Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, complainant,
vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.
The case at bar takes us to a most difficult area of constitutional la here man
stands accountable to an authorit! hi"her than the state. To be held on balance are
the state#s interest and the respondent#s reli"ious freedom. $n this hi"hl! sensitive
area of la, the task of balancin" beteen authorit! and libert! is most delicate
because to the person invokin" reli"ious freedom, the conse%uences of the case are
not onl! temporal. The task is not made easier b! the American ori"in of our reli"ion
clauses and the ealth of &.'. (urisprudence on these clauses for in the &nited
'tates, there is probabl! no more intensel! controverted area of constitutional
interpretation than the reli"ion clauses.
)
The &.'. 'upreme Court itself has
acknoled"ed that in this constitutional area, there is *considerable internal
inconsistenc! in the opinions of the Court.*
+
As stated b! a professor of la, *,i-t is b!
no notorious that le"al doctrines and (udicial decisions in the area of reli"ious
freedom are in serious disarra!. $n perhaps no other area of constitutional la have
confusion and inconsistenc! achieved such undisputed soverei"nt!.*
.
Nevertheless,
this thicket is the onl! path to take to con%uer the mountain of a le"al problem the
case at bar presents. Both the penetratin" and panoramic vie this climb ould
provide ill lar"el! chart the course of reli"ious freedom in Philippine (urisdiction.
That the reli"ious freedom %uestion arose in an administrative case involvin" onl!
one person does not alter the paramount importance of the %uestion for the
*constitution commands the positive protection b! "overnment of reli"ious freedom
/not onl! for a minorit!, hoever small/ not onl! for a ma(orit!, hoever lar"e/ but for
each of us.*
0
I. !"#ts
The facts of the case ill determine hether respondent ill prevail in her plea of
reli"ious freedom. $t is necessar! therefore to la! don the facts in detail, careful not
to omit the essentials.
$n a sorn letter/complaint dated 1ul! +2, +333, complainant Ale(andro Estrada rote
to 1ud"e 1ose 4. Caoibes, 1r., presidin" (ud"e of Branch +5., Re"ional Trial Court of
6as Pi7as Cit!, re%uestin" for an investi"ation of rumors that respondent 'oledad
Escritor, court interpreter in said court, is livin" ith a man not her husband. The!
alle"edl! have a child of ei"hteen to tent! !ears old. Estrada is not personall!
related either to Escritor or her partner and is a resident not of 6as Pi7as Cit! but of
Bacoor, Cavite. Nevertheless, he filed the char"e a"ainst Escritor as he believes that
she is committin" an immoral act that tarnishes the ima"e of the court, thus she
should not be alloed to remain emplo!ed therein as it mi"ht appear that the court
condones her act.
5
1ud"e Caoibes referred the letter to Escritor ho stated that *there is no truth as to
the veracit! of the alle"ation* and challen"ed Estrada to *appear in the open and
prove his alle"ation in the proper forum.*
8
1ud"e Caoibes set a preliminar!
conference on 9ctober )+, +333. Escritor moved for the inhibition of 1ud"e Caoibes
from hearin" her case to avoid suspicion and bias as she previousl! filed an
administrative complaint a"ainst him and said case as still pendin" in the 9ffice of
the Court Administrator ,9CA-. Escritor#s motion as denied. The preliminar!
conference proceeded ith both Estrada and Escritor in attendance. Estrada
confirmed that he filed the letter/complaint for immoralit! a"ainst Escritor because in
his fre%uent visits to the :all of 1ustice of 6as Pi7as Cit!, he learned from
conversations therein that Escritor as livin" ith a man not her husband and that
she had an ei"hteen to tent!/!ear old son b! this man. This prompted him to rite
to 1ud"e Caoibes as he believed that emplo!ees of the (udiciar! should be
respectable and Escritor#s live/in arran"ement did not command respect.
2
Respondent Escritor testified that hen she entered the (udiciar! in );;;,
<
she as
alread! a ido, her husband havin" died in );;<.
;
'he admitted that she has been
livin" ith 6uciano =uilapio, 1r. ithout the benefit of marria"e for tent! !ears and
that the! have a son. But as a member of the reli"ious sect knon as the 1ehovah#s
>itnesses and the >atch Toer and Bible Tract 'ociet!, their con(u"al arran"ement
is in conformit! ith their reli"ious beliefs. $n fact, after ten !ears of livin" to"ether,
she e?ecuted on 1ul! +<, );;) a *@eclaration of Pled"in" 4aithfulness,* vizA
@EC6ARAT$9N 94 P6E@B$NB 4A$T:4&6NE''
$, 'oledad '. Escritor, do hereb! declare that $ have accepted 6uciano @.
=uilapio, 1r., as m! mate in marital relationshipC that $ have done all ithin
m! abilit! to obtain le"al reco"nition of this relationship b! the proper public
authorities and that it is because of havin" been unable to do so that $
therefore make this public declaration pled"in" faithfulness in this marital
relationship.
$ reco"niDe this relationship as a bindin" tie before #1ehovah# Bod and
before all persons to be held to and honored in full accord ith the
principles of Bod#s >ord. $ ill continue to seek the means to obtain le"al
reco"nition of this relationship b! the civil authorities and if at an! future
time a chan"e in circumstances make this possible, $ promise to le"aliDe
this union.
1
'i"ned this +<th da! of 1ul! );;).
)3
Escritor#s partner, =uilapio, e?ecuted a similar pled"e on the same da!.
))
Both
pled"es ere e?ecuted in Atimonan, =ueDon and si"ned b! three itnesses. At the
time Escritor e?ecuted her pled"e, her husband as still alive but livin" ith another
oman. =uilapio as likeise married at that time, but had been separated in fact
from his ife. @urin" her testimon!, Escritor volunteered to present members of her
con"re"ation to confirm the truthfulness of their *@eclarations of Pled"in"
4aithfulness,* but 1ud"e Caoibes deemed it unnecessar! and considered her
identification of her si"nature and the si"nature of =uilapio sufficient authentication of
the documents.
)+
1ud"e Caoibes endorsed the complaint to E?ecutive 1ud"e Manuel B. 4ernandeD,
1r., ho, in turn, endorsed the same to Court Administrator Alfredo 6. Benipa!o. 9n
1ul! )2, +33), the Court, upon recommendation of Actin" Court Administrator
Eenaida N. Elepa7o, directed Escritor to comment on the char"e a"ainst her. $n her
comment, Escritor reiterated her reli"ious con"re"ation#s approval of her con(u"al
arran"ement ith =uilapio, viDA
:erein respondent does not i"nore alle"ed accusation but she reiterates to
state ith candor that there is no truth as to the veracit! of same alle"ation.
$ncluded hereith are documents denominated as @eclaration of Pled"in"
4aithfulness ,E?hibit ) and E?hibit +- dul! si"ned b! both respondent and
her mate in marital relationship ith the itnesses concurrin" their
acceptance to the arran"ement as approved b! the >ATC: T9>ER B$B6E
and TRACT '9C$ETF, Philippine Branch.
'ame marital arran"ement is reco"niDed as a bindin" tie before
*1E:9GA:* Bod and before all persons to be held to and honored in full
accord ith the principles of Bod#s >ord.
??? ??? ???
&ndersi"ned submits to the (ust, humane and fair discretion of the Court
ith verification from the >ATC: T9>ER B$B6E and TRACT '9C$ETF,
Philippine Branch . . . to hich undersi"ned believes to be a hi"h authorit!
in relation to her case.
).
@eput! Court Administrator Christopher 9. 6ock recommended that the case be
referred to E?ecutive 1ud"e Bonifacio 'anD Maceda, RTC Branch +55, 6as Pi7as
Cit! for investi"ation, report and recommendation. $n the course of 1ud"e Maceda#s
investi"ation, Escritor a"ain testified that her con"re"ation allos her con(u"al
arran"ement ith =uilapio and it does not consider it immoral. 'he offered to suppl!
the investi"atin" (ud"e some clippin"s hich e?plain the basis of her con"re"ation#s
belief and practice re"ardin" her con(u"al arran"ement. Escritor started livin" ith
=uilapio tent! !ears a"o hen her husband as still alive but livin" ith another
oman. 'he met this oman ho confirmed to her that she as livin" ith her
,Escritor#s- husband.
)0
Bre"orio 'alaDar, a member of the 1ehovah#s >itnesses since );<5, also testified.
:e had been a presidin" minister since );;) and in such capacit! is aare of the
rules and re"ulations of their con"re"ation. :e e?plained the import of and procedure
for e?ecutin" a *@eclaration of Pled"in" 4aithfulness*, viDA
=A No, insofar as the pre/marital relationship is concern ,sic-, can !ou
cite some particular rules and re"ulations in !our con"re"ationH
AA >ell, e of course, talk to the persons ith re"ards ,sic- to all the
parties involved and then e re%uest them to e?ecute a Public @eclaration
of Pled"e of faithfulness.
=A >hat is that documentH
AA @eclaration of Pled"e of faithfulness.
=A >hat are the relations of the document @eclaration of Pled"e of
faithfulness, ho are suppose ,sic- to e?ecute this documentH
AA This must be si"ned, the document must be si"ned b! the elders of
the con"re"ationC the couple, ho is a member ,sic- of the con"re"ation,
baptiDed member and true member of the con"re"ation.
=A >hat standard rules and re"ulations do !ou have in relation ith
this documentH
AA Actuall!, sir, the si"nin" of that document, ah, ith the couple has
consent to marital relationship ,sic- "ives the Christian Con"re"ation vie
that the couple has put themselves on record before Bod and man that the!
are faithful to each other. As if that relation is validated b! Bod.
