countries where divorce is allowed. The =ehovah$s congregation re1uires that at the time the declarations are e5ecuted, the couple cannot secure the civil authorities$ approval of the marital relationship because of legal impediments. <t is thus standard practice of the congregation to chec" the couple$s marital status before giving imprimatur to the con2ugal arrangement. The e5ecution of the declaration finds scriptural basis in Matthew -%6( that when the spouse commits adulter#, the offended spouse can remarr#. The

marital status of the declarants and their respective spouses$ commission of adulter# are investigated before the declarations are e5ecuted. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid ever#where, including the Alman0a Congregation. That Escritor$s and Luilapio$s declarations were approved are shown b# the signatures of three witnesses, the elders in the Atimonan Congregation. 7ala0ar confirmed from the congregation$s branch office that these three witnesses are elders in the Atimonan Congregation. Although in *++, Escritor was widowed, thereb# lifting the legal impediment to marr# on her part, her mate is still not capacitated to remarr#. Thus, their declarations remain valid. 'nce all legal impediments for both are lifted, the couple can alread# register their marriage with the civil authorities and the validit# of the declarations ceases. The elders in the congregations can then solemni0e their marriage as authori0ed b# Philippine law. <n sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the con2ugal arrangement between Escritor and Luilapio and the# remain members in good standing in the congregation. *. 7alvador Re#es, a minister at the Keneral de Heon, Falen0uela Cit# Congregation of the =ehovah$s Bitnesses since *+.A and member of the head1uarters of the Batch Tower Bible and Tract 7ociet# of the Philippines, <nc., presented the original cop# of the maga0ine article entitled, 3Maintaining Marriage Before Kod and Men3 to which Escritor and Minister 7ala0ar referred in their testimonies. The article appeared in the March *-, *+.. issue of the Batchtower maga0ine published in Penns#lvania, I.7.A. ;eli5 7. ;a2ardo, President of the Batch Tower Bible and Tract 7ociet# of the Philippines, <nc., authori0ed Re#es to represent him in authenticating the article. The article is distributed to the =ehovah$s Bitnesses congregations which also distribute them to the public. *, The parties submitted their respective memoranda to the investigating 2udge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Luilapio is valid and binding in their own religious congregation, the =ehovah$s Bitnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor$s administrative liabilit# must li"ewise be determined. Estrada argued, through counsel, that the /eclaration of Pledging ;aithfulness recogni0es the supremac# of the 3proper public authorities3 such that she bound herself 3to see" means to . . . legali0e their union.3 Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding onl# to her co>members in the congregation and serves onl# the internal purpose of displa#ing to the rest of the congregation that she and her mate are a respectable and morall# upright couple. Their religious belief and practice, however, cannot override the norms of conduct re1uired b# law for government emplo#ees. To rule otherwise would create a dangerous precedent as those who cannot legali0e their live>in relationship can simpl# 2oin the =ehovah$s Bitnesses congregation and use their religion as a defense against legal liabilit#.*+ 'n the other hand, respondent Escritor reiterates the validit# of her con2ugal arrangement with Luilapio based on the belief and practice of her religion, the =ehovah$s Bitnesses. 7he 1uoted portions of the maga0ine article entitled, 3Maintaining Marriage Before Kod and Men,3 in her memorandum signed b# herself, viz% The /eclaration of Pledging of ;aithfulness (E5hibits 3*3 and 3(3! e5ecuted b# the respondent and her mate greatl# affect the administrative liabilit# of respondent. =ehovah$s Bitnesses admit and recogni0e (sic! the supremac# of the proper public authorities in the marriage arrangement. :owever, it is helpful to understand the relative nature of Caesar$s authorit# regarding marriage. ;rom countr# to countr#, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of Kod$s 7on, can be guided b# basic 7criptural principles that hold true in all cases. Kod$s view is of first concern. 7o, first of all the person must consider whether that one$s present relationship, or the relationship into which he or she contemplates entering, is one that could meet with Kod$s approval, or whether in itself, it violates the standards of Kod$s Bord. Ta"e, for e5ample, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmoni0ed with Christian principles, nor could an# declaration on the part of the woman or the man ma"e it so. The onl# right course is cessation of the relationship. 7imilarl# with an incestuous relationship with a member of one$s immediate famil#, or a homose5ual relationship or other such situation condemned b# Kod$s Bord. <t is not the lac" of an# legal validation that ma"es such relationships unacceptable9 the# are in themselves unscriptural and hence, immoral. :ence, a person involved in such a situation could not ma"e an# "ind of 3/eclaration of ;aithfulness,3 since it would have no merit in Kod$s e#es. <f the relationship is such that it can have Kod$s approval, then, a second principle to consider is that one should do all one can to establish the honorableness of one$s marital union in the e#es of all. (:eb. *6%A!. <f divorce is possible, then such step should now be ta"en so that, having obtained the divorce (on whatever legal grounds ma# be available!, the present union can receive civil validation as a recogni0ed marriage.

;inall#, if the marital relationship is not one out of harmon# with the principles of Kod$s Bord, and if one has done all that can reasonabl# be done to have it recogni0ed b# civil authorities and has been bloc"ed in doing so, then, a /eclaration Pledging ;aithfulness can be signed. <n some cases, as has been noted, the e5treme slowness of official action ma# ma"e accomplishing of legal steps a matter of man#, man# #ears of effort. 'r it ma# be that the costs represent a crushingl# heav# burden that the individual would need #ears to be able to meet. <n such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the e5isting union as honorable while the individual continues conscientiousl# to wor" out the legal aspects to the best of his abilit#. Meeping in mind the basic principles presented, the respondent as a Minister of =ehovah Kod, should be able to approach the matter in a balanced wa#, neither underestimating nor overestimating the validation offered b# the political state. 7he alwa#s gives primar# concern to Kod$s view of the union. Along with this, ever# effort should be made to set a fine e5ample of faithfulness and devotion to one$s mate, thus, "eeping the marriage 3honorable among all.3 7uch course will bring Kod$s blessing and result to the honor and praise of the author of marriage, =ehovah Kod. (* Cor. *8%6*>66! (8 Respondent also brought to the attention of the investigating 2udge that complainant$s Memorandum came from =udge Caoibes$ chambers(* whom she claims was merel# using petitioner to malign her. <n his Report and Recommendation, investigating 2udge Maceda found Escritor$s factual allegations credible as the# were supported b# testimonial and documentar# evidence. :e also noted that 3(b!# strict Catholic standards, the live>in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit% $that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the communit#$ (. C.=.7. +-+!$ (/elos Re#es vs. A0nar, *.+ 7CRA, at p. )))!.3 :e pointed out, however, that 3the more relevant 1uestion is whether or not to e5act from respondent Escritor, a member of $=ehovah$s Bitnesses,$ the strict moral standards of the Catholic faith in determining her administrative responsibilit# in the case at bar.3(( The investigating 2udge ac"nowledged that 3religious freedom is a fundamental right which is entitled to the highest priorit# and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. (.8, EBRAH<CAK supra, citing Chief =ustice Enri1ue M. ;ernando$s separate opinion in Kerman vs. Barangan, *6- 7CRA -*A, -68>-6*!3 and thereb# recommended the dismissal of the complaint against Escritor.(6 After considering the Report and Recommendation of E5ecutive =udge Maceda, the 'ffice of the Court Administrator, through /eput# Court Administrator (/CA! Hoc" and with the approval of Court Administrator Presbitero Felasco, concurred with the factual findings of =udge Maceda but departed from his recommendation to dismiss the complaint. /CA Hoc" stressed that although Escritor had become capacitated to marr# b# the time she 2oined the 2udiciar# as her husband had died a #ear before, 3it is due to her relationship with a married man, voluntaril# carried on, that respondent ma# still be sub2ect to disciplinar# action.3 (A Considering the ruling of the Court in /icdican v. ;ernan, et al.(- that 3court personnel have been en2oined to adhere to the e5acting standards of moralit# and decenc# in their professional and private conduct in order to preserve the good name and integrit# of the court of 2ustice,3 /CA Hoc" found Escritor$s defense of freedom of religion unavailing to warrant dismissal of the charge of immoralit#. Accordingl#, he recommended that respondent be found guilt# of immoralit# and that she be penali0ed with suspension of si5 months and one da# without pa# with a warning that a repetition of a similar act will be dealt with more severel# in accordance with the Civil 7ervice Rules. () II. I))ue Bhether or not respondent should be found guilt# of the administrative charge of 3gross and immoral conduct.3 To resolve this issue, it is necessar# to determine the sub>issue of whether or not respondent$s right to religious freedom should carve out an e5ception from the prevailing 2urisprudence on illicit relations for which government emplo#ees are held administrativel# liable. III. #55,;2ab,e "a@) Respondent is charged with committing 3gross and immoral conduct3 under Boo" F, Title <, Chapter F<, 7ec. A)(b! (-! of the Revised Administrative Code which provides, vi0% 7ec. A). /iscipline% Keneral Provisions. > (a! Co officer or emplo#ee in the Civil 7ervice shall be suspended or dismissed e5cept for cause as provided b# law and after due process. (b! The following shall be grounds for disciplinar# action%

555 (-! /isgraceful and immoral conduct9 555.

555

555

Cot represented b# counsel, respondent, in la#man$s terms, invo"es the religious beliefs and practices and moral standards of her religion, the =ehovah$s Bitnesses, in asserting that her con2ugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administrativel# liable. Bhile not articulated b# respondent, she invo"es religious freedom under Article <<<, 7ection - of the Constitution, which provides, vi0% 7ec. -. Co law shall be made respecting an establishment of religion, or prohibiting the free e5ercise thereof. The free e5ercise and en2o#ment of religious profession and worship, without discrimination or preference, shall forever be allowed. Co religious test shall be re1uired for the e5ercise of civil or political rights. IV. O,& Aor,& #%(e2e&e%() o< (4e #6er;2a% Re,;3;o% C,au)e) To understand the life that the religion clauses have ta"en, it would be well to understand not onl# its birth in the Inited 7tates, but its conception in the 'ld Borld. 'ne cannot understand, much less intelligentl# critici0e the approaches of the courts and the political branches to religious freedom in the recent past in the Inited 7tates without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American e5perience.(. This fresh loo" at the religion clauses is proper in deciding this case of first impression. <n primitive times, all of life ma# be said to have been religious. Ever# significant event in the primitive man$s life, from birth to death, was mar"ed b# religious ceremonies. Tribal societ# survived because religious sanctions effectivel# elicited adherence to social customs. A person who bro"e a custom violated a taboo which would then bring upon him 3the wrathful vengeance of a superhuman m#sterious power.3 (, /istinction between the religious and non>religious would thus have been meaningless to him. :e sought protection from all "inds of evil > whether a wild beast or tribe enem# and lightning or wind > from the same person. The head of the clan or the 'ld Man of the tribe or the "ing protected his wards against both human and superhuman enemies. <n time, the "ing not onl# interceded for his people with the divine powers, but he himself was loo"ed upon as a divine being and his laws as divine decrees.(+ Time came, however, when the function of acting as intermediar# between human and spiritual powers became sufficientl# differentiated from the responsibilit# of leading the tribe in war and policing it in peace as to re1uire the full>time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the "ing and priest. Cevertheless, from the beginning, the "ing and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestl# functions, he carried out these functions because he was the head and representative of the communit#. 68 There being no distinction between the religious and the secular, the same authorit# that promulgated laws regulating relations between man and man promulgated laws concerning man$s obligations to the supernatural. This authorit# was the "ing who was the head of the state and the source of all law and who onl# delegated performance of rituals and sacrifice to the priests. The Code of :ammurabi, "ing of Bab#lonia, imposed penalties for homicide, larcen#, per2ur#, and other crimes9 regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of propert#9 6* and also catalogued the gods and assigned them their places in the divine hierarch# so as to put :ammurabi$s own god to a position of e1ualit# with e5isting gods. 6( <n sum, the relationship of religion to the state ("ing! in pre>:ebreic times ma# be characteri0ed as a union of the two forces, with the state almost universall# the dominant partner. 66 Bith the rise of the :ebrew state, a new term had to be coined to describe the relation of the :ebrew state with the Mosaic religion% theocrac#. The authorit# and power of the state was ascribed to Kod. 6A The Mosaic creed was not merel# regarded as the religion of the state, it was (at least until 7aul! the state itself. Among the :ebrews, patriarch, prophet, and priest preceded "ing and prince. As man of Kod, Moses decided when the people should travel and when to pitch camp, when the# should ma"e war and when peace. 7aul and /avid were made "ings b# the prophet 7amuel, disciple of Eli the priest. Hi"e the Code of :ammurabi, the Mosaic code combined civil laws with religious mandates, but unli"e the :ammurabi Code, religious laws were not of secondar# importance. 'n the contrar#, religious motivation was primar# and all>embracing% sacrifices were made and <srael was prohibited from e5acting usur#, mistreating aliens or using false weights, all because Kod commanded these. Moses of the Bible led not li"e the ancient "ings. The latter used religion as an engine to advance the purposes of the state. :ammurabi unified Mesopotamia and established Bab#lon as its capital b# elevating its cit#>god to a

primar# position over the previous reigning gods.6- Moses, on the other hand, capitali0ed on the natural #earnings of the :ebrew slaves for freedom and independence to further Kod$s purposes. Hiberation and E5odus were preludes to 7inai and the receipt of the /ivine Haw. The con1uest of Canaan was a preparation for the building of the temple and the full worship of Kod.6) Ipon the monotheism of Moses was the theocrac# of <srael founded. This monotheism, more than an#thing else, charted not onl# the future of religion in western civili0ation, but e1uall#, the future of the relationship between religion and state in the west. This fact is ac"nowledged b# man# writers, among whom is Corthcott who pointed out, vi0% :istoricall# it was the :ebrew and Christian conception of a single and universal Kod that introduced a religious e5clusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the 1uestion of change from one religious belief to another did not arise. <t was not until an e5clusive fellowship, that the 1uestions of prosel#tism, change of belief and libert# of religion arose.6. (emphasis supplied! The :ebrew theocrac# e5isted in its pure form from Moses to 7amuel. <n this period, religion was not onl# superior to the state, but it was all of the state. The Haw of Kod as transmitted through Moses and his successors was the whole of government. Bith 7aul, however, the state rose to be the rival and ultimatel#, the master, of religion. 7aul and /avid each received their "ingdom from 7amuel the prophet and disciple of Eli the priest, but soon the "ing dominated prophet and priest. 7aul disobe#ed and even sought to sla# 7amuel the prophet of Kod. 6, Inder 7olomon, the subordination of religion to state became complete9 he used religion as an engine to further the state$s purposes. :e reformed the order of priesthood established b# Moses because the high priest under that order endorsed the claim of his rival to the throne.6+ The subordination of religion to the state was also true in pre>Christian Rome which engaged in emperor>worship. Bhen Augustus became head of the Roman state and the priestl# hierarch#, he placed religion at a high esteem as part of a political plan to establish the real religion of pre>Christian Rome > the worship of the head of the state. :e set his great uncle =ulius Caesar among the gods, and commanded that worship of /ivine =ulius should not be less than worship of Apollo, =upiter and other gods. Bhen Augustus died, he also 2oined the ran"s of the gods, as other emperors before him.A8 The onset of Christianit#, however, posed a difficult# to the emperor as the Christians$ dogmatic e5clusiveness prevented them from pa#ing homage to publicl# accepted gods. <n the first two centuries after the death of =esus, Christians were sub2ected to persecution. B# the time of the emperor Tra2an, Christians were considered outlaws. Their crime was 3hatred of the human race3, placing them in the same categor# as pirates and brigands and other 3enemies of man"ind3 who were sub2ect to summar# punishments. A* <n (,A, /iocletian became emperor and sought to reorgani0e the empire and ma"e its administration more efficient. But the closel#>"nit hierarchicall# controlled church presented a serious problem, being a state within a state over which he had no control. :e had two options% either to force it into submission and brea" its power or enter into an alliance with it and procure political control over it. :e opted for force and revived the persecution, destro#ed the churches, confiscated sacred boo"s, imprisoned the clerg# and b# torture forced them to sacrifice. A( But his efforts proved futile. The later emperor, Constantine, too" the second option of alliance. Constantine 2oined with Kalerius and Hicinius, his two co>rulers of the empire, in issuing an edict of toleration to Christians 3on condition that nothing is done b# them contrar# to discipline.3A6 A #ear later, after Kalerius died, Constantine and Hicius 2ointl# issued the epochal Edict of Milan (6*( or 6*6!, a document of monumental importance in the histor# of religious libert#. <t provided 3that libert# of worship shall not be denied to an#, but that the mind and will of ever# individual shall be free to manage divine affairs according to his own choice.3 (emphasis supplied! Thus, all restrictive statutes were abrogated and it was enacted 3that ever# person who cherishes the desire to observe the Christian religion shall freel# and unconditionall# proceed to observe the same without let or hindrance.3 ;urthermore, it was provided that the 3same free and open power to follow their own religion or worship is granted also to others, in accordance with the tran1uillit# of our times, in order that ever# person ma# have free opportunit# to worship the ob2ect of his choice.3(emphasis supplied! AA Before long, not onl# did Christianit# achieve e1ual status, but ac1uired privilege, then prestige, and eventuall#, e5clusive power. Religion became an engine of state polic# as Constantine considered Christianit# a means of unif#ing his comple5 empire. Bithin seven #ears after the Edict of Milan, under the emperor$s command, great

Christian edifices were erected, the clerg# were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianit# came at a price% state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unit# of belief and practice. Intil recentl# the church had been the victim of persecution and repression, but this time it welcomed the state$s persecution and repression of the nonconformist and the orthodo5 on the belief that it was better for heretics to be purged of their error than to die unsaved. Both in theor# as in practice, the partnership between church and state was not eas#. <t was a constant struggle of one claiming dominance over the other. <n time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were graduall# being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Cot surprisingl#, therefore, it claimed not merel# e1ualit# but superiorit# over the secular states. This claim, s#mboli0ed b# Pope Heo$s crowning of Charlemagne, became the church$s accepted principle of its relationship to the state in the Middle Ages. As viewed b# the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremac#. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullif# the inference of supremac#. A- The whole histor# of medieval Europe was a struggle for supremac# between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second 1uarter of the *6th centur#, the <n1uisition was established, the purpose of which was the discover# and e5termination of heres#. Accused heretics were tortured with the approval of the church in the bull Ad e5tirpanda issued b# Pope <nnocent <F in *(-(. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. Bhile Protestants are accustomed to ascribe to the Reformation the rise of religious libert# and its acceptance as the principle governing the relations between a democratic state and its citi0ens, histor# shows that it is more accurate to sa# that the 3same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious libert#, and ultimatel# of the principle of separation of church and state.3 A) Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But 2ust as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. A.Papist and Protestant governments ali"e accepted the idea of cooperation between church and state and regarded as essential to national unit# the uniformit# of at least the outward manifestations of religion. A, Certainl#, Huther, leader of the Reformation, stated that 3neither pope, nor bishop, nor an# man whatever has the right of ma"ing one s#llable binding on a Christian man, unless it be done with his own consent.3 A+ But when the tables had turned and he was no longer the hunted heretic, he li"ewise stated when he made an alliance with the secular powers that 3(h!eretics are not to be disputed with, but to be condemned unheard, and whilst the# perish b# fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise.3-8 To Huther, unit# among the peoples in the interests of the state was an important consideration. 'ther personalities in the Reformation such as Melanchton, &wingli and Calvin strongl# espoused theocrac# or the use of the state as an engine to further religion. <n establishing theocrac# in Keneva, Calvin made absence from the sermon a crime, he included criticism of the clerg# in the crime of blasphem# punishable b# death, and to eliminate heres#, he cooperated in the <n1uisition.-* There were, however, those who trul# advocated religious libert#. Erasmus, who belonged to the Renaissance than the Reformation, wrote that 3(t!he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things < can see accomplish nothing e5cept to ma"e the evil more widespread.3-( The minorit# or dissident sects also ardentl# advocated religious libert#. The Anabaptists, persecuted and despised, along with the 7ocinians (Initarians! and the ;riends of the Lua"ers founded b# Keorge ;o5 in the *.th centur#, endorsed the supremac# and freedom of the individual conscience. The# regarded religion as outside the realm of political governments. -6 The English Baptists proclaimed that the 3magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion.3 -A Thus, out of the Reformation, three rationali0ations of church>state relations ma# be distinguished% the Erastian (after the Kerman doctor Erastus!, the theocratic, and the separatist. The first assumed state superiorit# in ecclesiastical affairs and the use of religion as an engine of state polic# as demonstrated b# Huther$s belief that civic cohesion could not e5ist without religious unit# so that coercion to achieve religious unit# was 2ustified. The second was founded on ecclesiastical supremac# and the use of state machiner# to further religious interests as promoted b# Calvin. The third, which was #et to achieve ultimate and complete e5pression in the Cew Borld, was discernibl# in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.-- After the Reformation, Erastianism pervaded all Europe e5cept for Calvin$s theocratic Keneva. <n England, perhaps more than in an# other countr#, Erastianism was at its height. To illustrate, a statute was enacted

b# Parliament in *).,, which, to encourage woolen trade, imposed on all clerg#men the dut# of seeing to it that no person was buried in a shroud made of an# substance other than wool. -) Inder Eli0abeth, supremac# of the crown over the church was complete% ecclesiastical offices were regulated b# her proclamations, recusants were fined and imprisoned, =esuits and prosel#ti0ing priests were put to death for high treason, the thirt#>nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status. -. Eli0abeth was to be recogni0ed as 3the onl# 7upreme Kovernor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal.3 7he and her successors were vested, in their dominions, with 3all manner of 2urisdictions, privileges, and preeminences, in an# wise touching or concerning an# spiritual or ecclesiastical 2urisdiction.3 -, Hater, however, Cromwell established the constitution in *)A. which granted full libert# to all Protestant sects, but denied toleration to Catholics.-+ <n *),+, Billiam <<< issued the Act of Toleration which established a de facto toleration for all e5cept Catholics. The Catholics achieved religious libert# in the *+th centur# when the Roman Catholic Relief Act of *,(+ was adopted. The =ews followed suit in *,-, when the# were finall# permitted to sit in Parliament. )8 Bhen the representatives of the American states met in Philadelphia in *.,. to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittentl# in <srael, =udea, the :ol# Roman Empire and Keneva was completel# gone. The prevailing church>state relationship in Europe was Erastianism embodied in the s#stem of 2urisdictionalism whereb# one faith was favored as the official state>supported religion, but other faiths were permitted to e5ist with freedom in various degrees. Co nation had #et adopted as the basis of its church>state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of *)th and *.th centur# Europe were a thing of the past b# the time America declared its independence from the 'ld Borld, but their memor# was still vivid in the minds of the Constitutional ;athers as e5pressed b# the Inited 7tates 7upreme Court, vi0% The centuries immediatel# before and contemporaneous with the coloni0ation of America had been filled with turmoil, civil strife, and persecution generated in large part b# established sects determined to maintain their absolute political and religious supremac#. Bith the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted =ews. <n efforts to force lo#alt# to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in 2ail, cruell# tortured, and "illed. Among the offenses for which these punishments had been inflicted were such things as spea"ing disrespectfull# of the views of ministers of government>established churches, non>attendance at those churches, e5pressions of non>belief in their doctrines, and failure to pa# ta5es and tithes to support them. )* <n *.,A, =ames Madison captured in this statement the entire histor# of church>state relations in Europe up to the time the Inited 7tates Constitution was adopted, vi0% Torrents of blood have been spilt in the world in vain attempts of the secular arm to e5tinguish religious discord, b# proscribing all differences in religious opinions. )( <n sum, this histor# shows two salient features% ;irst, with minor e5ceptions, the histor# of church>state relationships was characteri0ed b# persecution, oppression, hatred, bloodshed, and war, all in the name of the Kod of Hove and of the Prince of Peace. 7econd, li"ewise with minor e5ceptions, this histor# witnessed the unscrupulous use of religion b# secular powers to promote secular purposes and policies, and the willing acceptance of that role b# the vanguards of religion in e5change for the favors and mundane benefits conferred b# ambitious princes and emperors in e5change for religion$s invaluable service. This was the conte5t in which the uni1ue e5periment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democrac# and in human histor#.)6 V. Fa2(or) Co%(r;bu(;%3 (o (4e #&o5(;o% o< (4e #6er;2a% Re,;3;o% C,au)e) 7ettlers fleeing from religious persecution in Europe, primaril# in Anglican>dominated England, established man# of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English boo"s and pamphlets largel# provided their cultural fare. )ABut although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices the# escaped from. The charters granted b# the English Crown to the individuals and companies designated to ma"e the laws which would control the destinies of the colonials authori0ed them to erect religious establishments, which all, whether believers or not, were re1uired to support or attend. )- At one time, si5 of the

colonies established a state religion. 'ther colonies, however, such as Rhode <sland and /elaware tolerated a high degree of religious diversit#. 7till others, which originall# tolerated onl# a single religion, eventuall# e5tended support to several different faiths.)) This was the state of the American colonies when the uni1ue American e5periment of separation of church and state came about. The birth of the e5periment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the 3English Act of Toleration of *),+, the multiplicit# of sects, the lac" of church affiliation on the part of most Americans, the rise of commercial intercourse, the e5igencies of the Revolutionar# Bar, the Billiams>Penn tradition and the success of their e5periments, the writings of Hoc"e, the social contract theor#, the Kreat Awa"ening, and the influence of European rationalism and deism.3 ). Each of these factors shall be briefl# discussed. ;irst, the practical factors. England$s polic# of opening the gates of the American colonies to different faiths resulted in the multiplicit# of sects in the colonies. Bith an Erastian 2ustification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable onl# if people would settle there. <t would be difficult to engage in trade with persons one see"s to destro# for religious belief, thus tolerance was a necessit#. This tended to distract the colonies from their preoccupations over their religion and its e5clusiveness, encouraging them 3to thin" less of the Church and more of the 7tate and of commerce.3 ), The diversit# brought about b# the colonies$ open gates encouraged religious freedom and non>establishment in several wa#s. ;irst, as there were too man# dissenting sects to abolish, there was no alternative but to learn to live together. 7econdl#, because of the dail# e5posure to different religions, the passionate conviction in the e5clusive rightness of one$s religion, which impels persecution for the sa"e of one$s religion, waned. ;inall#, because of the great diversit# of the sects, religious uniformit# was not possible, and without such uniformit#, establishment could not survive.)+ But while there was a multiplicit# of denomination, parado5icall#, there was a scarcit# of adherents. 'nl# about four percent of the entire population of the countr# had a church affiliation at the time the republic was founded. .8 This might be attributed to the drifting to the American colonies of the s"epticism that characteri0ed European Enlightenment..* Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicit# of sects, also resulted in much unaffiliated religion which treated religion as a personal non>institutional matter. The prevalence of lac" of church affiliation contributed to religious libert# and disestablishment as persons who were not connected with an# church were not li"el# to persecute others for similar independence nor accede to compulsor# ta5ation to support a church to which the# did not belong. .( :owever, for those who were affiliated to churches, the colonial polic# regarding their worship generall# followed the tenor of the English Act of Toleration of *),+. <n England, this Act conferred on Protestant dissenters the right to hold public services sub2ect to registration of their ministers and places of worship. .6 Although the toleration accorded to Protestant dissenters who 1ualified under its terms was onl# a modest advance in religious freedom, it nevertheless was of some influence to the American e5periment. .A Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the Bar of <ndependence which thus had a unif#ing effect on the colonies. Ce5t, the ideological factors. ;irst, the Kreat Awa"ening in mid>*,th centur#, an evangelical religious revival originating in Cew England, caused a brea" with formal church religion and a resistance to coercion b# established churches. This movement emphasi0ed an emotional, personal religion that appealed directl# to the individual, putting emphasis on the rights and duties of the individual conscience and its answerabilit# e5clusivel# to Kod. Thus, although the# had no 1uarrel with orthodo5 Christian theolog# as in fact the# were fundamentalists, this group became staunch advocates of separation of church and state. .Then there was the Billiams>Penn tradition. Roger Billiams was the founder of the colon# of Rhode <sland where he established a communit# of Baptists, Lua"ers and other nonconformists. <n this colon#, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and government. <n *))6, Rhode <sland obtained a charter from the British crown which declared that settlers have it 3much on their heart to hold forth a livelie e5periment that a most flourishing civil state ma# best be maintained . . . with full libertie in religious concernments.3.) <n Billiams$ pamphlet, The Bloud# Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace, .. he articulated the philosophical basis for his argument of religious libert#. To him, religious freedom and separation of church and state did not constitute two but onl# one principle. Religious persecution is wrong because it 3confounds the Civil and Religious3 and because 37tates . . . are proved essentiall# Civil. The 3power of true discerning the true fear of Kod3 is not one of the powers that the people have transferred to Civil Authorit#. ., Billiams$ Bloud# Tenet is considered an epochal milestone in the histor# of religious freedom and the separation of church and state. .+

