EN BANC

[G.R. No. 95887. December 29, 1995.]

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS
AMOLO, REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD
ALSADO represented by their parents MR. & MRS. ABELARDO
ALSADO, NESIA ALSADO, REU ALSADO and LILIBETH ALSADO,
represented by their parents MR. & MRS. ROLANDO ALSADO,
SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES
and OPHELIA NAPOLES, JESICA CARMELOTES, represented by her
parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS,
represented by her parents MR. & MRS. TORIBIO MACAPAS,
GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL
ALSADO, RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by
their parents MR. & MRS. LEONARDO DEMOTOR, JURELL VILLA and
MELONY VILLA represented by their parents MR. & MRS.
JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY GRACE
MAHINAY, and MAGDALENE MAHINAY, represented by their parents
MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN
ANTIOLA represented by their parents FELIPE ANTIOLA and ANECITA
ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her
parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI
TURNO represented by her parents MANUEL TURNO and VEVENCIA
TURNO, SOLOMON PALATULON, SALMERO PALATULON and
ROSALINA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners, vs. THE DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A.
SANGUTAN, respondents.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.
SYLLABUS
1. POLITICAL LAW; STATE; RESPONSIBILITY TO INCULCATE VALUES OF PATRIOTISM AND
NATIONALISM; SHOULD NOT INTRUDE INTO OTHER FUNDAMENTAL RIGHTS. The State possesses
what the Solicitor General describes as the responsibility "to inculcate in the minds of the youth the values
of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching
of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the
youth in those principles which would mold them into responsible and productive members of our society.
However, the government's interest in molding the young into patriotic and civic spirited citizens is "not
totally free from a balancing process" when it intrudes into other fundamental rights such as those
specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable
interest of parents to guide the religious upbringing of their children in accordance with the dictates of their
conscience and their sincere religious beliefs. Recognizing these values, Justice Carolina Grio-Aquino, the
writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of
Rights would find abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag,
sing the national anthem and recite the patriotic pledge during a flag ceremony. "This coercion of
conscience has no place in a free society." CAaSHI
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; A PREFERRED FREEDOM AND
SHOULD BE SEEN AS THE RULE NOT THE EXCEPTION. The State's contentions are therefore,
unacceptable, for no less fundamental than the right to take part is the right to stand apart. In the context
of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not the
exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to
denigrate the status of a preferred freedom and to relegate it to the level of an abstract principle devoid of
any substance and meaning in the lives of those for whom the protection is addressed.
3. ID.; ID.; ID.; ESSENCE IS FREEDOM FROM CONFORMITY TO RELIGIOUS DOGMA. As to the
contention that the exemption accorded by our decision benefits a privileged few, it is enough to re-
emphasize that "the constitutional protection of religious freedom terminated disabilities, it did not create
new privileges. It gave religious equality, not civil immunity." The essence of the free exercise clause is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma.
4. ID.; ID.; ID.; FLAG CEREMONY REQUIREMENT; MAY OFFEND GOVERNMENT NEUTRALITY IF IT
UNDULY BURDENS RIGHT. The suggestion implicit in the State's pleadings to the effect that the flag
ceremony requirement would be equally and evenly applied to all citizens regardless of sect or religion and
does not thereby discriminate against any particular sect or denomination escapes the fact that "[a]
regulation, neutral on its face, may in its application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of religion. cCaEDA
5. POLITICAL LAW; STATE; CLEAR AND PRESENT DANGER RULE; ONLY GROUND WHERE REGULATION
AFFECTING CONSTITUTIONAL RIGHTS MAY BE ABRIDGED; NO CLEAR AND PRESENT DANGER IN
REFUSAL TO SALUTE FLAG AND RECITE PLEDGE. Where the governmental interest clearly appears to
be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of
expression, this Court will not find it difficult to sustain a regulation. However, regulations involving this area
are generally held against the most exacting standards, and the zone of protection accorded by the
Constitution cannot be violated, except upon a showing of a clear and present danger of a substantive evil
which the state has a right to protect. Stated differently, in the case of a regulation which appears to
abridge a right to which the fundamental law accords high significance it is the regulation, not the act (or
refusal to act), which is the exception and which requires the court's strictest scrutiny. In the case at bench,
the government has not shown that refusal to do the acts of conformity exacted by the assailed orders,
which respondents point out attained legislative cachet in the Administrative Code of 1987, would pose a
clear and present danger of a danger so serious and imminent, that it would prompt legitimate State
intervention.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; FLAG IS A RELIGIOUS SYMBOL.
While the very concept of ordered liberty precludes this Court from allowing every individual to
subjectively define his own standards on matters of conformity in which society, as a whole has important
interests, the records of the case and the long history of flag salute cases abundantly supports the religious
quality of the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a
religious symbol is well-founded and well-documented and is based on grounds of religious principle. The
message conveyed by their refusal to participate in the flag ceremony is religious, shared by the entire
community of Jehovah's Witnesses and is intimately related to their theocratic beliefs and convictions. The
subsequent expulsion of members of the sect on the basis of the regulations assailed in the original
petitions was therefore clearly directed against religious practice. It is obvious that the assailed orders and
memoranda would gravely endanger the free exercise of the religious beliefs of the members of the sect
and their minor children.
7. ID.; ID.; ID.; REFUSAL TO PARTICIPATE IN THE FLAG SALUTE CEREMONY HARDLY CONSTITUTES A
DANGER SO GRAVE AND IMMINENT TO WARRANT STATE INTERVENTION. To the extent to which
members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious symbolic
meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the
contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of
instilling patriotism among the youth. While conceding to the idea adverted to by the Solicitor General
that certain methods of religious expression may be prohibited to serve legitimate societal purposes,
refusal to participate in the flag ceremony hardly constitutes a form of religious expression so offensive and
noxious as to prompt legitimate State intervention. It is worth repeating that the absence of a demonstrable
danger of a kind which the State is empowered to protect militates against the extreme disciplinary
methods undertaken by school authorities in trying to enforce regulations designed to compel attendance
in flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with
or deny the rights of other school children to do so. It bears repeating that their absence from the
ceremony hardly constitutes a danger so grave and imminent as to warrant the state's intervention.'

8. ID.; ID.; ID.; ID.; TEST IN O'BRIEN CASE APPLIES ONLY IF THE STATE REGULATION IS NOT RELATED
TO COMMUNICATIVE CONDUCT. The respondents' insistence on the validity of the actions taken by
the government on the basis of their averment that "a government regulation of expressive conduct is
sufficiently justified if it is within the constitutional power of the government (and) furthers an important and
substantial government interest" misses the whole point of the test devised by the United States Supreme
Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the
government interest (should be) unrelated to the suppression of free expression." We have already stated
that the interest in regulation in the case at bench was clearly related to the suppression of an expression
directly connected with the freedom of religion and that respondents have not shown to our satisfaction
that the restriction was prompted by a compelling interest in public order which the state has a right to
protect. Moreover, if we were to refer (as respondents did by referring to the test in O'Brien) to the
standards devised by the US Supreme Court in determining the validity or extent of restrictive regulations
impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the
standard devised in O'Brien only applies if the State's regulation is not related to communicative conduct. If
a relationship exists, a more demanding standard is applied. ITScAE
MENDOZA, J., concurring:
1. POLITICAL LAW; STATE; FLAG SALUTE; NO COMPELLING REASON FOR RESORTING TO COERCION.
In determining the validity of compulsory flag salute, we must determine which of these polar principles
exerts a greater pull. But unlike the refusal to pay taxes or to submit to compulsory vaccination, the refusal
to salute the flag threatens no such dire consequences to the life or health of the State. Consequently, there
is no compelling reason for resorting to compulsion or coercion to achieve the purpose for which flag salute
is instituted. On the other hand, compelling flag salute cannot be likened to compelling members of a
religious sect to bow down before a graven image. It trivializes great principles to assimilate compulsory
flag salute to a form of command to worship strange idols not only because the flag is not a religious
symbol but also because the salute required involves nothing more than standing at attention or placing
one's right hand over the right breast as the National Anthem is played and of raising the right hand as the
pledge of allegiance to the flag is recited. In sum compulsory flag salute violates the Constitution not
because the aim of the exercise is doubtful but because the means employed for accomplishing it is not
permitted. Legitimate ends cannot be pursued by methods which violate fundamental freedoms when the
ends may be achieved by rational ones.
2. ID.; ID.; WITHOUT POWER TO COMPEL SALUTE TO THE FLAG. It is noteworthy that while the
Constitution provides for the national flag, it does not give the State the power to compel a salute to the
flag. DIHETS
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; FLAG, NOT AN IMAGE BUT A
SECULAR SYMBOL. The flag is not an image but a secular symbol. To regard it otherwise because a
religious minority regards it so would be to put in question many regulations that the State may
constitutionally enact or measures which it may adopt to promote civic virtues which the Constitution itself
enjoins the State to promote.
R E S O L U T I O N
KAPUNAN, J p:
The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents'
petition for certiorari and prohibition and annulling the expulsion orders issued by the public respondents
therein on the ground that the said decision created an exemption in favor of the members of the religious
sect, the Jehovah's Witnesses, in violation of the "Establishment Clause" of the Constitution. The Solicitor
General, on behalf of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for special
treatment in favor of a minority sect even on the basis of a claim of religious
freedom may be criticized as granting preference to the religious beliefs of
said sect in violation of the "non-establishment guarantee" provision of the
Constitution. Surely, the decision of the Court constitutes a special favor
which immunizes religious believers such as Jehovah's Witnesses to the law
and the DECS rules and regulations by interposing the claim that the
conduct required by law and the rules and regulation (sic) are violative of
their religious beliefs. The decision therefore is susceptible to the very
criticism that the grant of exemption is a violation of the non-
establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority poses a
risk of collision course with the "equal protection of the laws" clause in
respect of the non-exempt, and, in public schools, a collision course with
the "non-establishment guarantee." cdtai
Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding
in Gerona declaring the flag as being devoid of any religious significance. He stresses that the issue here is
not curtailment of religious belief but regulation of the exercise of religious belief. Finally, he maintains that
the State's interests in the case at bench are constitutional and legal obligations to implement the law and
the constitutional mandate to inculcate in the youth patriotism and nationalism and to encourage their
involvement in public and civic affairs, referring to the test devised by the United States Supreme Court in
U.S. vs. O'Brien. 1
II
All the petitioners in the original case 2 were minor schoolchildren, and members of the sect, Jehovah's
Witnesses (assisted by their parents) who were expelled from their classes by various public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge
as required by Republic Act No. 1265 of July 11, 1955 and by Department Order No. 8, dated July 21,
1955 issued by the Department of Education. Aimed primarily at private educational institutions which did
not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all educational institutions for
failure or refusal to observe the flag ceremony with public censure on first offense and cancellation of the
recognition or permit on second offense.
The implementing regulations issued by the Department of Education thereafter detailed the manner of
observance of the same. Immediately pursuant to these orders, school officials in Masbate expelled children
belonging to the sect of the Jehovah's Witnesses from school for failing or refusing to comply with the flag
ceremony requirement. Sustaining these expulsion orders, this Court in the 1959 case of Gerona vs.
Secretary of Education 3 held that:
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty,
of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and
protect. Considering the complete separation of church and state in our system of government, the flag is
utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious
ceremony. . . . .
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the
courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise,
there would be confusion and misunderstanding for there might be as many interpretations and meanings
to be given to a certain ritual or ceremony as there are religious groups or sects or followers.
Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection
among human rights," this Court, in Ebralinag vs Division Superintendent of Schools of Cebu 4 re-examined
our over two decades-old decision in Gerona and reversed expulsion orders made by the public
respondents therein as violative of both the free exercise of religion clause and the right of citizens to
education under the 1987 Constitution. 5
From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds
hereinabove stated. After a careful study of the grounds adduced in the government's Motion For
Reconsideration of our original decision, however, we find no cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are
widely known and are equally widely disseminated in numerous books, magazines, brochures and leaflets
distributed by their members in their house to house distribution efforts and in many public places. Their
refusal to render obeisance to any form or symbol which smacks of idolatry is based on their sincere belief
in the biblical injunction found in Exodus 20:4, 5, against worshipping forms or idols other than God
himself. The basic assumption in their universal refusal to salute the flags of the countries in which they are
found is that such a salute constitutes an act of religious devotion forbidden by God's law. This assumption,
while "bizarre" to others is firmly anchored in several biblical passages. 6
And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an
act (or acts) which they consider proscribed by the Bible, they contend that such refusal should not be taken
to indicate disrespect for the symbols of the country or evidence that they are wanting in patriotism and
nationalism. They point out that as citizens, they have an excellent record as law abiding members of
society even if they do not demonstrate their refusal to conform to the assailed orders by overt acts of
conformity. On the contrary, they aver that they show their respect through less demonstrative methods
manifesting their allegiance, by their simple obedience to the country's laws, 7 by not engaging in anti-
government activities of any kind, 8 and by paying their taxes and dues to society a self-sufficient members
of the community. 9 While they refuse to salute the flag, they are willing to stand quietly and peacefully at
attention, hands on their side, in order not to disrupt the ceremony or disturb those who believe differently.
10

The religious beliefs, practices and convictions of the member of the sect as a minority are bound to be
seen by others as odd and different and at divergence with the complex requirements of contemporary
societies, particularly those societies which require certain practices as manifestations of loyalty and
patriotic behavior. Against those who believe that coerced loyalty and unity are mere shadows of patriotism,
the tendency to exact "a hydraulic insistence on conformity to majoritarian standards," 11 is seductive to
the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the
minds of the youth the values of patriotism and nationalism and to encourage the involvement in public and
civic affairs." The teaching of these values ranks at the very apex of education's "high responsibility" of
shaping up the minds of the youth in those principles which would mold them into responsible and
productive members of our society. However, the government's interest in molding the young into patriotic
and civic spirited citizens is "not totally free from a balancing process" 12 when it intrudes into other
fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right
to education and the unassailable interest of parents to guide the religious upbringing of their children in
accordance with the dictates of their conscience and their sincere religious beliefs. 13 Recognizing these
values, Justice Carolina Grio-Aquino, the writer of the original opinion, underscored that a generation of
Filipinos which cuts its teeth on the Bill of Rights would find abhorrent the idea that one may be compelled,
on pain of expulsion, to salute the flag, sing the national anthem and recite the patriotic pledge during a
flag ceremony. 14 "This coercion of conscience has no place in a free society." 15
The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is
the right to stand apart. 16 In the context of the instant case, the freedom of religion enshrined in the
Constitution should be seen as the rule, not the exception.. To view the constitutional guarantee in the
manner suggested by the petitioners would be to denigrate the status of a preferred freedom and to
relegate it to the level of an abstract principle devoid of any substance and meaning in the lives of those for
whom the protection is addressed. As to the contention that the exemption accorded by our decision
benefits a privileged few, it is enough to re-emphasize that "the constitutional protection of religious
freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil
immunity." 17 The essence of the free exercise clause is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma. 18 Moreover, the suggestion implicit in the
State's pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to
all Citizens regardless of sect or religion and does not thereby discriminate against any particular sect or
denomination escapes the fact that "[a] regulation, neutral on its face, may in its application, nonetheless
offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of
religion." 19
III
The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to
be integrally related to petitioner's disagreement with the message conveyed by the refusal of members of
the Jehovah's Witness sect to salute the flag or participate actively in flag ceremonies on religious grounds.
20 Where the governmental interest clearly appears to be unrelated to the suppression of an idea, a
religious doctrine or practice or an expression or form of expression, this Court will not find it difficult to
sustain a regulation. However, regulations involving this area are generally held against the most exacting
standards, and the zone of protection accorded by the Constitution cannot be violated, except upon a
showing of a clear and present danger of a substantive evil which the state has a right to protect. 21 Stated
differently, in the case of a regulation which appears to abridge a right to which the fundamental law
accords high significance it is the regulation, not the act (or refusal to act), which is the exception and which
requires the court's strictest scrutiny. In the case at bench, the government has not shown that refusal to do
the acts of conformity exacted by the assailed orders, which respondents point out attained legislative
cachet in the Administrative Code of 1987, would pose a clear and present danger of a danger so serious
and imminent, that it would prompt legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted
interest in preserving the flag as a symbol of nationhood and national unity was an interest related to the
suppression of free expression . . . because the State's concern with protecting the flag's symbolic meaning
is implicated only when a person's treatment of the flag communicates some message." 22 While the very
concept of ordered liberty precludes this Court from allowing every individual to subjectively define his own
standards on matters of conformity in which society, as a whole has important interests, the records of the
case and the long history of flag salute cases abundantly supports the religious quality of the claims
adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious symbol is
well-founded and well-documented and is based on grounds religious principle. The message conveyed by
their refusal to participate in the flag ceremony is religious, shared by the entire community of Jehovah's
Witnesses and is intimately related to their theocratic beliefs and convictions. The subsequent expulsion of
members of the sect on the basis of the regulations assailed in the original petitions was therefore clearly
directed against religious practice. It is obvious that the assailed orders and memoranda would gravely
endanger the free exercise of the religious beliefs of the members of the sect and their minor children. LLjur
Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian
view intended to stifle the expression of the belief that an act of saluting the flag might sometimes be to
some individuals so offensive as to be worth their giving up another constitutional right the right to
education. Individuals or groups of individuals get from a symbol the meaning they put to it. 23 Compelling
members of a religious sect to believe otherwise on the pain of denying minor children the right to an
education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are
best instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only
serve to inspire the opposite. The methods utilized to impose them breed resentment and dissent. Those
who attempt to coerce uniformity of sentiment soon find out that the only path towards achieving unity is
by way of suppressing dissent. 24 In the end, such attempts only find the "unanimity of the graveyard." 25
To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's
religious symbolic meaning, the State cannot, without thereby transgressing constitutionally protected
boundaries, impose the contrary view on the pretext of sustaining a policy designed to foster the
supposedly far-reaching goal of instilling patriotism among the youth. While conceding to the idea
adverted to by the Solicitor General that certain methods of religious expression may be prohibited 26 to
serve legitimate societal purposes, refusal to participate in the flag ceremony hardly constitutes a form of
religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth
repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect
militates against the extreme disciplinary methods undertaken by school authorities in trying to enforce
regulations designed to compel attendance in flag ceremonies. Refusal of the children to participate in the
flag salute ceremony would not interfere with or deny the rights of other school children to do so. It bears
repeating that their absence from the ceremony hardly constitutes a danger so grave and imminent as to
warrant the state's intervention.
Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of
their averment that "a government regulation of expressive conduct is sufficiently justified if it is within the
constitutional power of the government (and) furthers an important and substantial government interest" 27
misses the whole point of the test devised by the United States Supreme Court in O'Brien, cited by
respondent, because the Court therein was emphatic in stating that "the government interest (should be)
unrelated to the suppression of free expression." We have already stated that the interest in regulation in
the case at bench was clearly related to the suppression of an expression directly connected with the
freedom of religion and that respondents have not shown to our satisfaction that the restriction was
prompted by a compelling interest in public order which the state has a right to protect. Moreover, if we
were to refer (as respondents did by referring to the test in O'Brien) to the standards devised by the US
Supreme Court in determining the validity or extent of restrictive regulations impinging on the freedoms of
the mind, then the O'Brien standard is hardly appropriate because the standard devised in O'Brien only
applies if the State's regulation is not related to communicative conduct. If a relationship exists, a more
demanding standard is applied. 28