=A 4rom !our e?planation, Minister, do !ou consider it a pled"e or a
document beteen the parties, ho are members of the con"re"ationH
AA $t is a pled"e and a document. $t is a declaration, pled"e of a ,sic-
pled"e of faithfulness.
=A And hat does pled"e mean to !ouH
2
AA $t means to me that the! have contracted, let us sa!, $ am the one
ho contracted ith the opposite member of m! con"re"ation, opposite
se?, and that this document ill "ive us the ri"ht to a marital relationship.
=A 'o, in short, hen !ou e?ecute a declaration of pled"e of
faithfulness, it is a preparation for !ou to enter a marria"eH
AA Fes, 'ir.
=A But it does not necessaril! mean that the parties, cohabitin" or
livin" under the same roofH
AA >ell, the Pled"e of faithfulness document is ,sic- alread! approved
as to the marital relationship.
=A @o !ou mean to sa!, Minister, b! e?ecutin" this document the
contractin" parties have the ri"ht to cohabitH
AA Can $ sir, cite, hat the Bible sa!s, the basis of that Pled"e of
4aithfulness as e Christians follo. The basis is herein stated in the Book
of Matthe, Chapter 4ive, Gerse Tent!/to. 'o, in that verse of the Bible,
1esus said *that ever!one divorcin" his ife, e?cept on account of
fornication, makes her a sub(ect for adulter!, and hoever marries a
divorced oman commits adulter!.
)5
Escritor and =uilapio transferred to 'alaDar#s Con"re"ation, the AlmanDa
Con"re"ation in 6as Pi7as, in Ma! +33). The declarations havin" been e?ecuted in
Atimonan, =ueDon in );;), 'alaDar had no personal knoled"e of the personal
circumstances of Escritor and =uilapio hen the! e?ecuted their declarations.
:oever, hen the to transferred to AlmanDa, 'alaDar in%uired about their status
from the Atimonan Con"re"ation, "athered comments of the elders therein, and
re%uested a cop! of their declarations. The AlmanDa Con"re"ation assumed that the
personal circumstances of the couple had been considered b! the Atimonan
Con"re"ation hen the! e?ecuted their declarations.
Escritor and =uilapio#s declarations are recorded in the >atch Toer Central office.
The! ere e?ecuted in the usual and approved form prescribed b! the >atch Toer
Bible and Tract 'ociet! hich as lifted from the article, *Maintainin" Marria"e in
:onor Before Bod and Men,*
)8
in the March )5, );22 issue of the >atch Toer
ma"aDine, entitled The >atchtoer.
The declaration re%uires the approval of the elders of the 1ehovah#s >itnesses
con"re"ation and is bindin" ithin the con"re"ation all over the orld e?cept in
countries here divorce is alloed. The 1ehovah#s con"re"ation re%uires that at the
time the declarations are e?ecuted, the couple cannot secure the civil authorities#
approval of the marital relationship because of le"al impediments. $t is thus standard
practice of the con"re"ation to check the couple#s marital status before "ivin"
imprimatur to the con(u"al arran"ement. The e?ecution of the declaration finds
scriptural basis in Matthe 5A.+ that hen the spouse commits adulter!, the offended
spouse can remarr!. The marital status of the declarants and their respective
spouses# commission of adulter! are investi"ated before the declarations are
e?ecuted. Thus, in the case of Escritor, it is presumed that the Atimonan
Con"re"ation conducted an investi"ation on her marital status before the declaration
as approved and the declaration is valid ever!here, includin" the AlmanDa
Con"re"ation. That Escritor#s and =uilapio#s declarations ere approved are shon
b! the si"natures of three itnesses, the elders in the Atimonan Con"re"ation.
'alaDar confirmed from the con"re"ation#s branch office that these three itnesses
are elders in the Atimonan Con"re"ation. Althou"h in );;< Escritor as idoed,
thereb! liftin" the le"al impediment to marr! on her part, her mate is still not
capacitated to remarr!. Thus, their declarations remain valid. 9nce all le"al
impediments for both are lifted, the couple can alread! re"ister their marria"e ith
the civil authorities and the validit! of the declarations ceases. The elders in the
con"re"ations can then solemniDe their marria"e as authoriDed b! Philippine la. $n
sum, therefore, insofar as the con"re"ation is concerned, there is nothin" immoral
about the con(u"al arran"ement beteen Escritor and =uilapio and the! remain
members in "ood standin" in the con"re"ation.
)2
'alvador Re!es, a minister at the Beneral de 6eon, GalenDuela Cit! Con"re"ation of
the 1ehovah#s >itnesses since );20 and member of the head%uarters of the >atch
Toer Bible and Tract 'ociet! of the Philippines, $nc., presented the ori"inal cop! of
the ma"aDine article entitled, *Maintainin" Marria"e Before Bod and Men* to hich
Escritor and Minister 'alaDar referred in their testimonies. The article appeared in the
March )5, );22 issue of the >atchtoer ma"aDine published in Penns!lvania,
&.'.A. 4eli? '. 4a(ardo, President of the >atch Toer Bible and Tract 'ociet! of the
Philippines, $nc., authoriDed Re!es to represent him in authenticatin" the article. The
article is distributed to the 1ehovah#s >itnesses con"re"ations hich also distribute
them to the public.
)<
The parties submitted their respective memoranda to the investi"atin" (ud"e. Both
stated that the issue for resolution is hether or not the relationship beteen
respondent Escritor and =uilapio is valid and bindin" in their on reli"ious
con"re"ation, the 1ehovah#s >itnesses. Complainant Estrada adds hoever, that the
effect of the relationship to Escritor#s administrative liabilit! must likeise be
determined. Estrada ar"ued, throu"h counsel, that the @eclaration of Pled"in"
4aithfulness reco"niDes the supremac! of the *proper public authorities* such that
she bound herself *to seek means to . . . le"aliDe their union.* Thus, even assumin"
ar"uendo that the declaration is valid and bindin" in her con"re"ation, it is bindin"
onl! to her co/members in the con"re"ation and serves onl! the internal purpose of
displa!in" to the rest of the con"re"ation that she and her mate are a respectable
and morall! upri"ht couple. Their reli"ious belief and practice, hoever, cannot
override the norms of conduct re%uired b! la for "overnment emplo!ees. To rule
otherise ould create a dan"erous precedent as those ho cannot le"aliDe their
3
live/in relationship can simpl! (oin the 1ehovah#s >itnesses con"re"ation and use
their reli"ion as a defense a"ainst le"al liabilit!.
);
9n the other hand, respondent Escritor reiterates the validit! of her con(u"al
arran"ement ith =uilapio based on the belief and practice of her reli"ion, the
1ehovah#s >itnesses. 'he %uoted portions of the ma"aDine article entitled,
*Maintainin" Marria"e Before Bod and Men,* in her memorandum si"ned b! herself,
vizA
The @eclaration of Pled"in" of 4aithfulness ,E?hibits *)* and *+*- e?ecuted
b! the respondent and her mate "reatl! affect the administrative liabilit! of
respondent. 1ehovah#s >itnesses admit and reco"niDe ,sic- the supremac!
of the proper public authorities in the marria"e arran"ement. :oever, it is
helpful to understand the relative nature of Caesar#s authorit! re"ardin"
marria"e. 4rom countr! to countr!, marria"e and divorce le"islation
presents a multitude of different an"les and aspects. Rather than becomin"
entan"led in a confusion of technicalities, the Christian, or the one desirin"
to become a disciple of Bod#s 'on, can be "uided b! basic 'criptural
principles that hold true in all cases.
Bod#s vie is of first concern. 'o, first of all the person must consider
hether that one#s present relationship, or the relationship into hich he or
she contemplates enterin", is one that could meet ith Bod#s approval, or
hether in itself, it violates the standards of Bod#s >ord. Take, for e?ample,
the situation here a man lives ith a ife but also spends time livin" ith
another oman as a concubine. As lon" as such a state of concubina"e
prevails, the relationship of the second oman can never be harmoniDed
ith Christian principles, nor could an! declaration on the part of the oman
or the man make it so. The onl! ri"ht course is cessation of the relationship.
'imilarl! ith an incestuous relationship ith a member of one#s immediate
famil!, or a homose?ual relationship or other such situation condemned b!
Bod#s >ord. $t is not the lack of an! le"al validation that makes such
relationships unacceptableC the! are in themselves unscriptural and hence,
immoral. :ence, a person involved in such a situation could not make an!
kind of *@eclaration of 4aithfulness,* since it ould have no merit in Bod#s
e!es.
$f the relationship is such that it can have Bod#s approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of one#s marital union in the e!es of all. ,:eb. ).A0-. $f
divorce is possible, then such step should no be taken so that, havin"
obtained the divorce ,on hatever le"al "rounds ma! be available-, the
present union can receive civil validation as a reco"niDed marria"e.
4inall!, if the marital relationship is not one out of harmon! ith the
principles of Bod#s >ord, and if one has done all that can reasonabl! be
done to have it reco"niDed b! civil authorities and has been blocked in
doin" so, then, a @eclaration Pled"in" 4aithfulness can be si"ned. $n some
cases, as has been noted, the e?treme sloness of official action ma! make
accomplishin" of le"al steps a matter of man!, man! !ears of effort. 9r it
ma! be that the costs represent a crushin"l! heav! burden that the
individual ould need !ears to be able to meet. $n such cases, the
declaration pled"in" faithfulness ill provide the con"re"ation ith the basis
for viein" the e?istin" union as honorable hile the individual continues
conscientiousl! to ork out the le"al aspects to the best of his abilit!.