Billiam Penn, proprietor of the land that became Penns#lvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Lua"ers. :e opposed coercion in matters of conscience because 3imposition, restraint and persecution for conscience sa"e, highl# invade the /ivine prerogative.3 Aside from his idealism, proprietar# interests made toleration in Penns#lvania necessar#. :e attracted large numbers of settlers b# promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Penns#lvania had the greatest variet# of religious groups. Penn was responsible in large part for the 3Concessions and agreements of the Proprietors, ;reeholders, and inhabitants of Best =erse#, in America3, a monumental document in the histor# of civil libert# which provided among others, for libert# of conscience.,8 The Baptist followers of Billiams and the Lua"ers who came after Penn continued the tradition started b# the leaders of their denominations. Aside from the Baptists and the Lua"ers, the Presb#terians li"ewise greatl# contributed to the evolution of separation and freedom. ,* The Constitutional fathers who convened in Philadelphia in *.,., and Congress and the states that adopted the ;irst Amendment in *.+* were ver# familiar with and strongl# influenced b# the successful e5amples of Rhode <sland and Penns#lvania. ,( Indeniabl#, =ohn Hoc"e and the social contract theor# also contributed to the American e5periment. The social contract theor# populari0ed b# Hoc"e was so widel# accepted as to be deemed self>evident truth in America$s /eclaration of <ndependence. Bith the doctrine of natural rights and e1ualit# set forth in the /eclaration of <ndependence, there was no room for religious discrimination. <t was difficult to 2ustif# ine1ualit# in religious treatment b# a new nation that severed its political bonds with the English crown which violated the self>evident truth that all men are created e1ual. ,6 The social contract theor# was applied b# man# religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirel# personal and not within the scope of the powers of a political bod#. That Hoc"e and the social contract theor# were influential in the development of religious freedom and separation is evident from the memorial presented b# the Baptists to the Continental Congress in *..A, viz% Men unite in societ#, according to the great Mr. Hoc"e, with an intention in ever# one the better to preserve himself, his libert# and propert#. The power of the societ#, or Hegislature constituted b# them, can never be supposed to e5tend an# further than the common good, but is obliged to secure ever# one$s propert#. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate9 and on this ground we affirm that the magistrate$s power e5tends not to establishing an# articles of faith or forms of worship, b# force of laws9 for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists onl# in outward force9 but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to Kod. ,A (emphasis supplied! The idea that religion was outside the 2urisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, Kod or Christ did not desire that government have that 2urisdiction (3render unto Caesar that which is Caesar$s39 3m# "ingdom is not of this world3! and to the rationalist, the power to act in the realm of religion was not one of the powers conferred on government as part of the social contract. ,Cot onl# the social contract theor# drifted to the colonies from Europe. Man# of the leaders of the Revolutionar# and post>revolutionar# period were also influenced b# European deism and rationalism, ,) in general, and some were apathetic if not antagonistic to formal religious worship and institutionali0ed religion. =efferson, Paine, =ohn Adams, Bashington, ;ran"lin, Madison, among others were rec"oned to be among the Initarians or /eists. Initarianism and /eism contributed to the emphasis on secular interests and the relegation of historic theolog# to the bac"ground.,. ;or these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout histor#.,, Cot onl# the leaders but also the masses embraced rationalism at the end of the eighteenth centur#, accounting for the popularit# of Paine$s Age of Reason. ,+ ;inall#, the events leading to religious freedom and separation in Firginia contributed significantl# to the American e5periment of the ;irst Amendment. Firginia was the 3first state in the histor# of the world to proclaim the decree of absolute divorce between church and state.3+8 Man# factors contributed to this, among which were that half to two> thirds of the population were organi0ed dissenting sects, the Kreat Awa"ening had won man# converts, the established Anglican Church of Firginia found themselves on the losing side of the Revolution and had alienated man# influential la#men with its identification with the Crown$s t#rann#, and above all, present in Firginia was a group of political leaders who were devoted to libert# generall#, +* who had accepted the social contract as self> evident, and who had been greatl# influenced b# /eism and Initarianism. Among these leaders were Bashington, Patric" :enr#, Keorge Mason, =ames Madison and above the rest, Thomas =efferson. The first ma2or step towards separation in Firginia was the adoption of the following provision in the Bill of Rights of the state$s first constitution%

That religion, or the dut# which we owe to our Creator, and the manner of discharging it, can be directed onl# b# reason and conviction, not b# force or violence9 and therefore, all men are e1uall# entitled to the free e5ercise of religion according to the dictates of conscience9 and that it is the mutual dut# of all to practice Christian forbearance, love, and charit# towards each other. +( (emphasis supplied! The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presb#terians and Hutherans flooded the first legislative assembl# with petitions for abolition of establishment. Bhile the ma2orit# of the population were dissenters, a ma2orit# of the legislature were churchmen. The legislature compromised and enacted a bill in *..) abolishing the more oppressive features of establishment and granting e5emptions to the dissenters, but not guaranteeing separation. <t repealed the laws punishing heres# and absence from worship and re1uiring the dissenters to contribute to the support of the establishment. +6 But the dissenters were not satisfied9 the# not onl# wanted abolition of support for the establishment, the# opposed the compulsor# support of their own religion as others. As members of the established church would not allow that onl# the# would pa# ta5es while the rest did not, the legislature enacted in *..+ a bill ma"ing permanent the establishment$s loss of its e5clusive status and its power to ta5 its members9 but those who voted for it did so in the hope that a general assessment bill would be passed. Bithout the latter, the establishment would not survive. Thus, a bill was introduced in *..+ re1uiring ever# person to enroll his name with the count# cler" and indicate which 3societ# for the purpose of Religious Borship3 he wished to support. 'n the basis of this list, collections were to be made b# the sheriff and turned over to the clerg#men and teachers designated b# the religious congregation. The assessment of an# person who failed to enroll in an# societ# was to be divided proportionatel# among the societies. +A The bill evo"ed strong opposition. <n *.,A, another bill, entitled 3Bill Establishing a Provision for Teachers of the Christian Religion3 was introduced re1uiring all persons 3to pa# a moderate ta5 or contribution annuall# for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship.3 +- This li"ewise aroused the same opposition to the *..+ bill. The most telling blow against the *.,A bill was the monumental 3Memorial and Remonstrance against Religious Assessments3 written b# Madison and widel# distributed before the reconvening of legislature in the fall of *.,-. +) <t stressed natural rights, the government$s lac" of 2urisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. :e wrote, viz% Because we hold it for a $fundamental and undeniable truth,$ that religion, or the dut# which we owe to our creator, and the manner of discharging it, can be directed onl# b# reason and conviction, not b# force or violence. The religion, then, of ever# man, must be left to the conviction and conscience of ever# man9 and it is the right of ever# man to e5ercise it as these ma# dictate. This right is, in its nature, an unalienable right. <t is unalienable, because the opinions of men, depending onl# on the evidence contemplated in their own minds, cannot follow the dictates of other men9 it is unalienable, also, because what is here a right towards men, is a dut# towards the creator. <t is the dut# of ever# man to render the creator such homage, and such onl# as he believes to be acceptable to him9 this dut# is precedent, both in order of time and degree of obligation, to the claims of civil societ#. Before an# man can be considered as a member of civil societ#, he must be considered as a sub2ect of the governor of the universe9 and if a member of civil societ#, who enters into an# subordinate association, must alwa#s do it with a reservation of his dut# to the general authorit#, much more must ever# man who becomes a member of an# particular civil societ# do it with the saving his allegiance to the universal sovereign.+. (emphases supplied! Madison articulated in the Memorial the widel# held beliefs in *.,- as indicated b# the great number of signatures appended to the Memorial. The assessment bill was speedil# defeated. Ta"ing advantage of the situation, Madison called up a much earlier *..+ bill of =efferson which had not been voted on, the 3Bill for Establishing Religious ;reedom3, and it was finall# passed in =anuar# *.,). <t provided, viz% Bell aware that Almight# Kod hath created the mind free9 that all attempts to influence it b# temporal punishments or burdens, or b# civil incapacitations, tend not onl# to beget habits of h#pocris# and meanness, and are a departure from the plan of the :ol# Author of our religion, who being Hord both of bod# and mind, #et chose not to propagate it b# coercions on either, as was in his Almight# power to do9 555 555 555

Be it therefore enacted b# the Keneral Assembl#. That no man shall be compelled to fre1uent or support an# religious worship, place or ministr# whatsoever, nor shall be enforced, restrained, molested or burdened in his bod# or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and b# argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. +, (emphases supplied!

This statute forbade an# "ind of ta5ation in support of religion and effectuall# ended an# thought of a general or particular establishment in Firginia. ++ But the passage of this law was obtained not onl# because of the influence of the great leaders in Firginia but also because of substantial popular support coming mainl# from the two great dissenting sects, namel# the Presb#terians and the Baptists. The former were never established in Firginia and an underprivileged minorit# of the population. This made them an5ious to pull down the e5isting state church as the# reali0ed that it was impossible for them to be elevated to that privileged position. Apart from these e5pediential considerations, however, man# of the Presb#terians were sincere advocates of separation *88 grounded on rational, secular arguments and to the language of natural religion. *8* <nfluenced b# Roger Billiams, the Baptists, on the other hand, assumed that religion was essentiall# a matter of concern of the individual and his Kod, i.e., sub2ective, spiritual and supernatural, having no relation with the social order. *8( To them, the :ol# Khost was sufficient to maintain and direct the Church without governmental assistance and state>supported religion was contrar# ti the spirit of the Kospel.*86 Thus, separation was necessar#.*8A =efferson$s religious freedom statute was a milestone in the histor# of religious freedom. The Inited 7tates 7upreme Court has not 2ust once ac"nowledged that the provisions of the ;irst Amendment of the I.7. Constitution had the same ob2ectives and intended to afford the same protection against government interference with religious libert# as the Firginia 7tatute of Religious Hibert#. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion b# restricting its free e5ercise or establishing it was implicit in the Constitution of *.,.. This could be deduced from the prohibition of an# religious test for federal office in Article F< of the Constitution and the assumed lac" of power of Congress to act on an# sub2ect not e5pressl# mentioned in the Constitution. *8-:owever, omission of an e5press guarant# of religious freedom and other natural rights nearl# prevented the ratification of the Constitution.*8) <n the ratif#ing conventions of almost ever# state, some ob2ection was e5pressed to the absence of a restriction on the ;ederal Kovernment as regards legislation on religion. *8. Thus, in *.+*, this restriction was made e5plicit with the adoption of the religion clauses in the ;irst Amendment as the# are worded to this da#, with the first part usuall# referred to as the Establishment Clause and the second part, the ;ree E5ercise Clause, viz% Congress shall ma"e no law respecting an establishment of religion or prohibiting the free e5ercise thereof. VI. Re,;3;o% C,au)e) ;% (4e U%;(e& S(a(e)' Co%2e5(, +ur;)5ru&e%2e, S(a%&ar&) Bith the widespread agreement regarding the value of the ;irst Amendment religion clauses comes an e1uall# broad disagreement as to what these clauses specificall# re1uire, permit and forbid. Co agreement has been reached b# those who have studied the religion clauses as regards its e5act meaning and the paucit# of records in Congress renders it difficult to ascertain its meaning. *8, Conse1uentl#, the 2urisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. 'ne source of difficult# is the difference in the conte5t in which the ;irst Amendment was adopted and in which it is applied toda#. <n the *.,8s, religion pla#ed a primar# role in social life > i.e., famil# responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension > while government pla#ed a supportive and indirect role b# maintaining conditions in which these activities ma# be carried out b# religious or religiousl#>motivated associations. Toda#, government pla#s this primar# role and religion pla#s the supportive role.*8+ Kovernment runs even famil# planning, se5 education, adoption and foster care programs. **8 7tated otherwise and with some e5aggeration, 3(w!hereas two centuries ago, in matters of social life which have a significant moral dimension, government was the handmaid of religion, toda# religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government.3 *** Bith government regulation of individual conduct having become more pervasive, inevitabl# some of those regulations would reach conduct that for some individuals are religious. As a result, increasingl#, there ma# be inadvertent collisions between purel# secular government actions and religion clause values. **( Parallel to this e5pansion of government has been the e5pansion of religious organi0ations in population, ph#sical institutions, t#pes of activities underta"en, and sheer variet# of denominations, sects and cults. Churches run da#> care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfwa# houses for prisoners, sports facilities, theme par"s, publishing houses and mass media programs. <n these activities, religious organi0ations complement and compete with commercial enterprises, thus blurring the line between man# t#pes of activities underta"en b# religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessar# outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic 2ustice, and human life, or in ringing affirmations for racial e1ualit# on religious foundations. <nevitabl#, these developments have brought about substantial entanglement of religion and government. Hi"ewise, the growth in population densit#, mobilit# and diversit# has significantl# changed the environment in which religious organi0ations and activities e5ist and the laws affecting them are made. <t is no longer eas# for individuals to live solel# among their own "ind or to shelter their children from e5posure to

competing values. The result is disagreement over what laws should re1uire, permit or prohibit9 **6 and agreement that if the rights of believers as well as non>believers are all to be respected and given their 2ust due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided. **A Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposel# aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainl# unconstitutional. 7till, this "ind of cases poses difficult# in ascertaining proof of intent to aid or inhibit religion. **-The more difficult religion clause cases involve government action with a secular purpose and general applicabilit# which incidentall# or inadvertentl# aids or burdens religious e5ercise. <n ;ree E5ercise Clause cases, these government actions are referred to as those with 3burdensome effect3 on religious e5ercise even if the government action is not religiousl# motivated.**) <deall#, the legislature would recogni0e the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for protection. **. Most of these free e5ercise claims brought to the Court are for e5emption, not invalidation of the faciall# neutral law that has a 3burdensome3 effect. **, Bith the change in political and social conte5t and the increasing inadvertent collisions between law and religious e5ercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. /efining religion is a difficult tas" for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Cevertheless, courts must define religion for constitutional and other legal purposes.**+ <t was in the *,+8 case of /avis v. Beason*(8 that the Inited 7tates 7upreme Court first had occasion to define religion, viz% The term $religion$ has reference to one$s views of his relations to his Creator, and to the obligations the# impose of reverence for his being and character, and of obedience to his will. <t is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The ;irst Amendment to the Constitution, in declaring that Congress shall ma"e no law respecting the establishment of religion, or forbidding the free e5ercise thereof, was intended to allow ever#one under the 2urisdiction of the Inited 7tates to entertain such notions respecting his relations to his Ma"er and the duties the# impose as ma# be approved b# his 2udgment and conscience, and to e5hibit his sentiments in such form of worship as he ma# thin" proper, not in2urious to the e1ual rights of others, and to prohibit legislation for the support of an# religious tenets, or the modes of worship of an# sect. *(* The definition was clearl# theistic which was reflective of the popular attitudes in *,+8. <n *+AA, the Court stated in Inited 7tates v. Ballard*(( that the free e5ercise of religion 3embraces the right to maintain theories of life and of death and of the hereafter which are ran" heres# to followers of the orthodo5 faiths.3*(6 B# the *+)8s, American pluralism in religion had flourished to include non>theistic creeds from Asia such as Buddhism and Taoism.*(A <n *+)*, the Court, in Tor2a)o >. Aa(B;%),*(- e5panded the term 3religion3 to non> theistic beliefs such as Buddhism, Taoism, Ethical Culture, and 7ecular :umanism. ;our #ears later, the Court faced a definitional problem in Inited 7tates v. 7eeger *() which involved four men who claimed 3conscientious ob2ector3 status in refusing to serve in the Fietnam Bar. 'ne of the four, 7eeger, was not a member of an# organi0ed religion opposed to war, but when specificall# as"ed about his belief in a 7upreme Being, 7eeger stated that 3#ou could call (it! a belief in a 7upreme Being or Kod. These 2ust do not happen to be the words that < use.3 ;orest Peter, another one of the four claimed that after considerable meditation and reflection 3on values derived from the Bestern religious and philosophical tradition,3 he determined that it would be 3a violation of his moral code to ta"e human life and that he considered this belief superior to an# obligation to the state.3 The Court avoided a constitutional 1uestion b# broadl# interpreting not the ;ree E5ercise Clause, but the statutor# definition of religion in the Iniversal Militar# Training and 7ervice Act of *+A8 which e5empt from combat an#one 3who, b# reason of religious training and belief, is conscientiousl# opposed to participation in war in an# form.3 7pea"ing for the Court, =ustice Clar" ruled, viz% Congress, in using the e5pression $7upreme Being$ rather than the designation $Kod,$ was merel# clarif#ing the meaning of religious tradition and belief so as to embrace all religions and to e5clude essentiall# political, sociological, or philosophical views (and! the test of belief $in relation to a 7upreme Being$ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodo5 belief in Kod. (emphasis supplied! The Court was convinced that 7eeger, Peter and the others were conscientious ob2ectors possessed of such religious belief and training. ;ederal and state courts have e5panded the definition of religion in 7eeger to include even non>theistic beliefs such as Taoism or &en Buddhism. <t has been proposed that basicall#, a creed must meet four criteria to 1ualif# as

religion under the ;irst Amendment. ;irst, there must be belief in Kod or some parallel belief that occupies a central place in the believer$s life. 7econd, the religion must involve a moral code transcending individual belief, i.e., it cannot be purel# sub2ective. Third, a demonstrable sincerit# in belief is necessar#, but the court must not in1uire into the truth or reasonableness of the belief.*(. ;ourth, there must be some associational ties,*(,although there is also a view that religious beliefs held b# a single person rather than being part of the teachings of an# "ind of group or sect are entitled to the protection of the ;ree E5ercise Clause. *(+ /efining religion is onl# the beginning of the difficult tas" of deciding religion clause cases. :aving hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. <n this tas", the purpose of the clauses is the #ardstic". Their purpose is singular9 the# are two sides of the same coin.*68 <n devoting two clauses to religion, the ;ounders were stating not two opposing thoughts that would cancel each other out, but two complementar# thoughts that appl# in different wa#s in different circumstances. *6* The purpose of the religion clauses > both in the restriction it imposes on the power of the government to interfere with the free e5ercise of religion and the limitation on the power of government to establish, aid, and support religion > is the protection and promotion of religious libert#. *6( The end, the goal, and the rationale of the religion clauses is this libert#.*66 Both clauses were adopted to prevent government imposition of religious orthodo5#9 the great evil against which the# are directed is government>induced homogeneit#. *6A The ;ree E5ercise Clause directl# articulates the common ob2ective of the two clauses and the Establishment Clause specificall# addresses a form of interference with religious libert# with which the ;ramers were most familiar and for which government historicall# had demonstrated a propensit#. *6- <n other words, free e5ercise is the end, proscribing establishment is a necessar# means to this end to protect the rights of those who might dissent from whatever religion is established. *6) <t has even been suggested that the sense of the ;irst Amendment is captured if it were to read as 3Congress shall ma"e no law respecting an establishment of religion or otherwise prohibiting the free e5ercise thereof3 because the fundamental and single purpose of the two religious clauses is to 3avoid an# infringement on the free e5ercise of religions3*6. Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious libert#. The effect of the separation is to limit the opportunities for an# religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all*6, because histor# has shown that religious fervor con2oined with state power is li"el# to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state.*6+ <n the words of the I.7. 7upreme Court, the two clauses are interrelated, viz% 3(t!he structure of our government has, for the preservation of civil libert#, rescued the temporal institutions from religious interference. 'n the other hand, it has secured religious libert# from the invasion of the civil authorit#.3 *A8 <n upholding religious libert# as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutel# straight. Chief =ustice Burger e5plains, viz% The course of constitutional neutralit# in this area cannot be an absolutel# straight line9 rigidit# could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited. *A* (emphasis supplied! Conse1uentl#, I.7. 2urisprudence has produced two identifiabl# different, *A( even opposing, strains of 2urisprudence on the religion clauses% separation (in the form of strict separation or the tamer version of strict neutralit# or separation! and benevolent neutralit# or accommodation. A view of the landscape of I.7. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases. #. Free E=er2;)e C,au)e The Court first interpreted the ;ree E5ercise Clause in the *,., case of Re#nolds v. Inited 7tates. *A6 This landmar" case involved Re#nolds, a Mormon who proved that it was his religious dut# to have several wives and that the failure to practice pol#gam# b# male members of his religion when circumstances would permit would be punished with damnation in the life to come. Re#nolds$ act of contracting a second marriage violated 7ection -6-(, Revised 7tatutes prohibiting and penali0ing bigam#, for which he was convicted. The Court affirmed Re#nolds$ conviction, using what in 2urisprudence would be called the belief>action test which allows absolute protection to belief but not to action. <t cited =efferson$s Bill Establishing Religious ;reedom which, according to the Court, declares 3the true distinction between what properl# belongs to the Church and what to the 7tate.3 *AA The bill, ma"ing a distinction between belief and action, states in relevant part, viz% That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendenc#, is a dangerous fallac# which at once destro#s all religious libert#9

that it is time enough for the rightful purposes of civil government for its officers to interfere when principles brea" out into overt acts against peace and good order. *A- (emphasis supplied! The Court then held, viz% Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . . Haws are made for the government of actions, and while the# cannot interfere with mere religious belief and opinions, the# ma# with practices. 7uppose one believed that human sacrifice were a necessar# part of religious worship, would it be seriousl# contended that the civil government under which he lived could not interfere to prevent a sacrificeD 'r if a wife religiousl# believed it was her dut# to burn herself upon the funeral pile of her dead husband, would it be be#ond the power of the civil government to prevent her carr#ing her belief into practiceD 7o here, as a law of the organi0ation of societ# under the e5clusive dominion of the Inited 7tates, it is provided that plural marriages shall not be allowed. Can a man e5cuse his practices to the contrar# because of his religious beliefD To permit this would be to ma"e the professed doctrines of religious belief superior to the law of the land, and in effect to permit ever# citi0en to become a law unto himself. Kovernment could e5ist onl# in name under such circumstances.*A) The construct was thus simple% the state was absolutel# prohibited b# the ;ree E5ercise Clause from regulating individual religious beliefs, but placed no restriction on the abilit# of the state to regulate religiousl# motivated conduct. <t was logical for belief to be accorded absolute protection because an# statute designed to prohibit a particular religious belief unaccompanied b# an# conduct would most certainl# be motivated onl# b# the legislature$s preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the ;ree E5ercise Clause. 'n the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature$s religious preferences. An# burden on religion that results from state regulation of conduct arises onl# when particular individuals are engaging in the generall# regulated conduct because of their particular religious beliefs. These burdens are thus usuall# inadvertent and did not figure in the belief>action test. As long as the Court found that regulation address action rather than belief, the ;ree E5ercise Clause did not pose an# problem. *A. The ;ree E5ercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formall# outlawed the belief itself.*A, This belief>action distinction was held b# the Court for some #ears as shown b# cases where the Court upheld other laws which burdened the practice of the Mormon religion b# imposing various penalties on pol#gam# such as the /avis case and Church of Hatter /a# 7aints v. Inited 7tates. *A+ :owever, more than a centur# since Re#nolds was decided, the Court has e5panded the scope of protection from belief to speech and conduct. But while the belief> action test has been abandoned, the rulings in the earlier ;ree E5ercise cases have gone unchallenged. The belief> action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs.*-8 The ;ree E5ercise Clause accords absolute protection to individual religious convictions and beliefs *-* and proscribes government from 1uestioning a person$s beliefs or imposing penalties or disabilities based solel# on those beliefs. The Clause e5tends protection to both beliefs and unbelief. Thus, in Tor2a)o >. Aa(B;%),*-( a unanimous Court struc" down a state law re1uiring as a 1ualification for public office an oath declaring belief in the e5istence of Kod. The protection also allows courts to loo" into the good faith of a person in his belief, but prohibits in1uir# into the truth of a person$s religious beliefs. As held in U%;(e& S(a(e) >. -a,,ar&,*-6 3(h!eres# trials are foreign to the Constitution. Men ma# believe what the# cannot prove. The# ma# not be put to the proof of their religious doctrines or beliefs.3 Ce5t to belief which en2o#s virtuall# absolute protection, religious speech and e5pressive religious conduct are accorded the highest degree of protection. Thus, in the *+A8 case of Ca%(@e,, >. Co%%e2(;2u(,*-A the Court struc" down a state law prohibiting door>to>door solicitation for an# religious or charitable cause without prior approval of a state agenc#. The law was challenged b# Cantwell, a member of the =ehovah$s Bitnesses which is committed to active prosel#ti0ing. The Court invalidated the state statute as the prior approval necessar# was held to be a censorship of religion prohibited b# the ;ree E5ercise Clause. The Court held, viz% <n the realm of religious faith, and in that of political belief, sharp differences arise. <n both fields the tenets of one ma# seem the ran"est error to his neighbor. To persuade others to his point of view, the pleader, as we "now, resorts to e5aggeration, to vilification of men who have been, or are, prominent in church or state,

and even to false statement. But the people of this nation have ordained in the light of histor#, that, in spite of the probabilit# of e5cesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citi0ens of a democrac#. *-Cantwell too" a step forward from the protection afforded b# the Re#nolds case in that it not onl# affirmed protection of belief but also freedom to act for the propagation of that belief, viz% Thus the Amendment embraces two concepts > freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains sub2ect to regulation for the protection of societ#. . . <n ever# case, the power to regulate must be so e5ercised as not, in attaining a permissible end, undul# to infringe the protected freedom. (emphasis supplied! *-) The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safet# of the communit#. Three #ears after Cantwell, the Court in Dou3,a) >. C;(y o< +ea%e((e,*-. ruled that police could not prohibit members of the =ehovah$s Bitnesses from peaceabl# and orderl# prosel#ti0ing on 7unda#s merel# because other citi0ens complained. <n another case li"ewise involving the =ehovah$s Bitnesses, N;e6o(Bo >. Mary,a%&,*-, the Court unanimousl# held unconstitutional a cit# council$s denial of a permit to the =ehovah$s Bitnesses to use the cit# par" for a public meeting. The cit# council$s refusal was because of the 3unsatisfactor#3 answers of the =ehovah$s Bitnesses to 1uestions about Catholicism, militar# service, and other issues. The denial of the public forum was considered blatant censorship. Bhile protected, religious speech in the public forum is still sub2ect to reasonable time, place and manner regulations similar to non>religious speech. Religious prosel#ti0ing in congested areas, for e5ample, ma# be limited to certain areas to maintain the safe and orderl# flow of pedestrians and vehicular traffic as held in the case of /e<<ro% >. I%(er%a(;o%a, So2;e(y <or Cr;)4%a Co%)2;ou)%e)).*-+ The least protected under the ;ree E5ercise Clause is religious conduct, usuall# in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action.*)8 The Mormons$ religious conduct of pol#gam# is an e5ample of unconventional religious practice. As discussed in the Re#nolds case above, the Court did not afford protection to the practice. Re#nolds was reiterated in the *,+8 case of /avis again involving Mormons, where the Court held, viz% 3(c!rime is not the less odious because sanctioned b# what an# particular sect ma# designate as religion.3 *)* The belief>action test in Re#nolds and /avis proved unsatisfactor#. Inder this test, regulation of religiousl# dictated conduct would be upheld no matter how central the conduct was to the e5ercise of religion and no matter how insignificant was the government$s non>religious regulator# interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic belief>action distinction and instead recogni0ed the deliberate>inadvertent distinction, i.e., the distinction between deliberate state interference of religious e5ercise for religious reasons which was plainl# unconstitutional and government$s inadvertent interference with religion in pursuing some secular ob2ective.*)( <n the *+A8 case of M;%er)>;,,e S24oo, D;)(r;2( >. Gob;(;),*)6 the Court upheld a local school board re1uirement that all public school students participate in a dail# flag salute program, including the =ehovah$s Bitnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a 3graven image.3 The Court recogni0ed that the general re1uirement of compulsor# flag salute inadvertentl# burdened the =ehovah Bitnesses$ practice of their religion, but 2ustified the government regulation as an appropriate means of attaining national unit#, which was the 3basis of national securit#.3 Thus, although the Court was alread# aware of the deliberate>inadvertent distinction in government interference with religion, it continued to hold that the ;ree E5ercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state$s non> religious ob2ectives, and no matter how man# alternative approaches were available to the state to pursue its ob2ectives with less impact on religion, so long as government was acting in pursuit of a secular ob2ective. Three #ears later, the Kobitis decision was overturned in Ae)( V;r3;%;a >. -ar%e((e*)A which involved a similar set of facts and issue. The Court recogni0ed that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that 3compulsor# unification of opinions leads onl# to the unanimit# of the grave#ard3 and e5empt the students who were members of the =ehovah$s Bitnesses from saluting the flag. A close scrutin# of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, 3(n!or does the issue as we see it turn on one$s possession of particular religious views or the sincerit# with which the# are held. Bhile religion supplies appellees$ motive for enduring the discomforts of ma"ing the issue in this case, man# citi0ens who do not share these religious views hold such a compulsor# rite to infringe constitutional libert# of the individual.3 (emphasis supplied!*)- The Court pronounced, however, that, 3freedoms of speech and of press, of assembl#, and of worship . . . are susceptible onl# of restriction onl# to prevent grave and immediate danger to interests which the state ma#