The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral
uprightness is a responsibility shared by the State with parents and other societal institutions such as
religious sects and denominations. The manner in which such values are demonstrated in a plural society
occurs in ways so variable that government cannot make claims to the exclusivity of its methods of
inculcating patriotism so all-encompassing in scope as to leave no room for appropriate parental or
religious influences. Provided that those influences do not pose a clear and present danger of a substantive
evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to
the majority, are the price we pay for the freedoms we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Francisco, and Hermosisima,
Jr., JJ., concur.
Mendoza, J., see concurring opinion.
Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs. The Division Superintendent of
Schools of Cebu), 1 March 1993, 219 SCRA 276.
Panganiban, J., took no part.
Separate Opinions
MENDOZA, J., concurring:
The value of the national flag as a symbol of national unity is not in question in this case. The issue rather is
whether it is permissible to compel children in the Nation's schools to salute the flag as a means of
promoting nationhood considering that their refusal to do so is grounded on a religious belief.
Compulsory flag salute lies in a continuum, at one end of which is the obligation to pay taxes and, at the
other, a compulsion to bow down before a graven image. Members of a religious sect cannot refuse to pay
taxes, 1 render military service, 2 submit to vaccination 3 or give their children elementary school education
4 on the ground of conscience. But public school children may not be compelled to attend religious
instruction 5 or recite prayers or join in bible reading before the opening of classes in such schools. 6
In determining the validity of compulsory flag salute, we must determine which of these polar principles
exerts a greater pull. The imposition of taxes is justified because, unless support for the government can be
exacted, the existence of the State itself may well be endangered. The compulsory vaccination of children is
justified because unless the State can compel compliance with vaccination program there is danger that a
disease will spread. But unlike the refusal to pay taxes or to submit to compulsory vaccination, the refusal to
salute the flag threatens no such dire consequences to the life or health of the State. Consequently, there is
no compelling reason for resorting to compulsion or coercion to achieve the purpose for which flag salute is
instituted.
Indeed schools are not like army camps where the value of discipline justifies requiring a salute to the flag.
Schools are places where diversity and spontaneity are valued as much as personal discipline is. They are
places for the nurturing of ideals and values, not through compulsion or coercion but through persuasion,
because thought control is a negation of the very values which the educational system seeks to promote.
Persuasion and not persecution is the means for winning the allegiance of free men. That is why the
Constitution provides that the development of moral character and the cultivation of civic spirit are to be
pursued through education that includes a study of the Constitution, an appreciation of the role of national
heroes in historical development, teaching the rights and duties of citizenship and, at the option of parents
and guardians, religious instruction to be taught by instructors designated by religious authorities of the
religion to which they belong. It is noteworthy that while the Constitution provides for the national flag, 7 it
does not give the State the power to compel a salute to the flag. dctai
On the other hand, compelling flag salute cannot be likened to compelling members of a religious sect to
bow down before a graven image. The flag is not an image but a secular symbol. To regard it otherwise
because a religious minority regards it so would be to put in question many regulations that the State may
constitutionally enact or measures which it may adopt to promote civic virtues which the Constitution itself
enjoins the State to promote. 8
It trivializes great principles to assimilate compulsory flag salute to a form of command to worship strange
idols not only because the flag is not a religious symbol but also because the salute required involves
nothing more than standing at attention or placing one's right hand over the right breast as the National
Anthem is played and of raising the right hand as the following pledge is recited:
Ako'y nanunumpang magtatapat sa watawat ng Pilipinas at sa Republikang
kanyang kinakatawan isang bansang nasa kalinga ng Dios buo at hindi
mahahati, na may kalayaan at katarungan para sa lahat.
(I pledge allegiance to the flag and to the nation for which it stands one
nation under God indivisible, with liberty and justice for all.)
In sum, compulsory flag salute violates the Constitution not because the aim of the exercise is doubtful but
because the means employed for accomplishing it is not permitted. Legitimate ends cannot be pursued by
methods which violate fundamental freedoms when the ends may be achieved by rational ones.
For this reason I join in holding that compulsory flag salute is unconstitutional.
Footnotes
1. "To this end," the motion states, "a government regulation of expressive religious conduct which
debases the constitutional mandate for citizenship training is justifiable. As succinctly outlined
in one U.S. case:
A government regulation of expressive conduct is sufficiently justified if it is within the Constitutional
power of this government; it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression and if the incidental
restriction on alleged First Amendment freedom is greater than is essential to the furtherance
of that interest.( United States v. O'Brien, 391 U.S. 367)"
2. G.R. No. 95770 and G.R. No. 95887, March 1, 1993, 219 SCRA 256 (1993).
3. 106 Phil. 2 (1959).
4. Supra, note 2.
5. Id. at 272-273 (1993).
6. See, for e.g. Daniel 3:1-30.
7. Rollo, p. 8.
8. Id.
9. Id.
10. Rollo, p. 10.
11. State of Wisconsin v. Yoder, 40 LW 4476 (1972).
12. Id.
13. Id., See also, Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).
14. Ebralinag, supra at 270.
15. Id. at 275, Cruz J. (Concurring).
16. L. TRIBE, GOD SAVE THIS HONORABLE COURT: HOW THE CHOICE OF SUPREME COURT
JUSTICES SHAPES OUR HISTORY, 31(1985).
17. See supra note 15, citing Justice Frankfurter.
18. Id.
19. Sherbert v. Verner, 374 U.S. 398 (1963).
20. For instance, the Motion for Reconsideration characterizes the practices and observations of the sect
as "bizarre," Rollo, p. 229, "seditious" Id., p. 240 and "anti-social" Id. (italics supplied). In
making these points, the Motion makes this tongue-in-cheek observation: "Because of their
religious conviction that they "are not part of this world, and being allegedly concerned
"about the adverse effect that the world's influence can have on our children," the Jehovah's
Witnesses ask that their children . . . be exempted from participating in almost all school
activities and social function (sic) which, as they pointed out below are contrary to Bible (sic)
principles. "Id. The statement, "not part of this world" was deliberately taken out of context.
Here is what the paragraph from the sect's manual says:
As one might expect, this view of the future also had a significant effect on the first Christians. It caused
them to be a distinctive people, separate from the world. As the historian E.G. Hardy noted in
his book Christianity and the Roman Government: "The Christians were strangers and pilgrims
in the world around them; their citizenship was in heaven; the kingdom to which they looked
was not part of this world. The consequent want of interest in public affairs came thus from the
outset to be a noticeable feature in Christianity. Annex "B", p. 7.
21. West Virginia v. Barnette, 319 US 624 at 339 (1942).
22. U.S. v. Eichman, 496 US 310, 313; 110 L ed 2d 287 (1990).
23. Supra, note 4.
24. Id., at 640.
25. Id., at 641. "Recognizing that the right to differ is the centerpiece of our First Amendment . . . a
government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same
government cannot carve out a symbol of unity and prescribe a set of approved messages to
be associated with that symbol when it cannot mandate the status or feeling the symbol
purports to represent." See, Texas v. Johnson, 491 US 397 at 400 (1989).
26. Raising the "Children of God" caper, the Solicitor General's brief states:
How about the children of God, also known as Future Visions of Family which engages in free love and
sex sharing among its members by way of obedience to the biblical injunction "to love your
neighbor and love yourself " as interpreted by its founder, Moses David Berg, through his
writings entitled "The Law of Love" and "Growing in Faith." Despite the crusades of Cardinal
Sin and the Aquino government, this self-styled sex cult has gain (sic) foothold and spread in
numbers in this country, offering free sex, cutely termed as "flirty fishing to win people for the
Lord." Will this Honorable Court also recognize and allow their communal free love and sex
orgies to continue unabated as part of their religious belief and protected by their
constitutional right of freedom of religion, thereby sideswiping the present Government's
program to prevent the spread of venereal diseases and the dreaded AIDS through the use of
condoms?" Rollo, p. 245.
27. Supra, note 1.
28. Referring to the test devised in O'Brien the U.S. Supreme Court in Texas v. Johnson, supra, held: "We
must first determine whether Johnson's burning of the flag constituted expressive conduct
permitting him to invoke the First Amendment in challenging his conviction. If his conduct was
expressive, we next decide whether the State's regulation is related to the suppression of free
expression. If the state's regulation is not related to expression, then the less stringent
standard we announced in United States vs. O'Brien for regulations of noncommunicative
conduct controls. If it is then we are outside O'Brien's test, and we must ask whether this
interest justifies Johnson's conviction under a more demanding standard. Id. at 403.

MENDOZA, J., concurring:
1. United States v. Lee, 455 U.S. 25 (1982).
2. Gillette v. United States, 401 U.S. 437 (1971); Hamilton v. Regents of the University of California, 293
U.S. 245 (1934). Cf. People v. Lagman and People v. Sosa, 66 Phil. 13 (1938).
3. Jacobson v. Massachusetts, 197 U.S. 11 (1904); People v. Abad Lopez, 62 Phil. 835 (1936); Lorenzo v.
Director, 50 Phil. 595 (1927).
4. Wisconsin v. Yoder, 406 U.S. 205 (1972), PHIL. CONST., Art. XIV, 2 (2) provides that "elementary
education is compulsory for all children of school age."
5. Art. XIV, 3(3) only provides "for optional religious instruction on public elementary and high
education is compulsory for all children of school age."
6. Engel v. Vitale, 307 U.S. 421 (1962); Abington School Dist. v. Schempp, 374 U.S. 203 (1963); cf.
Wallace v. Jaffree, 472 U.S. 38 (1985).
7. CONST., Art. XVI, 1.
8. See Art. II, 13; Art. XIV, 3 (2).

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Facts:
The petitioners in both (consolidated) cases were expelled from their classes by the
public school authorities in Cebu for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge as required by Republic Act No. 1265
(An Act making flag
ceremony compulsory in all educational institutions)
of July 11, 1955 , and by Department
Order No. 8
(Rules and Regulations for Conducting the Flag Ceremony in All Educational
Institutions)
dated July 21, 1955 of the Department of Education, Culture and Sports (DECS)
making the flag ceremony compulsory in all educational institutions.
Jehovah's Witnesses admitted that they taught their children not to salute the flag,
sing the national anthem, and recite the patriotic pledge for they believe that those are
"acts of worship" or "religious devotion" which they "cannot conscientiously give to anyone
or anything except God". They consider the flag as an image or idol representing the State.
They think the action of the local authorities in compelling the flag salute and pledge
transcends constitutional limitations on the State's power and invades the sphere of the
intellect and spirit which the Constitution protect against official control..
Issue:
Whether or not school children who are members or a religious sect may be expelled
from school for disobedience of R.A. No. 1265 and Department Order No. 8
Held:
No.
Religious freedom is a fundamental right which is entitled to the highest
priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator
The sole justification for a prior restraint or limitation on the exercise of religious
freedom is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent." Absent such a
threat to public safety, the expulsion of the petitioners from the schools is not justified.
(Teehankee)
The petitioners further contend that while they do not take part in the compulsory
flag ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance of the
flag ceremony. They quietly stand at attention during the flag ceremony to show their
respect for the right of those who choose to participate in the solemn proceedings. Since
they do not engage in disruptive behavior, there is no warrant for their expulsion.
EN BANC
[A.M. No. P-02-1651. June 22, 2006.]
(formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR,
respondent.
R E S O L U T I O N
PUNO, J p:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands
before the Court invoking her religious freedom and her Jehovah God in a bid to save her family united
without the benefit of legal marriage and livelihood. The State, on the other hand, seeks to wield its
power to regulate her behavior and protect its interest in marriage and family and the integrity of the courts
where respondent is an employee. How the Court will tilt the scales of justice in the case at bar will decide
not only the fate of respondent Escritor but of other believers coming to Court bearing grievances on their
free exercise of religion. This case comes to us from our remand to the Office of the Court Administrator on
August 4, 2003. 1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and
having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an immoral
act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act. 2 Consequently, respondent was charged with committing
"disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998. 4 She admitted that she started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when her husband was still alive but living with another
woman. She also admitted that she and Quilapio have a son. 5 But as a member of the religious sect known
as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their religious beliefs and has the approval of her congregation.
6 In fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness." 7
For Jehovah's Witnesses, the Declaration allows members of the congregation who have been abandoned
by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and
binding within the congregation all over the world except in countries where divorce is allowed. As laid out
by the tenets of their faith, the Jehovah's congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities' approval of the marital relationship because of
legal impediments. Only couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a matter of practice, the
marital status of the declarants and their respective spouses' commission of adultery are investigated before
the declarations are executed. 8 Escritor and Quilapio's declarations were executed in the usual and
approved form prescribed by the Jehovah's Witnesses, 9 approved by elders of the congregation where
the declarations were executed, 10 and recorded in the Watch Tower Central Office. 11
Moreover, the Jehovah's congregation believes that once all legal impediments for the couple are lifted,
the validity of the declarations ceases, and the couple should legalize their union. In Escritor's case,
although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was
still not capacitated to remarry. Thus, their declarations remained valid. 12 In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and
Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable, 13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of
civil or political rights.
A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of
the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving
religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent's plea of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which must be applied.
14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue
of whether respondent was to be held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded the
complaint to the Ofce of the Court Administrator (OCA), and ordered the Ofce of the Solicitor
General (OSG) to intervene in the case so it can:
(a) examine the sincerity and centrality of respondent's claimed
religious belief and practice;
(b) present evidence on the state's "compelling interest" to override
respondent's religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the
least restrictive to respondent's religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These
issues have already been ruled upon prior to the remand, and constitute "the law of the case" insofar
as they resolved the issues of which framework and test are to be applied in this case, and no motion
for its reconsideration having been led. 16 The only task that the Court is left to do is to determine
whether the evidence adduced by the State proves its more compelling interest. This issue involves a pure
question of fact.
B. LAW OF THE CASE
Mr. Justice Carpio's insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the
complainant, respondent nor the government has filed a motion for reconsideration assailing this ruling, the
same has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling
constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it would overturn the
parties' right to rely upon our interpretation which has long attained finality, it also runs counter to
substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpio's belated attempts to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion
clauses, because "one cannot understand, much less intelligently criticize the approaches of the courts and
the political branches to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world and in the American
experience." 17 We delved into the conception of religion from primitive times, when it started out as the
state itself, when the authority and power of the state were ascribed to God. 18 Then, religion developed
on its own and became superior to the state, 19 its subordinate, 20 and even becoming an engine of state
policy. 21
We ascertained two salient features in the review of religious history: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and
mundane benefits conferred by ambitious princes and emperors in exchange for religion's invaluable
service. This was the context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to deal with religion. As James Madison
said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it. 23