Ieepin" in mind the basic principles presented, the respondent as a
Minister of 1ehovah Bod, should be able to approach the matter in a
balanced a!, neither underestimatin" nor overestimatin" the validation
offered b! the political state. 'he ala!s "ives primar! concern to Bod#s
vie of the union. Alon" ith this, ever! effort should be made to set a fine
e?ample of faithfulness and devotion to one#s mate, thus, keepin" the
marria"e *honorable amon" all.* 'uch course ill brin" Bod#s blessin" and
result to the honor and praise of the author of marria"e, 1ehovah Bod. ,)
Cor. )3A.)/..-
+3
Respondent also brou"ht to the attention of the investi"atin" (ud"e that complainant#s
Memorandum came from 1ud"e Caoibes# chambers
+)
hom she claims as merel!
usin" petitioner to mali"n her.
$n his Report and Recommendation, investi"atin" (ud"e Maceda found Escritor#s
factual alle"ations credible as the! ere supported b! testimonial and documentar!
evidence. :e also noted that *,b-! strict Catholic standards, the live/in relationship of
respondent ith her mate should fall ithin the definition of immoral conduct, to itA
#that hich is illful, fla"rant, or shameless, and hich shos a moral indifference to
the opinion of the "ood and respectable members of the communit!# ,2 C.1.'. ;5;-#
,@elos Re!es vs. ADnar, )2; 'CRA, at p. 888-.* :e pointed out, hoever, that *the
more relevant %uestion is hether or not to e?act from respondent Escritor, a
member of #1ehovah#s >itnesses,# the strict moral standards of the Catholic faith in
determinin" her administrative responsibilit! in the case at bar.*
++
The investi"atin"
(ud"e acknoled"ed that *reli"ious freedom is a fundamental ri"ht hich is entitled to
the hi"hest priorit! and the amplest protection amon" human ri"hts, for it involves the
relationship of man to his Creator ,at p. +23, EBRA6$NAB supra, citin" Chief 1ustice
Enri%ue M. 4ernando#s separate opinion in Berman vs. Baran"an, ).5 'CRA 5)0,
5.3/5.)-* and thereb! recommended the dismissal of the complaint a"ainst
Escritor.
+.
After considerin" the Report and Recommendation of E?ecutive 1ud"e Maceda, the
9ffice of the Court Administrator, throu"h @eput! Court Administrator ,@CA- 6ock
and ith the approval of Court Administrator Presbitero Gelasco, concurred ith the
factual findin"s of 1ud"e Maceda but departed from his recommendation to dismiss
the complaint. @CA 6ock stressed that althou"h Escritor had become capacitated to
marr! b! the time she (oined the (udiciar! as her husband had died a !ear before, *it
is due to her relationship ith a married man, voluntaril! carried on, that respondent
4
ma! still be sub(ect to disciplinar! action.*
+0
Considerin" the rulin" of the Court in
@icdican v. 4ernan, et al.
+5
that *court personnel have been en(oined to adhere to the
e?actin" standards of moralit! and decenc! in their professional and private conduct
in order to preserve the "ood name and inte"rit! of the court of (ustice,* @CA 6ock
found Escritor#s defense of freedom of reli"ion unavailin" to arrant dismissal of the
char"e of immoralit!. Accordin"l!, he recommended that respondent be found "uilt!
of immoralit! and that she be penaliDed ith suspension of si? months and one da!
ithout pa! ith a arnin" that a repetition of a similar act ill be dealt ith more
severel! in accordance ith the Civil 'ervice Rules.
+8
II. Issu$
>hether or not respondent should be found "uilt! of the administrative char"e of
*"ross and immoral conduct.* To resolve this issue, it is necessar! to determine the
sub/issue of hether or not respondent#s ri"ht to reli"ious freedom should carve out
an e?ception from the prevailin" (urisprudence on illicit relations for hich
"overnment emplo!ees are held administrativel! liable.
III. A%%&'#"(&$ L")s
Respondent is char"ed ith committin" *"ross and immoral conduct* under Book G,
Title $, Chapter G$, 'ec. 08,b-,5- of the Revised Administrative Code hich provides,
viDA
'ec. 08. @isciplineA Beneral Provisions. / ,a- No officer or emplo!ee in the
Civil 'ervice shall be suspended or dismissed e?cept for cause as provided
b! la and after due process.
,b- The folloin" shall be "rounds for disciplinar! actionA
??? ??? ???
,5- @is"raceful and immoral conductC ???.
Not represented b! counsel, respondent, in la!man#s terms, invokes the reli"ious
beliefs and practices and moral standards of her reli"ion, the 1ehovah#s >itnesses,
in assertin" that her con(u"al arran"ement ith a man not her le"al husband does
not constitute dis"raceful and immoral conduct for hich she should be held
administrativel! liable. >hile not articulated b! respondent, she invokes reli"ious
freedom under Article $$$, 'ection 5 of the Constitution, hich provides, viDA
'ec. 5. No la shall be made respectin" an establishment of reli"ion, or
prohibitin" the free e?ercise thereof. The free e?ercise and en(o!ment of
reli"ious profession and orship, ithout discrimination or preference, shall
forever be alloed. No reli"ious test shall be re%uired for the e?ercise of civil
or political ri"hts.
I*. O&+ ,o-&+ A.t$#$+$.ts o/ t0$ A1$-'#". R$&'g'o. C&"us$s
To understand the life that the reli"ion clauses have taken, it ould be ell to
understand not onl! its birth in the &nited 'tates, but its conception in the 9ld >orld.
9ne cannot understand, much less intelli"entl! criticiDe the approaches of the courts
and the political branches to reli"ious freedom in the recent past in the &nited 'tates
ithout a deep appreciation of the roots of these controversies in the ancient and
medieval orld and in the American e?perience.
+2
This fresh look at the reli"ion
clauses is proper in decidin" this case of first impression.
$n primitive times, all of life ma! be said to have been reli"ious. Ever! si"nificant
event in the primitive man#s life, from birth to death, as marked b! reli"ious
ceremonies. Tribal societ! survived because reli"ious sanctions effectivel! elicited
adherence to social customs. A person ho broke a custom violated a taboo hich
ould then brin" upon him *the rathful ven"eance of a superhuman m!sterious
poer.*
+<
@istinction beteen the reli"ious and non/reli"ious ould thus have been
meanin"less to him. :e sou"ht protection from all kinds of evil / hether a ild beast
or tribe enem! and li"htnin" or ind / from the same person. The head of the clan or
the 9ld Man of the tribe or the kin" protected his ards a"ainst both human and
superhuman enemies. $n time, the kin" not onl! interceded for his people ith the
divine poers, but he himself as looked upon as a divine bein" and his las as
divine decrees.
+;
Time came, hoever, hen the function of actin" as intermediar! beteen human
and spiritual poers became sufficientl! differentiated from the responsibilit! of
leadin" the tribe in ar and policin" it in peace as to re%uire the full/time services of a
special priest class. This sa the birth of the social and communal problem of the
competin" claims of the kin" and priest. Nevertheless, from the be"innin", the kin"
and not the priest as superior. The head of the tribe as the arrior, and althou"h
he also performed priestl! functions, he carried out these functions because he as
the head and representative of the communit!.
.3
There bein" no distinction beteen the reli"ious and the secular, the same authorit!
that promul"ated las re"ulatin" relations beteen man and man promul"ated las
concernin" man#s obli"ations to the supernatural. This authorit! as the kin" ho
as the head of the state and the source of all la and ho onl! dele"ated
performance of rituals and sacrifice to the priests. The Code of :ammurabi, kin" of
Bab!lonia, imposed penalties for homicide, larcen!, per(ur!, and other crimesC
re"ulated the fees of sur"eons and the a"es of masons and tailors and prescribed
rules for inheritance of propert!C
.)
and also catalo"ued the "ods and assi"ned them
their places in the divine hierarch! so as to put :ammurabi#s on "od to a position of
e%ualit! ith e?istin" "ods.
.+
$n sum, the relationship of reli"ion to the state ,kin"- in
pre/:ebreic times ma! be characteriDed as a union of the to forces, ith the state
almost universall! the dominant partner.
..
5
>ith the rise of the :ebre state, a ne term had to be coined to describe the
relation of the :ebre state ith the Mosaic reli"ionA theocrac!. The authorit! and
poer of the state as ascribed to Bod.
.0
The Mosaic creed as not merel!
re"arded as the reli"ion of the state, it as ,at least until 'aul- the state itself. Amon"
the :ebres, patriarch, prophet, and priest preceded kin" and prince. As man of
Bod, Moses decided hen the people should travel and hen to pitch camp, hen
the! should make ar and hen peace. 'aul and @avid ere made kin"s b! the
prophet 'amuel, disciple of Eli the priest. 6ike the Code of :ammurabi, the Mosaic
code combined civil las ith reli"ious mandates, but unlike the :ammurabi Code,
reli"ious las ere not of secondar! importance. 9n the contrar!, reli"ious
motivation as primar! and all/embracin"A sacrifices ere made and $srael as
prohibited from e?actin" usur!, mistreatin" aliens or usin" false ei"hts, all because
Bod commanded these.
Moses of the Bible led not like the ancient kin"s. The latter used reli"ion as an
en"ine to advance the purposes of the state. :ammurabi unified Mesopotamia and
established Bab!lon as its capital b! elevatin" its cit!/"od to a primar! position over
the previous rei"nin" "ods.
.5
Moses, on the other hand, capitaliDed on the natural
!earnin"s of the :ebre slaves for freedom and independence to further Bod#s
purposes. 6iberation and E?odus ere preludes to 'inai and the receipt of the @ivine
6a. The con%uest of Canaan as a preparation for the buildin" of the temple and
the full orship of Bod.