lawfull# protect.3*)) The Court seemed to recogni0e the e5tent to which its approach in Kobitis subordinated the religious libert# of political minorities > a speciall# protected constitutional value > to the common ever#da# economic and public welfare ob2ectives of the ma2orit# in the legislature. This time, even inadvertent interference with religion must pass 2udicial scrutin# under the ;ree E5ercise Clause with onl# grave and immediate danger sufficing to override religious libert#. But the seeds of this heightened scrutin# would onl# grow to a full flower in the *+)8s. *). Cearl# a centur# after Re#nolds emplo#ed the belief>action test, the Barren Court began the modern free e5ercise 2urisprudence.*), A two>part balancing test was established in -rau%<e,& >. -ro@%*)+ where the Court considered the constitutionalit# of appl#ing 7unda# closing laws to 'rthodo5 =ews whose beliefs re1uired them to observe another da# as the 7abbath and abstain from commercial activit# on 7aturda#. Chief =ustice Barren, writing for the Court, found that the law placed a severe burden on 7abattarian retailers. :e noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the ;ree E5ercise Clause onl# if there were alternative wa#s of achieving the state$s interest. :e emplo#ed a two>part balancing test of validit# where the first step was for plaintiff to show that the regulation placed a real burden on his religious e5ercise. Ce5t, the burden would be upheld onl# if the state showed that it was pursuing an overriding secular goal b# the means which imposed the least burden on religious practices.*.8 The Court found that the state had an overriding secular interest in setting aside a single da# for rest, recreation and tran1uilit# and there was no alternative means of pursuing this interest but to re1uire 7unda# as a uniform rest da#. Two #ears after came the stricter compelling state interest test in the *+)6 case of S4erber( >. Ver%er.*.* This test was similar to the two>part balancing test in Braunfeld, *.( but this latter test stressed that the state interest was not merel# an# colorable state interest, but must be paramount and compelling to override the free e5ercise claim. <n this case, 7herbert, a 7eventh /a# Adventist, claimed unemplo#ment compensation under the law as her emplo#ment was terminated for refusal to wor" on 7aturda#s on religious grounds. :er claim was denied. 7he sought recourse in the 7upreme Court. <n la#ing down the standard for determining whether the denial of benefits could withstand constitutional scrutin#, the Court ruled, viz% Plainl# enough, appellee$s conscientious ob2ection to 7aturda# wor" constitutes no conduct prompted b# religious principles of a "ind within the reach of state legislation. <f, therefore, the decision of the 7outh Carolina 7upreme Court is to withstand appellant$s constitutional challenge, it must be either because her dis1ualification as a beneficiar# represents no infringement b# the 7tate of her constitutional rights of free e5ercise, or because an# incidental burden on the free e5ercise of appellant$s religion ma# be 2ustified b# a $compelling state interest in the regulation of a sub2ect within the 7tate$s constitutional power to regulate. . .$N##CP >. -u((o%, 6.* I7 A*-, A6, + H ed (d A8-, A(*, ,6 7 Ct 6(,. *.6 (emphasis supplied! The Court stressed that in the area of religious libert#, it is basic that it is not sufficient to merel# show a rational relationship of the substantial infringement to the religious right and a colorable state interest. 3(<!n this highl# sensitive constitutional area, $?o@nl# the gravest abuses, endangering paramount interests, give occasion for permissible limitation.$ Thomas v. Collins, 6(6 I7 -*), -68, ,+ H ed A68, AA8, )- 7 Ct 6*-.3 *.A The Court found that there was no such compelling state interest to override 7herbert$s religious libert#. <t added that even if the state could show that 7herbert$s e5emption would pose serious detrimental effects to the unemplo#ment compensation fund and scheduling of wor", it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious libert#. The state, however, did not discharge this burden. The Court thus carved out for 7herbert an e5emption from the 7aturda# wor" re1uirement that caused her dis1ualification from claiming the unemplo#ment benefits. The Court reasoned that upholding the denial of 7herbert$s benefits would force her to choose between receiving benefits and following her religion. This choice placed 3the same "ind of burden upon the free e5ercise of religion as would a fine imposed against (her! for her 7aturda# worship.3 This germinal case of 7herbert firml# established the e5emption doctrine, *.- viz% <t is certain that not ever# conscience can be accommodated b# all the laws of the land9 but when general laws conflict with scruples of conscience, e5emptions ought to be granted unless some $compelling state interest$ intervenes. Thus, in a short period of twent#>three #ears from Kobitis to 7herbert (or even as earl# as Braunfeld!, the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the ;ree E5ercise Clause to the doctrine that such interferences violate the ;ree E5ercise Clause in the absence of a compelling state interest > the highest level of constitutional scrutin# short of a holding of a per se violation. Thus, the problem posed b# the belief>action test and the deliberate>inadvertent distinction was addressed. *.) Throughout the *+.8s and *+,8s under the Barren, and afterwards, the Burger Court, the rationale in 7herbert continued to be applied. <n T4o6a) >. Re>;e@ -oar&*.. and /obb;e >. U%e65,oy6e%( #55ea,) D;>;);o%,*.,for e5ample, the Court reiterated the e5emption doctrine and held that in the absence of a compelling 2ustification, a

state could not withhold unemplo#ment compensation from an emplo#ee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with 2ob re1uirements. But not ever# governmental refusal to allow an e5emption from a regulation which burdens a sincerel# held religious belief has been invalidated, even though strict or heightened scrutin# is applied. <n U%;(e& S(a(e) >. "ee,*.+ for instance, the Court using strict scrutin# and referring to Thomas, upheld the federal government$s refusal to e5empt Amish emplo#ers who re1uested for e5emption from pa#ing social securit# ta5es on wages on the ground of religious beliefs. The Court held that 3(b!ecause the broad public interest in maintaining a sound ta5 s#stem is of such a high order, religious belief in conflict with the pa#ment of ta5es affords no basis for resisting the ta5.3 *,8 <t reasoned that unli"e in 7herbert, an e5emption would significantl# impair government$s achievement of its ob2ective > 3the fiscal vitalit# of the social securit# s#stem93 mandator# participation is indispensable to attain this ob2ective. The Court noted that if an e5emption were made, it would be hard to 2ustif# not allowing a similar e5emption from general federal ta5es where the ta5pa#er argues that his religious beliefs re1uire him to reduce or eliminate his pa#ments so that he will not contribute to the government$s war>related activities, for e5ample. The strict scrutin# and compelling state interest test significantl# increased the degree of protection afforded to religiousl# motivated conduct. Bhile not affording absolute immunit# to religious activit#, a compelling secular 2ustification was necessar# to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereb# producing dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free e5ercise of religion.*,* :eightened scrutin# was also used in the *+.( case of A;)2o%);% >. 7o&er*,( where the Court upheld the religious practice of the 'ld 'rder Amish faith over the state$s compulsor# high school attendance law. The Amish parents in this case did not permit secular education of their children be#ond the eighth grade. Chief =ustice Burger, writing for the ma2orit#, held, viz% <t follows that in order for Bisconsin to compel school attendance be#ond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the 7tate does not den# the free e5ercise of religious belief b# its re1uirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the ;ree E5ercise Clause. Hong before there was general ac"nowledgement of the need for universal education, the Religion Clauses had speciall# and firml# fi5ed the right of free e5ercise of religious beliefs, and buttressing this fundamental right was an e1uall# firm, even if less e5plicit, prohibition against the establishment of an# religion. The values underl#ing these two provisions relating to religion have been 0ealousl# protected, sometimes even at the e5pense of other interests of admittedl# high social importance. . . The essence of all that has been said and written on the sub2ect is that onl# those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free e5ercise of religion. . . . . . our decisions have re2ected the idea that that religiousl# grounded conduct is alwa#s outside the protection of the ;ree E5ercise Clause. <t is true that activities of individuals, even when religiousl# based, are often sub2ect to regulation b# the 7tates in the e5ercise of their undoubted power to promote the health, safet#, and general welfare, or the ;ederal government in the e5ercise of its delegated powers . . . But to agree that religiousl# grounded conduct must often be sub2ect to the broad police power of the 7tate is not to den# that there are areas of conduct protected b# the ;ree E5ercise Clause of the ;irst Amendment and thus be#ond the power of the 7tate to control, even under regulations of general applicabilit#. . . .This case, therefore, does not become easier because respondents were convicted for their 3actions3 in refusing to send their children to the public high school9 in this conte5t belief and action cannot be neatl# confined in logic>tight compartments. . .*,6 The onset of the *++8s, however, saw a ma2or setbac" in the protection afforded b# the ;ree E5ercise Clause. <n Emplo#ment /ivision, Ore3o% De5ar(6e%( o< /u6a% Re)our2e) >. S6;(4,*,A the sharpl# divided Rehn1uist Court dramaticall# departed from the heightened scrutin# and compelling 2ustification approach and imposed serious limits on the scope of protection of religious freedom afforded b# the ;irst Amendment. <n this case, the well>established practice of the Cative American Church, a sect outside the =udeo>Christian mainstream of American religion, came in conflict with the state$s interest in prohibiting the use of illicit drugs. 'regon$s controlled substances statute made the possession of pe#ote a criminal offense. Two members of the church, 7mith and Blac", wor"ed as drug rehabilitation counselors for a private social service agenc# in 'regon. Along with other church members, 7mith and Blac" ingested pe#ote, a hallucinogenic drug, at a sacramental ceremon# practiced b# Cative Americans for hundreds of #ears. The social service agenc# fired 7mith and Blac" citing their use of pe#ote as 32ob>related misconduct3. The# applied for unemplo#ment compensation, but the 'regon Emplo#ment Appeals Board denied their application as the# were discharged for 2ob>related misconduct. =ustice 7calia, writing for the ma2orit#, ruled

that 3if prohibiting the e5ercise of religion . . . is . . . merel# the incidental effect of a generall# applicable and otherwise valid law, the ;irst Amendment has not been offended.3 <n other words, the ;ree E5ercise Clause would be offended onl# if a particular religious practice were singled out for proscription. The ma2orit# opinion relied heavil# on the Re#nolds case and in effect, e1uated 'regon$s drug prohibition law with the anti>pol#gam# statute in Re#nolds. The relevant portion of the ma2orit# opinion held, viz% Be have never invalidated an# governmental action on the basis of the 7herbert test e5cept the denial of unemplo#ment compensation. Even if we were inclined to breathe into 7herbert some life be#ond the unemplo#ment compensation field, we would not appl# it to re1uire e5emptions from a generall# applicable criminal law. . . Be conclude toda# that the sounder approach, and the approach in accord with the vast ma2orit# of our precedents, is to hold the test inapplicable to such challenges. The government$s abilit# to enforce generall# applicable prohibitions of sociall# harmful conduct, li"e its abilit# to carr# out other aspects of public polic#, 3cannot depend on measuring the effects of a governmental action on a religious ob2ector$s spiritual development.3 . . .To ma"e an individual$s obligation to obe# such a law contingent upon the law$s coincidence with his religious beliefs e5cept where the 7tate$s interest is 3compelling3 > permitting him, b# virtue of his beliefs, 3to become a law unto himself,3 . . . > contradicts both constitutional tradition and common sense. =ustice '$Connor wrote a concurring opinion pointing out that the ma2orit#$s re2ection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the ;ree E5ercise Clause had not been offended, she sharpl# critici0ed the ma2orit# opinion as a dramatic departure 3from well>settled ;irst Amendment 2urisprudence. . . and . . . (as! incompatible with our Cation$s fundamental commitment to religious libert#.3 This portion of her concurring opinion was supported b# =ustices Brennan, Marshall and Blac"mun who dissented from the Court$s decision. =ustice '$Connor asserted that 3(t!he compelling state interest test effectuates the ;irst Amendment$s command that religious libert# is an independent libert#, that it occupies a preferred position, and that the Court will not permit encroachments upon this libert#, whether direct or indirect, unless re1uired b# clear and compelling government interest $of the highest order$.3 =ustice Blac"mun registered a separate dissenting opinion, 2oined b# =ustices Brennan and Marshall. :e charged the ma2orit# with 3mischaracteri0ing3 precedents and 3overturning. . . settled law concerning the Religion Clauses of our Constitution.3 :e pointed out that the Cative American Church restricted and supervised the sacramental use of pe#ote. Thus, the state had no significant health or safet# 2ustification for regulating the sacramental drug use. :e also observed that 'regon had not attempted to prosecute 7mith or Blac", or an# Cative Americans, for that matter, for the sacramental use of pe#ote. <n conclusion, he said that 3'regon$s interest in enforcing its drug laws against religious use of pe#ote (was! not sufficientl# compelling to outweigh respondents$ right to the free e5ercise of their religion.3 The Court went bac" to the Re#nolds and Kobitis doctrine in 7mith. The Court$s standard in 7mith virtuall# eliminated the re1uirement that the government 2ustif# with a compelling state interest the burdens on religious e5ercise imposed b# laws neutral toward religion. The 7mith doctrine is highl# unsatisfactor# in several respects and has been critici0ed as e5hibiting a shallow understanding of free e5ercise 2urisprudence. *,- ;irst, the ;irst amendment was intended to protect minorit# religions from the t#rann# of the religious and political ma2orit#. A deliberate regulator# interference with minorit# religious freedom is the worst form of this t#rann#. But regulator# interference with a minorit# religion as a result of ignorance or sensitivit# of the religious and political ma2orit# is no less an interference with the minorit#$s religious freedom. <f the regulation had instead restricted the ma2orit#$s religious practice, the ma2oritarian legislative process would in all probabilit# have modified or re2ected the regulation. Thus, the imposition of the political ma2orit#$s non>religious ob2ectives at the e5pense of the minorit#$s religious interests implements the ma2orit#$s religious viewpoint at the e5pense of the minorit#$s. 7econd, government impairment of religious libert# would most often be of the inadvertent "ind as in 7mith considering the political culture where direct and deliberate regulator# imposition of religious orthodo5# is nearl# inconceivable. <f the ;ree E5ercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Re#nolds>Kobitis>7mith doctrine simpl# defies common sense. The state should not be allowed to interfere with the most deepl# held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic ob2ective. This is especiall# true when there are alternative approaches for the state to effectivel# pursue its ob2ective without serious inadvertent impact on religion. *,) Thus, the 7mith decision has been critici0ed not onl# for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lac" legislative clout,*,. contrar# to the original theor# of the ;irst Amendment. *,, Indeniabl#, claims for 2udicial e5emption emanate almost invariabl# from relativel# politicall# powerless minorit# religions and 7mith virtuall# wiped out their 2udicial recourse for e5emption.*,+ Thus, the 7mith decision elicited much negative public reaction especiall# from the

religious communit#, and commentaries insisted that the Court was allowing the ;ree E5ercise Clause to disappear.*+8 7o much was the uproar that a ma2orit# in Congress was convinced to enact the Religious ;reedom Restoration Act (R;RA! of *++6. The R;RA prohibited government at all levels from substantiall# burdening a person$s free e5ercise of religion, even if such burden resulted from a generall# applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.*+* R;RA, in effect, sought to overturn the substance of the 7mith ruling and restore the status 1uo prior to 7mith. Three #ears after the R;RA was enacted, however, the Court, dividing ) to 6, declared the R;RA unconstitutional in C;(y o< -oer%e >. F,ore).*+( The Court ruled that 3R;RA contradicts vital principles necessar# to maintain separation of powers and the federal balance.3 <t emphasi0ed the primac# of its role as interpreter of the Constitution and une1uivocall# re2ected, on broad institutional grounds, a direct congressional challenge of final 2udicial authorit# on a 1uestion of constitutional interpretation. After 7mith came C4ur24 o< (4e "uBu6; -aba,u #ye, I%2. >. C;(y o< /;a,ea4*+6 which was ruled consistent with the 7mith doctrine. This case involved animal sacrifice of the 7anteria, a blend of Roman Catholicism and Best African religions brought to the Carribean b# East African slaves. An ordinance made it a crime to 3unnecessaril# "ill, torment, torture, or mutilate an animal in public or private ritual or ceremon# not for the primar# purpose of food consumption.3 The ordinance came as a response to the local concern over the sacrificial practices of the 7anteria. =ustice Menned#, writing for the ma2orit#, carefull# pointed out that the 1uestioned ordinance was not a generall# applicable criminal prohibition, but instead singled out practitioners of the 7anteria in that it forbade animal slaughter onl# insofar as it too" place within the conte5t of religious rituals. <t ma# be seen from the foregoing cases that under the ;ree E5ercise Clause, religious belief is absolutel# protected, religious speech and prosel#ti0ing are highl# protected but sub2ect to restraints applicable to non> religious speech, and unconventional religious practice receives less protection9 nevertheless conduct, even if its violates a law, could be accorded protection as shown in Bisconsin. *+A -. E)(ab,;)46e%( C,au)e The Court$s first encounter with the Establishment Clause was in the *+A. case of E>er)o% >. -oar& o< E&u2a(;o%.*+- Prior cases had made passing reference to the Establishment Clause *+) and raised establishment 1uestions but were decided on other grounds.*+. <t was in the Everson case that the I.7. 7upreme Court adopted =efferson$s metaphor of 3a wall of separation between church and state3 as encapsulating the meaning of the Establishment Clause. The often and loosel# used phrase 3separation of church and state3 does not appear in the I.7. Constitution. <t became part of I.7. 2urisprudence when the Court in the *,., case of Rey%o,&) >. U%;(e& S(a(e)*+, 1uoted =efferson$s famous letter of *,8( to the /anbur# Baptist Association in narrating the histor# of the religion clauses, viz% Believing with #ou that religion is a matter which lies solel# between man and his Kod9 that he owes account to none other for his faith or his worship9 that the legislative powers of the Kovernment reach actions onl#, and not opinions, < contemplate with sovereign reverence that act of the whole American people which declared that their Hegislature should $ma"e no law respecting an establishment of religion or prohibiting the free e5ercise thereof,$ thus building a wall of separation between Church and 7tate. *++ (emphasis supplied! Chief =ustice Baite, spea"ing for the ma2orit#, then added, 3(c!oming as this does from an ac"nowledged leader of the advocates of the measure, it ma# be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.3(88 The interpretation of the Establishment Clause has in large part been in cases involving education, notabl# state aid to private religious schools and pra#er in public schools. (8* <n Everson v. Board of Education, for e5ample, the issue was whether a Cew =erse# local school board could reimburse parents for e5penses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. =ustice :ugo Blac", writing for a sharpl# divided Court, 2ustified the reimbursements on the child benefit theor#, i.e., that the school board was merel# furthering the state$s legitimate interest in getting children 3regardless of their religion, safel# and e5peditiousl# to and from accredited schools.3 The Court, after narrating the histor# of the ;irst Amendment in Firginia, interpreted the Establishment Clause, viz% The $establishment of religion$ clause of the ;irst Amendment means at least this% Ceither a state nor the ;ederal Kovernment can set up a church. Ceither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Ceither can force nor influence a person to go to or remain awa# from church against his will or force him to profess a belief or disbelief in an# religion. Co person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non>attendance. Co ta5

in an# amount, large or small, can be levied to support an# religious activities or institutions, whatever the# ma# be called, or whatever form the# ma# adopt to teach or practice religion. Ceither a state nor the ;ederal Kovernment can, openl# or secretl# participate in the affairs of an# religious organi0ations or groups and vice versa. <n the words of =efferson, the clause against establishment of religion b# law was intended to erect 3a wall of separation between Church and 7tate.3 (8( The Court then ended the opinion, viz% The ;irst Amendment has erected a wall between church and state. That wall must be "ept high and impregnable. Be could not approve the slightest breach. Cew =erse# has not breached it here. (86 B# *+.*, the Court integrated the different elements of the Court$s Establishment Clause 2urisprudence that evolved in the *+-8s and *+)8s and laid down a three>pronged test in "e6o% >. Cur(D6a%(8A in determining the constitutionalit# of policies challenged under the Establishment Clause. This case involved a Penns#lvania statutor# program providing publicl# funded reimbursement for the cost of teachers$ salaries, te5tboo"s, and instructional materials in secular sub2ects and a Rhode <sland statute providing salar# supplements to teachers in parochial schools. The Hemon test re1uires a challenged polic# to meet the following criteria to pass scrutin# under the Establishment Clause. 3;irst, the statute must have a secular legislative purpose9 second, its primar# or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 6+( I7 (6), (A6, (8 H Ed (d *8)8, *8)-, ,, 7 Ct *+(6 ?*+),@!9 finall#, the statute must not foster $an e5cessive entanglement with religion.$ (Bal0 v.Ta5 Commission, 6+. I7 ))A, )),, (- H Ed (d )+., .8*, +8 7 Ct *A8+ ?*+.8@!3 (emphasis supplied!(8- Ising this test, the Court held that the Penns#lvania statutor# program and Rhode <sland statute were unconstitutional as fostering e5cessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school pra#er decisions. 3;ew decisions of the modern 7upreme Court have been critici0ed more intensel# than the school pra#er decisions of the earl# *+)8s.3(8) <n the *+)( case of E%3e, >. V;(a,e,(8. the Court invalidated a Cew Jor" Board of Regents polic# that established the voluntar# recitation of a brief generic pra#er b# children in the public schools at the start of each school da#. The ma2orit# opinion written b# =ustice Blac" stated that 3in this countr# it is no part of the business of government to compose official pra#ers for an# group of the American people to recite as part of a religious program carried on b# government.3 <n fact, histor# shows that this ver# practice of establishing governmentall# composed pra#ers for religious services was one of the reasons that caused man# of the earl# colonists to leave England and see" religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destro# government and to degrade religion. The following #ear, the Engel decision was reinforced in #b;%3(o% S24oo, D;)(r;2( >. S24e655(8, and Murray >. Cur,e(((8+ where the Court struc" down the practice of Bible reading and the recitation of the Hord$s pra#er in the Penns#lvania and Mar#land schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a primar# effect that neither advances nor inhibits religion. <t reiterated, viz% The wholesome $neutralit#$ of which this Court$s cases spea" thus stems from a recognition of the teachings of histor# that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependenc# of one upon the other to the end that official support of the 7tate of ;ederal Kovernment would be placed behind the tenets of one or of all orthodo5ies. This the Establishment Clause prohibits. And a further reason for neutralit# is found in the ;ree E5ercise Clause, which recogni0es the value of religious training, teaching and observance and, more particularl#, the right of ever# person to freel# choose his own course with reference thereto, free of an# compulsion from the state. (*8 The school pra#er decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed b# several state legislatures condemned these decisions. (** 'n several occasions, constitutional amendments have been introduced in Congress to overturn the school pra#er decisions. 7till, the Court has maintained its position and has in fact reinforced it in the *+,- case of Aa,,a2e >. +a<<ree(*( where the Court struc" down an Alabama law that re1uired public school students to observe a moment of silence 3for the purpose of meditation or voluntar# pra#er3 at the start of each school da#. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. 'ptional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the *+A, case of M2Co,,u6 >. -oar& o< E&u2a(;o%,(*6 decided 2ust a #ear after the seminal Everson case. <n this case, interested members of the =ewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended b# pupils whose parents signed printed cards re1uesting that their children be permitted to attend. The classes were taught in three separate groups b# Protestant teachers,

Catholic priests and a =ewish rabbi and were held wee"l# from thirt# to fort# minutes during regular class hours in the regular classrooms of the school building. The religious teachers were emplo#ed at no e5pense to the school authorities but the# were sub2ect to the approval and supervision of the superintendent of schools. 7tudents who did not choose to ta"e religious instruction were re1uired to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular stud# for religious instruction were re1uired to attend the religious classes. The Court held that the use of ta5>supported propert# for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of ta5>established and ta5>supported public school s#stem to aid religious groups spread their faith. The Court re2ected the claim that the Establishment Clause onl# prohibited government preference of one religion over another and not an impartial governmental assistance of all religions. <n $ora24 >. C,au)o%,(*A however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended stud# hall. =ustice /ouglas, the writer of the opinion, stressed that 3(t!he ;irst Amendment does not re1uire that in ever# and all respects there shall be a separation of Church and 7tate.3 The Court distinguished &orach from McCollum, viz% <n the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . Be follow the McCollum case. But we cannot e5pand it to cover the present released time program unless separation of Church and 7tate means that public institutions can ma"e no ad2ustments of their schedules to accommodate the religious needs of the people. Be cannot read into the Bill of Rights such a philosoph# of hostilit# to religion. (*<n the area of government displa#s or affirmations of belief, the Court has given leewa# to religious beliefs and practices which have ac1uired a secular meaning and have become deepl# entrenched in histor#. ;or instance, inM2Go@a% >. Mary,a%&,(*) the Court upheld laws that prohibited certain businesses from operating on 7unda# despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the 7unda# closing laws and treating as incidental the fact that this da# of rest happened to be the da# of worship for most Christians, the Court held, viz% <t is common "nowledge that the first da# of the wee" has come to have special significance as a rest da# in this countr#. People of all religions and people with no religion regard 7unda# as a time for famil# activit#, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the li"e.(*. <n the *+,6 case of Mar)4 >. C4a6ber),(*, the Court refused to invalidate Cebras"a$s polic# of beginning legislative sessions with pra#ers offered b# a Protestant chaplain retained at the ta5pa#ers$ e5pense. The ma2orit# opinion did not rel# on the Hemon test and instead drew heavil# from histor# and the need for accommodation of popular religious beliefs, viz% <n light of the unambiguous and unbro"en histor# of more than (88 #ears, there can be no doubt that the practice of opening legislative sessions with pra#er has become the fabric of our societ#. To invo"e /ivine guidance on a public bod# entrusted with ma"ing the laws is not, in these circumstances, an 3establishment3 of religion or a step toward establishment9 it is simpl# a tolerable ac"nowledgement of beliefs widel# held among the people of this countr#. As =ustice /ouglas observed, 3(w!e are a religious people whose institutions presuppose a 7upreme Being.3 (&orach c. Clauson, 6A6 I7 68), 6*6 ?*+-(@! (*+ (emphasis supplied! 7ome view the Marsh ruling as a mere aberration as the Court would 3inevitabl# be embarrassed if it were to attempt to stri"e down a practice that occurs in nearl# ever# legislature in the Inited 7tates, including the I.7. Congress.3((8 That Marsh was not an aberration is suggested b# subse1uent cases. <n the *+,A case of "y%24 >. Do%%e,,y,((* the Court upheld a cit#>sponsored nativit# scene in Rhode <sland. B# a ->A decision, the ma2orit# opinion hardl# emplo#ed the Hemon test and again relied on histor# and the fact that the creche had become a 3neutral harbinger of the holida# season3 for man#, rather than a s#mbol of Christianit#. The Establishment Clause has also been interpreted in the area of ta5 e5emption. B# tradition, church and charitable institutions have been e5empt from local propert# ta5es and their income e5empt from federal and state income ta5es. <n the *+.8 case of Aa,D >. Ta= Co66;));o%,((( the Cew Jor" Cit# Ta5 Commission$s grant of propert# ta5 e5emptions to churches as allowed b# state law was challenged b# Bal0 on the theor# that this re1uired him to subsidi0e those churches indirectl#. The Court upheld the law stressing its neutralit#, viz% <t has not singled out one particular church or religious group or even churches as such9 rather, it has granted e5emptions to all houses of religious worship within a broad class of propert# owned b# non>profit, 1uasi>public corporations . . . The 7tate has an affirmative polic# that considers these groups as beneficial