The omission of an express guaranty of religious freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of
the religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did
not take away or abridge any power of the national government; its intent was to make express the absence
of power. 24 It commands, in two parts (with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory
purposes. They have a single goal to promote freedom of individual religious beliefs and practices. In
simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices. 26
In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion
as an engine to promote state interests, to the principle of non-establishment to allow the free exercise of
religion. DICSaH
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses' interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors to
the Philippine religion clauses, although we have significantly departed from the U.S. interpretation as will
be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread
agreement regarding the value of the First Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning. 27
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b)
the tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second
theory of governmental neutrality. Although the latter form is not as hostile to religion as the former, both
are anchored on the Jeffersonian premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church. 28 Both protect the principle of church-state separation with a
rigid reading of the principle. On the other hand, the second standard, the benevolent neutrality or
accommodation, is buttressed by the view that the wall of separation is meant to protect the church from
the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the
church, and the state's hostility towards religion allows no interaction between the two. According to this
Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers. 29 Only the complete
separation of religion from politics would eliminate the formal influence of religious institutions and provide
for a free choice among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion. 31 For example, less than
twenty-four hours after Congress adopted the First Amendment's prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer. 32 Thus, strict separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to. 33
The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in Everson v. Board of Education, 34 where the Court
declared that Jefferson's "wall of separation" encapsulated the meaning of the First Amendment. However,
unlike the strict separationists, the strict neutrality view believes that the "wall of separation" does not
require the state to be their adversary. Rather, the state must be neutral in its relations with groups of
religious believers and non-believers. "State power is no more to be used so as to handicap religions than it
is to favor them." 35 The strict neutrality approach is not hostile to religion, but it is strict in holding that
religion may not be used as a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require, accommodation of secular programs to religious
belief. 36
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Abington School District v. Schempp, 37 strict
neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even active,
hostility to the religious" which is prohibited by the Constitution. 38 Professor Laurence Tribe commented
in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the
very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the
free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising
that the [U.S.] Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications. 39
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict
neutrality, is that while the Jeffersonian wall of separation "captures the spirit of the American ideal of
church-state separation," in real life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of government and religion at many points.
40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to protect the church from the state. 41 This
doctrine was expressed in Zorach v. Clauson, 42 which held, viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other hostile,
suspicious, and even unfriendly. Churches could not be required to pay
even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages
of the Chief Executive; the proclamations making Thanksgiving Day a
holiday; "so help me God" in our courtroom oaths these and all other
references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens
each session: "God save the United States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not would be
to find in the Constitution a requirement that the government show a
callous indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their effective
scope of religious influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United States
as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of "In God We Trust" on American currency; the recognition of
America as "one nation under God" in the official pledge of allegiance to the flag; the Supreme Court's
time-honored practice of opening oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of paying a chaplain, usually of
a particular Protestant denomination, to lead representatives in prayer. These practices clearly show the
preference for one theological viewpoint the existence of and potential for intervention by a god over
the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the
building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the
legislature in daily prayers, 45 or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge; 46 for government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior; 47 or to provide
religious school pupils with books; 48 or bus rides to religious schools; 49 or with cash to pay for state-
mandated standardized tests. 50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a person's or institution's religion.
As Justice Brennan explained, the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish." 51 In the ideal world, the legislature would recognize the
religions and their practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and burdened may turn to
the courts for protection. 52
Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a
facially neutral law, but an exemption from its application or its "burdensome effect," whether by the
legislature or the courts. 53 Most of the free exercise claims brought to the U.S. Court are for exemption,
not invalidation of the facially neutral law that has a "burdensome" effect. 54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the
case of Sherbert v. Verner, 55 which ruled that state regulation that indirectly restrains or punishes
religious belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause. 56 According
to Sherbert, when a law of general application infringes religious exercise, albeit incidentally, the state
interest sought to be promoted must be so paramount and compelling as to override the free exercise
claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellant's constitutional challenge, it must
be either because her disqualication as a beneciary represents no
infringement by the State of her constitutional right of free exercise,
or because any incidental burden on the free exercise of appellant's
religion may be justied by a "compelling state interest in the
regulation of a subject within the State's constitutional power to
regulate. . . ." 57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufcient to merely
show a rational relationship of the substantial infringement to the religious right and a colorable
state interest. "(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.'" 58 The Court found that there was no such
compelling state interest to override Sherbert's religious liberty. It added that even if the state could show
that Sherbert's exemption would pose serious detrimental effects to the unemployment compensation fund
and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty. The state, however, did not
discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned
that upholding the denial of Sherbert's benefits would force her to choose between receiving benefits and
following her religion. This choice placed "the same kind of burden upon the free exercise of religion as
would a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert firmly
established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conict with scruples of conscience, exemptions ought to be granted unless some "compelling
state interest" intervenes. ESTCDA
Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law
embodies a compelling interest, that no less restrictive alternative exists, and that a religious exemption
would impair the state's ability to effectuate its compelling interest. As in other instances of state action
affecting fundamental rights, negative impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder, 61 the U.S. Court again ruled that religious exemption was in
order, notwithstanding that the law of general application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-
attendance laws. The Court, in effect, granted exemption from a neutral, criminal statute that punished
religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond
the eighth grade against a claim that such attendance interferes with the
practice of a legitimate religious belief, it must appear either that the
State does not deny the free exercise of religious belief by its
requirement, or that there is a state interest of sufcient magnitude to
override the interest claiming protection under the Free Exercise
Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the
right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the
establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the
expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct
is always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to
promote the health, safety, and general welfare, or the Federal government
in the exercise of its delegated powers . . . But to agree that religiously
grounded conduct must often be subject to the broad police power of
the State is not to deny that there are areas of conduct protected by
the Free Exercise Clause of the First Amendment and thus beyond the
power of the State to control, even under regulations of general
applicability. . . .This case, therefore, does not become easier because
respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot
be neatly confined in logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were
subject to heightened scrutiny or compelling interest test if government substantially burdened the
exercise of religion; (b) heightened scrutiny or compelling interest test governed cases where the burden
was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases where the
burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit; 63 and
(c) the Court could carve out accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected conduct beyond
speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert's refusal to
work on the Sabbath nor the Amish parents' refusal to let their children attend ninth and tenth grades can
be classified as conduct protected by the other clauses of the First Amendment. Second, indirect
impositions on religious conduct, such as the denial of twenty-six weeks of unemployment insurance
benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder,
were prohibited. Third, as the language in the two cases indicate, the protection granted was extensive.
Only extremely strong governmental interests justified impingement on religious conduct, as the absolute
language of the test of the Free Exercise Clause suggests. 64
Fourth, the strong language was backed by a requirement that the government provide proof of the
important interest at stake and of the dangers to that interest presented by the religious conduct at issue.
Fifth, in determining the injury to the government's interest, a court was required to focus on the effect that
exempting religious claimants from the regulation would have, rather than on the value of the regulation in
general. Thus, injury to governmental interest had to be measured at the margin: assuming the law still
applied to all others, what would be the effect of exempting the religious claimant in this case and other
similarly situated religious claimants in the future? Together, the fourth and fifth elements required that
facts, rather than speculation, had to be presented concerning how the government's interest would be
harmed by excepting religious conduct from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a
discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented
the likelihood of exaggeration of the weight on the governmental interest side of the balance, by not
allowing speculation about the effects of a decision adverse to those interests nor accepting that those
interests would be defined at a higher level of generality than the constitutional interests on the other side
of the balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the U.S. Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free exercise of religion. 67
Most scholars and courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided
individuals some form of heightened scrutiny protection, if not always a compelling interest one. 68 The
1990 case of Employment Division, Oregon Department of Human Resources v. Smith, 69 drastically
changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a
hallucinogenic substance. Specifically, individuals challenged the state's determination that their religious
use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from
receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said that "[w]e have never held that an individual's religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts
that proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an individual of
the obligation to comply with a 'valid and neutral law of general applicability of the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" 72
Justice Scalia's opinion then reviewed the cases where free exercise challenges had been upheld such as
Cantwell, Murdock, Follet, Pierce, and Yoder and said that none involved the free exercise clause claims
alone. All involved "the Free Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press, or the right of parents to direct the education of their children." 73
The Court said that Smith was distinguishable because it did not involve such a "hybrid situation," but was
a free exercise claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability
that burden religion. Justice Scalia said that "[p]recisely because 'we are a cosmopolitan nation made up of
people of almost conceivable religious preference,' and precisely because we value and protect that
religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the
religious objector, every regulation of conduct that does not protect an interest of the highest order." The
Court said that those seeking religious exemptions from laws should look to the democratic process for
protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling
justification approach were abandoned for evaluating laws burdening religion; neutral laws of general
applicability only have to meet the rational basis test, no matter how much they burden religion. 77
Justice O'Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest
test, asserting that "(t)he compelling state interest test effectuates the First Amendment's command that
religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not
permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling
government interest 'of the highest order.'" 78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First Amendment's mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society." 79
Justice O'Connor also disagreed with the majority's description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted
precisely to protect the rights of those whose religious practice are not shared by the majority and may be
viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The
dissenting Justices agreed with Justice O'Connor that the majority had mischaracterized precedents, such
as in describing Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also
argued that strict scrutiny should be used in evaluating government laws burdening religion. 81
Criticism of Smith was intense and widespread. 82 Academics, Justices, and a bipartisan majority of
Congress noisily denounced the decision. 83 Smith has the rather unusual distinction of being one case
that is almost universally despised (and this is not too strong a word) by both the liberals and conservatives.
84 Liberals chasten the Court for its hostility to minority faiths which, in light of Smith's general applicability
rule, will allegedly suffer at the hands of the majority faith whether through outright hostility or neglect.
Conservatives bemoan the decision as an assault on religious belief leaving religion, more than ever, subject
to the caprice of an ever more secular nation that is increasingly hostile to religious belief as an oppressive
and archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence. 86 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. 87 Critics of Smith have worried
about religious minorities, who can suffer disproportionately from laws that enact majoritarian mores. 88
Smith, in effect would allow discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout, 89 contrary to the original theory of the First Amendment. 90
Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial recourse for exemption. 91 Second, Smith
leaves too much leeway for pervasive welfare-state-regulation to burden religion while satisfying neutrality.
After all, laws not aimed at religion can hinder observance just as effectively as those that target religion. 92
Government impairment of religious liberty would most often be of the inadvertent kind as in Smith
considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it
would be left almost meaningless. 93 Third, the Reynolds-Gobitis-Smith 94 doctrine simply defies
common sense. The state should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion. 95
At bottom, the Court's ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
limiting the term "religion" in today's pluralistic society, and (2) the belief that courts have no business
determining the significance of an individual's religious beliefs. For the Smith Court, these two concerns
appear to lead to the conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free exercise protection
to the political process or to allow a "system in which each conscience is a law unto itself." 96 The Court's
characterization of its choices have been soundly rejected as false, viz:
If one accepts the Court's assumption that these are the only two viable
options, then admittedly, the Court has a stronger argument. But the Free
Exercise Clause cannot be summarily dismissed as too difficult to apply and
this should not be applied at all. The Constitution does not give the
judiciary the option of simply refusing to interpret its provisions. The First
Amendment dictates that free exercise of "religion" must be protected.
Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes "religion." There is no constitutional opt-out
provision for constitutional words that are difficult to apply. IcHSCT
Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between the
Court's two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult
issues such as defining religion and possibly evaluating the significance of a
religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will
regularly balance against the importance of general laws the significance of
religious practice," and then dismisses it as a "parade of horribles" that is
too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of
horribles." Surely not religious individuals; they would undoubtedly prefer
their religious beliefs to be probed for sincerity and significance rather than
acquiesce to the Court's approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned
about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom
Restoration Act of 1993], and in any case, the Court should not be overly
concerned about hurting legislature's feelings by requiring their laws to
conform to constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional
interpreters is a burden no judge should be expected to fulfill. 97
Parenthetically, Smith's characterization that the U.S. Court has "never held that an individual's religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to
regulate" an assertion which Mr. Justice Carpio adopted unequivocally in his dissent has been sharply
criticized even implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did
not do so by opposing the arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision made shocking use
of precedent] those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two constitutional rights combined the right of parents
to direct the education of their children and the right of free exercise of religion. Under the Court's opinion
in Smith, the right of free exercise of religion standing alone would not allow Amish parents to disregard
the compulsory school attendance law, and under the Court's opinion in Yoder, parents whose objection to
the law was not religious would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined? 99 As for Sherbert, the Smith
Court attempted to limit its doctrine as applicable only to denials of unemployment compensation benefits
where the religiously-compelled conduct that leads to job loss is not a violation of criminal law. And yet, this
is precisely why the rejection of Sherbert was so damaging in its effect: the religious person was more likely
to be entitled to constitutional protection when forced to choose between religious conscience and going
to jail than when forced to choose between religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially from the religious community,
and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. 101 So much
was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993. 102 The RFRA was adopted to negate the Smith test and require strict scrutiny for free
exercise claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws neutral toward
religion." 103 The Act declares that its purpose is to restore the compelling interest test as set forth in
Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases where free
exercise of religion is substantially burdened; and to provide a claim of defense to a person whose religious
exercise is substantially burdened by government. 104 The RFRA thus sought to overrule Smith and make
strict scrutiny the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling
that Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court
ruled that Congress is empowered to enact laws "to enforce the amendment," but Congress is not
"enforcing" when it creates new constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect
for the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the
political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws that
affirmatively foster the dissemination of the printed word, so also a society
that believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court's characterization of the RFRA as a kind of usurpation of the judicial power
to say what the Constitution means, the law offered no definition of Free Exercise, and on its face appeared
to be a procedural measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to act towards the states in matters of
religion arises from the Fourteenth Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach.
Moreover, if we consider the history of the incorporation of the religion clauses in the U.S., the decision in
Smith is grossly inconsistent with the importance placed by the framers on religious faith. Smith is
dangerous precedent because it subordinates fundamental rights of religious belief and practice to all
neutral, general legislation. Sherbert recognized the need to protect religious exercise in light of the
massive increase in the size of government, the concerns within its reach, and the number of laws
administered by it. However, Smith abandons the protection of religious exercise at a time when the scope
and reach of government has never been greater. It has been pointed out that Smith creates the legal
framework for persecution: through general, neutral laws, legislatures are now able to force conformity on
religious minorities whose practice irritate or frighten an intolerant majority. 109
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating
the Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the
Bill of Rights, the religion clauses of the First Amendment are most important to those who cannot prevail in
the political process. The Court in Smith ignores the fact that the protections found in the Bill of Rights
were deemed too important to leave to the political process. Because mainstream religions generally have
been successful in protecting their interests through the political process, it is the non-mainstream religions
that are adversely affected by Smith. In short, the U.S. Supreme Court has made it clear to such religions
that they should not look to the First Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or
legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit. 111
Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e., when the Court itself carves out an exemption. This accommodation occurs when all
three conditions of the compelling interest test are met, i.e, a statute or government action has burdened
claimant's free exercise of religion, and there is no doubt as to the sincerity of the religious belief; the state
has failed to demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to make exemptions.
Thus, if the state's objective could be served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the religious beliefs of the
Amish who objected to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert. 112
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause." 113 Other examples are Zorach v. Clauson, 114 allowing released time in public schools
and Marsh v. Chambers, 115 allowing payment of legislative chaplains from public funds. Parenthetically,
the Court in Smith has ruled that this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid. 116 An example where
accommodation was prohibited is McCollum v. Board of Education, 117 where the Court ruled against
optional religious instruction in the public school premises. 118
Given that a free exercise claim could lead to three different results, the question now remains as to how
the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to
carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face
is argued to prevent or burden what someone's religious faith requires, or alternatively, requires someone to
undertake an act that faith would preclude. In essence, then, free exercise arguments contemplate religious
exemptions from otherwise general laws. 119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the
First Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society. 120 Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny. 121
In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or 'compelling') secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to exemption
from the law or practice at issue. In order to be protected, the claimant's
beliefs must be 'sincere', but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the claimant's
religious denomination. 'Only beliefs rooted in religion are protected by
the Free Exercise Clause'; secular beliefs, however sincere and
conscientious, do not suffice. 122
In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has also
further been split by the view that the First Amendment requires accommodation, or that it only allows
permissible legislative accommodations. The current prevailing view as pronounced in Smith, however, is
that that there are no required accommodation under the First Amendment, although it permits of
legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution,
Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
clear that one cannot simply conclude that we have adopted lock, stock and barrel the religion clauses
as embodied in the First Amendment, and therefore, the U.S. Court's interpretation of the same. Unlike in
the U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme Court as
constituting permissive accommodations, similar exemptions for religion are mandatory accommodations
under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax
exemption of church property, 123 salary of religious officers in government institutions, 124 and optional
religious instruction. 125 Our own preamble also invokes the aid of a divine being. 126 These
constitutional provisions are wholly ours and have no counterpart in the U.S. Constitution or its
amendments. They all reveal without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires accommodations in
interpreting the religion clauses. 127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted
that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935
Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as early as
1935, or more than three decades before the U.S. Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the same in our Constitution, as a mandatory
accommodation. HcDSaT
There is no ambiguity with regard to the Philippine Constitution's departure from the U.S. Constitution,
insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution. 128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution . . . Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause
jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities
to support it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses' history. As a result, in a
case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987,
1973 and 1935 Constitutions as shown by other provisions on religion
in all three constitutions. It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
that will give to all of them full force and effect. From this construction, it
will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in
the Philippine constitutions, and the enforcement of this intent is the goal
of construing the constitution. 129 [citations omitted]
We therefore reject Mr. Justice Carpio's total adherence to the U.S. Court's interpretation of the religion
clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of
general application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has
never held that "an individual's religious beliefs [do not] excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court
has allowed exemptions from a law of general application, in effect, interpreting our religion clauses
to cover both mandatory and permissive accommodations. 130
To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to plaintiff exemption
from a law of general application based on the Free Exercise Clause. In this case, plaintiff was required by
an ordinance to secure a mayor's permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the city's ordinances. Plaintiff argued that this amounted to
"religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines." Although the
Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not
engaged in the business or occupation of selling said "merchandise" for profit, it also ruled that applying
the ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of dissemination of religious beliefs "as the
power to tax the exercise of a privilege is the power to control or suppress its enjoyment." The decision
states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear
and present danger of any substantive evil which the State has the
right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of
Schools. 132 The case involved several Jehovah's Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an earlier ruling
denying such exemption, 133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified. 134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde
Rope Workers Union 135 is an example of the application of Mr. Justice Carpio's theory of permissive
accommodation, where religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt employees from the
application and coverage of a closed shop agreement mandated in another law based on religious
objections. A unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." Interestingly, the secular purpose of the challenged law which the Court
upheld was the advancement of "the constitutional right to the free exercise of religion." 136
Having established that benevolent neutrality-accommodation is the framework by which free exercise
cases must be decided, the next question then turned to the test that should be used in ascertaining the
limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious belief, as in the case at
bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did
not employ it. Nevertheless, this test continued to be cited in subsequent
cases on religious liberty. The Gerona case then pronounced that the test
of permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then
employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
"clear and present danger" test in the maiden case of American Bible
Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in
one form or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine,
aside from having been overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test
that would protect the interests of the state in preventing a substantive evil,
whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is sacred for an invocation of
the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail
between the state's interest and religious liberty, reasonableness shall be
the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty will
not be preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely disputing the applicability of
the benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test
needs to be applied by the Court in determining the validity of a free exercise claim of exemption as made
here by Escritor." This assertion is inconsistent with the position negating the benevolent neutrality or
accommodation approach. If it were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test to determine the validity of
a free exercise claim, as any and all claims for religious exemptions from a law of general application would
fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims because
it forces the Court to confront how far it can validly set the limits of religious liberty under the Free Exercise
Clause, rather than presenting the separation theory and accommodation theory as opposite concepts, and
then rejecting relevant and instructive American jurisprudence (such as the Smith case) just because it does
not espouse the theory selected." He then asserts that the Smith doctrine cannot be dismissed because it
does not really espouse the strict neutrality approach, but more of permissive accommodation. ACTISE
Mr. Justice Carpio's assertion misses the point. Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a
claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the
Smith doctrine actually espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative exemptions. It, therefore, cannot be used as a
test in determining the claims of religious exemptions directly under the Free Exercise Clause because
Smith does not recognize such exemption. Moreover, Mr. Justice Carpio's advocacy of the Smith doctrine
would effectively render the Free Exercise protection a fundamental right under our Constitution
nugatory because he would deny its status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this
process in detail, by showing the questions which must be answered in each step, viz:
. . . First, "[H]as the statute or government action created a burden on the
free exercise of religion?" The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because
the Free Exercise Clause prohibits inquiring about its truth as held in
Ballard and Cantwell. The sincerity of the claimant's belief is ascertained to
avoid the mere claim of religious beliefs to escape a mandatory
regulation. . . .
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to
justify this infringement of religious liberty?" In this step, the government
has to establish that its purposes are legitimate for the state and that
they are compelling. Government must do more than assert the objectives
at risk if exemption is given; it must precisely show how and to what
extent those objectives will be undermined if exemptions are
granted. . . .
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?" The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it
has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties . . . . 138 [citations omitted]
Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally, if the Court finds that the
establishment concerns prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio's dissent is that only permissive accommodation can
carve out an exemption from a law of general application. He posits the view that the law should prevail in
the absence of a legislative exemption, and the Court cannot make the accommodation or exemption.
Mr. Justice Carpio's position is clearly not supported by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but
also mandatory accommodations. Thus, an exemption from a law of general application is possible, even if
anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States, 139 the U.S. Court expressly denied to Mormons an
exemption from a general federal law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith. 140 In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of marrying more than one still
constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy "shall not apply to a person married . . . under Muslim law." Thus, by legislative action,
accommodation is granted of a Muslim practice which would otherwise violate a valid and general criminal
law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision dated August 4,
2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik, 141 he stated that a Muslim
Judge "is not criminally liable for bigamy because Shari'a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio's "permissive-accommodation only" advocacy in
this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty
of religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from
generally applicable laws to individuals whose religious practice conflict with those laws," his theory is
infirmed by the showing that the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the Philippine Constitution, our
legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to
the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred
right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not
applicable when the law in question is a generally applicable criminal law. Stated differently, even if Mr.
Justice Carpio conceded that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and who would make these
exemptions.
On this point, two things must be clarified: rst, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding
that the Free Exercise Clause required the accommodation, or mandatory accommodations) has already
been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this Court can
make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of
general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced
and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially neutral law
would have on religious exercise. Just because the law is criminal in nature, therefore, should not bring it
out of the ambit of the Free Exercise Clause. As stated by Justice O'Connor in her concurring opinion in
Smith, "[t]here is nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as laws aimed at religion." 142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions
who are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which
include ignorance and indifference and overt hostility to the minority. As stated in our Decision, dated
August 4, 2003:
. . . In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious
practice. At times, this effect is unavoidable as a practical matter because
some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable
that only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials
are frequently willing to make such exemptions when the need is brought
to their attention, but this may not always be the case when the religious
practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows
accommodations prevents needless injury to the religious consciences
of those who can have an inuence in the legislature; while a
constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect
themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be
applied for the first time, as an exemption of such nature, albeit by legislative act, has already been granted
to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other fundamental rights in the
Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property,
the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant.
Given the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a
claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a
general criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make an
individual determination and not dismiss the claim outright. ETHSAI
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation
approach does not mean that the Court ought to grant exemptions every time a free exercise claim comes
before it. This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to
entertain. Although benevolent neutrality is the lens with which the Court ought to view religion clause
cases, the interest of the state should also be afforded utmost protection. This is precisely the purpose
of the test to draw the line between mandatory, permissible and forbidden religious exercise. Thus,
under the framework, the Court cannot simply dismiss a claim under the Free Exercise Clause
because the conduct in question offends a law or the orthodox view, as proposed by Mr. Justice Carpio,
for this precisely is the protection afforded by the religion clauses of the Constitution. 144 As stated in the
Decision:
. . . While the Court cannot adopt a doctrinal formulation that can eliminate
the difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of
the means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence should
be directed. We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority,
however large but for each of us" to the greatest extent possible
within exible constitutional limits. 145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the
careful application of the compelling state interest test, i.e., determining whether respondent is entitled
to exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer's
report, 146 along with the evidence submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the administrative charge of
"disgraceful and immoral conduct." It is at this point then that we examine the report and documents
submitted by the hearing officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent's claimed religious belief and practice are beyond serious doubt. 147 Thus, having
previously established the preliminary conditions required by the compelling state interest test, i.e., that
a law or government practice inhibits the free exercise of respondent's religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or practice justifies a
compelling secular objective and that it is the least restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override respondent's fundamental right to
religious freedom. Neither did the government exert any effort to show that the means it seeks to
achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" AND SUBMARKING The September 30, 2003 Letter
to the OSG of Bro. Raymond B. Leach, Legal Representative of
the Watch Tower Bible and Tract Society of the Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine the sincerity
and centrality of respondent's claimed religious belief and
practice.
2. Exhibit "B-OSG" AND SUBMARKING The duly notarized certification
dated September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent's
claimed religious belief and practice; and (2) to prove that the
Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovah's
Witnesses, cannot be a source of any legal protection for
respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent's claimed religious belief and practice, in order to protect marriage and the family as basic
social institutions. The Solicitor General, quoting the Constitution 148 and the Family Code, 149 argues
that marriage and the family are so crucial to the stability and peace of the nation that the conjugal
arrangement embraced in the Declaration of Pledging Faithfulness should not be recognized or given
effect, as "it is utterly destructive of the avowed institutions of marriage and the family for it reduces to a
mockery these legally exalted and socially significant institutions which in their purity demand respect and
dignity." 150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he
asserts that the State has a compelling interest in the preservation of marriage and the family as basic social
institutions, which is ultimately the public policy underlying the criminal sanctions against concubinage and
bigamy. He also argues that in dismissing the administrative complaint against respondent, "the majority
opinion effectively condones and accords a semblance of legitimacy to her patently unlawful
cohabitation . . ." and "facilitates the circumvention of the Revised Penal Code." According to Mr. Justice
Carpio, by choosing to turn a blind eye to respondent's criminal conduct, the majority is in fact recognizing
a practice, custom or agreement that subverts marriage. He argues in a similar fashion as regards the state's
interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage
and the family, or even in the sound administration of justice. Indeed, the provisions by which respondent's
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage
and family in the Civil Code and Family Code, all clearly demonstrate the State's need to protect these
secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in
our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights
"the most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough
to contend that the state's interest is important, because our Constitution itself holds the right to religious
freedom sacred. The State must articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses, endangering paramount interests can
limit the fundamental right to religious freedom. To rule otherwise would be to emasculate the Free
Exercise Clause as a source of right by itself.
Thus, it is not the State's broad interest in "protecting the institutions of marriage and the family," or even
"in the sound administration of justice" that must be weighed against respondent's claim, but the State's
narrow interest in refusing to make an exception for the cohabitation which respondent's faith finds moral.
In other words, the government must do more than assert the objectives at risk if exemption is given;
it must precisely show how and to what extent those objectives will be undermined if exemptions
are granted. 151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun's application of the compelling interest test, the State's interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be
merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing the concubinage
or bigamy charges against respondent or her partner. The State has never sought to prosecute respondent
nor her partner. The State's asserted interest thus amounts only to the symbolic preservation of an
unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would effectively break
up "an otherwise ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of marriage and the
family. ETHIDa
The Solicitor General also argued against respondent's religious freedom on the basis of morality, i.e., that
"the conjugal arrangement of respondent and her live-in partner should not be condoned because
adulterous relationships are constantly frowned upon by society"; 152 and "that State laws on marriage,
which are moral in nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices should not be permitted
to override laws relating to public policy such as those of marriage." 153
The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her
dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments
have already been addressed in our decision dated August 4, 2003. 154 In said Decision, we noted that
Mme. Justice Ynares-Santiago's dissenting opinion dwelt more on the standards of morality, without
categorically holding that religious freedom is not in issue. 155 We, therefore, went into a discussion on
morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing
a religion, including the morality it sanctions. 156 Thus, when the law
speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers, 157 or "public morals" in the
Revised Penal Code, 158 or "morals" in the New Civil Code, 159 or "moral
character" in the Constitution, 160 the distinction between public and
secular morality on the one hand, and religious morality, on the other,
should be kept in mind; 161
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests; 162
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. 163
(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under
this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held
administratively liable. 164 Only one conduct is in question before this
Court, i.e., the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and jurisprudence
consider both immoral and illegal. 165
(e) While there is no dispute that under settled jurisprudence, respondent's
conduct constitutes "disgraceful and immoral conduct," the case at bar
involves the defense of religious freedom, therefore none of the cases cited
by Mme. Justice Ynares-Santiago apply. 166 There is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a
member of the Jehovah's Witnesses under the same circumstances as
respondent will not prevail over the laws on adultery, concubinage or some
other law. We cannot summarily conclude therefore that her conduct is
likewise so "odious" and "barbaric" as to be immoral and punishable by
law. 167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with
conduct prejudicial to the best interest of the service, and we reiterate that the dissent offends due process
as respondent was not given an opportunity to defend herself against the charge of "conduct prejudicial to
the best interest of the service." Indeed, there is no evidence of the alleged prejudice to the best interest of
the service. 168
Mr. Justice Carpio's slippery slope argument, on the other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church annulment of their marriage even without
a final annulment from a civil court. First, unlike Jehovah's Witnesses, the Catholic faith considers
cohabitation without marriage as immoral. Second, but more important, the Jehovah's Witnesses have
standards and procedures which must be followed before cohabitation without marriage is given the
blessing of the congregation. This includes an investigative process whereby the elders of the congregation
verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to cohabit without
marriage because once all legal impediments for the couple are lifted, the validity of the Declaration
ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he
raises the issue of equality among religions, we look to the words of the Religion Clauses, which clearly
single out religion for both a benefit and a burden: "No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. . ." On its face, the language grants a unique advantage to
religious conduct, protecting it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a provision which puts religion on an
equal footing with other bases for action seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations. The language itself thus
seems to answer whether we have a paradigm of equality or liberty; the language of the Clause is clearly in
the form of a grant of liberty. 169
In this case, the government's conduct may appear innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which perspective is appropriate would seem easy to
answer. Moreover, the text, history, structure and values implicated in the interpretation of the clauses, all
point toward this perspective. Thus, substantive equality a reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability to use the
government (law) to assist their own religion or burden others makes the most sense in the interpretation
of the Bill of Rights, a document designed to protect minorities and individuals from mobocracy in a
democracy (the majority or a coalition of minorities). 170
As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room
for accommodation of religious exercises as required by the Free Exercise Clause. 171 Thus, in arguing that
respondent should be held administratively liable as the arrangement she had was "illegal per se because,
by universally recognized standards, it is inherently or by its very nature bad, improper, immoral and
contrary to good conscience," 172 the Solicitor General failed to appreciate that benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests. 173