.8
&pon the monotheism of Moses as the theocrac! of $srael founded. This
monotheism, more than an!thin" else, charted not onl! the future of reli"ion in
estern civiliDation, but e%uall!, the future of the relationship beteen reli"ion and
state in the est. This fact is acknoled"ed b! man! riters, amon" hom is
Northcott ho pointed out, viDA
:istoricall! it as the :ebre and Christian conception of a sin"le and
universal Bod that introduced a reli"ious e?clusivism leadin" to compulsion
and persecution in the realm of reli"ion. Ancient reli"ions ere re"arded as
confined to each separate people believin" in them, and the %uestion of
chan"e from one reli"ious belief to another did not arise. $t as not until an
e?clusive felloship, that the %uestions of prosel!tism, chan"e of belief and
libert! of reli"ion arose.
.2
,emphasis supplied-
The :ebre theocrac! e?isted in its pure form from Moses to 'amuel. $n this period,
reli"ion as not onl! superior to the state, but it as all of the state. The 6a of Bod
as transmitted throu"h Moses and his successors as the hole of "overnment.
>ith 'aul, hoever, the state rose to be the rival and ultimatel!, the master, of
reli"ion. 'aul and @avid each received their kin"dom from 'amuel the prophet and
disciple of Eli the priest, but soon the kin" dominated prophet and priest. 'aul
disobe!ed and even sou"ht to sla! 'amuel the prophet of Bod.
.<
&nder 'olomon,
the subordination of reli"ion to state became completeC he used reli"ion as an en"ine
to further the state#s purposes. :e reformed the order of priesthood established b!
Moses because the hi"h priest under that order endorsed the claim of his rival to the
throne.
.;
The subordination of reli"ion to the state as also true in pre/Christian Rome hich
en"a"ed in emperor/orship. >hen Au"ustus became head of the Roman state and
the priestl! hierarch!, he placed reli"ion at a hi"h esteem as part of a political plan to
establish the real reli"ion of pre/Christian Rome / the orship of the head of the
state. :e set his "reat uncle 1ulius Caesar amon" the "ods, and commanded that
orship of @ivine 1ulius should not be less than orship of Apollo, 1upiter and other
"ods. >hen Au"ustus died, he also (oined the ranks of the "ods, as other emperors
before him.
03
The onset of Christianit!, hoever, posed a difficult! to the emperor as the Christians#
do"matic e?clusiveness prevented them from pa!in" homa"e to publicl! accepted
"ods. $n the first to centuries after the death of 1esus, Christians ere sub(ected to
persecution. B! the time of the emperor Tra(an, Christians ere considered outlas.
Their crime as *hatred of the human race*, placin" them in the same cate"or! as
pirates and bri"ands and other *enemies of mankind* ho ere sub(ect to summar!
punishments.
0)
$n +<0, @iocletian became emperor and sou"ht to reor"aniDe the empire and make
its administration more efficient. But the closel!/knit hierarchicall! controlled church
presented a serious problem, bein" a state ithin a state over hich he had no
control. :e had to optionsA either to force it into submission and break its poer or
enter into an alliance ith it and procure political control over it. :e opted for force
and revived the persecution, destro!ed the churches, confiscated sacred books,
imprisoned the cler"! and b! torture forced them to sacrifice.
0+
But his efforts proved
futile.
The later emperor, Constantine, took the second option of alliance. Constantine
(oined ith Balerius and 6icinius, his to co/rulers of the empire, in issuin" an edict
of toleration to Christians *on condition that nothin" is done b! them contrar! to
discipline.*
0.
A !ear later, after Balerius died, Constantine and 6icius (ointl! issued the
epochal Edict of Milan ,.)+ or .).-, a document of monumental importance in the
histor! of reli"ious libert!. $t provided *that libert! of orship shall not be denied to
an!, but that the mind and ill of ever! individual shall be free to mana"e divine
affairs accordin" to his on choice.* ,emphasis supplied- Thus, all restrictive statutes
ere abro"ated and it as enacted *that ever! person ho cherishes the desire to
observe the Christian reli"ion shall freel! and unconditionall! proceed to observe the
same ithout let or hindrance.* 4urthermore, it as provided that the *same free and
open poer to follo their on reli"ion or orship is "ranted also to others, in
accordance ith the tran%uillit! of our times, in order that ever! person ma! have
free opportunit! to orship the ob(ect of his choice.*,emphasis supplied-
00
Before lon", not onl! did Christianit! achieve e%ual status, but ac%uired privile"e,
then presti"e, and eventuall!, e?clusive poer. Reli"ion became an en"ine of state
polic! as Constantine considered Christianit! a means of unif!in" his comple?
6
empire. >ithin seven !ears after the Edict of Milan, under the emperor#s command,
"reat Christian edifices ere erected, the cler"! ere freed from public burdens
others had to bear, and private heathen sacrifices ere forbidden.
The favors "ranted to Christianit! came at a priceA state interference in reli"ious
affairs. Constantine and his successors called and dismissed church councils, and
enforced unit! of belief and practice. &ntil recentl! the church had been the victim of
persecution and repression, but this time it elcomed the state#s persecution and
repression of the nonconformist and the orthodo? on the belief that it as better for
heretics to be pur"ed of their error than to die unsaved.
Both in theor! as in practice, the partnership beteen church and state as not eas!.
$t as a constant stru""le of one claimin" dominance over the other. $n time,
hoever, after the collapse and disinte"ration of the Roman Empire, and hile
monarchical states ere "raduall! bein" consolidated amon" the numerous feudal
holdin"s, the church stood as the one permanent, stable and universal poer. Not
surprisin"l!, therefore, it claimed not merel! e%ualit! but superiorit! over the secular
states. This claim, s!mboliDed b! Pope 6eo#s cronin" of Charlema"ne, became the
church#s accepted principle of its relationship to the state in the Middle A"es. As
vieed b! the church, the union of church and state as no a union of the state in
the church. The rulers of the states did not concede to this claim of supremac!. Thus,
hile Charlema"ne received his cron from the Pope, he himself croned his on
son as successor to nullif! the inference of supremac!.
05
The hole histor! of
medieval Europe as a stru""le for supremac! beteen prince and Pope and the
resultin" reli"ious ars and persecution of heretics and nonconformists. At about the
second %uarter of the ).th centur!, the $n%uisition as established, the purpose of
hich as the discover! and e?termination of heres!. Accused heretics ere tortured
ith the approval of the church in the bull Ad e?tirpanda issued b! Pope $nnocent $G
in )+5+.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at
reformin" the Catholic Church and resultin" in the establishment of Protestant
churches. >hile Protestants are accustomed to ascribe to the Reformation the rise of
reli"ious libert! and its acceptance as the principle "overnin" the relations beteen a
democratic state and its citiDens, histor! shos that it is more accurate to sa! that
the *same causes that "ave rise to the Protestant revolution also resulted in the
idespread acceptance of the principle of reli"ious libert!, and ultimatel! of the
principle of separation of church and state.*
08
Pleas for tolerance and freedom of
conscience can ithout doubt be found in the ritin"s of leaders of the Reformation.
But (ust as Protestants livin" in the countries of papists pleaded for toleration of
reli"ion, so did the papists that lived here Protestants ere dominant.
02
Papist and
Protestant "overnments alike accepted the idea of cooperation beteen church and
state and re"arded as essential to national unit! the uniformit! of at least the outard
manifestations of reli"ion.
0<
Certainl!, 6uther, leader of the Reformation, stated that
*neither pope, nor bishop, nor an! man hatever has the ri"ht of makin" one s!llable
bindin" on a Christian man, unless it be done ith his on consent.*
0;
But hen the
tables had turned and he as no lon"er the hunted heretic, he likeise stated hen
he made an alliance ith the secular poers that *,h-eretics are not to be disputed
ith, but to be condemned unheard, and hilst the! perish b! fire, the faithful ou"ht
to pursue the evil to its source, and bathe their hands in the blood of the Catholic
bishops, and of the Pope, ho is a devil in dis"uise.*
53
To 6uther, unit! amon" the
peoples in the interests of the state as an important consideration. 9ther
personalities in the Reformation such as Melanchton, Ein"li and Calvin stron"l!
espoused theocrac! or the use of the state as an en"ine to further reli"ion. $n
establishin" theocrac! in Beneva, Calvin made absence from the sermon a crime, he
included criticism of the cler"! in the crime of blasphem! punishable b! death, and to
eliminate heres!, he cooperated in the $n%uisition.
5)
There ere, hoever, those ho trul! advocated reli"ious libert!. Erasmus, ho
belon"ed to the Renaissance than the Reformation, rote that *,t-he terrible papal
edict, the more terrible imperial edict, the imprisonments, the confiscations, the
recantations, the fa"ots and burnin"s, all these thin"s $ can see accomplish nothin"
e?cept to make the evil more idespread.*
5+
The minorit! or dissident sects also
ardentl! advocated reli"ious libert!. The Anabaptists, persecuted and despised,
alon" ith the 'ocinians ,&nitarians- and the 4riends of the =uakers founded b!
Beor"e 4o? in the )2th centur!, endorsed the supremac! and freedom of the
individual conscience. The! re"arded reli"ion as outside the realm of political
"overnments.
5.
The En"lish Baptists proclaimed that the *ma"istrate is not to meddle
ith reli"ion or matters of conscience, nor compel men to this or that form of
reli"ion.*
50
Thus, out of the Reformation, three rationaliDations of church/state relations ma! be
distin"uishedA the Erastian ,after the Berman doctor Erastus-, the theocratic, and the
separatist. The first assumed state superiorit! in ecclesiastical affairs and the use of
reli"ion as an en"ine of state polic! as demonstrated b! 6uther#s belief that civic
cohesion could not e?ist ithout reli"ious unit! so that coercion to achieve reli"ious
unit! as (ustified. The second as founded on ecclesiastical supremac! and the
use of state machiner! to further reli"ious interests as promoted b! Calvin. The third,
hich as !et to achieve ultimate and complete e?pression in the Ne >orld, as
discernibl! in its incipient form in the ar"uments of some dissident minorities that the
ma"istrate should not intermeddle in reli"ious affairs.