and stabili0ing influences in communit# life and finds this classification useful, desirable, and in the public interest.((6 The Court added that the e5emption was not establishing religion but 3sparing the e5ercise of religion from the burden of propert# ta5ation levied on private profit institutions3 ((A and preventing e5cessive entanglement between state and religion. At the same time, the Court ac"nowledged the long>standing practice of religious ta5 e5emption and the Court$s traditional deference to legislative bodies with respect to the ta5ing power, viz% (f!ew concepts are more deepl# embedded in the fabric of our national life, beginning with pre>Revolutionar# colonial times, than for the government to e5ercise . . . this "ind of benevolent neutralit# toward churches and religious e5ercise generall# so long as none was favored over others and none suffered interference.((- (emphasis supplied! C. S(r;2( Neu(ra,;(y >. -e%e>o,e%( Neu(ra,;(y To be sure, the cases discussed above, while citing man# landmar" decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the I.7. 7upreme Court has passed upon. Court rulings contrar# to or ma"ing nuances of the above cases ma# be cited. Professor McConnell poignantl# recogni0es this, viz% Thus, as of toda#, it is constitutional for a state to hire a Presb#terian minister to lead the legislature in dail# pra#ers (Marsh v. Chambers, A)6 I7.,6, .+(>+6?*+,6@!, but unconstitutional for a state to set aside a moment of silence in the schools for children to pra# if the# want to (Ballace v. =affree, A.( I7 6,, -) ?*+,-@!. <t is unconstitutional for a state to re1uire emplo#ers to accommodate their emplo#ees$ wor" schedules to their sabbath observances (Estate of Thornton v. Caldor, <nc., A.( I7 .86, .8+>*8 ?*+,-@! but constitutionall# mandator# for a state to re1uire emplo#ers to pa# wor"ers compensation when the resulting inconsistenc# between wor" and sabbath leads to discharge (. . .7herbert v. Ferner, 6.A I7 6+,, A86>A ?*+)6@!. <t is constitutional for the government to give mone# to religiousl#>affiliated organi0ations to teach adolescents about proper se5ual behavior (Bowen v. Mendric", A,. I7 -,+, )** ?*+,,@!, but not to teach them science or histor# (Hemon v. Murt0man, A86 I7 )8(, )*,>)*+ ?*+.*@!. <t is constitutional for the government to provide religious school pupils with boo"s (Board of Education v. Allen, 6+( I7 (6), (6, ?*+),@!, but not with maps (Bolman v. Balter, A66 I7 ((+, (A+>-* ?*+..@!9 with bus rides to religious schools (Everson v. Board of Education, 668 I7 *, *. ?*+A.@!, but not from school to a museum on a field trip (Bolman v. Balter, A66 I7 ((+, (-(>-- ?*+..@!9 with cash to pa# for state>mandated standardi0ed tests (Committee for Pub. Educ. and Religious Hibert# v. Regan, AAA I7 )A), )-6>-A ?*+,8@!, but not to pa# for safet#>related maintenance (Committee for Pub. Educ v. C#1uist, A*6 I7 .-), ..A>,8 ?*+.6@!. <t is a mess.(() But the purpose of the overview is not to review the entiret# of the I.7. religion clause 2urisprudence nor to e5tract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of 2urisprudence has demonstrated two main standards used b# the Court in deciding religion clause cases% separation (in the form of strict separation or the tamer version of strict neutralit# or separation! and benevolent neutralit# or accommodation. The weight of current authorit#, 2udicial and in terms of sheer volume, appears to lie with the separationists, strict or tame.((. But the accommodationists have also attracted a number of influential scholars and 2urists.((, The two standards producing two streams of 2urisprudence branch out respectivel# from the histor# of the ;irst Amendment in England and the American colonies and clima5ing in Firginia as narrated in this opinion and officiall# ac"nowledged b# the Court in Everson, and from American societal life which reveres religion and practices age>old religious traditions. 7tated otherwise, separation > strict or tame > protects the principle of church> state separation with a rigid reading of the principle while benevolent neutralit# protects religious realities, tradition and established practice with a fle5ible reading of the principle. ((+ The latter also appeals to histor# in support of its position, viz% The opposing school of thought argues that the ;irst Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion. . . the 7upreme Court has overloo"ed man# important pieces of histor#. Madison, for e5ample, was on the congressional committee that appointed a chaplain, he declared several national da#s of pra#er and fasting during his presidenc#, and he sponsored =efferson$s bill for punishing 7abbath brea"ers9 moreover, while president, =efferson allowed federal support of religious missions to the <ndians. . . And so, concludes one recent boo", $there is no support in the Congressional records that either the ;irst Congress, which framed the ;irst Amendment, or its principal author and sponsor, =ames Madison, intended that Amendment to

create a state of complete independence between religion and government. <n fact, the evidence in the public documents goes the other wa#. (68 (emphasis supplied! To succinctl# and poignantl# illustrate the historical basis of benevolent neutralit# that gives room for accommodation, less than twent#>four hours after Congress adopted the ;irst Amendment$s prohibition on laws respecting an establishment of religion, Congress decided to e5press its than"s to Kod Almight# for the man# blessings en2o#ed b# the nation with a resolution in favor of a presidential proclamation declaring a national da# of Than"sgiving and Pra#er. 'nl# two members of Congress opposed the resolution, one on the ground that the move was a 3mimic"ing of European customs, where the# made a mere moc"er# of than"sgivings3, the other on establishment clause concerns. Cevertheless, the salutar# effect of than"sgivings throughout Bestern histor# was ac"nowledged and the motion was passed without further recorded discussion. (6* Thus, accommodationists also go bac" to the framers to ascertain the meaning of the ;irst Amendment, but prefer to focus on acts rather than words. Contrar# to the claim of separationists that rationalism pervaded America in the late *+th centur# and that America was less specificall# Christian during those #ears than at an# other time before or since, (6(accommodationaists claim that American citi0ens at the time of the Constitution$s origins were a remar"abl# religious people in particularl# Christian terms.(66 The two streams of 2urisprudence > separationist or accommodationist > are anchored on a different reading of the 3wall of separation.3 The strict separtionist view holds that =efferson meant the 3wall of separation3 to protect the state from the church. =efferson was a man of the Enlightenment Era of the eighteenth centur#, characteri0ed b# the rationalism and anticlericalism of that philosophic bent. (6A :e has often been regarded as espousing /eism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmon#. (6- Thus, according to this =effersonian view, the Establishment Clause being meant to protect the state from the church, the state$s hostilit# towards religion allows no interaction between the two. (6) <n fact, when =efferson became President, he refused to proclaim fast or than"sgiving da#s on the ground that these are religious e5ercises and the Constitution prohibited the government from intermeddling with religion. (6. This approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Cor could the state ad2ust its secular programs to alleviate burdens the programs placed on believers. (6, 'nl# the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict 3wall of separation3 is necessar#. (6+ 7trict separation faces difficulties, however, as it is deepl# embedded in histor# and contemporar# practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostl# indirect aid from religion. Thus, strict separationists are caught in an aw"ward position of claiming a constitutional principle that has never e5isted and is never li"el# to.(A8 A tamer version of the strict separationist view, the strict neutralit# or separationist view is largel# used b# the Court, showing the Court$s tendenc# to press relentlessl# towards a more secular societ#. (A* <t finds basis in the Everson case where the Court declared that =efferson$s 3wall of separation3 encapsulated the meaning of the ;irst Amendment but at the same time held that the ;irst Amendment 3re1uires the state to be neutral in its relations with groups of religious believers and non>believers9 it does not re1uire the state to be their adversar#. 7tate power is no more to be used so as to handicap religions than it is to favor them.3 (emphasis supplied! (A( Bhile the strict neutralit# approach is not hostile to religion, it is strict in holding that religion ma# not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. 'nl# secular criteria ma# be the basis of government action. <t does not permit, much less re1uire, accommodation of secular programs to religious belief. (A6 Professor Murland wrote, viz% The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utili0e religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden. (AA The Court has repeatedl# declared that religious freedom means government neutralit# in religious matters and the Court has also repeatedl# interpreted this polic# of neutralit# to prohibit government from acting e5cept for secular purposes and in wa#s that have primaril# secular effects. (APra#er in public schools is an area where the Court has applied strict neutralit# and refused to allow an# form of pra#er, spo"en or silent, in the public schools as in Engel and 7chempp. (A) The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutralit#. <n these education cases, the Court refused to uphold the government action as the# were based not on a secular but on a religious purpose. 7trict neutralit# was also used in Re#nolds and 7mith which both held that if government acts in pursuit of a generall# applicable law with a secular purpose that merel# incidentall# burdens religious

e5ercise, the ;irst Amendment has not been offended. :owever, if the strict neutralit# standard is applied in interpreting the Establishment Clause, it could de facto void religious e5pression in the ;ree E5ercise Clause. As pointed out b# =ustice Koldberg in his concurring opinion in 7chempp, strict neutralit# could lead to 3a brooding and pervasive devotion to the secular and a passive, or even active, hostilit# to the religious3 which is prohibited b# the Constitution.(A. Professor Haurence Tribe commented in his authoritative treatise, vi0% To most observers. . . strict neutralit# has seemed incompatible with the ver# idea of a free e5ercise clause. The ;ramers, whatever specific applications the# ma# have intended, clearl# envisioned religion as something special9 the# enacted that vision into law b# guaranteeing the free e5ercise of religion but not, sa#, of philosoph# or science. The strict neutralit# approach all but erases this distinction. Thus it is not surprising that the 7upreme Court has re2ected strict neutralit#, permitting and sometimes mandating religious classifications.(A, The separationist approach, whether strict or tame, is caught in a dilemma because while the =effersonian wall of separation 3captures the spirit of the American ideal of church>state separation3, in real life church and state are not and cannot be totall# separate.(A+ This is all the more true in contemporar# times when both the government and religion are growing and e5panding their spheres of involvement and activit#, resulting in the intersection of government and religion at man# points.(-8 Conse1uentl#, the Court has also decided cases emplo#ing benevolent neutralit#. Benevolent neutralit# which gives room for accommodation is buttressed b# a different view of the 3wall of separation3 associated with Billiams, founder of the Rhode <sland colon#. <n Mar" /eBolfe :owe$s classic, The Karden and the Bilderness, he asserts that to the e5tent the ;ounders had a wall of separation in mind, it was unli"e the =effersonian wall that is meant to protect the state from the church9 instead, the wall is meant to protect the church from the state, (-* i.e., the 3garden3 of the church must be walled in for its own protection from the 3wilderness3 of the world (-( with its potential for corrupting those values so necessar# to religious commitment. (-6 :owe called this the 3theological3 or 3evangelical3 rationale for church>state separation while the wall espoused b# 3enlightened3 statesmen such as =efferson and Madison, was a 3political3 rationale see"ing to protect politics from intrusions b# the church. (-A But it has been asserted that this contrast between the Billiams and =effersonian positions is more accuratel# described as a difference in "inds or st#les of religious thin"ing, not as a conflict between 3religious3 and 3secular (political!39 the religious st#le was biblical and evangelical in character while the secular st#le was grounded in natural religion, more generic and philosophical in its religious orientation. (-The Billiams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious libert#. Billiams$ view would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrit# of religious commitment. (-) :is conception of separation is not total such that it provides basis for certain interactions between church and state dictated b# apparent necessit# or practicalit#. (-. This 3theological3 view of separation is found in Billiams$ writings, viz% . . . when the# have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, Kod hath ever bro"e down the wall itself, removed the candlestic", and made his garden a wilderness, as this da#. And that therefore if :e will eer please to restore :is garden and paradise again, it must of necessit# be walled in peculiarl# unto :imself from the world. . . (-, Chief =ustice Burger spo"e of benevolent neutralit# in Bal0, viz% The general principle deducible from the ;irst Amendment and all that has been said b# the Court is this% that we will not tolerate either governmentall# established religion or governmental interference with religion. 7hort of those e5pressl# proscribed governmental acts there is room for pla# in the 2oints productive of a benevolent neutralit# which will permit religious e5ercise to e5ist without sponsorship and without interference.(-+ (emphasis supplied! The &orach case e5pressed the doctrine of accommodation, ()8 vi0% The ;irst Amendment, however, does not sa# that in ever# and all respects there shall be a separation of Church and 7tate. Rather, it studiousl# defines the manner, the specific wa#s, in which there shall be no concert or union or dependenc# one or the other. That is the common sense of the matter. 'therwise, the state and religion would be aliens to each other > hostile, suspicious, and even unfriendl#. Churches could not be re1uired to pa# even propert# ta5es. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Pra#ers in our legislative halls9 the appeals to the Almight# in the messages of the Chief E5ecutive9 the proclamations ma"ing Than"sgiving /a# a holida#9 3so help me Kod3 in our courtroom oaths>

these and all other references to the Almight# that run through our laws, our public rituals, our ceremonies would be flouting the ;irst Amendment. A fastidious atheist or agnostic could even ob2ect to the supplication with which the Court opens each session% $Kod save the Inited 7tates and this :onorable Court. 555 555 555

Be are a religious people whose institutions presuppose a 7upreme Being. Be guarantee the freedom to worship as one chooses. . . Bhen the state encourages religious instruction or cooperates with religious authorities b# ad2usting the schedule of public events, it follows the best of our traditions. ;or it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it ma# not would be to find in the Constitution a re1uirement that the government show a callous indifference to religious groups. . . But we find no constitutional re1uirement which ma"es it necessar# for government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence.()* (emphases supplied! Benevolent neutralit# is congruent with the sociological proposition that religion serves a function essential to the survival of societ# itself, thus there is no human societ# without one or more wa#s of performing the essential function of religion. Although for some individuals there ma# be no felt need for religion and thus it is optional or even dispensable, for societ# it is not, which is wh# there is no human societ# without one or more wa#s of performing the essential function of religion. Even in ostensibl# atheistic societies, there are vigorous underground religion(s! and surrogate religion(s! in their ideolog#. ()( As one sociologist wrote% <t is widel# held b# students of societ# that there are certain functional prere1uisites without which societ# would not continue to e5ist. At first glance, this seems to be obvious > scarcel# more than to sa# that an automobile could not e5ist, as a going s#stem, without a carburetor. . . Most writers list religion among the functional prere1uisites.()6 Another noted sociologist, Talcott Parsons, wrote% 3There is no "nown human societ# without something which modern social scientists would classif# as a religionTReligion is as much a human universal as language.3 ()A Benevolent neutralit# thus recogni0es that religion pla#s an important role in the public life of the Inited 7tates as shown b# man# traditional government practices which, to strict neutralit#, pose Establishment Clause 1uestions. Among these are the inscription of 3<n Kod Be Trust3 on American currenc#, the recognition of America as 3one nation under Kod3 in the official pledge of allegiance to the flag, the 7upreme Court$s time>honored practice of opening oral argument with the invocation 3Kod save the Inited 7tates and this honorable Court,3 and the practice of Congress and ever# state legislature of pa#ing a chaplain, usuall# of a particular Protestant denomination to lead representatives in pra#er.()- These practices clearl# show the preference for one theological viewpoint >the e5istence of and potential for intervention b# a god > over the contrar# theological viewpoint of atheism. Church and government agencies also cooperate in the building of low>cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.()) The persistence of these de facto establishments are in large part e5plained b# the fact that throughout histor#, the evangelical theor# of separation, i.e., Billiams$ wall, has demanded respect for these de facto establishments.(). But the separationists have a different e5planation. To characteri0e these as de =ure establishments according to the principle of the =effersonian wall, the I.7. 7upreme Court, the man# dissenting and concurring opinions e5plain some of these practices as 3$ de minimis$ instances of government endorsement or as historic governmental practices that have largel# lost their religious significance or at least have proven not to lead the government into further involvement with religion. (), Bith religion loo"ed upon with benevolence and not hostilit#, benevolent neutralit# allows accommodation of religion under certain circumstances. Accommodations are government policies that ta"e religion specificall# into account not to promote the government$s favored form of religion, but to allow individuals and groups to e5ercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the e5ercise of, a person$s or institution$s religion. As =ustice Brennan e5plained, the 3government ?ma#@ ta"e religion into accountTto e5empt, when possible, from generall# applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereb# be infringed, or to create without state involvement an atmosphere in which voluntar# religious e5ercise ma# flourish.3()+ (emphasis supplied! Accommodation is forbearance and not alliance. it does not reflect agreement with the minorit#, but respect for the conflict between the temporal and spiritual authorit# in which the minorit# finds itself.(.8 Accommodation is distinguished from strict neutralit# in that the latter holds that government should base public polic# solel# on secular considerations, without regard to the religious conse1uences of its actions. The debate between accommodation and strict neutralit# is at base a 1uestion of means% 3<s the freedom of religion best

achieved when the government is conscious of the effects of its action on the various religious practices of its people, and see"s to minimi0e interferences with those practicesD 'r is it best advanced through a polic# of $religious blindness$ > "eeping government aloof from religious practices and issuesD3 An accommodationist holds that it is good public polic#, and sometimes constitutionall# re1uired, for the state to ma"e conscious and deliberate efforts to avoid interference with religious freedom. 'n the other hand, the strict neutralit# adherent believes that it is good public polic#, and also constitutionall# re1uired, for the government to avoid religion>specific polic# even at the cost of inhibiting religious e5ercise.(.* There are strong and compelling reasons, however, to ta"e the accommodationist position rather than the strict neutralit# position. ;irst, the accommodationist interpretation is most consistent with the language of the ;irst Amendment. The religion clauses contain two parallel provisions, both specificall# directed at 3religion.3 The government ma# not 3establish3 religion and neither ma# government 3prohibit3 it. Ta"en together, the religion clauses can be read most plausibl# as warding off two e1ual and opposite threats to religious freedom > government action that promotes the (political! ma2orit#$s favored brand of religion and government action that impedes religious practices not favored b# the ma2orit#. The substantive end in view is the preservation of the autonom# of religious life and not 2ust the formal process value of ensuring that government does not act on the basis of religious bias. 'n the other hand, strict neutralit# interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for e5ample, if government prohibits all alcoholic consumption b# minors, it can prohibit minors from ta"ing part in communion. Parado5icall#, this view would ma"e the religion clauses violate the religion clauses, so to spea", since the religion clauses single out religion b# name for special protection. 7econd, the accommodationist position best achieves the purposes of the ;irst Amendment. The principle underl#ing the ;irst Amendment is that freedom to carr# out one$s duties to a 7upreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessaril# limited b# the rights of others, including the public right of peace and good order. Cevertheless it is a substantive right and not merel# a privilege against discriminator# legislation. The accomplishment of the purpose of the ;irst Amendment re1uires more than the 3religion blindness3 of strict neutralit#. Bith the pervasiveness of government regulation, conflicts with religious practices become fre1uent and intense. Haws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must ma"e special provisions to preserve a degree of independence for religious entities for them to carr# out their religious missions according to their religious beliefs. 'therwise, religion will become 2ust li"e other secular entities sub2ect to pervasive regulation b# ma2oritarian institutions. Third, the accommodationist interpretation is particularl# necessar# to protect adherents of minorit# religions from the inevitable effects of ma2oritarianism, which include ignorance and indifference and overt hostilit# to the minorit#. <n a democratic republic, laws are inevitabl# based on the presuppositions of the ma2orit#, thus not infre1uentl#, the# come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessar# to the common good that e5ceptions are intolerable. But in other instances, the in2ur# to religious conscience is so great and the advancement of public purposes so small or incomparable that onl# indifference or hostilit# could e5plain a refusal to ma"e e5emptions. Because of plural traditions, legislators and e5ecutive officials are fre1uentl# willing to ma"e such e5emptions when the need is brought to their attention, but this ma# not alwa#s be the case when the religious practice is either un"nown at the time of enactment or is for some reason unpopular. <n these cases, a constitutional interpretation that allows accommodations prevents needless in2ur# to the religious consciences of those who can have an influence in the legislature9 while a constitutional interpretation that re1uires accommodations e5tends this treatment to religious faiths that are less able to protect themselves in the political arena. ;ourth, the accommodationist position is practical as it is a commonsensical wa# to deal with the various needs and beliefs of different faiths in a pluralistic nation. Bithout accommodation, man# otherwise beneficial laws would interfere severel# with religious freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations re1uiring hard hats in construction areas can effectivel# e5clude Amish and 7i"hs from the wor"place, or emplo#ment anti>discrimination laws can conflict with the Roman Catholic male priesthood, among others. E5emptions from such laws are eas# to craft and administer and contribute much to promoting religious freedom at little cost to public polic#. Bithout e5emptions, legislature would be fre1uentl# forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to societ# as a whole. E5emption seems manifestl# more reasonable than either of the alternative% no e5emption or no law. (.( Benevolent neutralit# gives room for different "inds of accommodation% those which are constitutionall# compelled, i.e., re1uired b# the ;ree E5ercise Clause9 and those which are discretionar# or legislative, i.e., and those not re1uired b# the ;ree E5ercise Clause but nonetheless permitted b# the Establishment Clause. (.6 7ome =ustices of the 7upreme Court have also used the term accommodation to describe government actions that ac"nowledge or e5press prevailing religious sentiments of the communit# such as displa# of a religious s#mbol on public propert# or the deliver# of a pra#er at public ceremonial events. (.A 7tated otherwise, using benevolent neutralit# as a standard could result to three situations of accommodation% those where accommodation is re1uired, those where it is permissible, and those where it is prohibited. <n the first situation, accommodation is re1uired to preserve free

e5ercise protections and not unconstitutionall# infringe on religious libert# or create penalties for religious freedom. Contrar# to the 7mith declaration that free e5ercise e5emptions are 3intentional government advancement3, these e5emptions merel# relieve the prohibition on the free e5ercise thus allowing the burdened religious adherent to be left alone. The state must create e5ceptions to laws of general applicabilit# when these laws threaten religious convictions or practices in the absence of a compelling state interest. (.- B# allowing such e5emptions, the ;ree E5ercise Clause does not give believers the right or privilege to choose for themselves to override sociall#> prescribed decision9 it allows them to obe# spiritual rather than temporal authorit# (.) for those who seriousl# invo"e the ;ree E5ercise Clause claim to be fulfilling a solemn dut#. Religious freedom is a matter less of rights than duties9 more precisel#, it is a matter of rights derived from duties. To den# a person or a communit# the right to act upon such a dut# can be 2ustified onl# b# appeal to a #et more compelling dut#. 'f course, those denied will usuall# not find the reason for the denial compelling. 3Because the# ma# turn out to be right about the dut# in 1uestion, and because, even if the# are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfull# reluctant.3 (.. The Joder case is an e5ample where the Court held that the state must accommodate the religious beliefs of the Amish who ob2ected to enrolling their children in high school as re1uired b# law. The 7herbert case is another e5ample where the Court held that the state unemplo#ment compensation plan must accommodate the religious convictions of 7herbert.(., <n these cases of 3burdensome effect3, the modern approach of the Court has been to appl# strict scrutin#, i.e., to declare the burden as permissible, the Court re1uires the state to demonstrate that the regulation which burdens the religious e5ercise pursues a particularl# important or compelling government goal through the least restrictive means. <f the state$s ob2ective could be served as well or almost as well b# granting an e5emption to those whose religious beliefs are burdened b# the regulation, such an e5emption must be given. (.+This approach of the Court on 3burdensome effect3 was onl# applied since the *+)8s. Prior to this time, the Court too" the separationist view that as long as the state was acting in pursuit of non>religious ends and regulating conduct rather than pure religious beliefs, the ;ree E5ercise Clause did not pose a hindrance such as in Re#nolds. (,8 <n the second situation where accommodation is permissible, the state ma#, but is not re1uired to, accommodate religious interests. The Bal0 case illustrates this situation where the Court upheld the constitutionalit# of ta5 e5emption given b# Cew Jor" to church properties, but did not rule that the state was re1uired to provide ta5 e5emptions. The Court declared that 3(t!he limits of permissible state accommodation to religion are b# no means co>e5tensive with the noninterference mandated b# the ;ree E5ercise Clause.3 (,* The Court held that Cew Jor" could have an interest in encouraging religious values and avoiding threats to those values through the burden of propert# ta5es. 'ther e5amples are the &orach case allowing released time in public schools and Marsh allowing pa#ment of legislative chaplains from public funds. ;inall#, in the situation where accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To sa# that there are valid e5emptions buttressed b# the ;ree E5ercise Clause does not mean that all claims for free e5ercise e5emptions are valid. (,( An e5ample where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises.(,6 <n effect, the last situation would arrive at a strict neutralit# conclusion. <n the first situation where accommodation is re1uired, the approach follows this basic framewor"% <f the plaintiff can show that a law or government practice inhibits the free e5ercise of his religious beliefs, the burden shifts to the government to demonstrate that the law or practice is necessar# to the accomplishment of some important (or $compelling$! secular ob2ective and that it is the least restrictive means of achieving that ob2ective. <f the plaintiff meets this burden and the government does not, the plaintiff is entitled to e5emption from the law or practice at issue. <n order to be protected, the claimant$s beliefs must be $sincere$, but the# need not necessaril# be consistent, coherent, clearl# articulated, or congruent with those of the claimant$s religious denomination. $'nl# beliefs rooted in religion are protected b# the ;ree E5ercise Clause$9 secular beliefs, however sincere and conscientious, do not suffice. (,A <n other words, a three>step process (also referred to as the 3two>step balancing process3 supra when the second and third steps are combined! as in 7herbert is followed in weighing the state$s interest and religious freedom when these collide. Three 1uestions are answered in this process. ;irst, 3(h!as the statute or government action created a burden on the free e5ercise of religionD3 The courts often loo" into the sincerit# of the religious belief, but without in1uiring into the truth of the belief because the ;ree E5ercise Clause prohibits in1uiring about its truth as held in Ballard and Cantwell. The sincerit# of the claimant$s belief is ascertained to avoid the mere claim of religious beliefs to escape a mandator# regulation. As evidence of sincerit#, the I.7. 7upreme Court has considered historical evidence as in Bisconsin where the Amish people had held a long>standing ob2ection to enrolling their children in ninth and tenth grades in public high schools. <n another case, DobB;% >. D;)(r;2( o< Co,u6b;a,(,- the Court denied the claim of a part# who refused to appear in court on 7aturda# alleging he was a 7abbatarian, but the Court noted that he regularl# conducted business on 7aturda#. Although it is true that the Court might erroneousl# den# some claims because of a mis2udgment of sincerit#, this is not as argument to re2ect all claims b# not allowing accommodation as a rule. There might be in2ur# to the particular claimant or to his religious communit#, but for the most part, the in2ustice is done onl# in the particular case. (,) Aside from the sincerit#, the court ma# loo" into the

centralit# of those beliefs, assessing them not on an ob2ective basis but in terms of the opinion and belief of the person see"ing e5emption. <n Bisconsin, for e5ample, the Court noted that the Amish people$s convictions against becoming involved in public high schools were central to their wa# of life and faith. 7imilarl#, in 7herbert, the Court concluded that the prohibition against 7aturda# wor" was a 3cardinal principle.3 (,. Professor Hupu puts to tas" the person claiming e5emption, viz% 'n the claimant$s side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. 7incerit# matters, (footnote omitted! and longevit# of practice > both b# the individual and within the individual$s religious tradition > reinforces sincerit#. Most importantl#, the law of free e5ercise must be inclusive and e5pansive, recogni0ing non>Christian religions > eastern, Bestern, aboriginal and otherwise > as constitutionall# e1ual to their Christian counterparts, and accepting of the intensit# and scope of fundamentalist creed.(,, 7econd, the court as"s% 3(i!s there a sufficientl# compelling state interest to 2ustif# this infringement of religious libert#D3 <n this step, the government has to establish that its purposes are legitimate for the state and that the# are compelling. Kovernment must do more than assert the ob2ectives at ris" if e5emption is given9 it must precisel# show how and to what e5tent those ob2ectives will be undermined if e5emptions are granted. (,+ The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious libert#. This step involves balancing, i.e., weighing the interest of the state against religious libert# to determine which is more compelling under the particular set of facts. The greater the state$s interests, the more central the religious belief would have to be to overcome it. <n assessing the state interest, the court will have to determine the importance of the secular interest and the e5tent to which that interest will be impaired b# an e5emption for the religious practice. 7hould the court find the interest trul# compelling, there will be no re1uirement that the state diminish the effectiveness of its regulation b# granting the e5emption.(+8 Third, the court as"s% 3(h!as the state in achieving its legitimate purposes used the least intrusive means possible so that the free e5ercise is not infringed an# more than necessar# to achieve the legitimate goal of the stateD3 (+*The anal#sis re1uires the state to show that the means in which it is achieving its legitimate state ob2ective is the least intrusive means, i.e., it has chosen a wa# to achieve its legitimate state end that imposes as little as possible on religious liberties. <n Cantwell, for e5ample, the Court invalidated the license re1uirement for the door>to>door solicitation as it was a forbidden burden on religious libert#, noting that less drastic means of insuring peace and tran1uilit# e5isted. As a whole, in carr#ing out the compelling state interest test, the Court should give careful attention to conte5t, both religious and regulator#, to achieve refined 2udgment. (+( <n sum, as shown b# I.7. 2urisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that ma"e constitutional law on the sub2ect of religious libert# unsettled, mirroring the evolving views of a d#namic societ#.(+6 VII. Re,;3;o% C,au)e) ;% (4e P4;,;55;%e) #. /;)(ory Before our countr# fell under American rule, the blan"et of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the 7panish Constitution of *,.). Civil authorities e5ercised religious functions and the friars e5ercised civil powers. (+A Catholics alone en2o#ed the right of engaging in public ceremonies of worship.(+- Although the 7panish Constitution itself was not e5tended to the Philippines, Catholicism was also the established church in our countr# under the 7panish rule. Catholicism was in fact protected b# the 7panish Penal Code of *,,A which was in effect in the Philippines. 7ome of the offenses in chapter si5 of the Penal Code entitled 3Crimes against Religion and Borship3 referred to crimes against the state religion.(+) The coming of the Americans to our countr#, however, changed this state>church scheme for with the advent of this regime, the uni1ue American e5periment of 3separation of church and state3 was transported to Philippine soil. Even as earl# as the conclusion of the Treat# of Paris between the Inited 7tates and 7pain on /ecember *8, *,+,, the American guarantee of religious freedom had been e5tended to the Philippines. The Treat# provided that 3the inhabitants of the territories over which 7pain relin1uishes or cedes her sovereignt# shall be secured in the free e5ercise of religion.3(+. Even the ;ilipinos themselves guaranteed religious freedom a month later or on =anuar# ((, *,++ upon the adoption of the Malolos Constitution of the Philippine Republic under Keneral Emilio Aguinaldo. <t provided that 3the 7tate recogni0es the libert# and e1ualit# of all religion (de todos los cultos! in the same manner