Finally, even assuming that the OSG has proved a compelling state interest, it has to further
demonstrate that the state has used the least intrusive means possible so that the free exercise is
not infringed any more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on religious liberties. 174 Again,
the Solicitor General utterly failed to prove this element of the test. Other than the two documents offered
as cited above which established the sincerity of respondent's religious belief and the fact that the
agreement was an internal arrangement within respondent's congregation, no iota of evidence was
offered. In fact, the records are bereft of even a feeble attempt to procure any such evidence to show that
the means the state adopted in pursuing this compelling interest is the least restrictive to respondent's
religious freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor's
conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based
on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in
order that freedoms including religious freedom may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the state, and so the state
interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state
that will also protect the freedom. In the absence of a showing that such state interest exists, man must be
allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Azcuna, Tinga, Chico-Nazario and Garcia, JJ.,
concur.
Panganiban, C.J., joins J. Carpio dissent.
Ynares-Santiago and Carpio, JJ., see dissenting opinion.
Carpio-Morales, J., I maintain my vote articulated in the dissenting opinion of J. Carpio in the Aug. 4, 2003
decision. I thus concur with his present dissent.
Callejo, J., concurs to the dissent made by Justice Carpio.
Velasco, Jr., J., took no part due to prior action of OCA.
Separate Opinions
YNARES-SANTIAGO, J., dissenting:
With due respect, I am unable to agree with the finding of the majority that "in this particular case and
under these particular circumstances, respondent Escritor's conjugal arrangement does not constitute
disgraceful and immoral conduct" and its decision to dismiss the administrative complaint filed by
petitioner against respondent Soledad S. Escritor. ECDaAc
The issue in this case is simple. What is the meaning or standard of "disgraceful and immoral conduct" to
be applied by the Supreme Court in disciplinary cases involving court personnel?
The degree of morality required of every employee or official in the public service has been consistently
high. The rules are particularly strict when the respondent is a Judge or a court employee. 1 Even where the
Court has viewed certain cases with human understanding and compassion, it has insisted that no untoward
conduct involving public officers should be left without proper and commensurate sanction. 2 The
compassion is shown through relatively light penalties. Never, however, has this Court justified, condoned,
or blessed the continuation of an adulterous or illicit relationship such as the one in this case, after the same
has been brought to its attention.
Is it time to adopt a more liberal approach, a more "modern" view and a more permissive pragmatism
which allow adulterous or illicit relations to continue provided the job performance of the court employee
concerned is not affected and the place and order in the workplace are not compromised? When does
private morality involving a court employee become a matter of public concern?
The Civil Service Law punishes public officers and employees for disgraceful and immoral conduct. 3
Whether an act is immoral within the meaning of the statute is not to be determined by respondent's
concept of morality. The law provides the standard; the offense is complete if respondent intended to
perform, and did in fact perform, the act which it condemns. 4
The ascertainment of what is moral or immoral calls for the discovery of contemporary community
standards. For those in the service of the Government, provisions of law and court precedents also have to
be considered. The task is elusive.
The layman's definition of what is "moral" pertains to excellence of character or disposition. It relates to the
distinction between right and wrong; virtue and vice; ethical praise or blame. Moral law refers to the body
of requirements in conformity to which virtuous action consists. Applied to persons, it is conformity to the
rules of morality, being virtuous with regards to moral conduct. 5
That which is not consistent with or not conforming to moral law, opposed to or violating morality, and now,
more often, morally evil or impure, is immoral. Immoral is the state of not being virtuous with regard to
sexual conduct. 6
The term begs the definition. Hence, anything contrary to the standards of moral conduct is immoral. A
grossly immoral act must be so corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree. 7
Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the fringes or boundary
limits of what is morally acceptable and what is unacceptably wrong, the concept of immorality tends to
shift according to circumstances of time, person, and place. When a case involving the concept of
immorality comes to court, the applicable provisions of law and jurisprudence take center stage.
Those who choose to tolerate the situation where a man and a woman separated from their legitimate
spouses decide to live together in an "ideal" and yet unlawful union state or more specifically, those who
argue that respondent's cohabiting with a man married to another woman is not something which is willful,
flagrant, or shameless show a moral indifference to the opinion of the good and respectable members of
the community in a manner prejudicial to the public service.
Insofar as concepts of morality are concerned, various individuals or cultures may indeed differ. In certain
countries, a woman who does not cover herself with a burka from head to foot may be arrested for immoral
behavior. In other countries, near nudity in beaches passes by unnoticed. In the present case, the perceived
fixation of our society over sex is criticized. The lesser degree of condemnation on the sins of laziness,
gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory.
The issue in this case is legal and not philosophical. It is a limited one. Is respondent Soledad S. Escritor
guilty of "disgraceful and immoral" conduct in the context of the Civil Service Law? Are there any sanctions
that must be imposed?
We cannot overlook the fact that respondent Escritor would have been convicted for a criminal offense if
the offended party had been inclined and justified to prosecute her prior to his death in 1998. Even now,
she is a co-principal in the crime of concubinage. A married woman who has sexual intercourse with a man
not her husband, and the man who has carnal knowledge of her knowing her to be married, commit the
crime of adultery. 8 Abandonment by the legal husband without justification does not exculpate the
offender; it merely mitigates the penalty.
The concubine with whom a married man cohabits suffers the penalty of destierro. 9 It is true that criminal
proceedings cannot be instituted against persons charged with adultery or concubinage except upon
complaint of the offended party. 10 This does not mean that no actionable offense has been committed if
the offended party does not press charges. It simply cannot be prosecuted. The conduct is not thereby
approved, endorsed or commended. It is merely tolerated.
The inescapable fact in this case is that acts defined as criminal under penal law have been committed.
There are experts in Criminal Law who believe that the codal provisions on adultery and concubinage are
terribly outmoded and should be drastically revised. However, the task of amendment or revision belongs
to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to constitute a criminal act is "grossly immoral." 11 It
is not merely "immoral." Respondent now asks the Court to go all the way to the opposite extreme and
condone her illicit relations with not even an admonition or a slight tap on the wrist.
I do not think the Court is ready to render a precedent-setting decision to the effect that, under exceptional
circumstances, employees of the judiciary may live in a relationship of adultery or concubinage with no fear
of any penalty or sanction and that after being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is not limited to court interpreter Soledad
Escritor. It is not a pro hac vice ruling. It applies to court employees all over the country and to everybody in
the civil service. It is not a private ruling but one which is public and far-reaching in its consequences.
In the 1975 case of De Dios v. Alejo, 12 the Court applied compassion and empathy but nonetheless
recognized as most important a mending of ways through a total breaking of relationships. The facts in that
case are strikingly similar to those in this case. Yet, the Court required a high degree of morality even in the
presence of apparently exculpating circumstances. It was stated:
While it is permissible to view with human understanding and compassion a
situation like that in which respondents find themselves, the good of the
service and the degree of morality which every official and employee in the
public service must observe, if respect and confidence are to be maintained
by the government in the enforcement of the law, demand that no
untoward conduct on his part, affecting morality, integrity and efficiency,
while holding office should be left without proper and commensurate
sanction, all attendant circumstances taken into account. In the instant case,
We cannot close our eyes to the important considerations that respondents
have rendered government service for more than thirty-three and twenty-
five years, respectively, and that there is no showing that they have ever
been found guilty of any administrative misconduct during all those
periods. In the case of respondent Alejo, it seems rather sadistic to make
her suffer the extreme penalty of dismissal from the service after she had
taken care of her co-respondent's four children, giving them the needed
love and attention of a foster mother after they were completely
abandoned by their errant and unfaithful natural mother. Even respondent
Marfil, if to a lesser degree, is deserving of compassion. Most importantly,
respondents have amply demonstrated that they recognize their
mistake and have, therefore, actually mended their ways by totally
breaking their relationship complained of, in order to conform with the
imperatives of public interest. (Emphasis supplied)

The standards for those in the judicial service are quite exacting.
The Court has ruled that in the case of public servants who are in the judiciary, their conduct and behavior,
from the presiding judge to the lowliest clerk, must not only be characterized by propriety and decorum,
but above all else, must be above suspicion. 13
In Burgos v. Aquino, 14 it was ruled:
The Code of Judicial Ethics mandates that the conduct of court personnel
must be free from any whiff of impropriety, not only with respect to his
duties in the judicial branch but also to his behavior outside the court as a
private individual. There is no dichotomy of morality; a court employee is
also judged by his private morals. These exacting standards of morality and
decency have been strictly adhered to and laid down by the Court to those
in the service of the judiciary. Respondent, as a court stenographer, did not
live up to her commitment to lead a moral life. Her act of maintaining
relations with Atty. Burgos speaks for itself.
Respondent Aquino was a court stenographer who was suspended for six months for maintaining illicit
relations with the husband of complainant Virginia E. Burgos. The Court therein stated that a second
offense shall result in dismissal.
We should not lose sight of the fact that the judicial system over which it presides is essentially composed
of human beings who, as such, are naturally prey to weakness and prone to errors. Nonetheless, in Ecube-
Badel v. Badel, 15 we imposed on respondent a suspension for six months and one day to one year with
warning of dismissal should the illicit relations be repeated or continued.
In Nalupta v. Tapec, 16 a deputy sheriff was suspended, also for six months, for having illicit relations with a
certain Cristian Dalida who begot a son by him. His wife complained and neighbors confirmed that Tapec
was frequently seen leaving the house of Consolacion Inocencio in the morning and returning to it in the
afternoon. Tapec and Inocencio begot two children. Consistently with the other cases, we imposed the
penalty of suspension for the first offense with the graver penalty of dismissal for a second offense. TSHcIa
The earlier case of Aquino v. Navarro 17 involved an officer in the Ministry of Education, Culture and Sports
who was abandoned by her husband a year after their marriage and who lived alone for eighteen years with
their child. Pretending that she sincerely believed her husband to have died, she entered into a marital
relationship with Gonzalo Aquino and had children by him in 1968 and 1969. Eighteen days before their
third child was born on May 25, 1975, the two decided to get married. Notwithstanding the illicit
relationship which blossomed into a bigamous marriage, the full force of the law was not applied on her,
"considering the exceptional circumstances that befell her in her quest for a better life." Still, a penalty of
six months suspension was imposed with a warning that "any moral relapse on her part will be severely
dealt with."
Times are changing. Illicit sex is now looked upon more kindly. However, we should not completely
disregard or overlook a relationship of adultery or concubinage involving a court employee and not order it
to be terminated. It should not ignore what people will say about our moral standards and how a permissive
approach will be used by other court employees to freely engage in similarly illicit relationship with no fear
of disciplinary punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing marriages with their
respective legitimate spouses when they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore, immoral relationship, the two decided
to acquire through a religious ceremony what they could not accomplish legally. They executed on July 28,
1991 the "Declaration of Pledging Faithfulness" to make their relationship what they alleged it would be
a binding tie before Jehovah God.
In this case, respondent is charged not as a Jehovah's Witness but in her capacity as a court employee. It is
contended that respected elders of the Jehovah's Witnesses sanction "an informal conjugal relationship"
between respondent and her marital partner for more than two decades, provided it is characterized by
faithfulness and devotion to one another. However, the "informal conjugal relationship" is not between two
single and otherwise eligible persons where all that is missing is a valid wedding ceremony. The two
persons who started to live together in an ostensible marital relationship are married to other persons.
We must be concerned not with the dogmas or rules of any church or religious sect but with the legal
effects under the Civil Service Law of an illicit or adulterous relationship characterized by the facts of this
case.
There is no conflict in this case between the dogmas or doctrines of the Roman Catholic Church and those
of the Jehovah's Witnesses or any other church or denomination. The perceived conflict is non-existing and
irrelevant.
The issue is legal and not religious. The terms "disgraceful" and "immoral" may be religious concepts, but
we are concerned with conduct which under the law and jurisprudence is proscribed and, if perpetrated,
how it should be punished.
Respondent cannot legally justify her conduct by showing that it was morally right by the standards of the
congregation to which she belongs. Her defense of freedom of religion is unavailing. Her relationship with
Mr. Quilapio is illicit and immoral, both under the Revised Administrative Code 18 and the Revised Penal
Code, 19 notwithstanding the supposed imprimatur given to them by their religion.
The peculiar religious standards alleged to be those of the sect to which respondent belongs can not shield
her from the effects of the law. Neither can her illicit relationship be condoned on the basis of a written
agreement approved by their religious community. To condone what is inherently wrong in the face of the
standards set by law is to render nugatory the safeguards set to protect the civil service and, in this case,
the judiciary.
The Court cannot be the instrument by which one group of people is exempted from the effects of these
laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of
her religious affiliation.
I find that respondent's "Declaration of Pledging Faithfulness" does nothing for her insofar as this
administrative matter is concerned, for written therein are admissions regarding the legal impediments to
her marrying Quilapio. In the said document, she even pledged to seek all avenues to obtain legal
recognition by civil authorities of her union with Quilapio. 20 However, the record is silent as to any effort
on respondent's part to effect this covenant.
The evidence shows that respondent repeatedly admitted the existence of the legal infirmities that plague
her relationship with Quilapio. 21 As a court interpreter, she is an integral member of the judiciary and her
service as such is crucial to the administration of justice. Her acts and omissions constitute a possible
violation of the law the very same law that she is sworn to uphold as an employee of the judiciary. How
can she work under the pretense of being a contributing force to the judicial system if she herself is
committing acts that may constitute breaking the law?
Respondent invokes her constitutional right to religious freedom. The separation of church and state has
been inviolable in this jurisdiction for a century. However, the doctrine is not involved in this case. 22
Furthermore, the legislature made cohabitation with a woman who is not one's wife a crime through the
enactment of the Revised Penal Code. 23 The legislative power has also seen fit to enact the Civil Service
Law and has given said law general application.
The argument that a marital relationship is the concern of religious authorities and not the State has no
basis.
In Reynolds v. United States, 24 the U.S. Supreme Court stated:
It is impossible to believe that the constitutional guaranty of religious
freedom was intended to prohibit legislation in respect to this most
important feature of social life. Marriage, while from its very nature a sacred
obligation, is, nevertheless, in most civilized nations, a civil contract, and
usually regulated by law. Upon it society may be said to be built, and out of
its fruits spring social relations and social obligations and duties, with which
government is necessarily required to deal.
The strengthening of marriage ties and the concomitant hostility to adulterous or illicit marital relations is a
primary governmental concern. It has nothing to do with the particular religious affiliations of those affected
by legislation in this field.
The relations, duties, obligations and consequences of marriage are important to the morals and civilization
of a people and to the peace and welfare of society. 25 Any attempt to inject freedom of religion in an
effort to exempt oneself from the Civil Service rules relating to the sanctity of the marriage tie must fail.
The U.S. Supreme Court in the above-cited case of Reynolds v. United States 26 upheld federal legislation
prohibiting bigamy and polygamy in territories of the United States, more specifically Utah. Members of the
Mormon Church asserted that the duty to practice polygamy was an accepted doctrine of their church. In
fact, Mormons had trekked from the regular States of the Union to what was then a mere Territory in order
to practice their religious beliefs, among them polygamy. The Court declared that while it protected
religious belief and opinion, it did not deprive Congress of the power to reach actions violative of social
duties or subversive of good order. Polygamy was outlawed even for Mormons who considered it a religious
obligation.

We must not exempt illegal conduct or adulterous relations from governmental regulation simply because
their practitioners claim it is part of their free exercise of religious profession and worship.
Indeed, the Court distinguishes between religious practices, including the seemingly bizarre, which may not
be regulated, and unacceptable religious conduct which should be prevented despite claims that it forms
part of religious freedom.
In Ebralinag v. Division Superintendent of Schools, 27 we validated the exemption of Jehovah's Witnesses
from coerced participation in flag ceremonies of public schools. Following the ruling in West Virginia v.
Barnette, 28 we declared that unity and loyalty, the avowed objectives of flag ceremonies, cannot be
attained through coercion. Enforced unity and loyalty is not a good that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by prohibited means.
The exemption from participation in flag ceremonies cannot be applied to the tolerance of adulterous
relationships by court personnel in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable
regulation of the free exercise and enjoyment of religious profession. 29 In addition to the destruction of
public morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in
the judiciary.
Jurisprudence on immoral conduct of employees in the civil service has been consistent. There is nothing in
this case that warrants a departure from precedents. We must not sanction or encourage illicit or adulterous
relations among government employees.
Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah's Witness. Exemptions
granted under our Muslim Laws to legitimate followers of Islam do not apply to them. 30 The Court has no
legislative power to place Jehovah's Witness in the same legal category as Muslims.
In Bucatcat v. Bucatcat, 31 it was held that conduct such as that demonstrated by the respondent is immoral
and deserving of punishment. For such conduct, the respondent, another court interpreter, was dismissed
from the service. It was held:
Every employee of the judiciary should be an example of integrity,
uprightness and honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in the performance of his
official duties but in his personal and private dealings with other people, to
preserve the court's good name and standing. It cannot be overstressed
that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest
of its personnel. Court employees have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of courts of
justice. cHSIDa
All those who work in the judiciary are bound by the most exacting standards of ethics and morality to
maintain the people's faith in the courts as dispensers of justice. In Liguid v. Camano, 32 it was ruled:
Surely, respondent's behavior of living openly and scandalously for over
two (2) decades with a woman not his wife and siring a child by her is
representative of the gross and serious misconduct penalized by the
ultimate penalty of dismissal under Section 22 (c), Rule XIV of the Omnibus
Rules Implementing Book IV of Executive Order No. 292 otherwise known
as the Revised Administrative Code of 1987. As defined, misconduct is a
transgression of some established or definite rule of action, more
particularly, unlawful behavior or gross negligence by the public officer.
Respondent's conduct is an example of the kind of gross and flaunting
misconduct that so quickly and surely corrodes the respect for the courts
without which government cannot continue and that tears apart the bonds
of our polity.
Earlier, in Navarro v. Navarro, 33 the penalty of suspension was imposed on a court employee for
maintaining illicit relations with a woman not his wife, thus:
Time and again we have stressed adherence to the principle that public
office is a public trust. All government officials and employees must at all
times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives. This constitutional mandate should always be in the minds of
all public servants to guide them in their actions during their entire tenure
in the government service. The good of the service and the degree of
morality which every official and employee in the public service must
observe, if respect and confidence are to be maintained by the
Government in the enforcement of the law, demand that no untoward
conduct on his part, affecting morality, integrity and efficiency while holding
office should be left without proper and commensurate sanction, all
attendant circumstances taken into account.
The exacting standards of ethics and morality imposed upon court judges and court employees are
required to maintain the people's faith in the courts as dispensers of justice, and whose image is mirrored
by their actuations. As the Court eloquently stated through Madame Justice Cecilia Muoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the conduct,
official or otherwise, of the men and woman who work thereat, from the
judge to the least and lowest of its personnel hence, it becomes the
imperative sacred duty of each and everyone in the court to maintain its
good name and standing as a true temple of justice. 34
The high degree of moral uprightness that is demanded of employees of the government entails many
sacrifices that are peculiar to the civil service. By aspiring to these positions, government employees are
deemed to have submitted themselves to greater scrutiny of their conduct, all in the pursuit of a
professional civil service. The Court has repeatedly applied these principles in analogous cases. 35
Immorality is punishable by suspension of six (6) months and one day to one (1) year for the first offense and
dismissal for the second offense. 36 Considering that respondent's misconduct is in the nature of a
continuing offense, it must be treated as a first offense, and her continued cohabitation with Luciano E.
Quilapio, Jr. must be deemed a second offense, which will warrant the penalty of dismissal.
ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality and disgraceful
conduct and should be SUSPENDED for a period of Six (6) months and One day without pay, with a
warning that the continuance of her illicit cohabitation with Luciano D. Quilapio, Jr. shall be deemed a
second offense which shall warrant the penalty of dismissal.
CARPIO, J., dissenting:
I maintain my dissent from the majority opinion as it now orders the dismissal of the administrative
complaint filed by petitioner Alejandro Estrada against respondent Soledad S. Escritor.
The majority opinion relies heavily on Sherbert v. Verner 1 in upholding Escritor's claim of exemption from
administrative liability grounded on her religious belief as a member of the Jehovah's Witnesses. This
religious sect allows Escritor's cohabitation with Luciano D. Quilapio, Jr., who has a subsisting marriage with
another woman.
The compelling state interest test espoused in Sherbert has been abandoned more than 15 years ago by
the U.S. Supreme Court in the Employment Division v. Smith 2 cases. In the Smith cases, the U.S.
Supreme Court set aside the balancing test for religious minorities laid down in Sherbert. Instead, the U.S.
Supreme Court ruled categorically in the Smith cases that the guarantee of religious liberty as embodied in
the Free Exercise Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws.
In the first Employment Division v. Smith (Smith I), 3 petitioner denied respondents' application for
unemployment compensation benefits under an Oregon statute declaring ineligible for benefits employees
discharged for work-related misconduct. The misconduct for which respondents were discharged from their
jobs consisted of their ingesting peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of
their Native American Church. The Oregon Supreme Court ruled that although the denials of benefits were
proper under Oregon law, Sherbert required the Oregon Supreme Court to hold that the denials
significantly burdened respondents' religious freedom in violation of the Free Exercise Clause. The Oregon
Supreme Court did not attach significance to the fact that peyote possession is a felony in Oregon.
The U.S. Supreme Court vacated the Oregon Supreme Court's judgment and ordered the remand of the
case for a definitive ruling on whether the religious use of peyote is legal in Oregon. The U.S. Supreme
Court deemed the legality or illegality of the questioned conduct critical in its analysis of
respondents' claim for protection under the Free Exercise Clause.
In Smith I, the U.S. Supreme Court distinguished respondents' conduct with that involved in Sherbert, thus:
. . . In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals
Comm'n of Fla., 4 the conduct that gave rise to the termination of
employment was perfectly legal; indeed, the Court assumed that it was
immune from state regulation. 5 The results we reached in Sherbert,
Thomas and Hobbie might well have been different if the employees
had been discharged for engaging in criminal conduct. . . . The
protection that the First Amendment provides to "legitimate claims to
the free exercise of religion" does not extend to conduct that a State
has validly proscribed. 6 (Emphasis supplied)