55
After the Reformation,
Erastianism pervaded all Europe e?cept for Calvin#s theocratic Beneva. $n En"land,
perhaps more than in an! other countr!, Erastianism as at its hei"ht. To illustrate, a
statute as enacted b! Parliament in )82<, hich, to encoura"e oolen trade,
imposed on all cler"!men the dut! of seein" to it that no person as buried in a
shroud made of an! substance other than ool.
58
&nder EliDabeth, supremac! of the
cron over the church as completeA ecclesiastical offices ere re"ulated b! her
proclamations, recusants ere fined and imprisoned, 1esuits and prosel!tiDin"
priests ere put to death for hi"h treason, the thirt!/nine Articles of the Church of
En"land ere adopted and En"lish Protestantism attained its present doctrinal
status.
52
EliDabeth as to be reco"niDed as *the onl! 'upreme Bovernor of this realm
. . . as ell in all spiritual or ecclesiastical thin"s or causes as temporal.* 'he and her
successors ere vested, in their dominions, ith *all manner of (urisdictions,
privile"es, and preeminences, in an! ise touchin" or concernin" an! spiritual or
ecclesiastical (urisdiction.*
5<
6ater, hoever, Cromell established the constitution in
7
)802 hich "ranted full libert! to all Protestant sects, but denied toleration to
Catholics.
5;
$n )8<;, >illiam $$$ issued the Act of Toleration hich established a de
facto toleration for all e?cept Catholics. The Catholics achieved reli"ious libert! in the
);th centur! hen the Roman Catholic Relief Act of )<+; as adopted. The 1es
folloed suit in )<5< hen the! ere finall! permitted to sit in Parliament.
83
>hen the representatives of the American states met in Philadelphia in )2<2 to draft
the constitutional foundation of the ne republic, the theocratic state hich had
flourished intermittentl! in $srael, 1udea, the :ol! Roman Empire and Beneva as
completel! "one. The prevailin" church/state relationship in Europe as Erastianism
embodied in the s!stem of (urisdictionalism hereb! one faith as favored as the
official state/supported reli"ion, but other faiths ere permitted to e?ist ith freedom
in various de"rees. No nation had !et adopted as the basis of its church/state
relations the principle of the mutual independence of reli"ion and "overnment and
the concomitant principle that neither mi"ht be used as an en"ine to further the
policies of the other, althou"h the principle as in its seminal form in the ar"uments
of some dissident minorities and intellectual leaders of the Renaissance. The
reli"ious ars of )8th and )2th centur! Europe ere a thin" of the past b! the time
America declared its independence from the 9ld >orld, but their memor! as still
vivid in the minds of the Constitutional 4athers as e?pressed b! the &nited 'tates
'upreme Court, viDA
The centuries immediatel! before and contemporaneous ith the
coloniDation of America had been filled ith turmoil, civil strife, and
persecution "enerated in lar"e part b! established sects determined to
maintain their absolute political and reli"ious supremac!. >ith the poer of
"overnment supportin" them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant
sects had persecuted other protestant sects, Catholics of one shade of
belief had persecuted Catholics of another shade of belief, and all of these
had from time to time persecuted 1es. $n efforts to force lo!alt! to
hatever reli"ious "roup happened to be on top and in lea"ue ith the
"overnment of a particular time and place, men and omen had been fined,
cast in (ail, cruell! tortured, and killed. Amon" the offenses for hich these
punishments had been inflicted ere such thin"s as speakin"
disrespectfull! of the vies of ministers of "overnment/established
churches, non/attendance at those churches, e?pressions of non/belief in
their doctrines, and failure to pa! ta?es and tithes to support them.
8)
$n )2<0, 1ames Madison captured in this statement the entire histor! of church/state
relations in Europe up to the time the &nited 'tates Constitution as adopted, viDA
Torrents of blood have been spilt in the orld in vain attempts of the secular
arm to e?tin"uish reli"ious discord, b! proscribin" all differences in reli"ious
opinions.
8+
$n sum, this histor! shos to salient featuresA 4irst, ith minor e?ceptions, the
histor! of church/state relationships as characteriDed b! persecution, oppression,
hatred, bloodshed, and ar, all in the name of the Bod of 6ove and of the Prince of
Peace. 'econd, likeise ith minor e?ceptions, this histor! itnessed the
unscrupulous use of reli"ion b! secular poers to promote secular purposes and
policies, and the illin" acceptance of that role b! the van"uards of reli"ion in
e?chan"e for the favors and mundane benefits conferred b! ambitious princes and
emperors in e?chan"e for reli"ion#s invaluable service. This as the conte?t in hich
the uni%ue e?periment of the principle of reli"ious freedom and separation of church
and state sa its birth in American constitutional democrac! and in human histor!.
8.
*. !"#to-s Co.t-'(ut'.g to t0$ A+o%t'o. o/ t0$ A1$-'#". R$&'g'o. C&"us$s
'ettlers fleein" from reli"ious persecution in Europe, primaril! in An"lican/dominated
En"land, established man! of the American colonies. British thou"ht pervaded these
colonies as the immi"rants brou"ht ith them their reli"ious and political ideas from
En"land and En"lish books and pamphlets lar"el! provided their cultural fare.
80
But
althou"h these settlers escaped from Europe to be freed from bonda"e of las hich
compelled them to support and attend "overnment favored churches, some of these
settlers themselves transplanted into American soil the oppressive practices the!
escaped from. The charters "ranted b! the En"lish Cron to the individuals and
companies desi"nated to make the las hich ould control the destinies of the
colonials authoriDed them to erect reli"ious establishments, hich all, hether
believers or not, ere re%uired to support or attend.
85
At one time, si? of the colonies
established a state reli"ion. 9ther colonies, hoever, such as Rhode $sland and
@elaare tolerated a hi"h de"ree of reli"ious diversit!. 'till others, hich ori"inall!
tolerated onl! a sin"le reli"ion, eventuall! e?tended support to several different
faiths.
88
This as the state of the American colonies hen the uni%ue American e?periment of
separation of church and state came about. The birth of the e?periment cannot be
attributed to a sin"le cause or event. Rather, a number of interdependent practical
and ideolo"ical factors contributed in brin"in" it forth. Amon" these ere the *En"lish
Act of Toleration of )8<;, the multiplicit! of sects, the lack of church affiliation on the
part of most Americans, the rise of commercial intercourse, the e?i"encies of the
Revolutionar! >ar, the >illiams/Penn tradition and the success of their e?periments,
the ritin"s of 6ocke, the social contract theor!, the Breat Aakenin", and the
influence of European rationalism and deism.*
82
Each of these factors shall be briefl!
discussed.
4irst, the practical factors. En"land#s polic! of openin" the "ates of the American
colonies to different faiths resulted in the multiplicit! of sects in the colonies. >ith an
Erastian (ustification, En"lish lords chose to fore"o protectin" hat as considered
to be the true and eternal church of a particular time in order to encoura"e trade and
commerce. The colonies ere lar"e financial investments hich ould be profitable
onl! if people ould settle there. $t ould be difficult to en"a"e in trade ith persons
one seeks to destro! for reli"ious belief, thus tolerance as a necessit!. This tended
8
to distract the colonies from their preoccupations over their reli"ion and its
e?clusiveness, encoura"in" them *to think less of the Church and more of the 'tate
and of commerce.*
8<
The diversit! brou"ht about b! the colonies# open "ates
encoura"ed reli"ious freedom and non/establishment in several a!s. 4irst, as there
ere too man! dissentin" sects to abolish, there as no alternative but to learn to
live to"ether. 'econdl!, because of the dail! e?posure to different reli"ions, the
passionate conviction in the e?clusive ri"htness of one#s reli"ion, hich impels
persecution for the sake of one#s reli"ion, aned. 4inall!, because of the "reat
diversit! of the sects, reli"ious uniformit! as not possible, and ithout such
uniformit!, establishment could not survive.
8;
But hile there as a multiplicit! of denomination, parado?icall!, there as a scarcit!
of adherents. 9nl! about four percent of the entire population of the countr! had a
church affiliation at the time the republic as founded.
23
This mi"ht be attributed to
the driftin" to the American colonies of the skepticism that characteriDed European
Enli"htenment.
2)
Economic considerations mi"ht have also been a factor. The
individualism of the American colonist, manifested in the multiplicit! of sects, also
resulted in much unaffiliated reli"ion hich treated reli"ion as a personal non/
institutional matter. The prevalence of lack of church affiliation contributed to reli"ious
libert! and disestablishment as persons ho ere not connected ith an! church
ere not likel! to persecute others for similar independence nor accede to
compulsor! ta?ation to support a church to hich the! did not belon".
2+
:oever, for those ho ere affiliated to churches, the colonial polic! re"ardin" their
orship "enerall! folloed the tenor of the En"lish Act of Toleration of )8<;. $n
En"land, this Act conferred on Protestant dissenters the ri"ht to hold public services
sub(ect to re"istration of their ministers and places of orship.
2.
Althou"h the
toleration accorded to Protestant dissenters ho %ualified under its terms as onl! a
modest advance in reli"ious freedom, it nevertheless as of some influence to the
American e?periment.
20
Even then, for practical considerations, concessions had to
be made to other dissentin" churches to ensure their cooperation in the >ar of
$ndependence hich thus had a unif!in" effect on the colonies.