as the separation of the Church and 7tate.3 But the Malolos Constitution and government was short>lived as the Americans too" over the reigns of government. (+, Bith the Philippines under the American regime, President McMinle# issued <nstructions to the 7econd Philippine Commission, the bod# created to ta"e over the civil government in the Philippines in *+88. The <nstructions guaranteed religious freedom, viz% That no law shall be made respecting the establishment of religion or prohibiting the free e5ercise thereof, and that the free e5ercise and en2o#ment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the communit# or upon an# citi0en of the <slands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling. (++ This provision was based on the ;irst Amendment of the Inited 7tates Constitution. Hi"ewise, the <nstructions declared that 3(t!he separation between 7tate and Church shall be real, entire and absolute.3 688 Thereafter, ever# organic act of the Philippines contained a provision on freedom of religion. 7imilar to the religious freedom clause in the <nstructions, the Philippine Bill of *+8( provided that% Co law shall be made respecting an establishment of religion or prohibiting the free e5ercise thereof, and that free e5ercise and en2o#ment of religious worship, without discrimination or preference, shall forever be allowed. <n U.S. >. -a,2or(a,68* the Court stated that the Philippine Bill of *+8( 3caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon an# particular religious sect.368( The =ones Haw of *+*) carried the same provision, but e5panded it with a restriction against using public mone# or propert# for religious purposes, viz% That no law shall be made respecting an establishment of religion or prohibiting the free e5ercise thereof, and that the free e5ercise and en2o#ment of religious profession and worship without discrimination or preference, shall forever be allowed9 and no religious test shall be re1uired for the e5ercise of civil or political rights. Co public mone# or propert# shall ever be appropriated, applied, donated, or used, directl# or indirectl#, for the use, benefit, or support of an# sect, church, denomination, sectarian institution, or s#stem of religion, or for the use, benefit or support of an# priest, preacher, minister, or other religious teachers or dignitar# as such. This was followed b# the Philippine <ndependence Haw or T#dings>Mc/uffie Haw of *+6A which guaranteed independence to the Philippines and authori0ed the drafting of a Philippine constitution. <t en2oined ;ilipinos to include freedom of religion in drafting their constitution preparator# to the grant of independence. The law prescribed that 3(a!bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organi0ation shall be molested in person or propert# on account of religious belief or mode of worship.3 686 The Constitutional Convention then began wor"ing on the *+6- Constitution. <n their proceedings, /elegate =ose P. Haurel as Chairman of the Committee on Bill of Rights ac"nowledged that 3(i!t was the Treat# of Paris of /ecember *8, *,+,, which first introduced religious toleration in our countr#. President McMinle#$s <nstructions to the 7econd Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of *+8( and in the =ones Haw.368A <n accordance with the T#dings>Mc/uffie Haw, the *+6- Constitution provided in the Bill of Rights, Article <F, 7ection ., vi0% 7ec. .. Co law shall be made respecting an establishment of religion, or prohibiting the free e5ercise thereof, and the free e5ercise and en2o#ment of religious profession and worship, without discrimination or preference, shall forever be allowed. Co religious test shall be re1uired for the e5ercise of civil or political rights. This provision, borrowed from the =ones Haw, was readil# approved b# the Convention. 68- <n his speech as Chairman of the Committee on Bill of Rights, /elegate Haurel said that modifications in phraseolog# of the Bill of Rights in the =ones Haw were avoided whenever possible because 3the principles must remain couched in a language e5pressive of their historical bac"ground, nature, e5tent and limitations as construed and interpreted b# the great statesmen and 2urists that vitali0ed them.3 68)

The *+.6 Constitution which superseded the *+6- Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article <F, 7ection ,, vi0% 7ec. ,. Co law shall be made respecting an establishment of religion, or prohibiting the free e5ercise thereof. The free e5ercise and en2o#ment of religious profession and worship, without discrimination or preference, shall forever be allowed. Co religious test shall be re1uired for the e5ercise of civil or political rights. This time, however, the Keneral Provisions in Article F added in 7ection *- that 3(t!he separation of church and state shall be inviolable.3 Bithout discussion b# the *+,) Constitutional Commission, the *+.6 religious clauses were reproduced in the *+,. Constitution under the Bill of Rights in Article <<<, 7ection -. 68. Hi"ewise, the provision on separation of church and state was included verbatim in the *+,. Constitution, but this time as a principle in 7ection ), Article << entitled /eclaration of Principles and 7tate Policies. Considering the American origin of the Philippine religion clauses and the intent to adopt the historical bac"ground, nature, e5tent and limitations of the ;irst Amendment of the I.7. Constitution when it was included in the *+6- Bill of Rights, it is not surprising that nearl# all the ma2or Philippine cases involving the religion clauses turn to I.7. 2urisprudence in e5plaining the nature, e5tent and limitations of these clauses. :owever, a close scrutin# of these cases would also reveal that while I.7. 2urisprudence on religion clauses flows into two main streams of interpretation > separation and benevolent neutralit# > the well>spring of Philippine 2urisprudence on this sub2ect is for the most part, benevolent neutralit# which gives room for accommodation. -. +ur;)5ru&e%2e <n revisiting the landscape of Philippine 2urisprudence on the religion clauses, we begin with the definition of 3religion3. 3Religion3 is derived from the Middle English religioun, from 'ld ;rench religion, from Hatin religio, vaguel# referring to a 3bond between man and the gods.3 68, This pre>Christian term for the cult and rituals of pagan Rome was first Christiani0ed in the Hatin translation of the Bible. 68+ Bhile the I.7. 7upreme Court has had to ta"e up the challenge of defining the parameters and contours of 3religion3 to determine whether a non>theistic belief or act is covered b# the religion clauses, this Court has not been confronted with the same issue. <n Philippine 2urisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. <n *+6., the P4;,;55;%e 2a)e o< #3,;5ay >. Ru;D6*8 involving the Establishment Clause, defined 3religion3 as a 3profession of faith to an active power that binds and elevates man to his Creator.3 Twent# #ears later, the Court cited the Aglipa# definition in #6er;2a% -;b,e So2;e(y >. C;(y o< Ma%;,a,6** a case involving the ;ree E5ercise clause. The latter also cited the American case of /avis in defining religion, viz% 3(i!t has reference to one$s views of his relations to :is Creator and to the obligations the# impose of reverence to :is being and character and obedience to :is Bill.3 The Beason definition, however, has been e5panded in I.7. 2urisprudence to include non>theistic beliefs. 1. Free E=er2;)e C,au)e ;reedom of choice guarantees the libert# of the religious conscience and prohibits an# degree of compulsion or burden, whether direct or indirect, in the practice of one$s religion. The ;ree E5ercise Clause principall# guarantees voluntarism, although the Establishment Clause also assures voluntarism b# placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state. 6*( <n interpreting the ;ree E5ercise Clause, the realm of belief poses no difficult#. The earl# case of Gero%a >. Se2re(ary o< E&u2a(;o%6*6 is instructive on the matter, vi0% The realm of belief and creed is infinite and limitless bounded onl# b# one$s imagination and thought. 7o is the freedom of belief, including religious belief, limitless and without bounds. 'ne ma# believe in most an#thing, however strange, bi0arre and unreasonable the same ma# appear to others, even heretical when weighed in the scales of orthodo5# or doctrinal standards. But between the freedom of belief and the e5ercise of said belief, there is 1uite a stretch of road to travel. 6*A The difficult# in interpretation sets in when belief is e5ternali0ed into speech and action. Religious speech comes within the pale of the ;ree E5ercise Clause as illustrated in the American Bible 7ociet# case. <n that case, plaintiff American Bible 7ociet# was a foreign, non>stoc", non>profit, religious missionar# corporation which sold bibles and gospel portions of the bible in the course of its ministr#. The defendant Cit# of

Manila re1uired plaintiff to secure a ma#or$s permit and a municipal license as ordinaril# re1uired of those engaged in the business of general merchandise under the cit#$s ordinances. Plaintiff argued that this amounted to 3religious censorship and restrained the free e5ercise and en2o#ment of religious profession, to wit% the distribution and sale of bibles and other religious literature to the people of the Philippines.3 After defining religion, the Court, citing Tanada and ;ernando, made this statement, viz% The constitutional guarant# of the free e5ercise and en2o#ment of religious profession and worship carries with it the right to disseminate religious information. An# restraint of such right can onl# be 2ustified li"e other restraints of freedom of e5pression on the grounds that there is a clear and present danger of an# substantive evil which the 7tate has the right to prevent. (Tanada and ;ernando on the Constitution of the Philippines, vol. *, Ath ed., p. (+.! (emphasis supplied! This was the Court$s maiden une1uivocal affirmation of the 3clear and present danger3 rule in the religious freedom area, and in Philippine 2urisprudence, for that matter. 6*- The case did not clearl# show, however, whether the Court proceeded to appl# the test to the facts and issues of the case, i.e., it did not identif# the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular value protected b# government, or whether there was danger but it could not be characteri0ed as clear and present. <t is one thing to appl# the test and find that there is no clear and present danger, and 1uite another not to appl# the test altogether. <nstead, the Court categoricall# held that the 1uestioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said 3merchandise3 for profit. To add, the Court, citing Mur&o2B >. Pe%%)y,>a%;a,6*) ruled that appl#ing the ordinance re1uiring it to secure a license and pa# a license fee or ta5 would impair its free e5ercise of religious profession and worship and its right of dissemination of religious beliefs 3as the power to ta5 the e5ercise of a privilege is the power to control or suppress its en2o#ment.3 Thus, in American Bible 7ociet#, the 3clear and present danger3 rule was laid down but it was not clearl# applied. <n the much later case of To,e%(;%o >. Se2re(ary o< F;%a%2e,6*. also involving the sale of religious boo"s, the Court distinguished the American Bible 7ociet# case from the facts and issues in Tolentino and did not appl# the American Bible 7ociet# ruling. <n Tolentino, the Philippine Bible 7ociet# challenged the validit# of the registration provisions of the Falue Added Ta5 (FAT! Haw as a prior restraint. The Court held, however, that the fi5ed amount of registration fee was not imposed for the e5ercise of a privilege li"e a license ta5 which American Bible 7ociet# ruled was violative of religious freedom. Rather, the registration fee was merel# an administrative fee to defra# part of the cost of registration which was a central feature of the FAT s#stem. Citing +;66y S@a33ar( M;%;)(r;e) >. -oar& o< EEua,;Da(;o%,6*, the Court also declared prefatoril# that 3the ;ree E5ercise of Religion Clause does not prohibit imposing a generall# applicable sales and use ta5 on the sale of religious materials b# a religious organi0ation.3 <n the Court$s resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused b# the ta5 was 2ust similar to an# other economic imposition that might ma"e the right to disseminate religious doctrines costl#. Two #ears after American Bible 7ociet# came the *+-+ case of Gero%a >. Se2re(ary o< E&u2a(;o%,6*+ this time involving conduct e5pressive of religious belief colliding with a rule prescribed in accordance with law. <n this case, petitioners were members of the =ehovah$s Bitnesses. The# challenged a /epartment 'rder issued b# the 7ecretar# of Education implementing Republic Act Co. *()- which prescribed compulsor# flag ceremonies in all public schools. <n violation of the 'rder, petitioner$s children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence the# were e5pelled from school. 7ee"ing protection under the ;ree E5ercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the same is contrar# to their religious belief. The Court stated, viz% . . . <f the e5ercise of religious belief clashes with the established institutions of societ# and with the law, then the former must #ield to the latter. The Kovernment steps in and either restrains said e5ercise or even prosecutes the one e5ercising it. (emphasis supplied! 6(8 The Court then proceeded to determine if the acts involved constituted a religious ceremon# in conflict with the beliefs of the petitioners with the following 2ustification% After all, the determination of whether a certain ritual is or is not a religious ceremon# must rest with the courts. <t cannot be left to a religious group or sect, much less to a follower of said group or sect9 otherwise, there would be confusion and misunderstanding for there might be as man# interpretations and meaning to be given to a certain ritual or ceremon# as there are religious groups or sects or followers, all depending upon the meaning which the#, though in all sincerit# and good faith, ma# want to give to such ritual or ceremon#. 6(*

<t was held that the flag was not an image, the flag salute was not a religious ceremon#, and there was nothing ob2ectionable about the singing of the national anthem as it spea"s onl# of love of countr#, patriotism, libert# and the glor# of suffering and d#ing for it. The Court upheld the 1uestioned 'rder and the e5pulsion of petitioner$s children, stressing that% Men ma# differ and do differ on religious beliefs and creeds, government policies, the wisdom and legalit# of laws, even the correctness of 2udicial decisions and decrees9 but in the field of love of countr#, reverence for the flag, national unit# and patriotism, the# can hardl# afford to differ, for these are matters in which the# are mutuall# and vitall# interested, for to them, the# mean national e5istence and survival as a nation or national e5tinction.6(( <n support of its ruling, the Court cited =ustice ;ran"furter$s dissent in the Barnette case, vi0% The constitutional protection of religious freedom 5 5 5 gave religious e1ualit#, not civil immunit#. <ts essence is freedom from conformit# to religious dogma, not freedom from conformit# to law because of religious dogma.6(6 <t stated in categorical terms, vi0% The freedom of religious belief guaranteed b# the Constitution does not and cannot mean e5emption from or non> compliance with reasonable and non>discriminator# laws, rules and regulations promulgated b# competent authorit#.6(A Thus, the religious freedom doctrines one can derive from Kerona are% (*! it is incumbent upon the Court to determine whether a certain ritual is religious or not9 ((! religious freedom will not be upheld if it clashes with the established institutions of societ# and with the law such that when a law of general applicabilit# (in this case the /epartment 'rder! incidentall# burdens the e5ercise of one$s religion, one$s right to religious freedom cannot 2ustif# e5emption from compliance with the law. The Kerona ruling was reiterated in -a,bu%a, e( a,. >. Se2re(ary o< E&u2a(;o%, e( a,.6(;ifteen #ears after Kerona came the *+.A case of Fictoriano v. Eli0alde Rope Bor"ers Inion.?6()@ <n this unanimousl# decided en banc case, Fictoriano was a member of the <glesia ni Cristo which prohibits the affiliation of its members with an# labor organi0ation. :e wor"ed in the Eli0alde Rope ;actor#, <nc. and was a member of the Eli0alde Rope Bor"ers Inion which had with the compan# a closed shop provision pursuant to Republic Act Co. ,.- allowing closed shop arrangements. 7ubse1uentl#, Republic Act Co. 66-8 was enacted e5empting from the application and coverage of a closed shop agreement emplo#ees belonging to an# religious sect which prohibits affiliation of their members with an# labor organi0ation. Fictoriano resigned from the union after Republic Act Co. 66-8 too" effect. The union notified the compan# of Fictoriano$s resignation, which in turn notified Fictoriano that unless he could ma"e a satisfactor# arrangement with the union, the compan# would be constrained to dismiss him from the service. Fictoriano sought to en2oin the compan# and the union from dismissing him. The court having granted the in2unction, the union came to this Court on 1uestions of law, among which was whether Republic Act Co. 66-8 was unconstitutional for impairing the obligation of contracts and for granting an e5emption offensive of the Establishment Clause. Bith respect to the first issue, the Court ruled, viz% Religious freedom, although not unlimited, is a fundamental personal right and libert# (7chneider v. <rgington, 68, I.7. *A., *)*, ,A H.ed.*--, *)A, )8 7.Ct. *A)! and has a preferred position in the hierarch# of values. Contractual rights, therefore, must #ield to freedom of religion. <t is onl# where unavoidabl# necessar# to prevent an immediate and grave danger to the securit# and welfare of the communit# that infringement of religious freedom ma# be 2ustified, and onl# to the smallest e5tent necessar#. 6(. (emphasis supplied! As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free e5ercise of religion, declared, viz% The constitutional provisions not onl# prohibits legislation for the support of an# religious tenets or the modes of worship of an# sect, thus forestalling compulsion b# law of the acceptance of an# creed or the practice of an# form of worship (I.7. Ballard, 6(( I.7. .,, ,, H. ed. **A,, **-6!, but also assures the free e5ercise of one$s chosen form of religion within limits of utmost amplitude. <t has been said that the religion clauses of the Constitution are all designed to protect the broadest possible libert# of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the libert# of others and with the common good. (footnote omitted!. An# legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiousl#

between the religions, is invalid, even though the burden ma# be characteri0ed as being onl# indirect. (7herbert v. Ferner, 6.A I.7. 6+,, *8 H.ed.(d +)-, ,6 7. Ct. *+.8! But if the state regulates conduct b# enacting, within its power, a general law which has for its purpose and effect to advance the state$s secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 6)) I.7. -++, ) H ed. (d. -)6, ,* 7. Ct. *AA9 McKowan v. Mar#land, 6)) I.7. A(8, AAA>- and AA+! 6(, (emphasis supplied! Luoting #3,;5ay >. Ru;D,6(+ the Court held that 3government is not precluded from pursuing valid ob2ectives secular in character even if the incidental result would be favorable to a religion or sect.3 <t also cited -oar& o< E&u2a(;o% >. #,,e%,668 which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primar# effect that neither advances nor inhibits religion. Ising these criteria in upholding Republic Act Co. 66-8, the Court pointed out, viz% (Republic Act Co. 66-8! was intended to serve the secular purpose of advancing the constitutional right to the free e5ercise of religion, b# averting that certain persons be refused wor", or be dismissed from wor", or be dispossessed of their right to wor" and of being impeded to pursue a modest means of livelihood, b# reason of union securit# agreements. . . . The primar# effects of the e5emption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organi0ation, is the protection of said emplo#ees against the aggregate force of the collective bargaining agreement, and relieving certain citi0ens of a burden on their religious beliefs, and . . . eliminating to a certain e5tent economic insecurit# due to unemplo#ment. 66* The Court stressed that 3(a!lthough the e5emption ma# benefit those who are members of religious sects that prohibit their members from 2oining labor unions, the benefit upon the religious sects is merel# incidental and indirect.366( <n enacting Republic Act Co. 66-8, Congress merel# relieved the e5ercise of religion b# certain persons of a burden imposed b# union securit# agreements which Congress itself also imposed through the <ndustrial Peace Act. The Court concluded the issue of e5emption b# citing 7herbert which laid down the rule that when general laws conflict with scruples of conscience, e5emptions ought to be granted unless some 3compelling state interest3 intervenes. The Court then abruptl# added that 3(i!n the instant case, Be see no compelling state interest to withhold e5emption.3666 A close loo" at Fictoriano would show that the Court mentioned several tests in determining when religious freedom ma# be validl# limited. ;irst, the Court mentioned the test of 3immediate and grave danger to the securit# and welfare of the communit#3 and 3infringement of religious freedom onl# to the smallest e5tent necessar#3 to 2ustif# limitation of religious freedom. 7econd, religious e5ercise ma# be indirectl# burdened b# a general law which has for its purpose and effect the advancement of the state$s secular goals, provided that there is no other means b# which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the 3compelling state interest3 test which grants e5emptions when general laws conflict with religious e5ercise, unless a compelling state interest intervenes. <t is worth noting, however, that the first two tests were mentioned onl# for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act Co. 66-8. Ipholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused b# another law, i.e, the <ndustrial Peace Act providing for union shop agreements. The first two tests were onl# mentioned in Fictoriano but were not applied b# the Court to the facts and issues of the case. The third, the 3compelling state interest3 test was emplo#ed b# the Court to determine whether the e5emption provided b# Republic Act Co. 66-8 was not unconstitutional. <t upheld the e5emption, stating that there was no 3compelling state interest3 to stri"e it down. :owever, after careful consideration of the 7herbert case from which Fictoriano borrowed this test, the inevitable conclusion is that the 3compelling state interest3 test was not appropriate and could not find application in the Fictoriano case. <n 7herbert, appellant 7herbert invo"ed religious freedom in see"ing e5emption from the provisions of the 7outh Carolina Inemplo#ment Compensation Act which dis1ualified her from claiming unemplo#ment benefits. <t was the appellees, members of the 7outh Carolina Emplo#ment Commission, a government agenc#, who propounded the state interest to 2ustif# overriding 7herbert$s claim of religious freedom. The I.7. 7upreme Court, considering 7herbert$s and the Commission$s arguments, found that the state interest was not sufficientl# compelling to prevail over 7herbert$s free e5ercise claim. This situation did not obtain in the Fictoriano case where it was the government itself, through Congress, which provided the e5emption in Republic Act Co. 66-8 to allow Fictoriano$s e5ercise of religion. Thus, the government could not argue against the e5emption on the basis of a compelling state interest as it would be arguing against itself9 while Fictoriano would not see" e5emption from the 1uestioned law to allow the free e5ercose of religion as the law in fact provides such an e5emption. <n sum, although Fictoriano involved a religious belief and conduct, it did not involve a free e5ercise issue where the ;ree E5ercise Clause is invo"ed to e5empt him from the burden imposed b# a law on his religious freedom.

Fictoriano was reiterated in several cases involving the <glesia ni Cristo, namel# -a)a, e( a,. >. Fe&era2;o% Obrera &e ,a I%&u)(r;a TabaEuera y O(ro) TrabaFa&ore) &e F;,;5;%a),66A #%u2e%);o% >. Na(;o%a, "abor U%;o%, e( a,.,66- and Go%Da,e), e( a,. >. Ce%(ra, #Du2arera &e Tar,a2 "abor U%;o% .66) Then came Kerman v. Barangan in *+,- at the height of the anti>administration rallies. Petitioners were wal"ing to 7t. =ude Church within the Malacanang securit# area to pra# for 3an end to violence3 when the# were barred b# the police. <nvo"ing their constitutional freedom of religious worship and locomotion, the# came to the Court on a petition for mandamus to allow them to enter and pra# inside the 7t. =ude Chapel. The Court was divided on the issue. The slim ma2orit# of si5 recogni0ed their freedom of religion but noted their absence of good faith and concluded that the# were using their religious libert# to e5press their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz% . . . Thus the (;irst! amendment embraces two concepts > freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. 66. The Court reiterated the Kerona ruling, viz% <n the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but onl# in the manner b# which the# had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Kerona v. 7ecretar# of Education (*8) Phil. (!, thus% . . . But between the freedom of belief and the e5ercise of said belief, there is 1uite a stretch of road to travel. <f the e5ercise of said religious belief clashes with the established institutions of societ# and with the law, then the former must #ield and give wa# to the latter. The government steps in and either restrains said e5ercise or even prosecutes the one e5ercising it. (italics supplied! The ma2orit# found that the restriction imposed upon petitioners was 3necessar# to maintain the smooth functioning of the e5ecutive branch of the government, which petitioners$ mass action would certainl# disrupt3 66,and denied the petition. Thus, without considering the tests mentioned in Fictoriano, Kerman went bac" to the Kerona rule that religious freedom will not be upheld if it clashes with the established institutions of societ# and the law. Then Associate =ustice Teehan"ee registered a dissent which in subse1uent 2urisprudence would be cited as a test in religious freedom cases. :is dissent stated in relevant part, vi0% A brief restatement of the applicable constitutional principles as set forth in the landmar" case of =.B.H. Re#es v. Bagatsing (*(- 7CRA --6?*+,6@! should guide us in resolving the issues. *. The right to freel# e5ercise one$s religion is guaranteed in 7ection , of our Bill of Rights. (footnote omitted! ;reedom of worship, alongside with freedom of e5pression and speech and peaceable assembl# 3along with the other intellectual freedoms, are highl# ran"ed in our scheme of constitutional values. <t cannot be too strongl# stressed that on the 2udiciar# > even more so than on the other departments > rests the grave and delicate responsibilit# of assuring respect for and deference to such preferred rights. Co verbal formula, no sanctif#ing phrase can, of course, dispense with what has been so felicitousl# termed b# =ustice :olmes $as the sovereign prerogative of 2udgment.$ Conetheless, the presumption must be to incline the weight of the scales of 2ustice on the side of such rights, en2o#ing as the# do precedence and primac#.$ (=.B.H. Re#es, *(- 7CRA at pp. -)+>-.8! (. <n the free e5ercise of such preferred rights, there is to be no prior restraint although there ma# be subse1uent punishment of an# illegal acts committed during the e5ercise of such basic rights. The sole 2ustification for a prior restraint or limitation on the e5ercise of these basic rights is the e5istence of a grave and present danger of a character both grave and imminent, of a serious evil to public safet#, public morals, public health or an# other legitimate public interest, that the 7tate has a right (and dut#! to prevent (<dem, at pp. -)8>-)*!.66+ (emphasis supplied! The =.B.H. Re#es v. Bagatsing case from which this portion of =ustice Teehan"ee$s dissent was ta"en involved the rights to free speech and assembl#, and not the e5ercise of religious freedom. At issue in that case was a permit sought b# retired =ustice =.B.H. Re#es, on behalf of the Anti>Bases Coalition, from the Cit# of Manila to hold a peaceful march and rall# from the Huneta to the gates of the I.7. Embass#. Cevertheless Bagatsing was used b# =ustice Teehan"ee in his dissent which had overtones of petitioner Kerman and his companions$ right to assemble and petition the government for redress of grievances. 6A8