In the second Employment Division v. Smith (Smith II), 7 the Oregon Supreme Court held on remand that
respondents' religiously inspired use of peyote fell within the prohibition of the Oregon statute classifying
peyote as a "controlled substance" and punishing its possession as a felony. Although the Oregon Supreme
Court noted that the statute makes no exception for the sacramental use of peyote, it still concluded that
the prohibition was not valid under the Free Exercise Clause.
The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S. Supreme Court ruled that a claim of
exemption from a generally applicable law grounded on the right of free exercise could not be evaluated
under the compelling state interest test of Sherbert, particularly where such law does not violate other
constitutional protections. The U.S. Supreme Court expressly declared:
. . . We have never held that an individual's religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate. . . . 8
xxx xxx xxx
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated
action have involved not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press. . . . 9
Respondents argue that even though exemption from generally applicable
criminal laws need not automatically be extended to religiously motivated
conduct, at least the claim for a religious exemption must be evaluated
under the balancing test set forth in Sherbert v. Verner. . . . In recent years
we have abstained from applying the Sherbert test (outside the
unemployment compensation eld) at all. . . . 10
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation eld, we would not apply it to require
exemptions from a generally applicable criminal law. . . . 11 (Emphasis
supplied)
What the Smith cases teach us is that the compelling state interest test in Sherbert is not the correct test in
determining the legitimacy of a claim of exemption from generally applicable, religion-neutral laws that
have the incidental effect of burdening particular religious practice. Any such claim for exemption should be
analyzed by considering whether the conduct in question is one that "the State has validly proscribed,"
irrespective of the sincerity or centrality of an individual's religious beliefs.
Here, Escritor is indisputably engaged in criminal conduct. Escritor's continued cohabitation with Quilapio is
patently in violation of Article 334 of the Revised Penal Code on concubinage. Article 334 makes no
exception for religiously sanctioned cohabitation such as that existing between Escritor and Quilapio. The
majority opinion in fact concedes that the present case involves a claim of exemption "from a law of general
applicability that inadvertently burdens religious exercise." 12 The majority opinion even concedes further
that the conduct in question is one "which Philippine law and jurisprudence consider both immoral and
illegal." 13 And yet, the majority opinion expediently brushes aside the illegality of Escritor's questioned
conduct using the obsolete compelling state interest test in Sherbert. HCTDIS
The majority opinion mentions two "opposing strains of jurisprudence on the religion clauses" in U.S.
history, namely, separation or strict neutrality and benevolent neutrality or accommodation. The
majority opinion asserts that the framers of our 1935, 1973, and 1987 Constitutions intended to adopt a
benevolent neutrality approach in interpreting the religion clauses, i.e., the Establishment and Free Exercise
Clauses. The majority opinion then reasons that in determining claims of exemption based on freedom of
religion, this Court must adopt the compelling state interest test laid down by the U.S. Supreme Court in
Sherbert, which according to the majority, best exemplifies the benevolent neutrality approach. Hence,
even as the majority opinion acknowledges that the U.S. Supreme Court in the Smith cases has abandoned
the compelling state interest test espoused in Sherbert, the majority opinion dismisses this abandonment in
its analysis of Escritor's free exercise exemption claim by simply labeling the Smith cases as exemplifying
the strict neutrality approach.
The majority opinion blatantly ignores that whatever theory may be current in the United States
whether strict neutrality, benevolent neutrality or some other theory the undeniable fact is what is
clearly stated in Smith II:
. . . We have never held that an individual's religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate. . . . 14
Thus, from the 1879 case of Reynolds v. U.S. 15 on the practice of polygamy by
Mormons to the 1988 and 1990 Smith cases on the use of prohibited drugs by native
American Indians, the U.S. Supreme Court has consistently held that religious beliefs do
not excuse any person from liability for violation of a valid criminal law of general
application. The majority opinion simply refuses to face and accept this reality.
The present case involves conduct that violates Article 334 of the Revised Penal Code, a provision of law
that no one challenges as unconstitutional. Clearly, the theories invoked in the majority opinion have no
application to the present case based on an unbroken line of U.S. Supreme Court decisions. In any event,
we shall discuss for academic purposes the merits of the theories advanced in the majority opinion.
While the majority opinion only mentions separation and benevolent neutrality, a close reading of the major
U.S. Supreme Court opinions specifically relating to the religion clauses presents three principal theories at
play, namely, (a) the strict separation or "no aid" theory, (b) the governmental neutrality theory, and (c)
the accommodation or benevolent neutrality theory. 16
The strict separation or "no aid" theory holds that the establishment clause viewed in conjunction with
the free exercise clause requires a strict separation of church and state and that government can do nothing
which involves governmental support of religion or which is favorable to the cultivation of religious interests.
17 This theory found its first expression in the case of Everson v. Board of Education, 18 which espoused
the "no aid" principle. Thus, the government cannot by its programs, policies, or laws do anything to aid or
support religion or religious activities. 19
Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement to parents of
parochial, as well as public school children. Apparently, the strict interpretation or "no aid" theory prohibits
state benefits to a particular sect or sects only, but does not prohibit benefits that accrue to all, including
one or more sects. Everson did not involve religiously motivated conduct that constituted a violation
of a criminal statute.
Under the governmental neutrality theory, the establishment clause requires government to be neutral on
religious matters. 20 This theory was articulated by Mr. Justice Clark in the case of Abington School District
v. Schempp, 21 where he stated that what the Constitution requires is "wholesome neutrality," i.e., laws and
governmental programs must be directed to secular ends and must have a primary effect that neither
advances nor inhibits religion. 22 This test as stated by Mr. Justice Clark embodies a theory of strict
neutrality 23 thus, the government may not use the religious factor as a basis for classification with the
purpose of advancing or inhibiting religion:
The place of religion in our society is an exalted one, achieved through a
long tradition of reliance on the home, the church and the inviolable citadel
of the individual heart and mind. We have come to recognize through bitter
experience that it is not within the power of government to invade that
citadel, whether its purpose or effect be to aid or oppose, to advance or
retard. In the relationship between man and religion, the state is firmly
committed to a position of neutrality. 24 (Italics supplied)
However, the concept of governmental neutrality can be interpreted in various ways to some, anything
but total neutrality is anathema; to others, "neutrality can only mean that government policy must place
religion at neither a special advantage nor a special disadvantage." 25
Schempp struck down a Pennsylvania law allowing the recitation of the Lord's Prayer and the reading of the
Bible without comment in public schools, although the recitation and reading were voluntary and did not
favor any sect. Schempp did not involve religiously motivated conduct that constituted a violation of a
criminal statute.
The accommodation theory provides that any limitation derived from the establishment clause on cannot
be rigidly applied so as to preclude all aid to religion and that in some situations government must, and
in other situations may, accommodate its policies and laws in the furtherance of religious freedom. 26
The accommodation theory found its first expression in Zorach v. Clauson. 27 The U.S. Supreme Court held
in Zorach that a state could authorize an arrangement whereby public school children could be released
one hour a week for religious instruction off the school premises. Zorach did not involve religiously
motivated conduct that constituted a violation of a criminal statute.
In his book Religionand the Constitution published in 1964, Professor Paul G. Kauper used the term
"benevolent neutrality" in the following context:
It would be a mistake, however, to suggest that the theory of
accommodation . . . is unrelated to other ideas and theories that have been
developed, notably the no-aid and neutrality concepts. Rather,
accommodation, instead of being viewed as a wholly independent
theory of interpretation, should be seen as a modication of the no-aid
or neutrality concepts. . . .

These ideas cannot be pressed to their absolute limit. Not only must the
no-aid or neutrality concept be subordinated to the necessities of free
exercise, but an area of legislative discretion must be allowed where a
state may choose to advance the cause of religious freedom even at
the expense of not being completely neutral. Indeed, this may be
described as the larger or benevolent neutrality. 28 (Emphasis and italics
supplied)
Six years later, the U.S. Supreme Court used the term "benevolent neutrality" for the first time in Walz v. Tax
Commission. 29 In Walz, the U.S. Supreme Court sustained the constitutionality of tax exemption of
property used exclusively for religious purposes on the basis of "benevolent neutrality," as follows:
The Court has struggled to find a neutral course between the two Religion
Clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other. . . .
xxx xxx xxx
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these
provisions, which is to insure that no religion be sponsored or favored,
none commanded, and none inhibited. The general principle deducible
from the First Amendment and all that has been said by the Court is this:
that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly
proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious
exercise to exist without sponsorship and without interference. 30
(Emphasis and italics supplied)
At issue in Walz was a provision in New York's Constitution authorizing property tax exemptions to religious
organizations for religious properties used solely for religious worship. Walz did not involve religiously
motivated conduct that constituted a violation of a criminal statute.
The majority opinion cited the case of Walz in support of its assertion that the framers of the 1935
Constitution intended to adopt the benevolent neutrality approach in the interpretation of the religion
clauses, viz.:
. . . With the inclusion of the church property tax exemption in the body of
the 1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935
Constitution. . . .
The U.S. Supreme Court decided Walz only in 1970, more than three decades after the
adoption of our 1935 Constitution. It is certainly doubtful whether the framers of our 1935
Constitution intended to give "constitutional imprimatur" to a theory of interpretation
espoused in a case that was yet to be formulated. Moreover, when the U.S. Supreme Court
upheld the constitutionality of church property tax exemption on the basis of "benevolent
neutrality," it did so on grounds that no particular religion is singled out for favorable
treatment, and partly on historical grounds that church tax exemptions have been accepted
without challenge in all states for most of the nation's history. 31
The majority opinion vigorously argues the merits of adopting the theory of accommodation in the
interpretation of our Constitution's religion clauses. However, the majority opinion fails to mention that a
distinction is often drawn by courts and commentators between mandatory accommodation and
permissive accommodation. Mandatory accommodation is exemplified by the key idea in Sherbert that
exemptions from generally applicable laws are required by force of the Free Exercise Clause, 32 which the
majority opinion adheres to in granting Escritor's claim of free exercise exemption. HDICSa
Permissive accommodation refers to exercises of political discretion that benefit religion, and that the
Constitution neither requires nor forbids. 33 The U.S. Supreme Court recognized in Smith II that although
the Free Exercise Clause did not require permissive accommodation, the political branches could shield
religious exercise through legislative accommodation, 34 for example, by making an exception to
proscriptive drug laws for sacramental peyote use.
Professor Michael W. McConnell, whose views on the accommodation theory were frequently quoted by the
majority opinion, defends mandatory accommodation. 35 However, Prof. Kauper, likewise an
accommodationist, favors permissive accommodation, stating that "as a general proposition, no person
should be allowed to claim that because of his religion he is entitled as a matter of constitutional right to
claim an exemption from general regulatory and tax laws." 36 Prof. Kauper further explains his position that
religious liberty furnishes no ground for claiming immunity to laws which place reasonable restrictions on
overt conduct in the furtherance of public interests protected by the state's police power, 37 as follows:
Where the issue is not the use of governmental power to sanction
religious belief and practices by some positive program but the granting
of exemption on religious grounds from laws of general operation,
what determines whether the government is required, or permitted,
to make the accommodation? While a state may appropriately grant
exemptions from its general police and tax laws, it should not be
constitutionally required to do so unless this immunity can properly be
claimed as part of the constitutional guarantee of religious liberty.
Thus, exemptions from property tax and military service, health and labor
laws should be at the discretion of government. Whether Sherbert carried
the principle of required accommodation too far is debatable. It may well
be that the court here undertook a determination of questions better left to
the legislature and that in this area, . . . the policy of granting exemptions
on religious grounds should be left to legislative discretion. 38
(Emphasis supplied)
It is true that a test needs to be applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. The compelling state interest test in Sherbert pushes the limits of
religious liberty too far, and so too does the majority opinion insofar as it grants Escritor immunity to a law
of general operation on the ground of religious liberty. Making a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing free exercise
exemption claims. Such limitations forces the Court to confront how far it can validly set the limits of
religious liberty under the Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith cases) just because it does not espouse the theory selected.
Theories are only guideposts and "there is no magic formula to settle all disputes between religion and the
law, no legal pill to ease the pain of perceived injustice and religious oppression, and certainly no perfect
theory to bind judges or legislators." 39 The Smith cases, particularly Smith II, cannot be so easily dismissed
by the majority opinion and labeled as "best exemplifying the strict neutrality approach." The Smith Court
affirmed the power and the discretion of legislatures to enact statutory protection beyond what the Free
Exercise Clause required. The U.S. Supreme Court indicated in Smith II that legislatures could enact
accommodations to protect religion beyond the Free Exercise Clause minimum without "establishing"
religion and thereby running afoul of the Establishment Clause. 40 What the Smith cases espouse,
therefore, is not really the strict neutrality approach, but more of permissive accommodation. 41
Even assuming that the theory of benevolent neutrality and the compelling state interest test are
applicable, the State has a compelling interest in exacting from everyone connected with the dispensation
of justice, from the highest magistrate to the lowest of its personnel, the highest standard of conduct. This
Court has repeatedly held that "the image of a court of justice is necessarily mirrored in the conduct, official
or otherwise, of the men and women who work thereat." 42 While arguably not constituting "disgraceful
and immoral conduct," 43 Escritor's cohabitation with Quilapio is a patent violation of our penal law on
concubinage that vitiates "the integrity of court personnel and the court itself." 44 The public's faith and
confidence in the administration of justice would certainly be eroded and undermined if tolerated within the
judiciary's ranks are court employees blatantly violating our criminal laws.
I therefore maintain that Escritor's admitted cohabitation with Quilapio is sufficient basis to hold her guilty
of conduct prejudicial to the best interest of the service and to impose upon her the appropriate penalty.
Equally compelling is the State's interest in the preservation of marriage and the family as basic social
institutions, 45 which is ultimately the public policy underlying Articles 334 and 349 of the Revised Penal
Code. This Court has recognized in countless cases that marriage and the family are basic social institutions
in which the State is vitally interested 46 and in the protection of which the State has the strongest interest.
47 In Domingo v. Court of Appeals, 48 the Court stressed that:
Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as such, it
"shall be protected by the State." . . . So crucial are marriage and the
family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
stipulation.

The same sentiment has been expressed in Article 149 of the Family Code:
The family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family
relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. (Emphasis
supplied)
And yet, notwithstanding the foregoing compelling state interests at stake, the majority all too willingly and
easily places them in jeopardy by upholding Escritor's claim of exemption. On this point, Professor William
P. Marshall aptly observes that one of the problems involved in free exercise exemption analysis is that it
requires the Court to weigh the state interest against the interest of the narrower class comprised only of
those seeking exemption. On the other hand, in other doctrinal areas, the Court balances the state interest
in the regulation at issue against the interests of the regulated class taken as a whole. Prof. Marshall
persuasively argues that this leads to both unpredictability in the exemption balancing process and
potential inconsistency in result "as each regulation may be subject to limitless challenges based upon the
peculiar identity of the challenger." 49 Moreover, Prof. Marshall notes that the exemption balancing process
necessarily leads to underestimating the strength of the countervailing state interest. 50 Indeed, the state
interest in a challenged regulation will seldom be seriously threatened if only a few persons seek exemption
from it. 51
In dismissing the administrative complaint against Escritor, the majority opinion effectively condones and
accords a semblance of legitimacy to her patently unlawful cohabitation with Quilapio, while in the eyes of
the law, Quilapio remains married to his legal wife. This condonation in fact facilitates the circumvention by
Escritor and Quilapio of Articles 334 and 349 of the Revised Penal Code on concubinage and bigamy. 52
Without having his first marriage legally dissolved, Quilapio can now continue to cohabit with Escritor with
impunity. How do we reconcile this scenario with the Constitution's emphatic declaration that marriage is
"an inviolable social institution"? 53
By choosing to turn a blind eye to Escritor's criminal conduct, the majority is in fact recognizing and
according judicial imprimatur to a practice, custom or agreement that subverts marriage, albeit one that is
sanctioned by a particular religious sect. The majority's opinion here bestows "a credibility and legitimacy
upon the religious belief in question simply by its being judicially recognized as constitutionally sacrosanct."
54 This is another problem that arises in free exercise exemption analysis the benevolent neutrality
approach fails to take into account the role that equality plays in free exercise theory. 55 While the text of
the Free Exercise Clause is consistent with protecting religion from discrimination, it does not compel
discrimination in favor of religion. 56 However, the benevolent neutrality approach promotes its own form
of inequality when under it, exemptions are granted only to religious claimants like Escritor, whose
religiously-sanctioned but otherwise illegal conjugal arrangement with Quilapio acquires a veneer of
"special judicial reinforcement." 57
Catholics may secure a church annulment of their marriage. A church annulment does not exempt Catholics
from criminal or administrative liability if they cohabit with someone other than their legal spouse before
their marriage is finally annulled by a civil court. Catholics cannot legally justify before civil courts such act of
concubinage on the ground that the act conforms to their religious beliefs because they have a secured a
church annulment which freed them from their marital vows. If this Court condones Escritor's act of
concubinage on religious grounds, then it will have to condone acts of concubinage by Catholics who have
secured church annulment of their marriage even without a final annulment from a civil court. The majority
pushes their opinion on a slippery slope. CSTEHI
It may well be asked how, under a well-meaning but overly solicitous grant of exemption based on the
Freedom of Exercise Clause of our Constitution, an individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is what the majority opinion has effectually granted
Escritor in dismissing the administrative complaint against her. The accommodation of Escritor's religious
beliefs under the benevolent neutrality approach is too high a price to pay when weighed against its
prejudicial effect on the sound administration of justice and the protection of marriage and the family as
basic social institutions.
Finally, there is even no claim here that concubinage is central to the religious belief of the Jehovah's
Witnesses, or even a part of the religious belief of the Jehovah's Witnesses. Escritor merely claims that her
live-in arrangement with a married man is, in the words of the majority opinion, "in conformity with her and
her partner's religious belief." This case is not an issue of a statute colliding with centrally or vitally held
beliefs of a religious denomination, as in the case of Sherbert. This case is about a religious cover for an
obviously criminal act.
In Sherbert, the conduct in question was the refusal of a member of the Seventh Day Adventist Church to
work on the Sabbath Day or on Saturdays, which prevented prospective employers from giving petitioner in
Sherbert employment. Petitioner in Sherbert then claimed unemployment benefits, which the State denied
because the law withheld benefits to those who failed without good cause to accept available suitable
work. In Sherbert, the questioned conduct the refusal to work on Saturdays was part of the religious
tenets of the Seventh Day Adventists. The questioned conduct in Sherbert was not a criminal conduct,
unlike the questioned conduct of Escritor in this case. Clearly, even assuming for the sake of argument that
Sherbert remains good law in the United States and thus has some persuasive force here, still Sherbert is
patently inapplicable to the present case.
The positive law and the institutions of government are concerned not with correct belief but with overt
conduct related to good order, peace, justice, freedom, and community welfare. 58 Hence, while there are
times when government must adapt to, or acquiesce to meet the needs of religious exercise, there are also
times when the exercises a religion wishes to pursue must be adapted or even prohibited in order to meet
the needs of public policy. 59 For indeed, even religious liberty has its limits. And certainly, "there is a price
to be paid, even by religion, for living in a constitutional democracy." 60
Certainly, observance of provisions of the Revised Penal Code, whose validity or constitutionality are not
even challenged, is a price that all religions in the Philippines must willingly pay for the sake of good order
and peace in the community. To hold otherwise would, as aptly stated in Reynolds v. U.S., 61 "make the
professed doctrines of religious belief superior to the law of the land," and in effect "permit every citizen to
become a law unto himself." The majority opinion will make every religion a separate republic, making
religion a haven for criminal conduct that otherwise would be punishable under the laws of the land. Today
concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine foisted
by the majority opinion.
Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one day without pay for
conduct prejudicial to the best interest of the service. However, the suspension shall be lifted immediately
upon Escritor's manifestation to this Court that she has ceased cohabiting with Luciano D. Quilapio, Jr.
Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio, during or after her
suspension and while Quilapio's marriage with his legal wife still subsists, shall merit the penalty of dismissal
from the service.
Footnotes
1. Estrada v. Escritor, 455 Phil. 411 (2003).
2. Id. at 444. Incidentally, Escritor moved for the inhibition of Judge Caoibes from hearing her case to
avoid suspicion and bias as she previously filed an administrative case against him. Escritor's
motion was denied.
3. Id. The Code provides:
Sec. 46. Discipline: General Provisions.
(a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; . . . .
4. Id. at 445.
5. Id. at 445, 447.
6. Id. at 445, 453, and 457.
7. Id. at 445-456. The Declaration provides:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in
marital relationship; that I have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of having been unable to
do so that I therefore make this public declaration pledging faithfulness in this marital
relationship.
I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to be held to
and honored in full accord with the principles of God's Word. I will continue to seek the means
to obtain legal recognition of this relationship by the civil authorities and if at any future time a
change in circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.
Parenthetically, Escritor's partner, Quilapio, executed a similar pledge on the same day. Both pledges
were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor
executed her pledge, her husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his wife. Id. at 446.