Ne?t, the ideolo"ical factors. 4irst, the Breat Aakenin" in mid/)<th centur!, an
evan"elical reli"ious revival ori"inatin" in Ne En"land, caused a break ith formal
church reli"ion and a resistance to coercion b! established churches. This movement
emphasiDed an emotional, personal reli"ion that appealed directl! to the individual,
puttin" emphasis on the ri"hts and duties of the individual conscience and its
anserabilit! e?clusivel! to Bod. Thus, althou"h the! had no %uarrel ith orthodo?
Christian theolo"! as in fact the! ere fundamentalists, this "roup became staunch
advocates of separation of church and state.
25
Then there as the >illiams/Penn tradition. Ro"er >illiams as the founder of the
colon! of Rhode $sland here he established a communit! of Baptists, =uakers and
other nonconformists. $n this colon!, reli"ious freedom as not based on practical
considerations but on the concept of mutual independence of reli"ion and
"overnment. $n )88., Rhode $sland obtained a charter from the British cron hich
declared that settlers have it *much on their heart to hold forth a livelie e?periment
that a most flourishin" civil state ma! best be maintained . . . ith full libertie in
reli"ious concernments.*
28
$n >illiams# pamphlet, The Bloud! Tenent of Persecution
for cause of Conscience, discussed in a Conference beteen Truth and Peace,
22
he
articulated the philosophical basis for his ar"ument of reli"ious libert!. To him,
reli"ious freedom and separation of church and state did not constitute to but onl!
one principle. Reli"ious persecution is ron" because it *confounds the Civil and
Reli"ious* and because *'tates . . . are proved essentiall! Civil. The *poer of true
discernin" the true fear of Bod* is not one of the poers that the people have
transferred to Civil Authorit!.
2<
>illiams# Bloud! Tenet is considered an epochal
milestone in the histor! of reli"ious freedom and the separation of church and state.
2;
>illiam Penn, proprietor of the land that became Penns!lvania, as also an ardent
advocate of toleration, havin" been imprisoned for his reli"ious convictions as a
member of the despised =uakers. :e opposed coercion in matters of conscience
because *imposition, restraint and persecution for conscience sake, hi"hl! invade the
@ivine prero"ative.* Aside from his idealism, proprietar! interests made toleration in
Penns!lvania necessar!. :e attracted lar"e numbers of settlers b! promisin"
reli"ious toleration, thus brin"in" in immi"rants both from the Continent and Britain.
At the end of the colonial period, Penns!lvania had the "reatest variet! of reli"ious
"roups. Penn as responsible in lar"e part for the *Concessions and a"reements of
the Proprietors, 4reeholders, and inhabitants of >est 1erse!, in America*, a
monumental document in the histor! of civil libert! hich provided amon" others, for
libert! of conscience.
<3
The Baptist folloers of >illiams and the =uakers ho came
after Penn continued the tradition started b! the leaders of their denominations.
Aside from the Baptists and the =uakers, the Presb!terians likeise "reatl!
contributed to the evolution of separation and freedom.
<)
The Constitutional fathers
ho convened in Philadelphia in )2<2, and Con"ress and the states that adopted the
4irst Amendment in )2;) ere ver! familiar ith and stron"l! influenced b! the
successful e?amples of Rhode $sland and Penns!lvania.
<+
&ndeniabl!, 1ohn 6ocke and the social contract theor! also contributed to the
American e?periment. The social contract theor! populariDed b! 6ocke as so idel!
accepted as to be deemed self/evident truth in America#s @eclaration of
$ndependence. >ith the doctrine of natural ri"hts and e%ualit! set forth in the
@eclaration of $ndependence, there as no room for reli"ious discrimination. $t as
difficult to (ustif! ine%ualit! in reli"ious treatment b! a ne nation that severed its
political bonds ith the En"lish cron hich violated the self/evident truth that all
men are created e%ual.
<.
The social contract theor! as applied b! man! reli"ious "roups in ar"uin" a"ainst
establishment, puttin" emphasis on reli"ion as a natural ri"ht that is entirel! personal
and not ithin the scope of the poers of a political bod!. That 6ocke and the social
contract theor! ere influential in the development of reli"ious freedom and
separation is evident from the memorial presented b! the Baptists to the Continental
Con"ress in )220, vizA
9
Men unite in societ!, accordin" to the "reat Mr. 6ocke, ith an intention in
ever! one the better to preserve himself, his libert! and propert!. The poer
of the societ!, or 6e"islature constituted b! them, can never be supposed to
e?tend an! further than the common "ood, but is obli"ed to secure ever!
one#s propert!. To "ive las, to receive obedience, to compel ith the
sord, belon" to none but the civil ma"istrateC and on this "round e affirm
that the ma"istrate#s poer e?tends not to establishin" an! articles of faith
or forms of orship, b! force of lasC for las are of no force ithout
penalties. The care of souls cannot belon" to the civil ma"istrate, because
his poer consists onl! in outard forceC but pure and savin" reli"ion
consists in the inard persuasion of the mind, ithout hich nothin" can be
acceptable to Bod.
<0
,emphasis supplied-
The idea that reli"ion as outside the (urisdiction of civil "overnment as acceptable
to both the reli"ionist and rationalist. To the reli"ionist, Bod or Christ did not desire
that "overnment have that (urisdiction ,*render unto Caesar that hich is Caesar#s*C
*m! kin"dom is not of this orld*- and to the rationalist, the poer to act in the realm
of reli"ion as not one of the poers conferred on "overnment as part of the social
contract.
<5
Not onl! the social contract theor! drifted to the colonies from Europe. Man! of the
leaders of the Revolutionar! and post/revolutionar! period ere also influenced b!
European deism and rationalism,
<8
in "eneral, and some ere apathetic if not
anta"onistic to formal reli"ious orship and institutionaliDed reli"ion. 1efferson,
Paine, 1ohn Adams, >ashin"ton, 4ranklin, Madison, amon" others ere reckoned to
be amon" the &nitarians or @eists. &nitarianism and @eism contributed to the
emphasis on secular interests and the rele"ation of historic theolo"! to the
back"round.
<2
4or these men of the enli"htenment, reli"ion should be alloed to rise
and fall on its on, and the state must be protected from the clutches of the church
hose entan"lements has caused intolerance and corruption as itnessed
throu"hout histor!.
<<
Not onl! the leaders but also the masses embraced rationalism
at the end of the ei"hteenth centur!, accountin" for the popularit! of Paine#s A"e of
Reason.
<;
4inall!, the events leadin" to reli"ious freedom and separation in Gir"inia contributed
si"nificantl! to the American e?periment of the 4irst Amendment. Gir"inia as the
*first state in the histor! of the orld to proclaim the decree of absolute divorce
beteen church and state.*
;3
Man! factors contributed to this, amon" hich ere
that half to to/thirds of the population ere or"aniDed dissentin" sects, the Breat
Aakenin" had on man! converts, the established An"lican Church of Gir"inia
found themselves on the losin" side of the Revolution and had alienated man!
influential la!men ith its identification ith the Cron#s t!rann!, and above all,
present in Gir"inia as a "roup of political leaders ho ere devoted to libert!
"enerall!,
;)
ho had accepted the social contract as self/evident, and ho had been
"reatl! influenced b! @eism and &nitarianism. Amon" these leaders ere
>ashin"ton, Patrick :enr!, Beor"e Mason, 1ames Madison and above the rest,
Thomas 1efferson.
The first ma(or step toards separation in Gir"inia as the adoption of the folloin"
provision in the Bill of Ri"hts of the state#s first constitutionA
That reli"ion, or the dut! hich e oe to our Creator, and the manner of
dischar"in" it, can be directed onl! b! reason and conviction, not b! force or
violenceC and therefore, all men are e%uall! entitled to the free e?ercise of
reli"ion accordin" to the dictates of conscienceC and that it is the mutual
dut! of all to practice Christian forbearance, love, and charit! toards each
other.
;+
,emphasis supplied-
The adoption of the Bill of Ri"hts si"nified the be"innin" of the end of establishment.
Baptists, Presb!terians and 6utherans flooded the first le"islative assembl! ith
petitions for abolition of establishment. >hile the ma(orit! of the population ere
dissenters, a ma(orit! of the le"islature ere churchmen. The le"islature
compromised and enacted a bill in )228 abolishin" the more oppressive features of
establishment and "rantin" e?emptions to the dissenters, but not "uaranteein"
separation. $t repealed the las punishin" heres! and absence from orship and
re%uirin" the dissenters to contribute to the support of the establishment.
;.
But the
dissenters ere not satisfiedC the! not onl! anted abolition of support for the
establishment, the! opposed the compulsor! support of their on reli"ion as others.
As members of the established church ould not allo that onl! the! ould pa!
ta?es hile the rest did not, the le"islature enacted in )22; a bill makin" permanent
the establishment#s loss of its e?clusive status and its poer to ta? its membersC but
those ho voted for it did so in the hope that a "eneral assessment bill ould be
passed. >ithout the latter, the establishment ould not survive. Thus, a bill as
introduced in )22; re%uirin" ever! person to enroll his name ith the count! clerk
and indicate hich *societ! for the purpose of Reli"ious >orship* he ished to
support. 9n the basis of this list, collections ere to be made b! the sheriff and
turned over to the cler"!men and teachers desi"nated b! the reli"ious con"re"ation.
The assessment of an! person ho failed to enroll in an! societ! as to be divided
proportionatel! amon" the societies.
;0
The bill evoked stron" opposition.