<n *++6, the issue on the =ehovah$s Bitnesses$ participation in the flag ceremon# again came before the Court inEbra,;%a3 >. T4e D;>;);o% Su5er;%(e%&e%( o< S24oo,).6A* A unanimous Court overturned the Kerona ruling after three decades. 7imilar to Kerona, this case involved several =ehovah$s Bitnesses who were e5pelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of *+,.. <n resolving the same religious freedom issue as in Kerona, the Court this time transported the 3grave and imminent danger3 test laid down in =ustice Teehan"ee$s dissent in Kerman, viz% The sole 2ustification for a prior restraint or limitation on the e5ercise of religious freedom (according to the late Chief =ustice Claudio Teehan"ee in his dissenting opinion in Kerman v. Barangan, *6- 7CRA -*A, -*.! is the e5istence of a grave and present danger of a character both grave and imminent, of a serious evil to public safet#, public morals, public health or an# other legitimate public interest, that the 7tate has a right (and dut#! to prevent. Absent such a threat to public safet#, the e5pulsion of the petitioners from the schools is not 2ustified.6A( (emphasis supplied! The Court added, vi0% Be are not persuaded that b# e5empting the =ehovah$s Bitnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedl# comprises a $small portion of the school population$ will sha"e up our part of the globe and suddenl# produce a nation $untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of countr# and admiration for national heroes$ (Kerona v. 7ecretar# of Education, *8) Phil. ((A!. After all, what the petitioners see" onl# is e5emption from the flag ceremon#, not e5clusion from the public schools where the# ma# stud# the Constitution, the democratic wa# of life and form of government, and learn not onl# the arts, sciences, Philippine histor# and culture but also receive training for a vocation or profession and be taught the virtues of $patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citi0enship, and moral and spiritual values$ (7ec. 6?(@, Art. <F, *+,. Constitution! as part of the curricula. E5pelling or banning the petitioners from Philippine schools will bring about the ver# situation that this Court has feared in Kerona. ;orcing a small religious group, through the iron hand of the law, to participate in a ceremon# that violates their religious beliefs, will hardl# be conducive to love of countr# or respect for dul# constituted authorities.6A6 Barnette also found its wa# to the opinion, vi0% ;urthermore, let it be noted that coerced unit# and lo#alt# even to the countr#, 5 5 5> assuming that such unit# and lo#alt# can be attained through coercion> is not a goal that is constitutionall# obtainable at the e5pense of religious libert#. A desirable end cannot be promoted b# prohibited means. (Me#er vs. Cebras"a, ()( I.7. 6+8, ). H. ed. *8A(, *8A)!. 6AA Towards the end of the decision, the Court also cited the Fictoriano case and its use of the 3compelling state interest3 test in according e5emption to the =ehovah$s Bitnesses, viz% <n Fictoriano vs. Eli0alde Rope Bor"ers$ Inion, -+ 7CRA -A, .(>.-, we upheld the e5emption of members of the <glesia ni Cristo, from the coverage of a closed shop agreement between their emplo#er and a union because it would violate the teaching of their church not to 2oin an# group% $5 5 5 <t is certain that not ever# conscience can be accommodated b# all the laws of the land9 but when general laws conflict with scruples of conscience, e5emptions ought to be granted unless some $compelling state interest$ intervenes.$ (7herbert vs. Ferner, 6.A I.7. 6+,, *8 H. Ed. (d +)-, +.8, ,6 7.Ct. *.+8!$ Be hold that a similar e5emption ma# be accorded to the =ehovah$s Bitnesses with regard to the observance of the flag ceremon# out of respect for their religious beliefs, however $bi0arre$ those beliefs ma# seem to others.6AThe Court annulled the orders e5pelling petitioners from school. Thus, the 3grave and imminent danger3 test laid down in a dissenting opinion in Kerman which involved prior restraint of religious worship with overtones of the right to free speech and assembl#, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembl#. Although, it might be observed that the Court faintl# implied that Ebralinag also involved the right to free speech when in its preliminar# remar"s, the Court stated that compelling petitioners to participate in the flag ceremon# 3is alien to the conscience of the present

generation of ;ilipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free e5ercise of religious profession and worship93 the Court then stated in a footnote that the 3flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.3 6A) The 3compelling state interest3 test was not full# applied b# the Court in Ebralinag. <n the 7olicitor Keneral$s consolidated comment, one of the grounds cited to defend the e5pulsion orders issued b# the public respondents was that 3(t!he 7tate$s compelling interests being pursued b# the /EC$s lawful regulations in 1uestion do not warrant e5emption of the school children of the =ehovah$s Bitnesses from the flag salute ceremonies on the basis of their own self>perceived religious convictions.36A. The Court, however, referred to the test onl# towards the end of the decision and did not even mention what the 7olicitor Keneral argued as the compelling state interest, much less did the Court e5plain wh# the interest was not sufficientl# compelling to override petitioners$ religious freedom. Three #ears after Ebralinag, the Court decided the *++) case of I3,e);a %; Cr;)(o >. Cour( o< #55ea,), e( a,.6A,Although there was a dissent with respect to the applicabilit# of the 3clear and present danger3 test in this case, the ma2orit# opinion in une1uivocal terms applied the 3clear and present danger3 test to religious speech. This case involved the television program, 3Ang <glesia ni Cristo,3 regularl# aired over the television. Ipon petitioner <glesia ni Cristo$s submission of the FTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as 3 3 or not for public viewing on the ground that the# 3offend and constitute an attac" against other religions which is e5pressl# prohibited b# law.3 <nvo"ing religious freedom, petitioner alleged that the Board acted without 2urisdiction or with grave abuse of discretion in re1uiring it to submit the FTR tapes of its television program and 5>rating them. Bhile upholding the Board$s power to review the <glesia television show, the Court was emphatic about the preferred status of religious freedom. Luoting =ustice Cru0$ commentar# on the constitution, the Court held that freedom to believe is absolute but freedom to act on one$s belief, where it affects the public, is sub2ect to the authorit# of the state. The commentar# 1uoted =ustice ;ran"furter$s dissent in Barnette which was 1uoted in Kerona, vi0% 3(t!he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. <t gave religious libert#, not civil immunit#. <ts essence is freedom from conformit# to religious dogma, not freedom from conformit# to law because of religious dogma.3 6A+ Cevertheless, the Court was 1uic" to add the criteria b# which the state can regulate the e5ercise of religious freedom, that is, when the e5ercise will bring about the 3clear and present danger of some substantive evil which the 7tate is dut# bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare.3 6-8 <n annulling the 5>rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the 5>rating was a suppression of petitioner$s freedom of speech as much as it was an interference with its right to free e5ercise of religion. Citing Cantwell, the Court recogni0ed that the different religions ma# critici0e one another and their tenets ma# collide, but the Establishment Clause prohibits the state from protecting an# religion from this "ind of attac". The Court then called to mind the 3clear and present danger3 test first laid down in the American Bible 7ociet# case and the test of 3immediate and grave danger3 with 3infringement onl# to the smallest e5tent necessar# to avoid danger3 in Fictoriano and pointed out that the reviewing board failed to appl# the 3clear and present danger3 test. Appl#ing the test, the Court noted, vi0% The records show that the decision of the respondent Board, affirmed b# the respondent appellate court, is completel# bereft of findings of facts to 2ustif# the conclusion that the sub2ect video tapes constitute impermissible attac"s against another religion. There is no showing whatsoever of the t#pe of harm the tapes will bring about especiall# the gravit# and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be 2ustified b# h#pothetical fears but onl# b# the showing of a substantive and imminent evil which has ta"en the life of a realit# alread# on ground. Repl#ing to the challenge on the applicabilit# of the 3clear and present danger3 test to the case, the Court ac"nowledged the permutations that the test has undergone, but stressed that the test is still applied to four t#pes of speech% 3speech that advocates dangerous ideas, speech that provo"es a hostile audience reaction, out of court contempt and release of information that endangers a fair trial3 6-* and ruled, vi0% . . . even allowing the drift of American 2urisprudence, there is reason to appl# the clear and present danger test to the case at bar which concerns speech that attac"s other religions and could readil# provo"e hostile audience reaction. <t cannot be doubted that religious truths disturb and disturb terribl#. 6-( <n <glesia therefore, the Court went bac" to Kerona insofar as holding that religious freedom cannot be invo"ed to see" e5emption from compliance with a law that burdens one$s religious e5ercise. <t also reiterated the 3clear and present danger3 test in American Bible 7ociet# and the 3grave and imminent danger3 in Fictoriano, but this time clearl# 2ustif#ing its applicabilit# and showing how the test was applied to the case.

<n sum, the Philippine 7upreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an e5ception or upholding an e5ception to accommodate religious e5ercise where it is 2ustified. 6-6 2. E)(ab,;)46e%( C,au)e <n Philippine 2urisdiction, there is substantial agreement on the values sought to be protected b# the Establishment Clause, namel#, voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolabilit# of the human conscience which, as discussed above, is also protected b# the free e5ercise clause. ;rom the religious perspective, religion re1uires voluntarism because compulsor# faith lac"s religious efficac#. Compelled religion is a contradiction in terms.6-A As a social value, it means that the 3growth of a religious sect as a social force must come from the voluntar# support of its members because of the belief that both spiritual and secular societ# will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. 7uch voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics.36-- Con>establishment thus calls for government neutralit# in religious matters to uphold voluntarism and avoid breeding interfaith dissension. 6-) The neutralit# principle was applied in the first significant non>establishment case under the *+6- Constitution. <n the *+6. case of #3,;5ay >. Ru;D,6-. the Philippine <ndependent Church challenged the issuance and sale of postage stamps commemorating the Thirt#>Third <nternational Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public mone# for religious purposes has been violated. <t appears that the /irector of Posts issued the 1uestioned stamps under the provisions of Act Co. A8-( 6-, which appropriated a sum for the cost of plates and printing of postage stamps with new designs and authori0ed the /irector of Posts to dispose of the sum in a manner and fre1uenc# 3advantageous to the Kovernment.3 The printing and issuance of the postage stamps in 1uestion appears to have been approved b# authorit# of the President. =ustice Haurel, spea"ing for the Court, too" pains e5plaining religious freedom and the role of religion in societ#, and in conclusion, found no constitutional infirmit# in the issuance and sale of the stamps, viz% The prohibition herein e5pressed is a direct corollar# of the principle of separation of church and state. Bithout the necessit# of adverting to the historical bac"ground of this principle in our countr#, it is sufficient to sa# that our histor#, not to spea" of the histor# of man"ind, has taught us that the union of church and state is pre2udicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . <t is almost trite to sa# now that in this countr# we en2o# both religious and civil freedom. All the officers of the Kovernment, from the highest to the lowest, in ta"ing their oath to support and defend the Constitution, bind themselves to recogni0e and respect the constitutional guarantee of religious freedom, with its inherent limitations and recogni0ed implications. <t should be stated that what is guaranteed b# our Constitution is religious libert#, not mere toleration. Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recogni0ed. And, in so far as it instills into the minds the purest principles of moralit#, its influence is deepl# felt and highl# appreciated. Bhen the ;ilipino people, in the preamble of their Constitution, implored 3the aid of /ivine Providence, in order to establish a government that shall embod# their ideals, conserve and develop the patrimon# of the nation, promote the general welfare, and secure to themselves and their posterit# the blessings of independence under a regime of 2ustice, libert# and democrac#,3 the# thereb# manifested their intense religious nature and placed unfaltering reliance upon :im who guides the destinies of men and nations. The elevating influence of religion in human societ# is recogni0ed here as elsewhere. <n fact, certain general concessions are indiscriminatel# accorded to religious sects and denominations. . . 6-+ 555 555 555

<t is obvious that while the issuance and sale of the stamps in 1uestion ma# be said to be inseparabl# lin"ed with an event of a religious character, the resulting propaganda, if an#, received b# the Roman Catholic Church, was not the aim and purpose of the Kovernment. Be are of the opinion that the Kovernment should not be embarrassed in its activities simpl# because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimatel# be underta"en b# appropriate legislation. The main purpose should not be frustrated b# its subordination to mere incidental results not contemplated. (Fide Bradfield vs. Roberts, *.- I.7. (+-9 (8 7up. Ct. Rep., *(*9 AA Haw. ed., *),!6)8(emphases supplied!

<n so deciding the case, the Court, citing I.7. 2urisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentall# aids a particular religion. Almost fort#>five #ears after Aglipa# came Gar2e) >. E)(e%Do.6)* Although the Court found that the separation of church and state was not at issue as the controvers# was over who should have custod# of a saint$s image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipa# ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. <t adhered to the barrio resolutions of the baranga# involved in the case stating that the barrio fiesta is a socio>religious affair, the celebration of which is an 3ingrained tradition in rural communities3 that 3relieves the monoton# and drudger# of the lives of the masses.3 Corollaril#, the Court found nothing illegal about an# activit# intended to facilitate the worship of the patron saint such as the ac1uisition and displa# of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was 3purchased in connection with the celebration of the barrio fiesta honoring the patron saint, 7an Ficente ;errer, and not for the purpose of favoring an# religion nor interfering with religious matters or the religious beliefs of the barrio residents.3 Citing the Aglipa# ruling, the Court declared, vi0% Cot ever# governmental activit# which involves the e5penditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public mone# or propert#. Then came the *+., case of Pa6;, >. Te,ero%, e( a,.6)( which presented a novel issue involving the religion clauses. <n this case, 7ection (*.- of the Revised Administrative Code of *+*. dis1ualif#ing ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharpl# divided on the issue. 7even members of the Court, one short of the number necessar# to declare a law unconstitutional, approached the problem from a free e5ercise perspective and considered the law a religious test offensive of the constitution. The# were =ustices ;ernando, Teehan"ee, MuOo0>Palma, Concepcion, =r., 7antos, ;ernande0, and Kuerrero. Then Associate =ustice ;ernando, the ponente, stated, vi0% 3The challenged Administrative Code provision, certainl# insofar as it declares ineligible ecclesiastics to an# elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed b# the Constitution.3 Citing Tor2a)o >. Aa(B;%),6)6 the ponencia held, vi0% Torcaso v. Bat"ins, an American 7upreme Court decision, has persuasive weight. Bhat was there involved was the validit# of a provision in the Mar#land Constitution prescribing that $no religious test ought ever to be re1uired as a dis1ualification for an# office or profit or trust in this 7tate, other than a declaration of belief in the e5istence of Kod SSS.$ 7uch a constitutional re1uirement was assailed as contrar# to the ;irst Amendment of the Inited 7tates Constitution b# an appointee to the office of notar# public in Mar#land, who was refused a commission as he would not declare a belief in Kod. :e failed in the Mar#land Court of Appeals but prevailed in the Inited 7tates 7upreme Court, which reversed the state court decision. <t could not have been otherwise. As emphaticall# declared b# =ustice Blac"% $this Mar#land religious test for public office unconstitutionall# invades the appellant$s freedom of belief and religion and therefore cannot be enforced against him. The analog# appears to be obvious. <n that case, it was lac" of belief in Kod that was a dis1ualification. :ere being an ecclesiastic and therefore professing a religious faith suffices to dis1ualif# for a public office. There is thus an incompatibilit# between the Administrative Code provision relied upon b# petitioner and an e5press constitutional mandate. 6)A 'n the other hand, the prevailing five other members of the Court > Chief =ustice Castro, =ustices Barredo, Ma"asiar, Antonio and A1uino > approached the case from a non>establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has mar"ed Philippine histor#. =ustice Ma"asiar stated% 3To allow an ecclesiastic to head the e5ecutive department of a municipalit# is to permit the erosion of the principle of separation of Church and 7tate and thus open the floodgates for the violation of the cherished libert# of religion which the constitutional provision see"s to enforce and protect.3 Conse1uentl#, the Court upheld the validit# of 7ection (*.- of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal ma#or. Another t#pe of cases interpreting the establishment clause deals with intramural religious disputes. Fo%a2;er >. Cour( o< #55ea,)6)- is the leading case. The issue therein was the right of control over certain properties of the Philippine <ndependent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American =urisprudence, 6)) viz%

Bhere, however, a decision of an ecclesiastical court plainl# violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed b# the civil courts. . . <n some instances, not onl# have the civil courts the right to in1uire into the 2urisdiction of the religious tribunals and the regularit# of their procedure, but the# have sub2ected their decisions to the test of fairness or to the test furnished b# the constitution and the law of the church. . .6). The Court then ruled that petitioner ;onacier was legitimatel# ousted and respondent de los Re#es was the dul# elected head of the Church, based on their internal laws. To finall# dispose of the propert# issue, the Court, citingAa()o% >. +o%e),6), declared that the rule in propert# controversies within religious congregations strictl# independent of an# other superior ecclesiastical association (such as the Philippine <ndependent Church! is that the rules for resolving such controversies should be those of an# voluntar# association. <f the congregation adopts the ma2orit# rule then the ma2orit# should prevail9 if it adopts adherence to dul# constituted authorities within the congregation, then that should be followed. Appl#ing these rules, ;onacier lost the case. Bhile the Court e5ercised 2urisdiction over the case, it nevertheless refused to touch doctrinal and disciplinar# differences raised, viz% The amendments of the constitution, restatement of articles of religion and abandonment of faith or ab2uration alleged b# appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of e5cluding from the church those allegedl# unworth# of membership, are un1uestionabl# ecclesiastical matters which are outside the province of the civil courts.6)+ VIII. Free E=er2;)e C,au)e >;)1G1>;) E)(ab,;)46e%( C,au)e <n both Philippine and I.7. 2urisdiction, it is recogni0ed that there is a tension between the ;ree E5ercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice9 this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases. 6.8 'ne set of facts, for instance, can be differentl# viewed from the Establishment Clause perspective and the ;ree E5ercise Clause point of view, and decided in opposite directions. <n Pamil, the ma2orit# gave more weight to the religious libert# of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the ;ree E5ercise Clause. 'n the other hand, the prevailing five 2ustices gave importance to the Establishment Clause in stating that the principle of separation of church and state 2ustified the prohibition. Tension is also apparent when a case is decided to uphold the ;ree E5ercise Clause and conse1uentl# e5emptions from a law of general applicabilit# are afforded b# the Court to the person claiming religious freedom9 the 1uestion arises whether the e5emption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the ;ree E5ercise Clause case of 7herbert where the I.7. 7upreme Court ruled, viz% <n holding as we do, plainl# we are not fostering the 3establishment3 of the 7eventh>da# Adventist religion in 7outh Carolina, for the e5tension of unemplo#ment benefits to 7abbatarians in common with 7unda# worshippers reflects nothing more than the governmental obligation of neutralit# in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the ob2ect of the Establishment Clause to forestall. 6.* (emphasis supplied! Tension also e5ists when a law of general application provides e5emption in order to uphold free e5ercise as in the Bal0 case where the appellant argued that the e5emption granted to religious organi0ations, in effect, re1uired him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the e5emption was not a case of establishing religion but merel# upholding the ;ree E5ercise Clause b# 3sparing the e5ercise of religion from the burden of propert# ta5ation levied on private profit institutions.3 =ustice Burger wrote, viz% (t!he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if e5panded to a logical e5treme, would tend to clash with the other. 6.( 7imilarl#, the Philippine 7upreme Court in the Fictoriano case held that the e5emption afforded b# law to religious sects who prohibit their members from 2oining unions did not offend the Establishment Clause. Be ruled, viz% Be believe that in enacting Republic Act Co. 66-8, Congress acted consistentl# with the spirit of the constitutional provision. <t acted merel# to relieve the e5ercise of religion, b# certain persons, of a burden that is imposed b# union securit# agreements.6.6 (emphasis supplied!

;inall#, in some cases, a practice is obviousl# violative of the Establishment Clause but the Court nevertheless upholds it. <n 7chempp, =ustice Brennan stated% 3(t!here are certain practices, conceivabl# violative of the Establishment Clause, the stri"ing down of which might seriousl# interfere with certain religious liberties also protected b# the ;irst Amendment.3 :ow the tension between the Establishment Clause and the ;ree E5ercise Clause will be resolved is a 1uestion for determination in the actual cases that come to the Court. <n cases involving both the Establishment Clause and the ;ree E5ercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficientl# strong free e5ercise right that should prevail over the Establishment Clause problem. <n the Inited 7tates, it has been proposed that in balancing, the free e5ercise claim must be given an edge not onl# because of abundant historical evidence in the colonial and earl# national period of the Inited 7tates that the free e5ercise principle long antedated an# broad>based support of disestablishment, but also because an Establishment Clause concern raised b# merel# accommodating a citi0en$s free e5ercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts conve# a message of hostilit# to the religion that in that case cannot be freel# e5ercised. 6.A American professor of constitutional law, Haurence Tribe, similarl# suggests that the free e5ercise principle 3should be dominant in an# conflict with the anti> establishment principle.3 This dominance would be the result of commitment to religious tolerance instead of 3thwarting at all costs even the faintest appearance of establishment.3 6.- <n our 2urisdiction, ;r. =oa1uin Bernas, 7.=. asserts that a literal interpretation of the religion clauses does not suffice. Modern societ# is characteri0ed b# the e5panding regulator# arm of government that reaches a variet# of areas of human conduct and an e5panding concept of religion. To ade1uatel# meet the demands of this modern societ#, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed b# the Philippine Court. 6.) I.. P4;,;55;%e Re,;3;o% C,au)e)' Na(ure, Pur5o)e, Te)() -a)e& o% P4;,;55;%e a%& #6er;2a% Re,;3;o% C,au)e /;)(ory, "a@ a%& +ur;)5ru&e%2e The histor# of the religion clauses in the *+,. Constitution shows that these clauses were largel# adopted from the ;irst Amendment of the I.7. Constitution. The religion clauses in the ;irst Amendment were contained in ever# organic Act of the Philippines under the American regime. Bhen the delegates of the *+6A Constitutional Convention adopted a Bill of Rights in the *+6- Constitution, the# purposel# retained the phraseolog# of the religion clauses in the ;irst Amendment as contained in the =ones Haw in order to adopt its historical bac"ground, nature, e5tent and limitations. At that time, there were not too man# religion clause cases in the Inited 7tates as the I.7. 7upreme Court decided an Establishment Clause issue onl# in the *+A. Everson case. The ;ree E5ercise Clause cases were also scarce then. 'ver the #ears, however, with the e5panding reach of government regulation to a whole gamut of human actions and the growing pluralit# and activities of religions, the number of religion clause cases in the I.7. e5ponentiall# increased. Bith this increase came an e5pansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modif#ing it, and still at other times creating contradictions so that two main streams of 2urisprudence had become identifiable. The first stream emplo#s separation while the second emplo#s benevolent neutralit# in interpreting the religious clauses. Alongside this change in the landscape of I.7. religion clause 2urisprudence, the Philippines continued to adopt the *+6Constitution religion clauses in the *+.6 Constitution and later, the *+,. Constitution. Philippine 2urisprudence and commentaries on the religious clauses also continued to borrow authorities from I.7. 2urisprudence without articulating the star" distinction between the two streams of I.7. 2urisprudence. 'ne might simpl# conclude that the Philippine Constitutions and 2urisprudence also inherited the disarra# of I.7. religion clause 2urisprudence and the two identifiable streams9 thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutralit# approach might be adopted and each will have I.7. authorities to support it. 'r, one might conclude that as the histor# of the ;irst Amendment as narrated b# the Court in Everson supports the separationist approach, Philippine 2urisprudence should also follow this approach in light of the Philippine religion clauses$ histor#. As a result, in a case where the part# claims religious libert# in the face of a general law that inadvertentl# burdens his religious e5ercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an e5emption. These conclusions, however, are not and were never warranted b# the *+,., *+.6 and *+6- Constitutions as shown b# other provisions on religion in all three constitutions. <t is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparentl# conflicting provisions should be reconciled and harmoni0ed in a manner that will give to all of them full force and effect.6.. ;rom this construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutralit# approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution. 6., Be first appl# the hermeneutical scalpel to dissect the *+6- Constitution. At the same time that the *+6Constitution provided for an Establishment Clause, it also provided for ta5 e5emption of church propert# in Article F<, 7ection ((, par. 6(b!, viz%

(6! Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used e5clusivel# for religious, charitable, or educational purposes shall be e5empt from ta5ation. Before the advent of the *+6- Constitution, 7ection 6AA of the Administrative Code provided for a similar e5emption. To the same effect, the T#dings>Mc/uffie Haw contained a limitation on the ta5ing power of the Philippine government during the Commonwealth period. 6.+ The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed b# the T#dings>Mc/uffie Haw. :owever, in order to have a constitutional guarantee for such an e5emption even be#ond the Commonwealth period, the provision was introduced in the bod# of the Constitution on the rationale that 3if churches, convents ?rectories or parsonages@ and their accessories are alwa#s necessar# for facilitating the e5ercise of such ?religious@ freedom, it would also be natural that their e5istence be also guaranteed b# e5empting them from ta5ation.36,8 The amendment was readil# approved with ,6 affirmative votes against *- negative votes. 6,* The Philippine constitutional provision on ta5 e5emption is not found in the I.7. Constitution. <n the I.7. case of Bal0, the Court struggled to 2ustif# this "ind of e5emption to withstand Establishment Clause scrutin# b# stating that church propert# was not singled out but was e5empt along with propert# owned b# non>profit, 1uasi>public corporations because the state upheld the secular polic# 3that considers these groups as beneficial and stabili0ing influences in communit# life and finds this classification useful, desirable, and in the public interest.3 The Court also stated that the e5emption was meant to relieve the burden on free e5ercise imposed b# propert# ta5ation. At the same time, however, the Court ac"nowledged that the e5emption was an e5ercise of benevolent neutralit# to accommodate a long>standing tradition of e5emption. Bith the inclusion of the church propert# ta5 e5emption in the bod# of the *+6- Constitution and not merel# as an ordinance appended to the Constitution, the benevolent neutralit# referred to in the Bal0 case was given constitutional imprimatur under the regime of the *+6Constitution. The provision, as stated in the deliberations, was an ac"nowledgment of the necessit# of the e5empt institutions to the e5ercise of religious libert#, thereb# evincing benevolence towards religious e5ercise. 7imilarl#, the *+6- Constitution provides in Article F<, 7ection (6(6!, viz% (6! Co public mone#, or propert# shall ever be appropriated, applied, or used, directl# or indirectl#, for the use, benefit, or support of an# sect, church, denomination, sectarian institution or s#stem of religion, for the use, benefit or support of an# priest, preacher, ministers or other religious teacher or dignitar# as such, e5cept when such priest, preacher, minister, or dignitar# is assigned to the armed forces or to an# penal institution, orphanage, or leprosarium. (emphasis supplied! The original draft of this provision was a reproduction of a portion of section 6 of the =ones Haw which did not contain the above e5ception, viz% Co public mone# or propert# shall ever be appropriated, applied, or used, directl# or indirectl#, for the use, benefit, or support of an# sect, church denomination, sectarian institution, or s#stem of religion, or for the use, benefit or support of an# priest, preacher, minister, or dignitar# as suchT 6,( <n the deliberations of this draft provision, an amendment was proposed to stri"e down ever#thing after 3church denomination.36,6 The proposal intended to imitate the silence of the I.7. Constitution on the sub2ect of support for priests and ministers. <t was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the =ones Haw, when chaplains of the revolutionar# arm# received pa# from public funds with no doubt about its legalit#. <t was pointed out, however, that even with the prohibition under the =ones Haw, appropriations were made to chaplains of the national penitentiar# and the Auditor Keneral upheld its validit# on the basis of a similar Inited 7tates practice. But it was also pointed out that the I.7. Constitution did not contain a prohibition on appropriations similar to the =ones Haw. 6,A To settle the 1uestion on the constitutionalit# of pa#ment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not emplo# religious officials with compensation, the e5ception in the *+6- provision was introduced and approved. The provision garnered .A affirmative votes against 6A negative votes.6,- As pointed out in the deliberations, the I.7. Constitution does not provide for this e5emption. :owever, the I.7. 7upreme Court in Cru0 v. Beto, apparentl# ta"ing a benevolent neutralit# approach, implicitl# approved the state of Te5as$ pa#ment of prison chaplains$ salaries as reasonabl# necessar# to permit inmates to practice their religion. Also, in the Marsh case, the I.7. 7upreme Court upheld the long>standing tradition of beginning legislative sessions with pra#ers offered b# legislative chaplains retained at ta5pa#ers$ e5pense. The constitutional provision e5empting religious officers in government institutions affirms the departure of the Philippine Constitution from the I.7. Constitution in its adoption of benevolent neutralit# in Philippine 2urisdiction. Bhile the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutralit# is contemplated in the Philippine Establishment Clause, the *+6- Constitution provides for optional religious instruction in public schools in Article <<<, 7ection -, viz% . . . 'ptional religious instruction shall be maintained in the public schools as now authori0ed b# law. . . The law then applicable was 7ection +(, of the Administrative Code, viz% <t shall be lawful, however, for the priest or minister of an# church established in the town where a public school is situated, either in person or b# a designated teacher of religion, to teach religion for one>half hour three times a wee", in the school building, to those public>school pupils whose parents or guardians desire it and e5press their desire therefor in writing filed with the principal of the school . . . /uring the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authori0ed b# the Administrative Code and recogni0ed that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.6,) The third wanted religion to be included as a course in the curriculum of the public schools but would onl# be ta"en b# pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state. 6,. As in the provisions on church propert# ta5 e5emption and compensation of religious officers in government institutions, the I.7. Constitution does not provide for optional religious instruction in public schools. <n fact, in the McCollum case, the Court, using strict neutralit#, prohibited this "ind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine 2urisdiction re2ects the strict neutralit# approach which does not allow such accommodation of religion. ;inall#, to ma"e certain the Constitution$s benevolence to religion, the ;ilipino people 3implored (ing! the aid of /ivine Providence (,! in order to establish a government that shall embod# their ideals, conserve and develop the patrimon# of the nation, promote the general welfare, and secure to themselves and their posterit# the blessings of independence under a regime of 2ustice, libert#, and democrac#, (in! ordain(ing! and promulgat(ing! this Constitution.3 A preamble is a 3"e# to open the mind of the authors of the constitution as to the evil sought to be prevented and the ob2ects sought to be accomplished b# the provisions thereof.3 6,, There was no debate on the inclusion of a 3/ivine Providence3 in the preamble. <n Aglipa#, =ustice Haurel noted that when the ;ilipino people implored the aid of /ivine Providence, 3(t!he# thereb# manifested their intense religious nature and placed unfaltering reliance upon :im who guides the destinies of men and nations.3 6,+ The *+6- Constitution$s religion clauses, understood alongside the other provisions on religion in the Constitution, indubitabl# shows not hostilit#, but benevolence, to religion. 6+8 The *+.6 Constitution contained in Article F<, 7ection (((6! a provision similar to Article F<, 7ection ((, par. 6(b! of the *+6- Constitution on e5emption of church propert# from ta5ation, with the modification that the propert# should not onl# be used directl#, but also actuall# and e5clusivel# for religious or charitable purposes. Parallel to Article F<, 7ection (6(6! of the *+6- Constitution, the *+.6 Constitution also contained a similar provision on salaries of religious officials emplo#ed in the enumerated government institutions. Article <<<, 7ection - of the *+6Constitution on optional religious instruction was also carried to the *+.6 Constitution in Article F, 7ection ,(,! with the modification that optional religious instruction shall be conducted 3as ma# be provided b# law3 and not 3as now authori0ed b# law3 as stated in the *+6- Constitution. The *+.6 counterpart, however, made e5plicit in the constitution that the religious instruction in public elementar# and high schools shall be done 3(a!t the option e5pressed in writing b# the parents or guardians, and without cost to them and the government.3 Bith the adoption of these provisions in the *+.6 Constitution, the benevolent neutralit# approach continued to en2o# constitutional sanction. <n Article F, 7ection *- of the Keneral Provisions of the *+.6 Constitution this provision made its maiden appearance% 3(t!he separation of church and state shall be inviolable.3 The *+.6 Constitution retained the portion of the preamble 3imploring the aid of /ivine Providence.3 <n the Report of the Ad :oc 7ub>Committee on Koals, Principles and Problems of the Committee on Church and 7tate of the *+.* Constitutional Convention, the 1uestion arose as to whether the 3absolute3 separation of Church and 7tate as enunciated in the Everson case and reiterated in 7chempp > i.e., neutralit# not onl# as between one religion and another but even as between religion and non>religion > is embodied in the Philippine Constitution. The sub>committee$s answer was that it did not seem so. Citing the Aglipa# case where =ustice Haurel recogni0ed the 3elevating influence of religion in human societ#3 and the ;ilipinos$ imploring of /ivine Providence in the *+6Constitution, the sub>committee asserted that the state ma# not prefer or aid one religion over another, but ma# aid