8. Id. at 447-448, 452-453. Based on the testimony of Gregorio Salazar, a member of the Jehovah's
Witnesses since 1985. As presiding minister since 1991, he is aware of the rules and
regulations of the Congregation. An authenticated copy of the magazine article entitled,
"Maintaining Marriage Before God and Men," which explains the rationale behind the
Declaration, was also presented.
9. Id. at 449.
10. Id. at 452.
11. Id. at 449.
12. See id. at 447-452.
13. Id. at 445, 453, and 457.
14. Id. at 596.
15. Id. at 599-600.
16. Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457; Gokongwei v. SEC, G.R. No. 52129,
April 21, 1980, 97 SCRA 78; Commissioner of Public Highways v. Burgos, G.R. No. L-36706,
March 31, 1980, 96 SCRA 831; Municipality of Daet v. C.A., G.R. No. L-35861, October 18,
1979, 93 SCRA 503; and People's Homesite and Housing Corp. v. Mencias, G.R. No. L-24114,
August 16, 1967, 20 SCRA 1031.
17. See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468 (2003).
18. During primitive times, when there was no distinction between the religious and secular, and the
same authority that promulgated laws regulating relations between man and man
promulgated laws concerning man's obligations to the supernatural. See id. at 458-459.
19. This was the time of theocracy, during the rise of the Hebrew state and the Mosaic religion. See id. at
459-461.
20. Following the rise of Saul, and the pre-Christian Rome which engaged in emperor-worship. See id. at
461-462.
21. Id. at 462-463.
22. Id. at 468.
23. COHEN, WILLIAM & DANELSKI, DAVID J., CONSTITUTIONAL LAW: CIVIL LIBERTY AND
INDIVIDUAL RIGHTS 565 (4th ed. 1997).
24. Id.
25. See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003).
26. COHEN, WILLIAM & DANELSKI, DAVID J., CONSTITUTIONAL LAW: CIVIL LIBERTY AND
INDIVIDUAL RIGHTS 575 (4th ed. 1997).
27. Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing BETH, L., AMERICAN THEORY OF CHURCH AND
STATE 71 (1958).
28. See id. at 487, 512-516.
29. Id. at 515, citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR RELIGIOUS LIBERTY 46 (1980);
BETH, L., AMERICAN THEORY OF CHURCH AND STATE 71 & 72 (1958); and GROSSMAN,
J.B. AND WELLS, R.S., CONSTITUTIONAL LAW & JUDICIAL POLICY MAKING 1276 (2nd ed.
1980).
30. Id. at 515, citing THE CONSTITUTION AND RELIGION 1541.
31. See DRAKEMAN, D., CHURCH-STATE CONSTITUTIONAL ISSUES 55 (1991), citing CORD, R.,
SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION 50.
Thus:
The [separationist] school of thought argues that the First Congress intended to allow government
support of religion, at least as long as that support did not discriminate in favor of one
particular religion. . . the Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency, and he sponsored
Jefferson's bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed
federal support of religious missions to the Indians. . . And so, concludes one recent book,
"there is no support in the Congressional records that either the First Congress, which framed
the First Amendment, or its principal author and sponsor, James Madison, intended that
Amendment to create a state of complete independence between religion and government.
In fact, the evidence in the public documents goes the other way." Id. at 513-514.
32. Id. at 514, citing DRAKEMAN, D., CHURCH-STATE CONSTITUTIONAL ISSUES 55 (1991), CORD, R.,
SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION 50;
AND 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES,
COMPILED FROM AUTHENTIC MATERIALS 949-950 (Annala, Gales, J. and Seaton, W., eds.).
Only two members of U.S. Congress opposed the resolution, one on the ground that the
move was a "mimicking of European customs, where they made a mere mockery of
thanksgivings," the other on establishment clause concerns. Nevertheless, the salutary effect
of thanksgivings throughout Western history was acknowledged and the motion was passed
without further recorded discussion.
33. Id. at 515, citing Weber, P., Neutrality and First Amendment Interpretation in EQUAL SEPARATION 3
(1990).
34. 330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court adopted Jefferson's metaphor of "a
wall of separation between church and state" as encapsulating the meaning of the
Establishment Clause. Said the U.S. Court: "The First Amendment has erected a wall between
church and state. That wall must be kept high and impregnable. We could not approve the
slightest breach. . . ." Id. at 18.
35. Everson v. Board of Education, 330 U.S. 1, 18 (1947).
36. See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing THE CONSTITUTION AND RELIGION 1541;
and Kurland, Of Church and State and the Supreme Court, 29 U.CHI.L.REV. 1, 5 (1961).
Parenthetically, the U.S. Court in Employment Division, Oregon Department of Human
Resources v. Smith, 494 U.S. 872 (1990), echoed the rationale of the separationists, when it
held that if government acts in pursuit of a generally applicable law with a secular purpose
that merely incidentally burdens religious exercise, the First Amendment has not been
offended.
37. 374 U.S. 203 (1963).
38. Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR
RELIGIOUS LIBERTY 60 (1980).
39. Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free Exercise of Religion in WEBER, P.,
EQUAL SEPARATION 1189 (1990).
40. Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a Pluralist Concept of Accommodation,
in WEBER, P., EQUAL SEPARATION 74-75 (1990).
41. I.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of the
world with its potential for corrupting those values so necessary to religious commitment.
According to Williams, this wall is breached, for the church is in the state, and so the
remaining purpose of the wall is to safeguard religious liberty. Williams' wall, therefore, would
allow for interaction between church and state, but is strict with regard to state action which
would threaten the integrity of religious commitment. His conception of separation is not total
such that it provides basis for certain interactions between church and state dictated by
apparent necessity or practicality.
See discussion of the birth of the theory in Estrada v. Escritor, 455 Phil. 411, 518-519 (2003).
42. 343 U.S. 306 (1951).
43. Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
44. Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).
45. Marsh v. Chambers, 463 US 783, 792-93 (1983).
46. Sherbert v. Verner, 374 US 398, 403-04 (1963).
47. Bowen v. Kendrick, 487 US 589, 611 (1988).
48. Board of Education v. Allen, 392 US 236, 238 (1968).
49. Everson v. Board of Education, 330 US 1, 17 (1947).
50. Committee for Public Education and Religious Liberty v. Regan, 444 US 646, 653-54 (1980).
51. Cited in McConnel, M., Accommodation of Religion: An Update and a Response to the Critics, 60
THE GEORGE WASHINGTON LAW REVIEW 685, 688. See Estrada v. Escritor, 455 Phil. 411,
522-523 (2003).
52. Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S., The Resurrection of Religious Freedom,
107 HARVARD LAW REVIEW 118, 1280129 (1993).
53. Id. at 482, citing Sullivan, K., Religion and Liberal Democracy, 59 THE UNIVERSITY OF CHICAGO
LAW REVIEW 195, 214-215 (1992).
54. Id.
55. 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, Bradley C., By its Fruits Shall Ye
Know; Axson-Flynn v. Johnson: More Rotted Fruit From Employment Division v. Smith, 80
CHI.-KENT L. REV. 1287, 1302 (2005).
56. Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
57. Sherbert v. Verner, 374 U.S. 398, 403 (1963).
58. Id. at 406.
59. Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I., The Religion Clauses and Justice Brennan
in Full, 87 CALIFORNIA LAW REVIEW 1105, 1114, 1105 and 1110 (1999).
60. Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L. REV. 275, 277 (1993).
61. 406 U.S. 205 (1972).
62. Id. at 214-215, 219-220.
63. Ivan E. Bodensteiner, The Demise of the First Amendment as a Guarantor of Religious Freedom, 27
WHITTIER L. REV. 415,417-418 (2005). (citations omitted)
64. See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993
B.Y.U.L. REV. 7, 30-32 (1993).
65. Id. at 30-32.
66. Id.
67. Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing STEPHENS, JR., O.H. and SCHEB, II J.M.,
AMERICAN CONSTITUTIONAL LAW 522-523 and 526 (2nd ed. 1999).
68. Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1304 (2005).
69. 494 U.S. 872 (1990).
70. CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1211 (2nd ed. 2002).
71. 494 U.S. 872, 878-889 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1211 (2nd ed. 2002).
72. 494 U.S. 872, 879 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1212 (2nd ed. 2002).
73. 494 U.S. 872, 881 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1212 (2nd ed. 2002).
74. 494 U.S. 872, 882 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1212 (2nd ed. 2002).
75. 494 U.S. 872, 884 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1212 (2nd ed. 2002).
76. 494 U.S. 872, 888 (1990), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 1212 (2nd ed. 2002).
77. See CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1213 (2nd ed.
2002).
78. Employment Division v. Smith, 494 U.S. 872, 906 (1990). (O'Connor, J. concurring in the judgment)
This portion of her concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Court's decision; cited in CHEMERINSKY, ERWIN,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).

79. Id at 903. (O'Connor, J. concurring in the judgment), cited in CHEMERINSKY, ERWIN,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
80. Id. at 902. (O'Connor, J. concurring in the judgment) cited in CHEMERINSKY, ERWIN,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
81. Id. at 908-909. (Blackmun, J. dissenting), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 1213 (2nd ed. 2002).
82. Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J. 699 (2005).
83. Id.
84. Aden, Steven H & Strang, Lee J., When a "Rule" Doesn't Rule: The Failure of the Oregon
Employment Division v. Smith "Hybrid Rights Exception," 108 PENN. ST. L. REV. 573, 581
(2003).
85. Id.
86. Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell, M., Accommodation of Religion: An
Update and a Response to the Critics, 60 THE GEORGE WASHINGTON LAW REVIEW 685,
726 (1992).
87. Id. at 482, citing McCoy, T., A Coherent Methodology for First Amendment Speech and Religion
Clause Cases, 48 VANDERBILT LAW REVIEW, 1335, 1350-1352 (1995).
88. Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 HASTINGS L.J. 699 (2005).
89. Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II DUCAT, C., CONSTITUTIONAL
INTERPRETATION 1180 & 1191 (2000). See also Sullivan, K., Religion and Liberal Democracy,
59 THE UNIVERSITY OF CHICAGO LAW REVIEW 195, 216 (1992).
90. Id. at 502, citing McConnell, M., Religious Freedom at a Crossroads, 59 THE UNIVERSITY OF
CHICAGO LAW REVIEW 115, 139 (1992).
91. Id., citing Sullivan, K., Religion and Liberal Democracy, 59 THE UNIVERSITY OF CHICAGO LAW
REVIEW 195, 216 (1992).
92. Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 HASTINGS L.J. 699 (2005).
93. Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48 VANDERBILT LAW REVIEW, 1335,
1350-1351 (1995).
94. Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v. Gobitis, 310 U.S. 586 (1940); and
Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990).
95. Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48 VANDERBILT LAW REVIEW, 1335,
1350-1351 (1995).
96. Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1327 (2005).
97. Bodensteiner, Ivan E., The Demise of the First Amendment As a Guarantor of Religious Freedom, 27
WHITTIER L. REV. 415, 419 (2005).
98. Aden, Steven H & Strang, Lee J., When a "Rule" Doesn't Rule: The Failure of the Oregon
Employment Division v. Smith "Hybrid Rights Exception", 108 Penn. St. L. Rev. 573, 584
(2003).
99. See COHEN, WILLIAM & DANELSKI, DAVID J., CONSTITUTIONAL LAW: CIVIL LIBERTY AND
INDIVIDUAL RIGHTS 620-621 (4th ed. 1997).
100. Id.
101. Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S., The Resurrection of Religious
Freedom, 107 HARVARD LAW REVIEW 118 (1993).
102. 42 U.S.C. 2000bb.
103. 42 U.S.C. 2000bb, Sec. (a) (4), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 1216 (2nd ed. 2002).
104. Id.
105. CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
106. City of Boerne v. Flores, 521 U.S. 507 (1997), cited in CHEMERINSKY, ERWIN, CONSTITUTIONAL
LAW: PRINCIPLES AND POLICIES 1216 (2nd ed. 2002).
107. City of Boerne clearly invalidated the RFRA as applied to state and local governments, but did not
resolve the constitutionality of the law as applied to the federal government. Some federal
courts have expressly ruled that the RFRA is constitutional as applied to the federal
government. See CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND
POLICIES 1216 (2nd ed. 2002).
108. See NOONAN, JOHN T., JR. & GAFFNEY, EDWARD MCGLYNN, JR., RELIGIOUS FREEDOM:
HISTORY, CASES, AND OTHER MATERIALS ON THE INTERACTION OF RELIGION AND
GOVERNMENT 531 (2001).
109. Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 278 (1993).
110. Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 CHI.-KENT L. REV. 1287, 1327 (2005).
111. Estrada v. Escritor, 455 Phil. 411, 526 (2003).
112. Id. at 527, citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR RELIGIOUS LIBERTY 61-62 (1980).
113. Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
114. 343 U.S. 306 (1952).
115. 463 U.S. 783 (1983).
116. McConnell, M., Accommodation of Religion: An Update and a Response to the Critics, 60 THE
GEORGE WASHINGTON LAW REVIEW 685, 715 (1992).
117. 333 U.S. 203 (1948).
118. Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing BUZZARD, L., ERICSSON, S., THE BATTLE FOR
RELIGIOUS LIBERTY 61-63 (1980).
119. KMIEC, DOUGLAS W. & PRESSER, STEPHEN B., INDIVIDUAL RIGHTS AND THE AMERICAN
CONSTITUTION 105 (1998).
120. Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited in CHEMERINSKY, ERWIN,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1212 (2nd ed. 2002).
121. See, e.g. Michael McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV.
1109 (1990); Jesse H. Choper, The Rise and Decline of the Constitutional Protection of
Religious Liberty, 70 NEB. L. REV. 651 (1991) (criticizing Smith). Cited in CHEMERINSKY,
ERWIN, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1213 (2nd ed. 2002).
122. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARVARD
LAW REVIEW 1410, 1416-1417 (1990).
123. CONSTITUTION, (1935), Art. VI, Sec. 22, par 3(b); CONSTITUTION, (1973), Art. VI, Sec. 22(3); and
CONSTITUTION, (1987), Art.VI, Sec. 28(3).
124. CONSTITUTION, (1935), Art. VI, Sec. 23(3); CONSTITUTION, (1973), Art. VIII, Sec. 18(2); and
CONSTITUTION, (1987), Art. VI, Sec. 29(2).
125. CONSTITUTION, (1935) Art. XIII, Sec. 5; CONSTITUTION, (1973), Art. XV, Sec. 8(8); and
CONSTITUTION, (1987), Art. XIV, Sec. 3(3).
126. "Divine Providence" in the 1935 and 1973 Constitutions; and "Almighty God" in the 1987
Constitution.
127. Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
128. Id. at 564 and 575.
129. Id. at 563-564.
130. Id. at 574. As stated in the Decision dated August 4, 2003:
Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution
when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major
Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the
nature, extent and limitations of these clauses. However, a close scrutiny of these cases would
also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of
interpretation separation and benevolent neutrality the well-spring of Philippine
jurisprudence on this subject is for the most part, benevolent neutrality which gives
room for accommodation. Id. at 536.
131. 101 Phil. 386 (1957).
132. G.R. No. 95770, March 1, 1993, 219 SCRA 256.
133. Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this prior case, petitioners were also
members of the Jehovah's Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioner's children refused to
salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they
were expelled from school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the Philippine flag is an
image and saluting the same is contrary to their religious belief. The Court denied exemption,
and sustained the expulsion of petitioners' children, on the ground that "If the exercise of
religious belief clashes with the established institutions of society and with the law, then the
former must yield to the latter."
134. Id. at 270-271.
135. G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also Basa v. Federacion Obrera, G.R. No.
L-27113, November 19, 1974, 61 SCRA 93; Gonzalez v. Central Azucarera de Tarlac Labor
Union, G.R. No. L-38178, October 3, 1985, 139 SCRA 30.
136. Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, September 12, 1974, 59 SCRA 54,
74-75. The Court stressed that "(a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor unions, the benefit
upon the religious sects is merely incidental and indirect." In enacting Republic Act No. 3350,
Congress merely relieved the exercise of religion by certain persons of a burden imposed by
union security agreements which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule
that when general laws conflict with scruples of conscience, exemptions ought to be granted
unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n
the instant case, We see no compelling state interest to withhold exemption." Id.
137. Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).
138. Id. at 529-531.
139. 98 U.S. 145 (1878).
140. See KMIEC, DOUGLAS, W, & PRESSER, STEPHEN B, INDIVIDUAL RIGHTS AND THE AMERICAN
CONSTITUTION 105 (1998). In this case, the issue was whether a general federal law
criminalizing polygamy can be applied to a Mormon whose religion included that practice.
The U.S. Court, in affirming Reynold's conviction, ruled that the prohibition of polygamy was
justified by the importance of monogamous, heterosexual marriage, a practice upon which
society may be said to be built, and perhaps even upon which democratic traditions depend.
Thus, according to the U.S. Court, this important societal interest prevails over the
countervailing religious practice of the Mormons.

141. A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.
142. 494 U.S. 872 (1990). (O'Connor, J. concurring) According to Justice O'Connor:
. . . Even if, as an empirical matter, a government's criminal laws might usually serve a compelling interest
in health, safety, or public order, the First Amendment at least requires a case-by-case
determination of the question, sensitive to the facts of each particular claim. . . Given the
range of conduct that a State might legitimately make criminal, we cannot assume, merely
because a law carries criminal sanctions and is generally applicable, that the First Amendment
never requires the State to grant a limited exemption for religiously motivated conduct.
Parenthetically, J. Brennan, J. Marshall, and J. Blackmun joined Parts I and II of Justice O'Connor's
opinion, including the above-cited portions, but did not concur in the judgment.
143. See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 B.
Y. U. L. REV. 7, 12-13 (1993).
144. Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).
145. Id., citing McConnell, M., Religious Freedom at a Crossroads, 59(1) UNIV. OF CHICAGO LAW
REVIEW 115, 169 (1992).
146. Dated May 6, 2005, by retired Associate Justice Romulo S. Quimbo, rollo, p. 714.
147. Rollo, pp. 687-689.
148. OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing CONSTITUTION, Art. II, Sec. 12, which
provides: "The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution."
149. Id. at 21, citing the Family Code, Art. 149, which provides: "The family, being the foundation of the
nation, is a basic social institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or agreement destructive of the
family shall be recognized or given effect."
150. Id. at 21-22.
151. See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).
152. OSG Memorandum-In-Intervention, rollo, p. 23.
153. Id. at 26.
154. Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of the decision addressed the issues of
morality raised by Mme. Justice Ynares-Santiago and Mr. Justice Vitug, who also had a
separate opinion, albeit differing in conclusion.
155. Id. at 580.
156. Id. at 586-588.
157. Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)
158. Title Six of the Revised Penal Code is entitled Crimes against Public Morals and includes therein
provisions on gambling and betting. (emphasis supplied)
159. The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals,
or good customs or prejudicial to a third person with a right recognized by law.
Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided that are not contrary to law, morals, good customs,
public order, or public policy.
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy; . . ." (emphases supplied)
160. Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as part of the curricula.
They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights,
appreciation of the role of national heroes in the historical development of the country, teach
the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking, broaden scientific
and technological knowledge, and promote vocational efficiency. (emphasis supplied)
161. Estrada v. Escritor, 455 Phil. 411, 586 (2003).
162. Id. at 589-590.
163. Id. at 591.
164. Id. at 592.
165. Id. at 593.
166. Id. at 593-595.
167. Id. at 594-595.
168. Id. at 595-596.
169. Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 B. Y. U.
L. REV. 7, 12 (1993).
170. Id. at 51.
171. Estrada v. Escritor, 455 Phil. 411, 574 (2003).
172. OSG Memorandum-In-Intervention, rollo, p. 708.
173. See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).
174. Id. at 529-531.
YNARES-SANTIAGO, J., dissenting:
1. Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235 SCRA 290.
2. De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.
3. Revised Administrative Code, Book V, Title I, Subtitle A, Section 46 (b) (5).
4. Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).
5. Oxford Universal Dictionary, Vol. 2, p. 1280.
6. Id., p. 961.
7. Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva, 116 Phil. 1208 (1962); Reyes v.
Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668.
8. Revised Penal Code, Art. 333.
9. Revised Penal Code, Art. 334.
10. Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule 110, Section 5.
11. Reyes v. Wong, supra.
12. Supra.
13. Lacuata v. Bautista, supra.
14. Supra.
15. 339 Phil. 510 (1997).
16. A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.
17. 220 Phil. 49 (1985).
18. E.O. 292, Sec. 46 (5).
19. Art. 334.
20. Rollo, Exhibits "1" and "2", pp. 14-15.
21. TSN, October 12, 2000, pp. 11-15.
22. Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.
23. Art. 334.
24. 98 U.S. 145; 25 L.Ed. 244 (1879).
25. Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.
26. Supra.
27. G.R. No. 95770, 1 March 1993, 219 SCRA 256.
28. 319 U.S. 624 (1943).
29. American Bible Society v. City of Manila, 101 Phil. 386 (1957).
30. Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No. MTJ-92-691, 10 September 1993,
226 SCRA 193.
31. 380 Phil. 555 (2000).
32. A.M. No. RTJ-99-1509, 8 August 2002.
33. A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.
34. Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9 January 1992, 205 SCRA 21 and Sy v.
Cruz, 321 Phil. 231 [1995].
35. Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001; Alday v. Cruz, A.M. No. RTJ-00-1530, 14
March 2001, 354 SCRA 322.
36. Civil Service Rules, Rule XIV, Section 23 (o).
CARPIO, J., dissenting:
1. 374 U.S. 398 (1963).
2. 485 U.S. 660 (1988) and 494 U.S. 872 (1990).
3. 485 U.S. 660 (1988).
4. Citations omitted.
5. In Sherbert, the appellant was discharged because she would not work on Saturday, the Sabbath Day
of her faith.
6. Employment Division v. Smith, supra note 3 at 670-671.
7. 494 U.S. 872 (1990).
8. Id. at 878-879.
9. Id. at 881.
10. Id. at 882-883.
11. Id at 884.
12. Estrada v. Escritor, 455 Phil. 574 (2003).
13. Id. at 593.
14. Employment Division v. Smith, supra note 7 at 878-879.
15. 98 U.S. 145 (1878).
16. KAUPER, P., RELIGION AND THE CONSTITUTION 59 (1964). See also ABRAHAM, H. AND PERRY, B.,
FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE UNITED STATES 270 (7th
ed., 1998).
17. Id.
18. 330 U.S. 1 (1947).
19. KAUPER, op. cit., at 61.
20. ABRAHAM, H. AND PERRY, B., FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE
UNITED STATES 272-73 (7th ed., 1998).
21. 374 U.S. 203 (1963).
22. KAUPER, op. cit., at 64.
23. Id. at 65.
24. Abington School District v. Schempp, supra note 15 at 226.
25. ABRAHAM, H. AND PERRY, B., op. cit., at 280.
26. KAUPER, op. cit., at 59.
27. 343 U.S. 306 (1952).
28. Id
Facts: In a sworn letter-complaint, Alejandro Estrada, complainant, wrote to Judge Caoibes Jr. requesting
for an investigation of rumors that respondent Soledad Escritor, court interpreter of Las Pias, is living with a
man not her husband. Judge Caoibes referred the letter to Escritor, who stated that there is no truth as to
the veracity of the allegation and challenged Estrada, to appear in the open and prove his allegation in
the proper court. Judge Caoibes set a preliminary conference and Escritor move for inhibition to avoid
bias and suspicion in hearing her case. In the conference, Estrada confirmed that he filed a letter-complaint
for disgraceful and immoral conduct under the Revised Administrative Code against Escritor for that his
frequent visit in the Hall of Justice in Las Pias learned Escritor is cohabiting with another man not his
husband.
Escritor testified that when she entered judiciary in 1999, she was already a widow since 1998. She admitted
that shes been living with Luciano Quilapo Jr. without the benefit of marriage for 20 years and that they
have a son. Escritor asserted that as a member of the religious sect known as Jehovahs Witnesses, and
having executed a Declaration of Pledging Faithfulness (which allows members of the congregation who
have been abandoned by their spouses to enter into marital relations) jointly with Quilapo after ten years of
living together, her conjugal arrangement is in conformity with her religious beliefs and has the approval of
the congregation, therefore not constituting disgraceful and immoral conduct.
Issue: Whether or not Escritor is administratively liable for disgraceful and immoral conduct.
Ruling: Escritor cannot be penalized. The Constitution adheres to the benevolent neutrality approach that
gives room for accommodation of religious exercises as required by the Free Exercise Clause, provided that
it does not offend compelling state interests. The OSG must then demonstrate that the state has used the
least intrusive means possible so that the free exercise clause is not infringed any more than necessary to
achieve the legitimate goal of the state. In this case, with no iota of evidence offered, the records are bereft
of even a feeble attempt to show that the state adopted the least intrusive means. With the Solicitor
General utterly failing to prove this element of the test, and under these distinct circumstances, Escritor
cannot be penalized.
The Constitution itself mandates the Court to make exemptions in cases involving criminal laws of general
application, and under these distinct circumstances, such conjugal arrangement cannot be penalized for
there is a case for exemption from the law based on the fundamental right to freedom of religion. In the
area of religious exercise as a preferred freedom, man stands accountable to an authority higher than the
state.
EN BANC
[G.R. No. L-13954. August 12, 1959.]
GENARO GERONA, ET AL., petitioners-appellants, vs. THE
HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-
appellees.
K. V. Faylona and Hayden C. Covington for appellant.
Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.
SYLLABUS
1. CONSTITUTIONAL LAW; FREEDOM OF RELIGION; DAILY FLAG CEREMONY
NOT A RELIGIOUS RITUAL. The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom
and liberty which it and the Constitution guarantee and protect. Under the complete
separation of church and state in our system of government, the flag is utterly devoid of any
religious significance. Saluting the flag consequently does not involve any religious ceremony.
The flag salute is no more a religious ceremony than the taking of an oath of office by a public
official or by a candidate for admission to the bar.
2. ID.; ID.; ID.; REQUIREMENT ON SCHOOL PUPILS TO SALUTE THE FLAG NOT
AN IMPOSITION OF RELIGION. In requiring school pupils to participate in the flag salute,
the State thru the Secretary of Education was not imposing a religion or religious belief or a
religious test on said students. It was merely enforcing a non-discriminatory school regulation
applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State
was merely carrying out the duty imposed upon it by the Constitution which charges it with
supervision over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all schools aim to
develop among other things, civic conscience and teach the duties of citizenship.
3. ID.; ID.; EXEMPTION FROM FLAG CEREMONY NOT PROPER. The children of
Jehovah Witnesses cannot be exempted from participation in the flag ceremony. They have
no valid right to such exemption. Moreover, exemption to the requirement will disrupt school
discipline and demoralize the rest of the school population which by far constitutes the great
majority.
4. ID.; ID.; NON-COMPLIANCE WITH NON-DISCRIMINATORY LAWS NOT A PART
OF RELIGIOUS FREEDOM. The freedom of religious belief guaranteed by the Constitution
does not and cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent authority.
D E C I S I O N
MONTEMAYOR, J p:
Petitioners are appealing the decision of the Court of First Instance of Masbate
dismissing their complaint. Acting upon the "Urgent Motion For Writ of Preliminary Injunction"
filed on behalf of petitioners on December 12, 1958, and without objection on the part of the
Solicitor General, by resolution of this Court of December 16, we issued the corresponding
writ of preliminary injunction restraining respondents from excluding or banning petitioners-
appellants, their children and all other of Jehovah's Witnesses for whom this action has been
brought, from admission to public schools, particularly the Buenavista Community School,
solely on account of their refusal to salute the flag or preventing their return to school should
they have already been banned, until further orders from this Court.
The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was
approved and went into effect. Acting upon section 2 of said Act authorizing and directing the
Secretary of Education to issue or cause to be issued rules and regulations for the proper
conduct of the flag ceremony, said Secretary issued Department Order No. 8, series of 1955
on July 21, 1955 which Department Order quoting Republic Act No. 1265 in its entirety, we
reproduce below for purposes of reference:

"REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF EDUCATION
OFFICE OF THE SECRETARY
MANILA

DEPARTMENT ORDER
No. 8, s. 1955

July 21, 1955

COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC
AND PRIVATE SCHOOLS

To the Director of Public Schools and the Director of Private Schools:
1. Quoted below is Republic Act No. 1265 entitled "An Act
Making Flag Ceremony Compulsory in all Educational Institutions," which is
self-explanatory.
"SECTION 1. All educational institutions henceforth observe
daily flag ceremony, which shall be simple and dignified and shall include
the playing or singing of the Philippine National Anthem.
"SECTION 2. The Secretary of Education is hereby authorized
and directed to issue or cause to be issued rules and regulations for the
proper conduct of the flag ceremony herein provided.
"SECTION 3. Failure or refusal to observe the flag ceremony
provided by this Act and in accordance with rules and regulations issued by
the Secretary of Education, after proper notice and hearing, shall subject
the educational institution concerned and its head to public censure as an
administrative punishment which shall be published at least once in a
newspaper of general circulation.
In case of failure to observe for the second time the flag
ceremony provided by this Act, the Secretary of Education, after proper
notice and hearing, shall cause the cancellation of the recognition or permit
of the private educational institution responsible for such failure.
"SECTION 4. This Act shall take effect upon its approval.
Approved, June 11, 1955."
2. As provided in Section 2 of the Act, the rules and regulations
governing the proper conduct of the required flag ceremony, given in the
inclosure to this Order, are hereby promulgated. These rules and
regulations should be made known to all teachers and school officials,
public and private. The patriotic objective or significance of the Act should
be explained to all pupils and students in the schools and to all
communities through the purok organizations and community assemblies.

(Sgd.) G. HERNANDEZ, JR.
Secretary of Education
Incl.:
As stated
(Inclosure of Department Order No. 8, s. 1955)

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL
EDUCATIONAL INSTITUTIONS

1. The Filipino Flag shall be displayed by all educational
institutions, public and private, every school day throughout the year. It
shall be raised at sunrise and lowered at sunset. The flagstaff must be
straight, slightly and gently tapering at the end, and of such height as
would give the Flag a commanding position in front of the building or
within the compound.
2. Every public and private educational institution shall hold a
flag-raising ceremony every morning except when it is raining, in which
event the ceremony may be conducted indoors in the best way possible. A
retreat shall be held in the afternoon of the same day. The flag-raising
ceremony in the morning shall be conducted in the following manner:
a. Pupils and teachers or students and faculty members who are
in school and its premises shall assemble in formation facing the flag. At
command, books shall be put away or held in the left hand and everybody
shall come to attention. Those with hats shall uncover. No one shall enter or
leave the school grounds during the ceremony.
b. The assembly shall sing the Philippine National Anthem
accompanied by the school band or without the accompaniment if it has
none; or the anthem may be played by the school band alone. At the first
note of the Anthem, the flag shall be raised briskly. While the flag is being
raised, all persons present shall stand at attention and execute a salute.
Boys and men with hats shall salute by placing the hat over the heart.
Those without hats may stand with their arms and hands down and straight
at the sides. Those in military or Boy Scout uniform shall give the salute
prescribed by their regulations. The salute shall be started as the Flag rises,
and completed upon last note of the anthem.
c. Immediately following the singing of the Anthem, the
assembly shall recite in unison the following patriotic pledge (English or
vernacular version), which may bring the ceremony to a close. This is
required of all public schools and of private schools which are intended for
Filipino students or whose population is predominantly Filipino.
ENGLISH VERSION

I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

3. The retreat shall be observed as follows:
a. Teachers and pupils or faculty members and students whose
classes and after the last school period in the afternoon before sun down
shall assemble facing the flag. At command, the Philippine National
Anthem shall be sung with accompaniment of the school band. If the
school has no band, the assembly will only sing the Anthem. Boys who
have been taking part in preparatory military training or Boy Scout activities
shall attend the retreat in formation and execute the salute prescribed for
them. Others shall execute the same salute and observe the same
deportment as required of them in the flag-raising ceremony. The flag
should be lowered slowly so that it will be in the hands of the color detail at
the sound of the last note of the Anthem.
b. If the school so prefers, it may have its bugle corp play "To
the Colors", instead of the singing of the National Anthem, for the retreat.
At the sound of the first note, the assembly shall stand at attention facing
the flag and observe the same deportment as required in the flag-raising
ceremony. Or, it may have its bugle corp play "To the Colors" and at the
sound of the first note everybody within hearing distance shall stand at
attention, face the flag, and observe the same deportment as required in
the flag-raising ceremony.
4. The flag should be handled reverently in raising or lowering it
and not allowed to touch the ground. This can be insured by having one
pupil hold the flag while another pupil fastening it to or unfasten it from the
halyard.

5. To display the National Flag at half-mast when necessary, it
must be hoisted to full-mast, allowing it to fly there for a moment, and then
brought down to half-mast. To lower the flag, it must again be hoisted to
full-mast before bringing it down."
In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30,
1955 addressed to Division Superintendents of Schools, enclosing a copy of Department
Order No. 8, series of 1955 and enjoining strict compliance therewith.
It would appear that pursuant to the Department Order in question, the flag
ceremony contemplated therein was held daily in every school, public and private. Petitioners'
children attending the Buenavista Community School, Uson, Masbate, refused to salute the
flag, sing the national anthem and recite the patriotic pledge contrary to the requirement of
Department Order No. 8; as a result they were expelled from school sometime in September,
1955. It is said that other children similarly situated who refused or failed to comply with the
requirement about saluting the flag are under threats of being also expelled from all public
schools in the Philippines.
Petitioners thru counsel wrote to the Secretary of Education petitioning that in the
implementation of this flag ceremony, they and their children attending school be allowed to
remain silent and stand at attention with their arms and hands down and straight at the sides
and that they be exempted from executing the formal salute, singing of the National Anthem
and the reciting of the patriotic pledge, giving their reason for the same. On December 16,
1955 the Secretary of Education wrote to counsel for petitioners denying the petition, making
it clear that the denial was the final and absolute stand of the Department of Education on the
matter and that counsel may thereafter feel free to seek a judicial determination of the
constitutionality or interpretation of Republic Act No. 1265 as construed and applied to
Jehovah's Witnesses. The letter also informed petitioners' counsel that with reference to his
letter of December 1, 1955 relative to the request for reinstatement of petitioners' children
who had been expelled from school for non-compliance with Department Order No. 8, no
favorable action could be taken thereon. So, on March 27, 1957 petitioners commenced the
present action asking that a writ of preliminary injunction issue to restrain the Secretary of
Education and the Director of Public Schools from enforcing Department Order No. 8 "as
applied to petitioners and all others of Jehovah's Witnesses for whom this action is brought
and to restrain them from excluding from the public schools the children of the petitioners on
account of their refusal to execute a formal salute to the flag, sing the national anthem and
recite the patriotic pledge, and that after hearing, the trial court declare Department Order
No. 8 invalid and contrary to the Bill of Rights and that the preliminary injunction prayed for be
made permanent.
Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an
unincorporated body teaching that the obligation imposed by law of God is superior to that of
laws enacted by the State. Their religious beliefs include a literal version of Exodus, Chapter
20, verses 4 and 5, which say: "Thou shalt not make unto thee any graven image, or any
likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the
water under earth; thou shalt not bow down thyself to them, nor serve them." They consider
that the flag is an "image within this command. For this reason they refuse to salute it.
To further make clear the stand of petitioners as to the relative position and priority
of religious teaching on the one hand and laws promulgated by the State on the other, we
quote from appellant's brief on page 50 thereof:
"In Halter vs. Nebraska, 205 U.S. 34, 41 27 S. Ct. 419, 51 L. Ed.
696 (1907), the United States Supreme Court held that the flag 'is an
emblem of National sovereignty.'
"To many persons the saluting of a national flag means nothing.
To a sincere person who believed in God and the Bible as his Word, and
who is in a covenant with Almighty God to do his will exclusively, it means
much. To such person 'sovereignty' means the supreme authority or power.
Many believe that 'the higher powers,' mentioned in the Bible at Romans
13:1, means the 'sovereign state'; but to the Christian this means Jehovah
God and his son, Christ Jesus, Jehovah's anointed King. They, Father and
Son are the higher powers, to whom all must be subject and joyfully
obey." (Emphasis supplied)
The question involved in this appeal is a highly important one. We are called upon
to determine the right of a citizen as guaranteed by the Constitution about freedom of
religious belief and the right to practice it as against the power and authority of the State to
limit or restrain the same. Our task is lessened by the fact that petitioners do not challenge the
legality or constitutionality of Republic Act 1265. All that they question is the legality or
constitutionality of Department Order No. 8, series of 1955 of the Department of Education
implementing said Republic Act.
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former must yield and
give way to the latter. The Government steps in and either restrains said exercise or even
prosecutes the one exercising it.
One may believe in polygamy because it is permitted by his religion, but the
moment he translates said religious belief into an overt act, such as engaging or practising
plural marriages, he may be prosecuted for bigamy and he may not plead or invoke his
religious belief as a defense or as a matter of exemption from the operation of the law.
In the case of Reynolds vs. U. S. (98 U.S. 145) the U.S. Supreme Court upheld the
validity of a law prohibiting and punishing polygamy even as against the claim of religious
belief of the Mormons. Said the Court:
"So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land, and
in effect to permit every citizen to become a law unto himself. Government
could exist only in name under such circumstances." (Emphasis supplied)
Again, one may not believe in the payment of taxes because he may claim that
according to his religious belief, the payment of taxes means service to one other than God.
As long as he confines himself to mere belief, well and good. But when he puts said belief into
practice and he actually refuses to pay taxes on his property or on his business, then the State
steps in, compels payment, and enforces it either by court action or levy and distraint.
One of the important questions to determine here is the true meaning and
significance of the Filipino flag. Petitioners believe and maintain that it is an image and
therefore to salute the same is to go against their religious belief. "Thou shalt not make unto
thee any graven . . . thou shalt not bow down thyself to them or serve them." They also claim
that the flag salute is a religious ceremony, participation in which is forbidden by their religious
belief. We disagree. Appellants themselves (page 51 of their brief) concede that the flag is a
symbol of the State. They give the meaning of the word "image" on page 51 of their brief as
follows:
"Under the word 'image' this comment is given by Webster:
'Image, in modern usage, commonly suggests religious
veneration.'" (Emphasis supplied)
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which it and
the Constitution guarantee and protect. Considering the complete separation of church and
state in our system of government, the flag is utterly devoid of any religious significance.
Saluting the flag consequently does not involve any religious ceremony. The flag salute,
particularly the recital of the pledge of loyalty is no more a religious ceremony than the taking
of an oath of office by a public official or by a candidate for admission to the bar. In said oath,
taken while his right hand is raised, he swears allegiance to the Republic of the Philippines,
promises to defend the Constitution and even invokes the help of God; and it is to be
doubted whether a member of Jehovah's Witness who is a candidate for admission to the
Philippine Bar would object to taking the oath on the ground that it is religious ceremony.
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to
a follower of said group or sect; otherwise, there would be confusion and misunderstanding
for there might be as many interpretations and meanings to be given to a certain ritual or
ceremony as there are religious groups or sects or followers, all depending upon the meaning
which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.
We understand that petitioners, during the flag ceremony, are willing to remain
silent and stand at attention with their arms and hands down straight at the sides, and they
agree that boys, members of Jehovah's Witness who have been taking part in military training
or Boy Scout activities, and are in uniform, may execute the salute to the flag prescribed by
the Circular for them. So, the requirement contained in Department Order No. 8 that during
the flag ceremony those without hats may stand with their arms and hands down and straight
at the sides, including the formal salute by boys in military and Boy Scout uniform, meets with
the conformity of petitioners. Of course, there is the other requirement that boys and men
with hats shall salute the flag by placing their hats over the heart, but petitioners and other
members of the Jehovah's Witness could well solve this requirements or avoid it by putting
away their hats just as pupils holding books, may put them away, at command (Rules and
Regulations, Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may
be reduced to their objection to singing the National Anthem and reciting the patriotic
pledge.

After a careful and conscientious examination of the patriotic pledge as reproduced
at the beginning of this decision, frankly we find nothing, absolutely nothing, objectionable,
even from the point of view of religious belief. The school child or student is simply made to
say that he loves the Philippines because it is the land of his birth and the home of his people;
that because it protects him, in return he will heed the counsel of his parents, obey the rules
and regulations of his school, perform the duties of a patriotic and law- abiding citizen; and
serve his country unselfishly and faithfully, and that he would be a true Filipino in thought, in
word, and in deed. He is not even made to pledge allegiance to the flag or to the Republic for
which it stands. So that even if we assume for a moment that the flag were in image,
connoting religious and veneration instead of a mere symbol of the State and of national unity,
the religious scruples of appellants against bowing to and venerating an image are not
interfered with or otherwise jeopardized.
And as to the singing of the National Anthem, which we reproduce below:

Land of the morning,
Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and through thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, fell the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O land of light,
In thine embrace 'tis rapture to lie.
But it is glory ever, when thou art wronged,
For us, thy sons to suffer and die.

the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the
glory of suffering and dying for it. It does not even speaks of resorting to force and engaging
in military service or duty to defend the country, which service might meet with objection on
the part of conscientious objectors. Surely, petitioners do not disclaim or disavow these noble
and sacred feelings of patriotism, respect, even veneration for the flag and love of country for
which the flag stands.
Men may differ and do differ on religious beliefs and creeds, government policies,
the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in
the field of love of country, reverence for the flag, national unity and patriotism, they can
hardly afford to differ, for these are matters in which they are mutually and vitally interested,
for to them, they mean national existence and survival as a nation or national extinction.
In enforcing the flag salute on the petitioners, there was absolutely no compulsion
involved, and for their failure or refusal to obey school regulations about the flag salute they
were not being persecuted. Neither were they being criminally prosecuted under threat of
penal sanction. If they chose not to obey the flag salute regulation, they merely lost the
benefits of public education being maintained at the expense of their fellow citizens, nothing
more. According to a popular expression, they could take it or leave it. Having elected not to
comply with the regulations about the flag salute, they forfeited their right to attend public
schools.
In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. Ed. 343,
quite similar to the present case, appellants therein were taxpayers and citizens of the United
States and of California. The University of California received endowment and support from
the State legislature under certain conditions such as that any resident of California of the age
of 14 years or upward of approved moral character shall have the right to enter the University
as a student and receive instructions therein. The University as part of its curriculum and
instruction required military science and tactics in the Reserve Officers Training Corps.
Appellants conformed to all requirements of the University except taking the course in military
science and tactics and for this the regents of the University suspended them. Appellants were
members of the Methodist Episcopal Church and of the Epworth League. For many years their
fathers have been ordained ministers of that church. They believed that war and preparation
for war is a violation of their religious belief. In other words, they were conscientious objectors
to war. They believed that war, training for war, and military training were immoral, wrong and
contrary to the letter and spirit of the teaching of God and precepts of the Christian religion.
They petitioned for exemption from the military science and tactics course but the regents
refused to make military training optional or to exempt them and they were suspended. So
they initiated court action with the California Supreme Court to compel the regents of the
University to admit them. In that action they assailed the validity of the State law providing for
military training in the University. Their petition was denied by the State Supreme Court. In
affirming the decision of the State Supreme Court, the Supreme Court of the United States
held that:
". . .. California has not drafted or called them to attend the
University. They are seeking education offered by the State and at the same
time insisting that they be excluded from the prescribed course solely upon
grounds of their religious beliefs and conscientious objections to war,
preparation for war and military education. Taken on the basis of the facts
alleged in the petition, appellants' contentions amount to no more than an
assertion that the due process clause of the Fourteenth Amendment as a
safeguard of 'liberty' confers the right to be students in the state university
free from obligation to take military training as one of the conditions of
attendance.
"Viewed in the light of our decisions that proposition must at
once be put aside as untenable. . . .
"In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51
S. Ct. 570, a later naturalization case, the applicant was unwilling, because
of conscientious objections, to take unqualifiedly the statutory oath of
allegiance which contains this statement: 'That he will support and defend
the Constitution and laws of the United States against all enemies, foreign
and domestic, and bear true faith and allegiance to the same.' U.S.C. title
8, Sec. 381. His petition stated that he was willing if necessary to take up
arms in defense of this country, 'but I should want to be free to judge of the
necessity.' In amplification he said: 'I do not undertake to support "my
country, right or wrong" in any dispute which may arise, and I am not
willing to promise beforehand, and without knowing the cause for which my
country may go to war, either that I will or that I will not "take up arms in
defense of this country," however "necessary" the war may seem to be to
the government of the day.' The opinion of this court quotes from
petitioner's brief a statement to the effect that it is a fixed principle of our
Constitution, zealously guarded by our laws, that a citizen cannot be forced
and need not bear arms in a war if he has conscientious religious scruples
against doing so.' And, referring to that part of the argument in behalf of
the applicant this court said (p. 623): 'This, if it means what it seems to say,
is an astonishing statement. Of course, there is no such principle of the
Constitution, fixed or otherwise. The conscientious objector is relieved from
the obligation to bear arms in obedience to no constitutional provision,
express or implied; but because, and only because, it has accorded with
the policy of Congress thus to relieve him. . . . The privilege of the native-
born conscientious objector to avoid bearing arms comes not from the
Constitution but from the acts of Congress. That body may grant or
withhold the exemption as in its wisdom it sees fit; and if it be withheld, the
native-born conscientious objector cannot successfully assert the privilege.
No other conclusion is compatible with the well-nigh limitless extent of the
war powers as above illustrated, which include by necessary implication,
the power, in the last extremity, to compel the armed service of any citizen
in the land, without regard to his objections or his views in respect of the
justice or morality of the particular war or of war in general. In Jacobson v.
Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann.
Cas, 765, this Court (upholding a state compulsory vaccination law)
speaking of the liberties guaranteed to the individual by the Fourteenth
Amendment, said: ". . . and yet he may be compelled, by force if need be,
against his will and without regard to his personal wishes or his pecuniary
interests, or even his religious or political convictions, to take his place in
the ranks of the army of his country and risk the chance of being shot down
in its defense."'
"And see University of Maryland v. Coale, 165 Md. 224, 167 A.
54, a case, similar to that now before us, decided against the contention of
a student in the University of Maryland who on conscientious grounds
objected to military training there required. His appeal to this Court was
dismissed for the want of a substantial federal questions. 290 U.S. 597, 78
L. ed. 525, 54 S. Ct. 131.
"Plainly there is no ground for the contention that the regents'
order, requiring able-bodied male students under the age of twenty-four as
a condition of their enrollment to take the prescribed instruction in military
science and tactics, transgresses any constitutional right asserted by these
appellants."
Mr. Justice Cardozo in his concurring opinion said:
"I assume for present purposes that the religious liberty
protected by the First Amendment against invasion by the nation is
protected by the Fourteenth Amendment against invasion by the states.
"Accepting that premise, I cannot find in the respondents'
ordinance an obstruction by the state to 'the free exercise' of religion as the
phrase was understood by the founders of the nation, and by the
generations that have followed. Davis vs. Beason, 133 U. S. 333, 342, 33 L.
ed. 637, 10 S. Ct. 299.