$n )2<0, another bill, entitled *Bill Establishin" a Provision for Teachers of the
Christian Reli"ion* as introduced re%uirin" all persons *to pa! a moderate ta? or
contribution annuall! for the support of the Christian reli"ion, or of some Christian
church, denomination or communion of Christians, or for some form of Christian
orship.*
;5
This likeise aroused the same opposition to the )22; bill. The most
tellin" blo a"ainst the )2<0 bill as the monumental *Memorial and Remonstrance
a"ainst Reli"ious Assessments* ritten b! Madison and idel! distributed before the
reconvenin" of le"islature in the fall of )2<5.
;8
$t stressed natural ri"hts, the
"overnment#s lack of (urisdiction over the domain of reli"ion, and the social contract
as the ideolo"ical basis of separation hile also citin" practical considerations such
as loss of population throu"h mi"ration. :e rote, vizA
Because e hold it for a #fundamental and undeniable truth,# that reli"ion, or
the dut! hich e oe to our creator, and the manner of dischar"in" it, can
be directed onl! b! reason and conviction, not b! force or violence. The
10
reli"ion, then, of ever! man, must be left to the conviction and conscience of
ever! manC and it is the ri"ht of ever! man to e?ercise it as these ma!
dictate. This ri"ht is, in its nature, an unalienable ri"ht. $t is unalienable,
because the opinions of men, dependin" onl! on the evidence
contemplated in their on minds, cannot follo the dictates of other menC it
is unalienable, also, because hat is here a ri"ht toards men, is a dut!
toards the creator. $t is the dut! of ever! man to render the creator such
homa"e, and such onl! as he believes to be acceptable to himC this dut! is
precedent, both in order of time and de"ree of obli"ation, to the claims of
civil societ!. Before an! man can be considered as a member of civil
societ!, he must be considered as a sub(ect of the "overnor of the universeC
and if a member of civil societ!, ho enters into an! subordinate
association, must ala!s do it ith a reservation of his dut! to the "eneral
authorit!, much more must ever! man ho becomes a member of an!
particular civil societ! do it ith the savin" his alle"iance to the universal
soverei"n.
;2
,emphases supplied-
Madison articulated in the Memorial the idel! held beliefs in )2<5 as indicated b!
the "reat number of si"natures appended to the Memorial. The assessment bill as
speedil! defeated.
Takin" advanta"e of the situation, Madison called up a much earlier )22; bill of
1efferson hich had not been voted on, the *Bill for Establishin" Reli"ious 4reedom*,
and it as finall! passed in 1anuar! )2<8. $t provided, vizA
>ell aare that Almi"ht! Bod hath created the mind freeC that all attempts
to influence it b! temporal punishments or burdens, or b! civil
incapacitations, tend not onl! to be"et habits of h!pocris! and meanness,
and are a departure from the plan of the :ol! Author of our reli"ion, ho
bein" 6ord both of bod! and mind, !et chose not to propa"ate it b!
coercions on either, as as in his Almi"ht! poer to doC
??? ??? ???
Be it therefore enacted b! the Beneral Assembl!. That no man shall be
compelled to fre%uent or support an! reli"ious orship, place or ministr!
hatsoever, nor shall be enforced, restrained, molested or burdened in his
bod! or "oods, nor shall otherise suffer on account of his reli"ious
opinions or beliefs, but that all men shall be free to profess, and b!
ar"ument to maintain, their opinions in matters of reli"ion, and that the
same shall in no ise diminish, enlar"e or affect their civil capacities.
;<

,emphases supplied-
This statute forbade an! kind of ta?ation in support of reli"ion and effectuall! ended
an! thou"ht of a "eneral or particular establishment in Gir"inia.
;;
But the passa"e of
this la as obtained not onl! because of the influence of the "reat leaders in
Gir"inia but also because of substantial popular support comin" mainl! from the to
"reat dissentin" sects, namel! the Presb!terians and the Baptists. The former ere
never established in Gir"inia and an underprivile"ed minorit! of the population. This
made them an?ious to pull don the e?istin" state church as the! realiDed that it as
impossible for them to be elevated to that privile"ed position. Apart from these
e?pediential considerations, hoever, man! of the Presb!terians ere sincere
advocates of separation
)33
"rounded on rational, secular ar"uments and to the
lan"ua"e of natural reli"ion.
)3)
$nfluenced b! Ro"er >illiams, the Baptists, on the
other hand, assumed that reli"ion as essentiall! a matter of concern of the
individual and his Bod, i.e., sub(ective, spiritual and supernatural, havin" no relation
ith the social order.
)3+
To them, the :ol! Bhost as sufficient to maintain and direct
the Church ithout "overnmental assistance and state/supported reli"ion as
contrar! ti the spirit of the Bospel.
)3.
Thus, separation as necessar!.
)30
1efferson#s
reli"ious freedom statute as a milestone in the histor! of reli"ious freedom. The
&nited 'tates 'upreme Court has not (ust once acknoled"ed that the provisions of
the 4irst Amendment of the &.'. Constitution had the same ob(ectives and intended
to afford the same protection a"ainst "overnment interference ith reli"ious libert! as
the Gir"inia 'tatute of Reli"ious 6ibert!.
Even in the absence of the reli"ion clauses, the principle that "overnment had no
poer to le"islate in the area of reli"ion b! restrictin" its free e?ercise or establishin"
it as implicit in the Constitution of )2<2. This could be deduced from the prohibition
of an! reli"ious test for federal office in Article G$ of the Constitution and the assumed
lack of poer of Con"ress to act on an! sub(ect not e?pressl! mentioned in the
Constitution.
)35
:oever, omission of an e?press "uarant! of reli"ious freedom and
other natural ri"hts nearl! prevented the ratification of the Constitution.
)38
$n the
ratif!in" conventions of almost ever! state, some ob(ection as e?pressed to the
absence of a restriction on the 4ederal Bovernment as re"ards le"islation on
reli"ion.
)32
Thus, in )2;), this restriction as made e?plicit ith the adoption of the
reli"ion clauses in the 4irst Amendment as the! are orded to this da!, ith the first
part usuall! referred to as the Establishment Clause and the second part, the 4ree
E?ercise Clause, vizA
Con"ress shall make no la respectin" an establishment of reli"ion or
prohibitin" the free e?ercise thereof.
*I. R$&'g'o. C&"us$s '. t0$ U.'t$+ St"t$s
Co.#$%t, Ju-'s%-u+$.#$, St".+"-+s
>ith the idespread a"reement re"ardin" the value of the 4irst Amendment reli"ion
clauses comes an e%uall! broad disa"reement as to hat these clauses specificall!
re%uire, permit and forbid. No a"reement has been reached b! those ho have
studied the reli"ion clauses as re"ards its e?act meanin" and the paucit! of records
in Con"ress renders it difficult to ascertain its meanin".
)3<
Conse%uentl!, the
(urisprudence in this area is volatile and frau"ht ith inconsistencies hether ithin a
Court decision or across decisions.
11
9ne source of difficult! is the difference in the conte?t in hich the 4irst Amendment
as adopted and in hich it is applied toda!. $n the )2<3s, reli"ion pla!ed a primar!
role in social life / i.e., famil! responsibilities, education, health care, poor relief, and
other aspects of social life ith si"nificant moral dimension / hile "overnment
pla!ed a supportive and indirect role b! maintainin" conditions in hich these
activities ma! be carried out b! reli"ious or reli"iousl!/motivated associations. Toda!,
"overnment pla!s this primar! role and reli"ion pla!s the supportive role.
)3;

Bovernment runs even famil! plannin", se? education, adoption and foster care
pro"rams.
))3
'tated otherise and ith some e?a""eration, *,-hereas to centuries
a"o, in matters of social life hich have a si"nificant moral dimension, "overnment
as the handmaid of reli"ion, toda! reli"ion, in its social responsibilities, as
contrasted ith personal faith and collective orship, is the handmaid of
"overnment.*
)))
>ith "overnment re"ulation of individual conduct havin" become
more pervasive, inevitabl! some of those re"ulations ould reach conduct that for
some individuals are reli"ious. As a result, increasin"l!, there ma! be inadvertent
collisions beteen purel! secular "overnment actions and reli"ion clause values.
))+
Parallel to this e?pansion of "overnment has been the e?pansion of reli"ious
or"aniDations in population, ph!sical institutions, t!pes of activities undertaken, and
sheer variet! of denominations, sects and cults. Churches run da!/care centers,
retirement homes, hospitals, schools at all levels, research centers, settlement
houses, halfa! houses for prisoners, sports facilities, theme parks, publishin"
houses and mass media pro"rams. $n these activities, reli"ious or"aniDations
complement and compete ith commercial enterprises, thus blurrin" the line
beteen man! t!pes of activities undertaken b! reli"ious "roups and secular
activities. Churches have also concerned themselves ith social and political issues
as a necessar! out"roth of reli"ious faith as itnessed in pastoral letters on ar
and peace, economic (ustice, and human life, or in rin"in" affirmations for racial
e%ualit! on reli"ious foundations. $nevitabl!, these developments have brou"ht about
substantial entan"lement of reli"ion and "overnment. 6ikeise, the "roth in
population densit!, mobilit! and diversit! has si"nificantl! chan"ed the environment
in hich reli"ious or"aniDations and activities e?ist and the las affectin" them are
made. $t is no lon"er eas! for individuals to live solel! amon" their on kind or to
shelter their children from e?posure to competin" values. The result is disa"reement
over hat las should re%uire, permit or prohibitC
)).
and a"reement that if the ri"hts of
believers as ell as non/believers are all to be respected and "iven their (ust due, a
ri"id, ooden interpretation of the reli"ion clauses that is blind to societal and political
realities must be avoided.
))0
Reli"ion cases arise from different circumstances. The more obvious ones arise from
a "overnment action hich purposel! aids or inhibits reli"ion. These cases are easier
to resolve as, in "eneral, these actions are plainl! unconstitutional. 'till, this kind of
cases poses difficult! in ascertainin" proof of intent to aid or inhibit reli"ion.