all religions e1uall# or the cause of religion in general. 6+* Among the position papers submitted to the Committee on Church on 7tate was a bac"ground paper for reconsideration of the religion provisions of the constitution b# ;r. Bernas, 7.=. :e stated therein that the Philippine Constitution is not hostile to religion and in fact recogni0es the value of religion and accommodates religious values. 6+( 7tated otherwise, the Establishment Clause contemplates not a strict neutralit# but benevolent neutralit#. Bhile the Committee introduced the provision on separation of church and state in the Keneral Provisions of the *+.6 Constitution, this was nothing new as according to it, this principle was implied in the *+6- Constitution even in the absence of a similar provision. 6+6 Then came the *+,. Constitution. The *+.6 Constitutional provision on ta5 e5emption of church propert# was retained with minor modification in Article F<, 7ection (,(6! of the *+,. Constitution. The same is true with respect to the prohibition on the use of public mone# and propert# for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article F<, 7ection (+((!. Commissioner Bacani, however, probed into the possibilit# of allowing the government to spend public mone# for purposes which might have religious connections but which would benefit the public generall#. Citing the Aglipa# case, Commissioner Rodrigo e5plained that if a public e5penditure would benefit the government directl#, such e5pense would be constitutional even if it results to an incidental benefit to religion. Bith that e5planation, Commissioner Bacani no longer pursued his proposal. 6+A The provision on optional religious instruction was also adopted in the *+,. Constitution in Article <F, 7ection 6(6! with the modification that it was e5pressl# provided that optional instruction shall be conducted 3within the regular class hours3 and 3without additional cost to the government3. There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricit#, 2anitorial services,6+- and when during the da# instruction would be conducted. 6+) <n deliberating on the phrase 3within the regular class hours,3 Commissioner A1uino e5pressed her reservations to this proposal as this would violate the time>honored principle of separation of church and state. 7he cited the McCullom case where religious instruction during regular school hours was stric"en down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in 7urach v. Clauson where the I.7. 7upreme Court allowed onl# release time for religious instruction. ;r. Bernas replied, viz% . . . the whole purpose of the provision was to provide for an e5ception to the rule on non>establishment of religion, because if it were not necessar# to ma"e this e5ception for purposes of allowing religious instruction, then we could 2ust drop the amendment. But, as a matter of fact, this is necessar# because we are tr#ing to introduce something here which is contrar# to American practices. 6+. (emphasis supplied! 3(B!ithin regular class hours3 was approved. he provision on the separation of church and state was retained but placed under the Principles in the /eclaration of Principles and 7tate Policies in Article <<, 7ection ). <n opting to retain the wording of the provision, ;r. Bernas stated, vi0% . . . <t is true, < maintain, that as a legal statement the sentence $The separation of Church and 7tate is inviolable,$ is almost a useless statement9 but at the same time it is a harmless statement. :ence, < am willing to tolerate it there, because, in the end, if we loo" at the 2urisprudence on Church and 7tate, arguments are based not on the statement of separation of church and state but on the non>establishment clause in the Bill of Rights.6+, The preamble changed 3/ivine Providence3 in the *+6- and *+.6 Constitutions to 3Almight# Kod.3 There was considerable debate on whether to use 3Almight# Kod3 which Commissioner Bacani said was more reflective of ;ilipino religiosit#, but Commissioner Rodrigo recalled that a number of atheistic delegates in the *+.* Constitutional Convention ob2ected to reference to a personal Kod. 6++ 3Kod of :istor#3, 3Hord of :istor#3 and 3Kod3 were also proposed, but the phrase 3Almight# Kod3 prevailed. 7imilar to the *+6- and *+.* Constitutions, it is obvious that the *+,. Constitution is not hostile nor indifferent to religion9 A88 its wall of separation is not a wall of hostilit# or indifference.A8* The provisions of the *+6-, *+.6 and *+,. constitutions on ta5 e5emption of church propert#, salar# of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the ;ilipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.A8( The strict neutralit# approach which e5amines onl# whether government action is for a secular purpose and does not consider inadvertent burden on religious e5ercise protects such a rigid barrier. B# adopting the above constitutional provisions on religion, the ;ilipinos manifested their adherence to the benevolent neutralit# approach in interpreting the religion clauses, an approach that loo"s further than the secular purposes of government action and e5amines the effect of these actions on religious e5ercise. Benevolent neutralit#

recogni0es the religious nature of the ;ilipino people and the elevating influence of religion in societ#9 at the same time, it ac"nowledges that government must pursue its secular goals. <n pursuing these goals, however, government might adopt laws or actions of general applicabilit# which inadvertentl# burden religious e5ercise. Benevolent neutralit# gives room for accommodation of these religious e5ercises as re1uired b# the ;ree E5ercise Clause. <t allows these breaches in the wall of separation to uphold religious libert#, which after all is the integral purpose of the religion clauses. The case at bar involves this first t#pe of accommodation where an e5emption is sought from a law of general applicabilit# that inadvertentl# burdens religious e5ercise. Although our constitutional histor# and interpretation mandate benevolent neutralit#, benevolent neutralit# does not mean that the Court ought to grant e5emptions ever# time a free e5ercise claim comes before it. But it does mean that the Court will not loo" with hostilit# or act indifferentl# towards religious beliefs and practices and that it will strive to accommodate them when it can within fle5ible constitutional limits9 it does mean that the Court will not simpl# dismiss a claim under the ;ree E5ercise Clause because the conduct in 1uestion offends a law or the orthodo5 view for this precisel# is the protection afforded b# the religion clauses of the Constitution, i.e., that in the absence of legislation granting e5emption from a law of general applicabilit#, the Court can carve out an e5ception when the religion clauses 2ustif# it. Bhile the Court cannot adopt a doctrinal formulation that can eliminate the difficult 1uestions of 2udgment in determining the degree of burden on religious practice or importance of the state interest or the sufficienc# of the means adopted b# the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause 2urisprudence should be directed. A86 Be here la# down the doctrine that in Philippine 2urisdiction, we adopt the benevolent neutralit# approach not onl# because of its merits as discussed above, but more importantl#, because our constitutional histor# and interpretation indubitabl# show that benevolent neutralit# is the launching pad from which the Court should ta"e off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious libert# 3not onl# for a minorit#, however small> not onl# for a ma2orit#, however large> but for each of us3 to the greatest e5tent possible within fle5ible constitutional limits. Benevolent neutralit# is manifest not onl# in the Constitution but has also been recogni0ed in Philippine 2urisprudence, albeit not e5pressl# called 3benevolent neutralit#3 or 3accommodation3. <n Aglipa#, the Court not onl# stressed the 3elevating influence of religion in human societ#3 but ac"nowledged the Constitutional provisions on e5emption from ta5 of church propert#, salar# of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code ma"ing Thursda# and ;rida# of the :ol# Bee", Christmas /a# and 7unda#s legal holida#s. <n Karces, the Court not onl# recogni0ed the Constitutional provisions indiscriminatel# granting concessions to religious sects and denominations, but also ac"nowledged that government participation in long>standing traditions which have ac1uired a social character > 3the barrio fiesta is a socio>religious affair3 > does not offend the Establishment Clause. <n Fictoriano, the Court upheld the e5emption from closed shop provisions of members of religious sects who prohibited their members from 2oining unions upon the 2ustification that the e5emption was not a violation of the Establishment Clause but was onl# meant to relieve the burden on free e5ercise of religion. <n Ebralinag, members of the =ehovah$s Bitnesses were e5empt from saluting the flag as re1uired b# law, on the basis not of a statute granting e5emption but of the ;ree E5ercise Clause without offending the Establishment Clause. Bhile the I.7. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the I.7. 2urisprudence of emplo#ing a separationist or strict neutralit# approach. The Philippine religion clauses have ta"en a life of their own, breathing the air of benevolent neutralit# and accommodation. Thus, the wall of separation in Philippine 2urisdiction is not as high and impregnable as the wall created b# the I.7. 7upreme Court in Everson.A8A Bhile the religion clauses are a uni1ue American e5periment which understandabl# came about as a result of America$s English bac"ground and coloni0ation, the life that these clauses have ta"en in this 2urisdiction is the Philippines$ own e5periment, reflective of the ;ilipinos$ own national soul, histor# and tradition. After all, 3the life of the law. . . has been e5perience.3 But while histor#, constitutional construction, and earlier 2urisprudence unmista"abl# show that benevolent neutralit# is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious e5ercise. <t is 1uite parado5ical that in order for the members of a societ# to e5ercise their freedoms, including their religious libert#, the law must set a limit when their e5ercise offends the higher interest of the state. To do otherwise is self>defeating for unlimited freedom would erode order in the state and foment anarch#, eventuall# destro#ing the ver# state its members established to protect their freedoms. The ver# purpose of the social contract b# which people establish the state is for the state to protect their liberties9 for this purpose, the# give up a portion of these freedoms > including the natural right to free e5ercise > to the state. <t was certainl# not the intention of the authors of the constitution that free e5ercise could be used to countenance actions that would undo the constitutional order that guarantees free e5ercise. A8-

The all important 1uestion then is the test that should be used in ascertaining the limits of the e5ercise of religious freedom. Philippine 2urisprudence articulates several tests to determine these limits. Beginning with the first case on the ;ree E5ercise Clause, American Bible 7ociet#, the Court mentioned the 3clear and present danger3 test but did not emplo# it. Cevertheless, this test continued to be cited in subse1uent cases on religious libert#. The Kerona case then pronounced that the test of permissibilit# of religious freedom is whether it violates the established institutions of societ# and law. The Fictoriano case mentioned the 3immediate and grave danger3 test as well as the doctrine that a law of general applicabilit# ma# burden religious e5ercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriatel#, the 3compelling state interest3 test. After Fictoriano, Kerman went bac" to the Kerona rule. Ebralinag then emplo#ed the 3grave and immediate danger3 test and overruled the Kerona test. The fairl# recent case of <glesia ni Cristo went bac" to the 3clear and present danger3 test in the maiden case of American Bible 7ociet#. Cot surprisingl#, all the cases which emplo#ed the 3clear and present danger3 or 3grave and immediate danger3 test involved, in one form or another, religious speech as this test is often used in cases on freedom of e5pression. 'n the other hand, the Kerona and Kerman cases set the rule that religious freedom will not prevail over established institutions of societ# and law. Kerona, however, which was the authorit# cited b# Kerman has been overruled b# Ebralinag which emplo#ed the 3grave and immediate danger3 test. Fictoriano was the onl# case that emplo#ed the 3compelling state interest3 test, but as e5plained previousl#, the use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in American Bible 7ociet#, Ebralinag and <glesia ni Cristo where the 3clear and present danger3 and 3grave and immediate danger3 tests were appropriate as speech has easil# discernible or immediate effects. The Kerona and Kerman doctrine, aside from having been overruled, is not congruent with the benevolent neutralit# approach, thus not appropriate in this 2urisdiction. 7imilar to Fictoriano, the present case involves purel# conduct arising from religious belief. The 3compelling state interest3 test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state$s interests% some effects ma# be immediate and short>term while others dela#ed and far>reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or dela#ed, is therefore necessar#. :owever, not an# interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that en2o#s a preferred position in the hierarch# of rights > 3the most inalienable and sacred of all human rights3, in the words of =efferson.A8) This right is sacred for an invocation of the ;ree E5ercise Clause is an appeal to a higher sovereignt#. The entire constitutional order of limited government is premised upon an ac"nowledgment of such higher sovereignt#, A8. thus the ;ilipinos implore the 3aid of Almight# Kod in order to build a 2ust and humane societ# and establish a government.3 As held in 7herbert, onl# the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with 2ust a colorable state interest is therefore not appropriate. <nstead, onl# a compelling interest of the state can prevail over the fundamental right to religious libert#. The test re1uires the state to carr# a heav# burden, a compelling one, for to do otherwise would allow the state to batter religion, especiall# the less powerful ones until the# are destro#ed.A8, <n determining which shall prevail between the state$s interest and religious libert#, reasonableness shall be the guide.A8+ The 3compelling state interest3 serves the purpose of revering religious libert# while at the same time affording protection to the paramount interests of the state. This was the test used in 7herbert which involved conduct, i.e. refusal to wor" on 7aturda#s. <n the end, the 3compelling state interest3 test, b# upholding the paramount interests of the state, see"s to protect the ver# state, without which, religious libert# will not be preserved. .. #55,;2a(;o% o< (4e Re,;3;o% C,au)e) (o (4e Ca)e a( -ar #. T4e Re,;3;o% C,au)e) a%& Mora,;(y <n a catena of cases, the Court has ruled that government emplo#ees engaged in illicit relations are guilt# of 3disgraceful and immoral conduct3 for which he4she ma# be held administrativel# liable. A*8 <n these cases, there was not one dissent to the ma2orit#$s ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that the# did not commit the alleged act or have abated from committing the act. The facts of the *+.- case of De D;o) >. #,eFoA** and the *+++ case of Ma3ua& >. De GuD6a%,A*( are similar to the case at bar > i.e., the complainant is a mere stranger and the legal wife has not registered an# ob2ection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the communit# in which the respondent and the partner live and wor", and the government emplo#ee is capacitated to marr# while the partner is not capacitated but has long been separated in fact. 7till, the Court found the government emplo#ees administrativel# liable for 3disgraceful and immoral conduct3 and onl# considered the foregoing circumstances to mitigate the penalt#. Respondent Escritor does not claim that there is error in the settled 2urisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government emplo#ee is held liable. Cor is there an allegation that the norms of moralit# with respect to illicit relations have shifted towards lenienc# from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes 3disgraceful and immoral conduct3 punishable under the Civil 7ervice Haw. Respondent having admitted the alleged immoral

conduct, she, li"e the respondents in the above>cited cases, could be held administrativel# liable. :owever, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invo"es religious freedom since her religion, the =ehovah$s Bitnesses, has, after thorough investigation, allowed her con2ugal arrangement with Luilapio based on the church$s religious beliefs and practices. This distinguishing factor compels the Court to appl# the religious clauses to the case at bar. Bithout holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. =ustice Jnares>7antiago and the separate opinion of Mr. =ustice Fitug dwell more on the standards of moralit# than on the religion clauses in deciding the instant case. A discussion on moralit# is in order. At base, moralit# refers to, in 7ocrates$ words, 3how we ought to live3 and wh#. An# definition of moralit# be#ond 7ocrates$ simple formulation is bound to offend one or another of the man# rival theories regarding what it means to live morall#.A*6 The answer to the 1uestion of how we ought to live necessaril# considers that man does not live in isolation, but in societ#. /evlin posits that a societ# is held together b# a communit# of ideas, made up not onl# of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals9 the# constitute the public moralit#. Each member of societ# has ideas about what is good and what is evil. <f people tr# to create a societ# wherein there is no fundamental agreement about good and evil, the# will fail9 if having established the societ# on common agreement, the agreement collapses, the societ# will disintegrate. 7ociet# is "ept together b# the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common moralit# is part of the bondage and the bondage is part of the price of societ#9 and man"ind, which needs societ#, must pa# its price.A*A This design is parallel with the social contract in the realm of politics% people give up a portion of their liberties to the state to allow the state to protect their liberties. <n a constitutional order, people ma"e a fundamental agreement about the powers of government and their liberties and embod# this agreement in a constitution, hence referred to as the fundamental law of the land. A complete brea" of this fundamental agreement such as b# revolution destro#s the old order and creates a new one. A*- 7imilarl#, in the realm of moralit#, the brea"down of the fundamental agreement about the manner a societ#$s members should behave and govern their lives would disintegrate societ#. Thus, societ# is 2ustified in ta"ing steps to preserve its moral code b# law as it does to preserve its government and other essential institutions. A*) ;rom these propositions of /evlin, one cannot conclude that /evlin negates diversit# in societ# for he is merel# sa#ing that in the midst of this diversit#, there should nevertheless be a 3fundamental agreement about good and evil3 that will govern how people in a societ# ought to live. :is propositions, in fact, presuppose diversit# hence the need to come to an agreement9 his position also allows for change of moralit# from time to time which ma# be brought about b# this diversit#. <n the same vein, a pluralistic societ# la#s down fundamental rights and principles in their constitution in establishing and maintaining their societ#, and these fundamental values and principles are translated into legislation that governs the order of societ#, laws that ma# be amended from time to time. :art$s argument propounded in Mr. =ustice Fitug$s separate opinion that, 3/evlin$s view of people living in a single societ# as having common moral foundation (is! overl# simplistic3 because 3societies have alwa#s been diverse3 fails to recogni0e the necessit# of /evlin$s proposition in a democrac#. Bithout fundamental agreement on political and moral ideas, societ# will fall into anarch#9 the agreement is necessar# to the e5istence and progress of societ#. <n a democrac#, this common agreement on political and moral ideas is distilled in the public s1uare. Bhere citi0ens are free, ever# opinion, ever# pre2udice, ever# aspiration, and ever# moral discernment has access to the public s1uare where people deliberate the order of their life together. Citi0ens are the bearers of opinion, including opinion shaped b#, or espousing religious belief, and these citi0ens have e1ual access to the public s1uare. <n this representative democrac#, the state is prohibited from determining which convictions and moral 2udgments ma# be proposed for public deliberation. Through a constitutionall# designed process, the people deliberate and decide. Ma2orit# rule is a necessar# principle in this democratic governance. A*. Thus, when public deliberation on moral 2udgments is finall# cr#stalli0ed into law, the laws will largel# reflect the beliefs and preferences of the ma2orit#, i.e., the mainstream or median groups. A*, Cevertheless, in the ver# act of adopting and accepting a constitution and the limits it specifies >> including protection of religious freedom 3not onl# for a minorit#, however small> not onl# for a ma2orit#, however large> but for each of us3 >> the ma2orit# imposes upon itself a self>den#ing ordinance. <t promises not to do what it otherwise could do% to ride roughshod over the dissenting minorities. A*+ <n the realm of religious e5ercise, benevolent neutralit# that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessar# to the preservation of religious libert#. That is wh# benevolent neutralit# is necessar# in a pluralistic societ# such as the Inited 7tates and the Philippines to accommodate those minorit# religions which are politicall# powerless. <t is not surprising that 7mith is much critici0ed for it bloc"s the 2udicial recourse of the minorit# for religious accommodations. The laws enacted become e5pressions of public moralit#. As =ustice :olmes put it, 3(t!he law is the witness and deposit of our moral life.3A(8 3<n a liberal democrac#, the law reflects social moralit# over a period of time.3A(*'ccasionall# though, a disproportionate political influence might cause a law to be enacted at odds with public moralit# or legislature might fail to repeal laws embod#ing outdated traditional moral views. A(( Haw has also been defined as 3something men create in their best moments to protect themselves in their worst

moments.3A(6 Even then, laws are sub2ect to amendment or repeal 2ust as 2udicial pronouncements are sub2ect to modification and reversal to better reflect the public morals of a societ# at a given time. After all, 3the life of the law...has been e5perience,3 in the words of =ustice :olmes. This is not to sa# though that law is all of moralit#. Haw deals with the minimum standards of human conduct while moralit# is concerned with the ma5imum. A person who regulates his conduct with the sole ob2ect of avoiding punishment under the law does not meet the higher moral standards set b# societ# for him to be called a morall# upright person. A(A Haw also serves as 3a helpful starting point for thin"ing about a proper or ideal public moralit# for a societ#3 A(- in pursuit of moral progress. <n Ma3%o >. Cour( o< #55ea,), e( a,.,A() we articulated the relationship between law and public moralit#. Be held that under the utilitarian theor#, the 3protective theor#3 in criminal law, 3criminal law is founded upon the moral disapprobation 5 5 5 of actions which are immoral, i.e., which are detrimental (or dangerous! to those conditions upon which depend the e5istence and progress of human societ#. This disapprobation is inevitable to the e5tent that moralit# is generall# founded and built upon a certain concurrence in the moral opinions of all. 5 5 5 That which we call punishment is onl# an e5ternal means of emphasi0ing moral disapprobation% the method of punishment is in realit# the amount of punishment.3A(. 7tated otherwise, there are certain standards of behavior or moral principles which societ# re1uires to be observed and these form the bases of criminal law. Their breach is an offense not onl# against the person in2ured but against societ# as a whole. A(, Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the in2ur# done is to the public morals and the public interest in the moral order.A(+ Mr. =ustice Fitug e5presses concern on this point in his separate opinion. :e observes that certain immoral acts which appear private and not harmful to societ# such as se5ual congress 3between a man and a prostitute, though consensual and private, and with no in2ured third part#, remains illegal in this countr#.3 :is opinion as"s whether these laws on private moralit# are 2ustified or the# constitute impingement on one$s freedom of belief. /iscussion on private moralit#, however, is not material to the case at bar for whether respondent$s conduct, which constitutes concubinage,A68 is private in the sense that there is no in2ured part# or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has ta"en concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionalit# of this law is not being raised in the case at bar. <n the definition of the crime of concubinage, consent of the in2ured part#, i.e., the legal spouse, does not alter or negate the crime unli"e in rape A6* where consent of the supposed victim negates the crime. <f at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,A6( but does not alter the legislature$s characteri0ation of the act as a moral disapprobation punishable b# law. The separate opinion states that, 3(t!he ponencia has ta"en pains to distinguish between secular and private moralit#, and reached the conclusion that the law, as an instrument of the secular 7tate should onl# concern itself with secular moralit#.3 The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed b# the separate opinion, 3between secular and private moralit#,3 but between public and secular moralit# on the one hand, and religious moralit# on the other, which will be subse1uentl# discussed. Cot ever# moral wrong is foreseen and punished b# law, criminal or otherwise. Be recogni0ed this realit# in Fela#o, et al. v. 7hell Co. of the Philippine <slands, et al., where we e5plained that for those wrongs which are not punishable b# law, Articles *+ and (* in Chapter ( of the Preliminar# Title of the Cew Civil Code, dealing with :uman Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles *+ and (* provide, vi0% Art. *+. An# person must, in the e5ercise of his rights and in the performance of his duties, act with 2ustice, give ever#one his due and observe honest# and good faith. 555 555 555

Art. (*. An# person who willfull# causes loss or in2ur# to another in a manner that is contrar# to morals, good customs or public polic# shall compensate the latter for the damage. (emphasis supplied! Be then cited in Fela#o the Code Commission$s comment on Article (*% Thus at one stro"e, the legislator, if the foregoing rule is approved (as it was approved!, would vouchsafe ade1uate legal remed# for that untold numbers of moral wrongs which is impossible for human foresight to provide for specificall# in the statutes. But, it ma# be as"ed, would this proposed article obliterate the boundar# line between moralit# and lawD The answer is that, in the last anal#sis, ever# good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. <f this premise is admitted, then the proposed rule is a prudent earnest of 2ustice in the face of the impossibilit# of enumerating, one b# one, all wrongs which cause damages. Bhen it is reflected that while codes of law and statutes have changed from

age to age, the conscience of man has remained fi5ed to its ancient moorings, one can not but feel that it is safe and salutar# to transmute, as far as ma# be, moral norms into legal rules, thus imparting to ever# legal s#stem that enduring 1ualit# which ought to be one of its superlative attributes. ;urthermore, there is no belief of more baneful conse1uence upon the social order than that a person ma# with impunit# cause damage to his fellow>men so long as he does not brea" an# law of the 7tate, though he ma# be def#ing the most sacred postulates of moralit#. Bhat is more, the victim loses faith in the abilit# of the government to afford him protection or relief. A provision similar to the one under consideration is embodied in article ,() of the Kerman Civil Code.A66(emphases supplied! The public moralit# e5pressed in the law is necessaril# secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the moralit# it sanctions. Religious moralit# proceeds from a person$s 3views of his relations to :is Creator and to the obligations the# impose of reverence to :is being and character and obedience to :is Bill,3 in accordance with this Court$s definition of religion in American Bible 7ociet# citing /avis. Religion also dictates 3how we ought to live3 for the nature of religion is not 2ust to "now, but often, to act in accordance with man$s 3views of his relations to :is Creator.3 A6A But the Establishment Clause puts a negative bar against establishment of this moralit# arising from one religion or the other, and implies the affirmative 3establishment3 of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the 3war of all sects against all39 the establishment of a secular public moral order is the social contract produced b# religious truce.A6Thus, when the law spea"s of 3immoralit#3 in the Civil 7ervice Haw or 3immoral3 in the Code of Professional Responsibilit# for law#ers A6), or 3public morals3 in the Revised Penal Code,A6. or 3morals3 in the Cew Civil Code,A6, or 3moral character3 in the Constitution,A6+ the distinction between public and secular moralit# on the one hand, and religious moralit#, on the other, should be "ept in mind. AA8 The moralit# referred to in the law is public and necessaril# secular, not religious as the dissent of Mr. =ustice Carpio holds. 3Religious teachings as e5pressed in public debate ma# influence the civil public order but public moral disputes ma# be resolved onl# on grounds articulable in secular terms.3AA* 'therwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would re1uire conformit# to what some might regard as religious programs or agenda. The non>believers would therefore be compelled to conform to a standard of conduct buttressed b# a religious belief, i.e., to a 3compelled religion,3 anathema to religious freedom. Hi"ewise, if government based its actions upon religious beliefs, it would tacitl# approve or endorse that belief and thereb# also tacitl# disapprove contrar# religious or non>religious views that would not support the polic#. As a result, government will not provide full religious freedom for all its citi0ens, or even ma"e it appear that those whose beliefs are disapproved are second>class citi0ens. E5pansive religious freedom therefore re1uires that government be neutral in matters of religion9 governmental reliance upon religious 2ustification is inconsistent with this polic# of neutralit#.AA( <n other words, government action, including its proscription of immoralit# as e5pressed in criminal law li"e concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is 3detrimental (or dangerous! to those conditions upon which depend the e5istence and progress of human societ#3 and not because the conduct is proscribed b# the beliefs of one religion or the other. Although admittedl#, moral 2udgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable b# law. After all, the# might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them9 the human mind endeavors to regulate the temporal and spiritual institutions of societ# in a uniform manner, harmoni0ing earth with heaven.AA6 7uccinctl# put, a law could be religious or Mantian or A1uinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and 2ustification to pass scrutin# of the religion clauses. 'therwise, if a law has an apparent secular purpose but upon closer e5amination shows a discriminator# and prohibitor# religious purpose, the law will be struc" down for being offensive of the religion clauses as in Church of the Hu"umi Babalu A#e, <nc. where the I.7. 7upreme Court invalidated an ordinance prohibiting animal sacrifice of the 7anteria. Recogni0ing the religious nature of the ;ilipinos and the elevating influence of religion in societ#, however, the Philippine constitution$s religion clauses prescribe not a strict but a benevolent neutralit#. Benevolent neutralit# recogni0es that government must pursue its secular goals and interests but at the same time strives to uphold religious libert# to the greatest e5tent possible within fle5ible constitutional limits. Thus, although the moralit# contemplated b# laws is secular, benevolent neutralit# could allow for accommodation of moralit# based on religion, provided it does not offend compelling state interests. Mr. =ustice Fitug$s separate opinion embraces the benevolent neutralit# approach when it states that in deciding the case at bar, the approach should consider that, 3(a!s a rule . . . moral laws are 2ustified onl# to the e5tent that the#