"There is no occasion at this time to mark the limits of
governmental power in the exaction of military service when the nation is at
peace. The petitioners have not been required to bear arms for any hostile
purpose, offensive or defensive, either now or in the future. They have not
even been required in any absolute or peremptory way to join in courses of
instruction that will fit them to bear arms. If they elect to resort to an
institution for higher education maintained with the state's moneys, then
and only then they are commanded to follow courses of instruction
believed by the state to be vital to its welfare. This may be condemned by
some unwise or illiberal or unfair when there is violence to conscientious
scruples, either religious or merely ethical. More must be shown to set the
ordinance at naught. In controversies of this order courts do not concern
themselves with matters of legislative policy, unrelated to privileges or
liberties secured by the organic law. The first Amendment, if it be read into
the Fourteenth, makes invalid any state law 'respecting an establishment of
religion or prohibiting the free exercise thereof.' Instruction in military
science is not instruction in the practice or tenets of a religion. Neither
directly nor indirectly is government establishing a state religion when it
insists upon such training. Instruction in military science, unaccompanied
here by any pledge of military service, is not an interference by the state
with the free exercise of religion when the liberties of the constitution are
read in the light of a century and a half of history during days of peace and
war. . . .
"Manifestly a different doctrine would carry us to lengths that
have never yet been dreamed of. The conscientious objector, if his liberties
were to be thus extended, might refuse to contribute taxes in furtherance
of a war, whether for attack or for defense, or in furtherance of any other
end, condemned by his conscience as irreligious or immoral. The right of
private judgment has never yet been so exalted above the powers and the
compulsion of the agencies of government. One who is a martyr to a
principle which may turn out in the end to be a delusion or an error
does not prove by his martyrdom that he has kept within the law."
We are not unmindful of the decision of the United States Federal Supreme Court
on similar set of facts. In the case of Minersville School District vs. Gobitis, 310 U.S. 586, 84 L.
ed. 1375, two Jehovah Witnesses children were expelled from the public school of Minersville
for refusing to salute the national flag in accordance with the regulations promulgated by the
school board for the daily flag ceremony. Their father Gobitis on behalf of his two children and
in his own behalf brought suit to enjoin the school authorities from continuing to exact the
execution of the flag ceremony as a condition of his children's admittance in school. After trial,
the District Court gave him relief and this decree was affirmed by the Circuit Court of Appeals.
On appeal to the Federal Supreme Court, the decrees of both the District Court and the
Circuit Court of Appeals were reversed with the lone dissent of Chief Justice Stone, on the
ground that the requirement of participation of all pupils in the public schools in the flag
ceremony did not infringe the due process law and liberty guaranteed by the Constitution,
particularly the one referring to religious freedom and belief. Three years later, that is, on June
14, 1943, the ruling laid down in the Minersville School District vs. Gobitis case, was in the
case of West Virginia State Board of Education vs. Barnette, 319 U.S. 624-671 reversed by a
sharply divided court, the majority opinion being penned by Mr. Justice Jackson in which
Justices Black, Douglas and Murphy concurred; while Mr. Justice Frankfurter who wrote the
opinion in the Gobitis case, filed a long dissenting opinion, and Justices Roberts and Reed
adhered to the views expressed in the Gobitis case.
Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case
nor desiring to criticize the doctrine of the West Virginia vs. Barnette case, frankly, we are
more inclined to favor the former as more in keeping with the spirit of our Constitution and
the government policy as laid down in Republic Act No. 1265 entitled "An Act Making Flag
Ceremony Compulsory In All Educational Institutions".
We cannot help thinking that one reason that may have possibly influenced the
decision in the West Virginia State Board of Education vs. Barnette case, was that the children
involved in said case and their parents found themselves in a serious dilemma for refusing to
salute the flag as required by the regulations of the School Board. They were expelled by the
School Board and their absence was considered unlawful and because of the law of
compulsory school attendance of all children of school age, they were considered as truants
and the school officials threatened to send them to reformatories maintained for criminally
inclined juveniles. Parents of such children have been prosecuted or were threatened with
prosecution for cause such as alleged delinquency and if convicted, were subjected to fine not
exceeding $50.00 and a jail term not exceeding 30 days. That is why in the majority opinion it
was stated:
". . .. The sole conflict is between authority and rights of the
individual. The state asserts power to condition access to public education
on making a prescribed sign and profession and at the same time to coerce
attendance by punishing both parent and child. . . ."
Such a grave and embarrasing situation, however, does not obtain in the Philippines. True, we
have a law (Republic Act 896) requiring compulsory enrollment of children of school age, but
said law contains so many exceptions and exemptions that it can be said that a child of school
age is very seldom compelled to attend school, let alone the fact that almost invariably, there
is school crisis every year wherein the pupils applying for admission in public schools could
not be accommodated, and what is equally important is that there is no punishment or penal
sanction either for the pupil who fail to attend school or is expelled for failure to comply with
school regulations such as the compulsory flag salute ceremony, or his parents.
In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is,
two years after the decision in the case of West Virginia, the Supreme Court of the United
States affirmed a decision of the Illinois Supreme Court refusing admission of petitioner Clyde
Wilson Summers to the Illinois Bar. Summers had complied with all the prerequisites to
admission to the Bar of that state, but he was a conscientious objector who did not believe in
the use of force or war because of his religious belief. He described this attitude of his as
follows:
"The so-called 'misconduct' for which petitioner could be
reproached for is his taking the New Testament too seriously. Instead of
merely reading or preaching the Sermon on the Mount, he tries to practice
it. The only fault of the petitioner consists in his attempt to act as a good
Christian in accordance with his interpretation of the Bible, and according
to the dictates of his conscience. We respectfully submit that the profession
of law does not shut its gates to persons who have qualified in all other
respects even when they follow in the footsteps of that Great Teacher of
mankind who delivered the Sermon on the Mount. We respectfully submit
that under our Constitutional guarantees even good Christians who have
met all the requirements for the admission to the bar may be admitted to
practice law"
The Constitution of Illinois required service in the militia in time of war of men of petitioner's
age group. The Federal Supreme Court defined the position of Summers as a conscientious
objector in the following words:
". . .. Without detailing petitioner's testimony before the
Committee or his subsequent statements in the record, his position may be
compendiously stated as one of non-violence. Petitioner will not serve in
the armed forces. While he recognizes a difference between the military
and police forces, he would not act in the latter to coerce threatened
violations. Petitioner would not use force to meet aggression against
himself or his family, no matter how aggravated or whether or not carrying
a danger of bodily harm to himself or others. He is a believer in passive
resistance. We need to consider only his attitude toward service in the
armed forces.
It was not denied that Summers was unwilling to serve in the militia of Illinois because of his
religious belief. In affirming the decision of the Illinois Supreme Court excluding Summers
from the practice of law in that state, the Federal Supreme Court held that the action of the
State Supreme Court did not violate the principle of religious freedom contained in the
Constitution.
If a man lived, say on on island, alone and all by himself without neighbors, he
would normally have complete and absolute rights as to the way he lives, his religion,
including the manners he practices his religious beliefs. There would be no laws to obey, no
rules and regulations to follow. He would be subject only to Nature's physical laws. But man is
gregarious by nature and instinct and he gravitates toward community life, to receive and
enjoy the benefits of society and of social and political organization. The moment he does this
and he becomes a member of a community or nation, he has to give up some of his rights for
the benefit of his fellow citizens and for the general welfare, just as his fellow men and
companions also agree to a limitation of their rights in his favor. So, with his religion. He may
retain his freedom or religious belief, but as to practising the same, he would have to give up
some of those practices repugnant to the general welfare and subordinate them to the laws
and sovereignty of the State. In other words, the practice of religion or religious belief is
subject to reasonable and non-discriminatory laws and regulations by the state.

In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United
States Supreme Court affirmed a decision convicting Sarah Prince of a violation of the Child
Labor Law of Massachusetts. Mr. Justice Rutledge who wrote the opinion tersely described the
case thus:
"The case brings for review another episode in the conflict
between Jehovah's Witnesses and state authority. This time Sarah Prince
appeals from convictions for violating Massachusetts' child labor laws, by
acts said to be a rightful exercise of her religious convictions.
"When the offenses were committed she was the aunt and
custodian of Betty M. Simmons, a girl nine years of age." . . . (emphasis
supplied)
The defendant in this case allowed Betty, under here legal custody who was at the same time
her niece, to distribute religious pamphlets intended to propagate the religion of Jehovah
Witness. The question involved was whether or not the law in question contravened the
Fourteenth Amendment by denying appellant freedom of religion and denying to her the
equal protection of the law. Defendant claimed that the child was exercising her God given
right and her constitutional right to preach the gospel and that no preacher of God's
commands should be interfered with. She rested her case squarely on freedom of religion. In
affirming the judgment of conviction and upholding the law as against the claim of religion
and the exercise of religious belief, the court said:
". . .. And neither rights of religion nor rights of parenthood are
beyond limitation. Acting to guard the general interest in youth's well-
being, the state as parents patriae may restrict the parent's control by
requiring school attendance, regulating or prohibiting the child's labor, and
in many other ways. Its authority is not nullified merely because the parent
grounds his claim to control the child's course of conduct on religion or
conscience. Thus, he cannot claim freedom from compulsory vaccination
for the child more than for himself on religious grounds. The right to
practice religion freely does not include liberty to expose the community or
the child to communicable disease or the latter to ill health or death. . . . It
is too late now to doubt that legislation appropriately designed to reach
such evils is within the state's police power, whether against the parent's
claim to control of the child or one that religious scruples dictate contrary
action."
Incidentally, it must be noted that this case was decided after that of West Virginia
vs. Barnette, supra.
In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education was not imposing a religion or religious belief or a religious test on said
students. It was merely enforcing a non-discriminatory school regulation applicable to all alike
whether Christian, Moslem, Protestant or Jehovah's Witness. The State was merely carrying
out the duty imposed upon it by the Constitution which charges it with supervision over and
regulation of all educational institutions, to establish and maintain a complete and adequate
system of public education, and see to it that all schools aim to develop among other things,
civic conscience and teach the duties of citizenship. (Art. XIV, section 5 of the Constitution). It
does nothing more than try to inculcate in the minds of the school population during the
formative period of their life, love of country and love of the flag, all of which make for united
and patriotic citizenry, so that later in after years they may be ready and willing to serve, fight,
even die for it. It is well known that whatever is taught to the youth during this period, such as
love of God, of parents, respect for elders, love of the truth, loyalty, honoring one's word and
respecting the rights of other, becomes a habit or second nature that will remain with them
always. School children of kingdoms and empires are taught early to respect and love the king
or the emperor for these rulers and sovereigns symbolize the nation, and the children as future
citizens or subjects will come to love their country.
Petitioners do not question the right of public schools to conduct the flag salute
ceremony regularly but they do "question the attempt to compel conscientious objectors
guided by the word of God to salute the flag or participate in the ceremony to specific
commandment of Jehovah God. It is perfectly proper and lawful for one not bound by a
covenant with Jehovah to salute the flag when that person desires to salute it. It is entirely
wrong to interfere with that right or prevent such one from saluting the flag. Conversely, it is
also true that it is wrong and illegal to compel one who, for conscience' sake, cannot
participate in the ceremony." (p. 85, Appellant's Brief)
The trouble with exempting petitioners from participation in the flag ceremony
aside from the fact that they have no valid right to such exemption is that the latter would
disrupt school discipline and demoralize the rest of the school population which by far
constitutes the great majority. If the children of Jehovah Witnesses are exempted, then the
other pupils, especially the young ones seeing no reason for such exemption, would naturally
ask for the same privilege because they might want to do something else such as play or
study, instead of standing at attention saluting the flag and singing the national anthem and
reciting the patriotic pledge, all of which consume considerable time; and if to avoid odious
discrimination this exemption is extended to others, then the flag ceremony would soon be a
thing of the past or perhaps conducted with very few participants, and the time will come
when we would have citizens untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and patriotism - a pathetic, even
tragic situation, and all because a small portion of the school population imposed its will,
demanded and was granted an exemption. In a way that might be regarded as tyranny of the
minority, and a small minority at that.
In a few cases, such exemptions in a limited way have been afforded members of a
religious group. Conscientious objectors in the United States who because of their religion
were unwilling to serve in the war particularly as regards actual fighting or field duty, were
allowed to do some work in relation to the war, but not involving combat duty or the use of
force. But that was by special legislation. If that is possible here as regards exemption from
participation in the flag ceremony, then petitioners would have to look to the Legislature, not
the courts for relief.
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws,
rules and regulations promulgated by competent authority. As was said by Mr. Justice
Frankfurter in his dissent in West Virginia vs. Barnette, supra:
"The constitutional protection of religious freedom . . . gave
religious equality, not civil immunity. Its essence is freedom from conformity
to religious dogma, not freedom from conformity to law because of
religious dogma. Religious loyalties may be exercised without hindrance
from the State, not the State may not exercise that which except by leave
of religious loyalties is within the domain of temporal power. Otherwise,
each individual could set up his own censor against obedience to laws
conscientiously deemed for the public good by those whose business it is
to make laws." (West Virginia State Board vs. Barnette, supra, at p. 653;
emphasis supplied)
In conclusion we find and hold that the Filipino flag is not an image that requires
religious veneration; rather it is a symbol of the Republic of the Philippines, of sovereignty, an
emblem of freedom, liberty and national unity; that the flag salute is not a religious ceremony
but an act and profession of love and allegiance and pledge of loyalty to the fatherland which
the flag stands for; that by authority of the legislature, the Secretary of Education was duly
authorized to promulgate Department Order No. 8, series of 1955; that the requirement of
observance of the flag ceremony or salute provided for in said Department Order No. 8, does
not violate the Constitutional provision about freedom of religion and exercise of religion; that
compliance with the non-discriminatory and reasonable rules and regulations and school
discipline, including observance of the flag ceremony is a prerequisite to attendance in public
schools; and that for failure and refusal to participate in the flag ceremony, petitioners were
properly excluded and dismissed from the public school they were attending.
In view of the foregoing, the appealed decision is affirmed. The writ of preliminary
injunction heretofore issued is ordered dissolved. No costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador and Endencia, JJ., concur.
Separate Opinions
BARRERA, J., concurring:
I am in substantial accord with the well-thought and well- expressed opinion of Mr.
Justice Montemayor.
As much reliance has been placed by appellants on the Barnette case decided by
the Supreme Court of the United States (West Virginia State Board of Education vs. Barnette,
319 U.S. 624, 87 L. ed. 1628), two fundamental features distinguishing that case from the one
before us, bear some stressing.
The underlying and, I believe, compelling consideration that impelled the majority
in the Barnette case to overrule the Gobitis decision (Minersville School District vs. Gobitis,
310 U.S. 586, 84 L. ed 1375) was the compulsory nature of the order of the State Board of
Education making non-compliance therewith virtually unlawful in the sense that under the
West Virginia Code, upon expulsion of the disobeying pupil, his parents or guardian become
liable to criminal prosecution 1 for such absence due to expulsion and if convicted are
subjected to fine not exceeding $50 and jail term not exceeding thirty days. 2 The delinquent
pupil may be proceeded against and sent to reformatories maintained for criminally inclined
juveniles. 3 Hence, the Court treated the case as one where "the sole conflict is between
authority and rights of the individual. The State asserts power to condition access to public
education on making a prescribed sign and profession, and at the same time to coerce
attendance (in school) by punishing both parent and child". As thus presented, really the
conflict there between authority and liberty became deeply sharpened and has attained the
proportion of repugnance to a degree that left no choice to the Court except to apply the
rationale of the grave-and- imminent-danger rule and to enjoin, under the circumstances, the
enforcement of the West Virginia School Regulation.

Fortunately the problem the instant case presents to us is unaccompanied by such
dire consequences. Non-compliance with our prescribed flag ceremony does not result in
criminal prosecution either of the pupil or of the parent. All that the unwilling pupil suffers is
inability to continue his studies in a public school. If this and nothing else is the consequence,
as it presently appears to be the complaint of appellants in this case, then I perceive no clear
offense is done to the Constitution.
One other significant distinction between the Barnette case and the one before us
is the substantial difference in the manner the flag salute is to be executed under the two
laws, and of course, the varying reaction and attitude taken by the Jehovah's Witnesses in
relation thereto. In West Virginia, the law requires the "stiff-arm" salute, the saluter to keep
the right hand raised with palm turned up while the following is repeated: "I pledge allegiance
to the Flag of the United States of America and to the Republic for which it stands; one
Nation, indivisible with liberty and justice for all". The Jehovah's Witnesses considered this
posture of raising the hand at the same time reciting the pledge as an act of obeisance
contrary to their religious beliefs.
Here, what is required of all persons present during the flag ceremony is to stand at
attention while the flag is being raised and the National Anthem is being played or sung. Boys
and men with hats shall place the hat over the heart. Those without hats may stand with their
arms and hands down and straight at the sides. Those in military or Boy Scout uniform shall
give the salute prescribed by their regulations.
Appellants here have manifested through counsel, both in their brief and, I
understand, in the course of the oral argument, that they do not object to this requirement of
standing at attention with their arms and hands down and straight at the sides. Consequently,
there seems to be no irreconciliable fundamental conflict, except perhaps as regards the
singing of the National Anthem and the recital (unaccompanied by any particular physical
position) of the patriotic pledge near the close of the ceremony. As to the import of the
National Anthem and the Patriotic Pledge, I can add nothing to the very sober and well-
considered opinion of Justice Montemayor.
As I see the issue, disentangled as it should and could be from the stress and strain
of counsels' doctrinal discussion and argumentation on the fundamentals of the freedom of
religion about which there could be no serious disagreement, and if viewed and interpreted
rationally in a spirit of harmony, goodwill and in keeping with an appropriate sense of
nationalism I find no reasonable consideration making the flag ceremony executed in the
manner prescribed by the questioned Department order and regulation, clearly repugnant to
the Constitution.
Footnotes
1. Section 1851 (1) West Virginia Code.
2. Section 1847, 1851. Idem.
3. Section 4904 (4), Idem.

FACTS:
1. Petitioners belong to the Jehovas Witness whose children were expelled from their schools when they
refused to salute, sing the anthem, recite the pledge during the conduct of flag ceremony. DO No. 8 issued
by DECS pursuant to RA 1265 which called for the manner of conduct during a flag ceremony. The
petitioners wrote the Secretary of Education on their plight and requested to reinstate their children. This
was denied.
2. As a result, the petitioners filed for a writ of preliminary injunction against the Secretary and Director of
Public Schools to restrain them from implementing said DO No. 8.
3. The lower court (RTC) declared DO 8 invalid and contrary to the Bill of Rights.
ISSUE: Whether or not DO 8 is valid or constitutional
RULING: DO 8 is valid. Saluting the flag is not a religious ritual and it is for the courts to determine, not a
religious group, whether or not a certain practice is one.
1. The court held that the flag is not an image but a symbol of the Republic of the Philippines, an emblem
of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Considering the complete separation of church and state in our system
of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does
not involve any religious ceremony.
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the
courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise,
there would be confusion and misunderstanding for there might be as many interpretations and meanings
to be given to a certain ritual or ceremony as there are religious groups or sects or followers.
2. The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption
form or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by
competent authority. In enforcing the flag salute on the petitioners, there was absolutely no compulsion
involved, and for their failure or refusal to obey school regulations about the flag salute they were not being
persecuted. Neither were they being criminally prosecuted under threat of penal sacntion. If they chose not
to obey the flag salute regulation, they merely lost the benefits of public education being maintained at the
expense of their fellow citizens, nothing more. According to a popular expression, they could take it or
leave it. Having elected not to comply with the regulations about the flag salute, they forfeited their right to
attend public schools.
3. The Filipino flag is not an image that requires religious veneration; rather it is symbol of the Republic of
the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is not a
religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland
which the flag stands for; that by authority of the legislature, the Secretary of Education was duly authorized
to promulgate Department Order No. 8, series of 1955; that the requirement of observance of the flag
ceremony or salute provided for in said Department Order No. 8, does not violate the Constitutional
provision about freedom of religion and exercise of religion; that compliance with the non-discriminatory
and reasonable rules and regulations and school discipline, including observance of the flag ceremony is a
prerequisite to attendance in public schools; and that for failure and refusal to participate in the flag
ceremony, petitioners were properly excluded and dismissed from the public school they were attending.
FACTS: RA 1265 is a law that makes a flag ceremony compulsory for schools. The implementing rule Dep Order 8 says
that the anthem must be played while the flag is raised. It also says that everyone must salute the flag and no one is to
do anything while the ceremony is being held. After the flag everyone is to recite the patriotic pledge. Geronas children
attending the Buenavista Community School in Uson, Masbate refused to salute the flag, sing the anthem and recite the
pledge. They did not do so out of religious belief. They are Jehovah's Witnesses. They consider the flag to be an image
in the context of what is prohibited in their religion and because of this they were expelled from the school. Gerona
wrote to Sec of Ed that their children be exempt from the law and just be allowed to remain silent and stand at
attention. Sec of Ed denied the petition. Writ of preliminary injunction was petitioned and issued.
ISSUE: Is Dep Order 8 unconstitutional?
RULING: Flag salute ceremony is secular and the dep order non-
Discriminatory therefore it is constitutional. The freedom of belief is limitless and boundless but its exercise is not. If the
belief clashes with law then the former must yield. Petitioners salute the flag during boy scout activities. Their objection
then rests on the singing of anthem and recitation of pledge. The pledge is judged to be completely secular. It does not
even pledge allegiance to the flag or to the Republic. The anthem is also secular. It talks about patriotism. It does not
speak of resorting to force, military service, or duty to defend the country. There was no compulsion involved in the
enforcement of the flag salute. They were not criminally prosecuted under a penal sanction. If they chose not to obey
the salute regulation they merely lost the benefits of public education.
FACTS: Respondents ordered expulsion of 68 HS and GS students of Cebu. Public school authorities expelled these
students for refusing to salute the flag, sing the national anthem and recite the pledge required by RA1265. They are
Jehovahs Witnesses believing that by doing these is religious worship/devotion akin to idolatry against their teachings.
They contend that to compel transcends constitutional limits and invades protection against official control and religious
freedom.
Issue: Has religious freedom been violated?
Held: Religious freedom is a fundamental right of highest priority. The 2 fold aspect of right to religious worship is: 1.)
Freedom to believe which is an absolute act within the realm of thought. 2.) Freedom to act on ones belief regulated
and translated to external acts. The only limitation to religious freedom is the existence of grave and present danger to
public safety, morals, health and interests where State has right to prevent. The expulsion of the petitioners from the
school is not justified. Jehovahs Witnesses may be exempted from observing the flag ceremony but this right does not
give them the right to disrupt such ceremonies. In the case at bar, the Students expelled were only standing quietly
during ceremonies. By observing the ceremonies quietly, it doesnt present any danger so evil and imminent to justify
their expulsion. What the petitioners request is exemption from flagceremonies and not exclusion from public schools.
The expulsion of the students by reason of their religious beliefs is also a violation of a citizens right to free education.
The non-observance of the flag ceremony does not totally constitute ignorance of patriotism and civic consciousness.
Love for country and admiration for national heroes, civic consciousness and form of government are part of theschool
curricula. Therefore, expulsion due to religious beliefs is unjustified. Expulsion is ANNULLED.