directl# or indirectl# serve to protect the interests of the larger societ#. <t is onl# where their rigid application would serve to obliterate the value which societ# see"s to uphold, or defeat the purpose for which the# are enacted would, a departure be 2ustified.3 <n religion clause parlance, the separate opinion holds that laws of general applicabilit# governing morals should have a secular purpose of directl# or indirectl# protecting the interests of the state. <f the strict application of these laws (which are the Civil 7ervice Haw and the laws on marriage! would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctit# of marriage and the famil#!, then in a benevolent neutralit# framewor", an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief! that would promote the ver# same secular purpose of upholding the sanctit# of marriage and famil# through the /eclaration Pledging ;aithfulness that ma"es the union binding and honorable before Kod and men, is re1uired b# the ;ree E5ercise Clause. The separate opinion then ma"es a preliminar# discussion of the values societ# see"s to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughl# e5amined and evidence in relation thereto presented in the 'CA. The accommodation approach in the case at bar would also re1uire a similar discussion of these values and presentation of evidence before the 'CA b# the state that see"s to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular moralit# as e5pressed > albeit not e5clusivel# > in the law, on the one hand, and religious moralit#, on the other, is important because the 2urisdiction of the Court e5tends onl# to public and secular moralit#. Bhatever pronouncement the Court ma"es in the case at bar should be understood onl# in this realm where it has authorit#. More concretel#, should the Court declare respondent$s conduct as immoral and hold her administrativel# liable, the Court will be holding that in the realm of public moralit#, her conduct is reprehensible or there are state interests overriding her religious freedom. ;or as long as her conduct is being 2udged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot sa# that her conduct should be made reprehensible in the realm of her church where it is presentl# sanctioned and that she is answerable for her immoralit# to her =ehovah Kod nor that other religions prohibiting her conduct are correct. 'n the other hand, should the Court declare her conduct permissible, the Court will be holding that under her uni1ue circumstances, public moralit# is not offended or that upholding her religious freedom is an interest higher than upholding public moralit# thus her conduct should not be penali0ed. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondent$s con2ugal arrangement should li"ewise allow such con2ugal arrangement or should not find an#thing immoral about it and therefore members of these churches are not answerable for immoralit# to their 7upreme Being. The Court cannot spea" more than what it has authorit# to sa#. <n Ballard, the I.7. 7upreme Court held that courts cannot in1uire about the truth of religious beliefs. 7imilarl#, in ;onacier, this Court declared that matters dealing with 3faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchTare un1uestionabl# ecclesiastical matters which are outside the province of the civil courts.3 AAA But while the state, including the Court, accords such deference to religious belief and e5ercise which en2o# protection under the religious clauses, the social contract and the constitutional order are designed in such a wa# that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penali0e these e5pressions and embodiments of belief insofar as the# affect the interests of the state. The state$s inroad on religion e5ercise in e5cess of this constitutional design is prohibited b# the religion clauses9 the 'ld Borld, European and American histor# narrated above bears out the wisdom of this proscription. :aving distinguished between public and secular moralit# and religious moralit#, the more difficult tas" is determining which immoral acts under this public and secular moralit# fall under the phrase 3disgraceful and immoral conduct3 for which a government emplo#ee ma# be held administrativel# liable. The line is not eas# to draw for it is li"e 3a line that divides land and sea, a coastline of irregularities and indentations.3 AA- But the case at bar does not re1uire us to comprehensivel# delineate between those immoral acts for which one ma# be held administrativel# liable and those to which administrative liabilit# does not attach. Be need not concern ourselves in this case therefore whether 3la0iness, glutton#, vanit#, selfishness, avarice and cowardice3 are immoral acts which constitute grounds for administrative liabilit#. Cor need we e5pend too much energ# grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different 2urisdictions have different standards of moralit# as discussed b# the dissents and separate opinions, although these observations and propositions are true and correct. <t is certainl# a fallacious argument that because there are e5ceptions to the general rule that the 3law is the witness and deposit of our moral life,3 then the rule is not true9 in fact, that there are e5ceptions onl# affirms the truth of the rule. Hi"ewise, the observation that moralit# is relative in different 2urisdictions onl# affirms the truth that there is moralit# in a particular 2urisdiction9 without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth>telling, without which no societ# will survive. 'nl# one conduct is in 1uestion before this Court, i.e., the con2ugal arrangement of a government emplo#ee whose partner is legall# married to another which Philippine law and 2urisprudence consider both immoral and illegal. Hest the Court inappropriatel# engage in the impossible tas" of

prescribing comprehensivel# how one ought to live, the Court must focus its attention upon the sole conduct in 1uestion before us. <n interpreting 3disgraceful and immoral conduct,3 the dissenting opinion of Mme. =ustice Jnares>7antiago groped for standards of moralit# and stated that the 3ascertainment of what is moral or immoral calls for the discover# of contemporar# communit# standards3 but did not articulate how these standards are to be ascertained. <nstead, it held that, 3(f!or those in the service of the Kovernment, provisions of law and court precedents . . . have to be considered.3 <t identified the Civil 7ervice Haw and the laws on adulter# and concubinage as laws which respondent$s conduct has offended and cited a string of precedents where a government emplo#ee was found guilt# of committing a 3disgraceful and immoral conduct3 for maintaining illicit relations and was thereb# penali0ed. As stated above, there is no dispute that under settled 2urisprudence, respondent$s conduct constitutes 3disgraceful and immoral conduct.3 :owever, the cases cited b# the dissent do not involve the defense of religious freedom which respondent in the case at bar invo"es. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. =ustice Jnares>7antiago$s dissent also cites C,e>e,a%& >. U%;(e& S(a(e)AA) in la#ing down the standard of moralit#, vi0% 3(w!hether an act is immoral within the meaning of the statute is not to be determined b# respondent$s concept of moralit#. The law provides the standard9 the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns.3 The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of 3an# woman or girl for the purpose of prostitution or debaucher#, or for an# other immoral purpose.3AA. The resolution of that case hinged on the interpretation of the phrase 3immoral purpose.3 The I.7. 7upreme Court held that the petitioner Mormons$ act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a pro2ect, was covered b# the phrase 3immoral purpose.3 <n so ruling, the Court relied on Re#nolds which held that the Mormons$ practice of pol#gam#, in spite of their defense of religious freedom, was 3odious among the northern and western nations of Europe,3 AA, 3a return to barbarism,3AA+ 3contrar# to the spirit of Christianit# and of the civili0ation which Christianit# has produced in the Bestern world,3 A-8 and thus punishable b# law. The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the I.7. 7upreme Court that pol#gam# is intrinsicall# 3odious3 or 3barbaric3 do not appl# in the Philippines where Muslims, b# law, are allowed to practice pol#gam#. Inli"e in Cleveland, there is no 2urisprudence in Philippine 2urisdiction holding that the defense of religious freedom of a member of the =ehovah$s Bitnesses under the same circumstances as respondent will not prevail over the laws on adulter#, concubinage or some other law. Be cannot summaril# conclude therefore that her conduct is li"ewise so 3odious3 and 3barbaric3 as to be immoral and punishable b# law. Bhile positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. =ustice Jnares>7antiago$s dissent nevertheless discussed respondent$s plea of religious freedom and disposed of this defense b# stating that 3(a! clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free e5ercise and en2o#ment of religious profession. (American Bible 7ociet# v. Cit# of Manila, *8* Phil. 6,) ?*+-.@!. <n addition to the destruction of public morals, the substantive evil in this case is the tearing down of moralit#, good order, and discipline in the 2udiciar#.3 :owever, the foregoing discussion has shown that the 3clear and present danger3 test that is usuall# emplo#ed in cases involving freedom of e5pression is not appropriate to the case at bar which involves purel# religious conduct. The dissent also cites Re#nolds in supporting its conclusion that respondent is guilt# of 3disgraceful and immoral conduct.3 The Re#nolds ruling, however, was reached with a strict neutralit# approach, which is not the approach contemplated b# the Philippine constitution. As discussed above, Philippine 2urisdiction adopts benevolent neutralit# in interpreting the religion clauses. <n the same vein, Mr. =ustice Carpio$s dissent which emplo#s strict neutralit# does not reflect the constitutional intent of emplo#ing benevolent neutralit# in interpreting the Philippine religion clauses. :is dissent avers that respondent should be held administrativel# liable not for 3disgraceful and immoral conduct3 but 3conduct pre2udicial to the best interest of the service3 as she is a necessar# co>accused of her partner in concubinage. The dissent stresses that being a court emplo#ee, her open violation of the law is pre2udicial to the administration of 2ustice. ;irstl#, the dissent offends due process as respondent was not given an opportunit# to defend herself against the charge of 3conduct pre2udicial to the best interest of the service.3 <n addition, there is no evidence of the alleged pre2udice to the best interest of the service. Most importantl#, the dissent concludes that respondent$s plea of religious freedom cannot prevail without so much as emplo#ing a test that would balance respondent$s religious freedom and the state$s interest at sta"e in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutralit# as a framewor", the Court cannot simpl# re2ect respondent$s plea of religious freedom without even sub2ecting it to the 3compelling state interest3 test that would balance her freedom with the

paramount interests of the state. The strict neutralit# emplo#ed in the cases the dissent cites >Re#nolds, 7mith and People v. Bitdu decided before the *+6- Constitution which unmista"abl# shows adherence to benevolent neutralit# > is not contemplated b# our constitution. Ceither is 7ulu <slamic Association of Mas2id Hamba#ong v. =udge Cabdar =. Mali" A-* cited in Mr. =ustice Carpio$s dissent decisive of the immoralit# issue in the case at bar. <n that case, the Court dismissed the charge of immoralit# against a Tausug 2udge for engaging in an adulterous relationship with another woman with whom he had three children because 3it (was! not $immoral$ b# Muslim standards for =udge Mali" to marr# a second time while his first marriage (e5isted!.3 Putting the 1uoted portion in its proper conte5t would readil# show that the 7ulu <slamic case does not provide a precedent to the case at bar. <mmediatel# prior to the portion 1uoted b# the dissent, the Court stressed, vi0% 3(s!ince Art. *,8 of P./. Co. *8,6, otherwise "nown as the Code of Muslim Personal Haws of the Philippines, provides that the penal laws relative to the crime of bigam# $shall not appl# to a person married 5 5 5 under Muslim Haw,$ it is not $immoral$ b# Muslim standards for =udge Mali" to marr# a second time while his first marriage e5ists.3A-( <t was b# law, therefore, that the Muslim conduct in 1uestion was classified as an e5ception to the crime of bigam# and thus an e5ception to the general standards of moralit#. The constitutionalit# of P./. Co. *8,6 when measured against the Establishment Clause was not raised as an issue in the 7ulu <slamic case. Thus, the Court did not determine whether P./. Co. *8,6 suffered from a constitutional infirmit# and instead relied on the provision e5cepting the challenged Muslim conduct from the crime of bigam# in holding that the challenged act is not immoral b# Muslim standards. <n contradistinction, in the case at bar, there is no similar law which the Court can appl# as basis for treating respondent$s conduct as an e5ception to the prevailing 2urisprudence on illicit relations of civil servants. <nstead, the ;ree E5ercise Clause is being invo"ed to 2ustif# e5emption. -. #55,;2a(;o% o< -e%e>o,e%( Neu(ra,;(y a%& (4e Co65e,,;%3 S(a(e I%(ere)( Te)( (o (4e Ca)e a( -ar The case at bar being one of first impression, we now sub2ect the respondent$s claim of religious freedom to the 3compelling state interest3 test from a benevolent neutralit# stance > i.e. entertaining the possibilit# that respondent$s claim to religious freedom would warrant carving out an e5ception from the Civil 7ervice Haw9 necessaril#, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. <n appl#ing the test, the first in1uir# is whether respondent$s right to religious freedom has been burdened. There is no doubt that choosing between "eeping her emplo#ment and abandoning her religious belief and practice and famil# on the one hand, and giving up her emplo#ment and "eeping her religious practice and famil# on the other hand, puts a burden on her free e5ercise of religion. <n 7herbert, the Court found that 7herbert$s religious e5ercise was burdened as the denial of unemplo#ment benefits 3forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept wor", on the other hand.3 The burden on respondent in the case at bar is even greater as the price she has to pa# for her emplo#ment is not onl# her religious precept but also her famil# which, b# the /eclaration Pledging ;aithfulness, stands 3honorable before Kod and men.3 The second step is to ascertain respondent$s sincerit# in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merel# using the 3/eclaration of Pledging ;aithfulness3 to avoid punishment for immoralit#. 7he did not secure the /eclaration onl# after entering the 2udiciar# where the moral standards are strict and defined, much less onl# after an administrative case for immoralit# was filed against her. The /eclaration was issued to her b# her congregation after ten #ears of living together with her partner, Luilapio, and ten #ears before she entered the 2udiciar#. Ministers from her congregation testified on the authenticit# of the =ehovah$s Bitnesses$ practice of securing a /eclaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the /eclaration is not whimsicall# issued to avoid legal punishment for illicit conduct but to ma"e the 3union3 of their members under respondent$s circumstances 3honorable before Kod and men.3 <t is also worth# of notice that the Report and Recommendation of the investigating 2udge anne5ed letters A-6 of the 'CA to the respondent regarding her re1uest to be e5empt from attending the flag ceremon# after Circular Co. )(>(88* was issued re1uiring attendance in the flag ceremon#. The 'CA$s letters were not submitted b# respondent as evidence but anne5ed b# the investigating 2udge in e5plaining that he was caught in a dilemma whether to find respondent guilt# of immoralit# because the Court Administrator and /eput# Court Administrator had different positions regarding respondent$s re1uest for e5emption from the flag ceremon# on the ground of the =ehovah$s Bitnesses$ contrar# belief and practice. Respondent$s re1uest for e5emption from the flag ceremon# shows her sincerit# in practicing the =ehovah$s Bitnesses$ beliefs and not using them merel# to escape punishment. 7he is a practicing member of the =ehovah$s Bitnesses and the =ehovah ministers testified that she is a member in good standing. Cevertheless, should the government, thru the 7olicitor Keneral, want to further 1uestion the respondent$s sincerit# and the centralit# of her practice in her faith, it should be given the opportunit# to do so. The government has not been represented in the case at bar from its incipience until this point.

<n an# event, even if the Court deems sufficient respondent$s evidence on the sincerit# of her religious belief and its centralit# in her faith, the case at bar cannot still be decided using the 3compelling state interest3 test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof the# should discharge in the Court$s use of the 3compelling state interest3 test. Be note that the 'CA found respondent$s defense of religious freedom unavailing in the face of the Court$s ruling in /icdican v. ;ernan, et al., viz% <t bears emphasis that the image of a court of 2ustice is mirrored in the conduct, official and otherwise, of the personnel who wor" thereat, from the 2udge to the lowest of its personnel. Court personnel have been en2oined to adhere to the e5acting standards of moralit# and decenc# in their professional and private conduct in order to preserve the good name and integrit# of the courts of 2ustice. <t is apparent from the 'CA$s reliance upon this ruling that the state interest it upholds is the preservation of the integrit# of the 2udiciar# b# maintaining among its ran"s a high standard of moralit# and decenc#. :owever, there is nothing in the 'CA$s memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent$s plea of religious freedom nor is it shown that the means emplo#ed b# the government in pursuing its interest is the least restrictive to respondent$s religious e5ercise. <ndeed, 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 b# the proper agenc# of the government which is the 'ffice of the 7olicitor Keneral. To properl# settle the issue in the case at bar, the government should be given the opportunit# to demonstrate the compelling state interest it see"s to uphold in opposing the respondent$s stance that her con2ugal arrangement is not immoral and punishable as it comes within the scope of free e5ercise protection. 7hould the Court prohibit and punish her conduct where it is protected b# the ;ree E5ercise Clause, the Court$s action would be an unconstitutional encroachment of her right to religious freedom. A-A Be cannot therefore simpl# ta"e a passing loo" at respondent$s claim of religious freedom, but must instead appl# the 3compelling state interest3 test. The government must be heard on the issue as it has not been given an opportunit# to discharge its burden of demonstrating the state$s compelling interest which can override respondent$s religious belief and practice. To repeat, this is a case of first impression where we are appl#ing the 3compelling state interest3 test in a case involving purel# religious conduct. The careful application of the test is indispensable as how we will decide the case will ma"e a decisive difference in the life of the respondent who stands not onl# before the Court but before her =ehovah Kod. <C F<EB B:ERE';, the case is REMAC/E/ to the 'ffice of the Court Administrator. The 7olicitor Keneral is ordered to intervene in the case where it will be given the opportunit# (a! to e5amine the sincerit# and centralit# of respondent$s claimed religious belief and practice9 (b! to present evidence on the state$s 3compelling interest3 to override respondent$s religious belief and practice9 and (c! to show that the means the state adopts in pursuing its interest is the least restrictive to respondent$s religious freedom. The rehearing should be concluded thirt# (68! da#s from the 'ffice of the Court Administrator$s receipt of this /ecision. 7' 'R/ERE/.

Republic of the Philippines SUPREME COURT Manila EC BACC G.R. No. 1*3888 +u,y , 2003

IS"#MIC D#HA#/ COUNCI" OF T/E P/I"IPPINES, INC., 4ere;% re5re)e%(e& by PROF. #-DU"R#FI/ /. S#7ED7, petitioner, vs. OFFICE OF T/E E.ECUTIVE SECRET#R7 o< (4e O<<;2e o< (4e Pre);&e%( o< (4e P4;,;55;%e), 4ere;% re5re)e%(e& by /ON. #"-ERTO G. ROMU"O, E=e2u(;>e Se2re(ary, a%& (4e OFFICE ON MUS"IM #FF#IRS, 4ere;% re5re)e%(e& by ;() E=e2u(;>e D;re2(or, /#-I- MU+#/#- /#S/IM, respondents. CORON#, J.' Before us is a petition for prohibition filed b# petitioner <slamic /a$wah Council of the Philippines, <nc. (</CP! pra#ing for the declaration of nullit# of E5ecutive 'rder (E'! A), s. (88* and the prohibition of herein respondents 'ffice of the E5ecutive 7ecretar# and 'ffice of Muslim Affairs ('MA! from implementing the sub2ect E'. Petitioner </CP, a corporation that operates under /epartment of 7ocial Belfare and /evelopment Hicense Co. 7B> 8*>8,-, is a non>governmental organi0ation that e5tends voluntar# services to the ;ilipino people, especiall# to Muslim communities. <t claims to be a federation of national <slamic organi0ations and an active member of international organi0ations such as the Regional <slamic /a$wah Council of 7outheast Asia and the Pacific (R<7EAP!* and The Borld Assembl# of Muslim Jouth. The R<7EAP accredited petitioner to issue halal (certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct seminars, orient manufacturers on halal food and issue halal certifications to 1ualified products and manufacturers. Petitioner alleges that, on account of the actual need to certif# food products as halal and also due to halal food producers$ re1uest, petitioner formulated in *++- internal rules and procedures based on the Lur$an 6 and the 7unnahA for the anal#sis of food, inspection thereof and issuance of halal certifications. <n that same #ear, petitioner began to issue, for a fee, certifications to 1ualified products and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine Patent 'ffice under Patent Co. A>(888> 86))A. 'n 'ctober (), (88*, respondent 'ffice of the E5ecutive 7ecretar# issued E' A) - creating the Philippine :alal Certification 7cheme and designating respondent 'MA to oversee its implementation. Inder the E', respondent 'MA has the e5clusive authorit# to issue halal certificates and perform other related regulator# activities. 'n Ma# ,, (88(, a news article entitled 3'MA Barns CK's <ssuing <llegal $:alal$ Certification3 was published in the Manila Bulletin, a newspaper of general circulation. <n said article, 'MA warned Muslim consumers to bu# onl# products with its official halal certification since those without said certification had not been sub2ected to careful anal#sis and therefore could contain por" or its derivatives. Respondent 'MA also sent letters to food manufacturers as"ing them to secure the halal certification onl# from 'MA lest the# violate E' A) and RA A*8+. )As a result, petitioner lost revenues after food manufacturers stopped securing certifications from it. :ence, this petition for prohibition. Petitioner contends that the sub2ect E' violates the constitutional provision on the separation of Church and 7tate.. <t is unconstitutional for the government to formulate policies and guidelines on the halal certification scheme because said scheme is a function onl# religious organi0ations, entit# or scholars can lawfull# and validl# perform for the Muslims. According to petitioner, a food product becomes halal onl# after the performance of <slamic religious ritual and pra#er. Thus, onl# practicing Muslims are 1ualified to slaughter animals for food. A government agenc# li"e herein respondent 'MA cannot therefore perform a religious function li"e certif#ing 1ualified food products as halal. Petitioner also maintains that the respondents violated 7ection *8, Article <<< of the *+,. Constitution which provides that 3(n!o law impairing the obligation of contracts, shall be passed.3 After the sub2ect E' was implemented, food manufacturers with e5isting contracts with petitioner ceased to obtain certifications from the latter.

Moreover, petitioner argues that the sub2ect E' violates 7ections *- and *) of Article <<< of the *+,. Constitution which respectivel# provide% R'HE AC/ R<K:T7 '; PE'PHE$7 'RKAC<&AT<'C7 7ec. *-. The 7tate shall respect the role of independent people$s organi0ations to enable the people to pursue and protect, within the democratic framewor", their legitimate and collective interests and aspirations through peaceful and lawful means. People$s organi0ations are bona fide associations of citi0ens with demonstrated capacit# to promote the public interest and with identifiable leadership, membership, and structure. 7ec. *). The rights of the people and their organi0ations to effective and reasonable participation at all levels of social, political, and economic decision>ma"ing shall not be abridged. The 7tate shall, b# law, facilitate, the establishment of ade1uate consultation mechanisms. According to petitioner, the sub2ect E' was issued with utter haste and without even consulting Muslim people$s organi0ations li"e petitioner before it became effective. Be grant the petition. 'MA was created in *+,* through E5ecutive 'rder Co. )+. (E' )+.! 3to ensure the integration of Muslim ;ilipinos into the mainstream of ;ilipino societ# -ith due regard to their beliefs, customs, traditions, and institutions.3 , 'MA deals with the societal, legal, political and economic concerns of the Muslim communit# as a >national cultural communit > and not as a religious group. Thus, bearing in mind the constitutional barrier between the Church and 7tate, the latter must ma"e sure that 'MA does not intrude into purel# religious matters lest it violate the non> establishment clause and the 3free e5ercise of religion3 provision found in Article <<<, 7ection - of the *+,. Constitution.+ ;reedom of religion was accorded preferred status b# the framers of our fundamental law. And this Court has consistentl# affirmed this preferred status, well aware that it is 3designed to protect the broadest possible libert# of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the libert# of others and with the common good.3 *8 Bithout doubt, classif#ing a food product as halal is a religious function because the standards used are drawn from the Lur$an and <slamic beliefs. B# giving 'MA the e5clusive power to classif# food products as halal, E' A) encroached on the religious freedom of Muslim organi0ations li"e herein petitioner to interpret for ;ilipino Muslims what food products are fit for Muslim consumption. Also, b# arrogating to itself the tas" of issuing halal certifications, the 7tate has in effect forced Muslims to accept its own interpretation of the Lur$an and 7unnah on halal food. To 2ustif# E' A)$s intrusion into the sub2ect religious activit#, the 7olicitor Keneral argues that the freedom of religion is subservient to the police power of the 7tate. B# delegating to 'MA the authorit# to issue halal certifications, the government allegedl# see"s to protect and promote the muslim ;ilipinos$ right to health, and to instill health consciousness in them. Be disagree. 'nl# the prevention of an immediate and grave danger to the securit# and welfare of the communit# can 2ustif# the infringement of religious freedom. ** <f the government fails to show the seriousness and immediac# of the threat, 7tate intrusion is constitutionall# unacceptable. <n a societ# with a democratic framewor" li"e ours, the 7tate must minimi0e its interference with the affairs of its citi0ens and instead allow them to e5ercise reasonable freedom of personal and religious activit#. <n the case at bar, we find no compelling 2ustification for the government to deprive muslim organi0ations, li"e herein petitioner, of their religious right to classif# a product as halal, even on the premise that the health of muslim ;ilipinos can be effectivel# protected b# assigning to 'MA the e5clusive power to issue halal certifications. The protection and promotion of the muslim ;ilipinos$ right to health are alread# provided for in e5isting laws and ministered to b# government agencies charged with ensuring that food products released in the mar"et are fit for human consumption, properl# labeled and safe. Inli"e E' 9?, these la-s do not encroach on the religious freedom of muslims.

7ection A,(A! of the Administrative Code of *+,. gives to the Cational Meat <nspection Commission (CM<C! of the /epartment of Agriculture (/'A! the power to inspect slaughtered animals intended for human consumption to ensure the safet# of the meat released in the mar"et. Another law, RA .6+A, otherwise "nown as 3The Consumer Act of *++(,3 gives to certain government departments the dut# to protect the interests of the consumer, promote his general welfare and to establish standards of conduct for business and industr#. *( To this end, a food product, before its distribution to the mar"et, is re1uired to secure the Philippine 7tandard Certification Mar" after the concerned department inspects and certifies its compliance with 1ualit# and safet# standards. *6 'ne such government agenc# designated b# RA .6+A is the Bureau of ;ood and /rugs (B;/! of the /epartment of :ealth (/':!. Inder Article (( of said law, B;/ has the dut# to promulgate and enforce rules and regulations fi5ing and establishing a reasonable definition and standard of identit#, a standard of 1ualit# and a standard of fill of containers for food. The B;/ also ensures that food products released in the mar"et are not adulterated. *A ;urthermore, under Article A, of RA .6+A, the /epartment of Trade and <ndustr# (/T<! is tas"ed to protect the consumer against deceptive, unfair and unconscionable sales acts or practices as defined in Article -8. *- /T< also enforces compulsor# labeling and fair pac"aging to enable the consumer to obtain accurate information as to the nature, 1ualit# and 1uantit# of the contents of consumer products and to facilitate his comparison of the value of such products.*) Bith these regulator# bodies given detailed functions on how to screen and chec" the 1ualit# and safet# of food products, the perceived danger against the health of muslim and non>muslim ;ilipinos ali"e is totall# avoided. 'f great help are the provisions on labeling of food products (Articles .A to ,-! *. of RA .6+A. <n fact, through these labeling provisions, the 7tate abl# informs the consuming public of the contents of food products released in the mar"et. 7tiff sanctions are imposed on violators of said labeling re1uirements. Through the laws on food safet# and 1ualit#, therefore, the 7tate indirectl aids muslim consumers in differentiating food from non>food products. The CM<C guarantees that the meat sold in the mar"et has been thoroughl# inspected and fit for consumption. Meanwhile, B;/ ensures that food products are properl# categori0ed and have passed safet# and 1ualit# standards. Then, through the labeling provisions enforced b# the /T<, muslim consumers are ade1uatel# apprised of the products that contain substances or ingredients that, according to their <slamic beliefs, are not fit for human inta"e. These are the non>secular steps put in place b# the 7tate to ensure that the muslim consumers$ right to health is protected. The halal certifications issued b# petitioner and similar organi0ations come forward as the official religious approval of a food product fit for muslim consumption. Be do not share respondents$ apprehension that the absence of a central administrative bod# to regulate halal certifications might give rise to schemers who, for profit, will issue certifications for products that are not actuall# halal. Aside from the fact that muslim consumers can actuall# verif# through the labels whether a product contains non>food substances, we believe that the# are discerning enough to "now who the reliable and competent certif#ing organi0ations in their communit# are. Before purchasing a product, the# can easil# avert this perceived evil b# a diligent in1uir# on the reliabilit# of the concerned certif#ing organi0ation. B:ERE;'RE, the petition is KRACTE/. E5ecutive 'rder A), s. (888, is hereb# declared CIHH AC/ F'</. Conse1uentl#, respondents are prohibited from enforcing the same. 7' 'R/ERE/. %avide, Jr., C .J ., <ellosillo, Panganiban, @nares!Santiago, Carpio, "ustria!(artinez, Carpio!(orales, Calle=o, Sr ., "zcuna and /inga, JJ., concur. Auisumbing and Sandoval!:utierrez, JJ ., on official leave.