))5
The
more difficult reli"ion clause cases involve "overnment action ith a secular purpose
and "eneral applicabilit! hich incidentall! or inadvertentl! aids or burdens reli"ious
e?ercise. $n 4ree E?ercise Clause cases, these "overnment actions are referred to
as those ith *burdensome effect* on reli"ious e?ercise even if the "overnment
action is not reli"iousl! motivated.
))8
$deall!, the le"islature ould reco"niDe the
reli"ions and their practices and ould consider them, hen practical, in enactin"
las of "eneral application. But hen the le"islature fails to do so, reli"ions that are
threatened and burdened turn to the courts for protection.
))2
Most of these free
e?ercise claims brou"ht to the Court are for e?emption, not invalidation of the faciall!
neutral la that has a *burdensome* effect.
))<
>ith the chan"e in political and social conte?t and the increasin" inadvertent
collisions beteen la and reli"ious e?ercise, the definition of reli"ion for purposes of
interpretin" the reli"ion clauses has also been modified to suit current realities.
@efinin" reli"ion is a difficult task for even theolo"ians, philosophers and moralists
cannot a"ree on a comprehensive definition. Nevertheless, courts must define
reli"ion for constitutional and other le"al purposes.
));
$t as in the )<;3 case of @avis
v. Beason
)+3
that the &nited 'tates 'upreme Court first had occasion to define
reli"ion, vizA
The term #reli"ion# has reference to one#s vies of his relations to his
Creator, and to the obli"ations the! impose of reverence for his bein" and
character, and of obedience to his ill. $t is often confounded ith the cultus
or form of orship of a particular sect, but is distin"uishable from the latter.
The 4irst Amendment to the Constitution, in declarin" that Con"ress shall
make no la respectin" the establishment of reli"ion, or forbiddin" the free
e?ercise thereof, as intended to allo ever!one under the (urisdiction of
the &nited 'tates to entertain such notions respectin" his relations to his
Maker and the duties the! impose as ma! be approved b! his (ud"ment and
conscience, and to e?hibit his sentiments in such form of orship as he ma!
think proper, not in(urious to the e%ual ri"hts of others, and to prohibit
le"islation for the support of an! reli"ious tenets, or the modes of orship of
an! sect.
)+)
The definition as clearl! theistic hich as reflective of the popular attitudes in
)<;3.
$n );00, the Court stated in &nited 'tates v. Ballard
)++
that the free e?ercise of
reli"ion *embraces the ri"ht to maintain theories of life and of death and of the
hereafter hich are rank heres! to folloers of the orthodo? faiths.*
)+.
B! the );83s,
American pluralism in reli"ion had flourished to include non/theistic creeds from Asia
such as Buddhism and Taoism.
)+0
$n );8), the Court, in To-#"so 2. ,"t3'.s,
)+5

e?panded the term *reli"ion* to non/theistic beliefs such as Buddhism, Taoism,
Ethical Culture, and 'ecular :umanism. 4our !ears later, the Court faced a
definitional problem in &nited 'tates v. 'ee"er
)+8
hich involved four men ho
claimed *conscientious ob(ector* status in refusin" to serve in the Gietnam >ar. 9ne
of the four, 'ee"er, as not a member of an! or"aniDed reli"ion opposed to ar, but
hen specificall! asked about his belief in a 'upreme Bein", 'ee"er stated that *!ou
could call ,it- a belief in a 'upreme Bein" or Bod. These (ust do not happen to be the
ords that $ use.* 4orest Peter, another one of the four claimed that after
considerable meditation and reflection *on values derived from the >estern reli"ious
and philosophical tradition,* he determined that it ould be *a violation of his moral
12
code to take human life and that he considered this belief superior to an! obli"ation
to the state.* The Court avoided a constitutional %uestion b! broadl! interpretin" not
the 4ree E?ercise Clause, but the statutor! definition of reli"ion in the &niversal
Militar! Trainin" and 'ervice Act of );03 hich e?empt from combat an!one *ho, b!
reason of reli"ious trainin" and belief, is conscientiousl! opposed to participation in
ar in an! form.* 'peakin" for the Court, 1ustice Clark ruled, vizA
Con"ress, in usin" the e?pression #'upreme Bein"# rather than the
desi"nation #Bod,# as merel! clarif!in" the meanin" of reli"ious tradition
and belief so as to embrace all reli"ions and to e?clude essentiall! political,
sociolo"ical, or philosophical vies ,and- the test of belief #in relation to a
'upreme Bein"# is hether a "iven belief that is sincere and meanin"ful
occupies a place in the life of its possessor parallel to the orthodo? belief in
Bod. ,emphasis supplied-
The Court as convinced that 'ee"er, Peter and the others ere conscientious
ob(ectors possessed of such reli"ious belief and trainin".
4ederal and state courts have e?panded the definition of reli"ion in 'ee"er to include
even non/theistic beliefs such as Taoism or Een Buddhism. $t has been proposed that
basicall!, a creed must meet four criteria to %ualif! as reli"ion under the 4irst
Amendment. 4irst, there must be belief in Bod or some parallel belief that occupies a
central place in the believer#s life. 'econd, the reli"ion must involve a moral code
transcendin" individual belief, i.e., it cannot be purel! sub(ective. Third, a
demonstrable sincerit! in belief is necessar!, but the court must not in%uire into the
truth or reasonableness of the belief.
)+2
4ourth, there must be some associational
ties,
)+<
althou"h there is also a vie that reli"ious beliefs held b! a sin"le person
rather than bein" part of the teachin"s of an! kind of "roup or sect are entitled to the
protection of the 4ree E?ercise Clause.
)+;
@efinin" reli"ion is onl! the be"innin" of the difficult task of decidin" reli"ion clause
cases. :avin" hurdled the issue of definition, the court then has to dra lines to
determine hat is or is not permissible under the reli"ion clauses. $n this task, the
purpose of the clauses is the !ardstick. Their purpose is sin"ularC the! are to sides
of the same coin.
).3
$n devotin" to clauses to reli"ion, the 4ounders ere statin" not
to opposin" thou"hts that ould cancel each other out, but to complementar!
thou"hts that appl! in different a!s in different circumstances.
).)
The purpose of the
reli"ion clauses / both in the restriction it imposes on the poer of the "overnment to
interfere ith the free e?ercise of reli"ion and the limitation on the poer of
"overnment to establish, aid, and support reli"ion / is the protection and promotion of
reli"ious libert!.
).+
The end, the "oal, and the rationale of the reli"ion clauses is this
libert!.
)..
Both clauses ere adopted to prevent "overnment imposition of reli"ious
orthodo?!C the "reat evil a"ainst hich the! are directed is "overnment/induced
homo"eneit!.
).0
The 4ree E?ercise Clause directl! articulates the common ob(ective
of the to clauses and the Establishment Clause specificall! addresses a form of
interference ith reli"ious libert! ith hich the 4ramers ere most familiar and for
hich "overnment historicall! had demonstrated a propensit!.
).5
$n other ords, free
e?ercise is the end, proscribin" establishment is a necessar! means to this end to
protect the ri"hts of those ho mi"ht dissent from hatever reli"ion is established.
).8

$t has even been su""ested that the sense of the 4irst Amendment is captured if it
ere to read as *Con"ress shall make no la respectin" an establishment of reli"ion
or otherise prohibitin" the free e?ercise thereof* because the fundamental and
sin"le purpose of the to reli"ious clauses is to *avoid an! infrin"ement on the free
e?ercise of reli"ions*
).2
Thus, the Establishment Clause mandates separation of
church and state to protect each from the other, in service of the lar"er "oal of
preservin" reli"ious libert!. The effect of the separation is to limit the opportunities for
an! reli"ious "roup to capture the state apparatus to the disadvanta"e of those of
other faiths, or of no faith at all
).<
because histor! has shon that reli"ious fervor
con(oined ith state poer is likel! to tolerate far less reli"ious disa"reement and
disobedience from those ho hold different beliefs than an enli"htened secular
state.
).;
$n the ords of the &.'. 'upreme Court, the to clauses are interrelated, vizA
*,t-he structure of our "overnment has, for the preservation of civil libert!, rescued
the temporal institutions from reli"ious interference. 9n the other hand, it has
secured reli"ious libert! from the invasion of the civil authorit!.*
)03
$n upholdin" reli"ious libert! as the end "oal in reli"ious clause cases, the line the
court dras to ensure that "overnment does not establish and instead remains
neutral toard reli"ion is not absolutel! strai"ht. Chief 1ustice Bur"er e?plains, vizA
The course of constitutional neutralit! in this area cannot be an absolutel!
strai"ht lineC ri"idit! could ell defeat the basic purpose of these provisions,
hich is to insure that no reli"ion be sponsored or favored, none
commanded and none inhibited.
)0)
,emphasis supplied-
Conse%uentl!, &.'. (urisprudence has produced to identifiabl! different,
)0+
even
opposin", strains of (urisprudence on the reli"ion clausesA separation ,in the form of
strict separation or the tamer version of strict neutralit! or separation- and benevolent
neutralit! or accommodation. A vie of the landscape of &.'. reli"ion clause cases
ould be useful in understandin" these to strains, the scope of protection of each
clause, and the tests used in reli"ious clause cases. Most of these cases are cited as
authorities in Philippine reli"ion clause cases.
A. !-$$ E4$-#'s$ C&"us$
The Court first interpreted the 4ree E?ercise Clause in the )<2< case of Re!nolds v.
&nited 'tates.
)0.
This landmark case involved Re!nolds, a Mormon ho proved that
it as his reli"ious dut! to have several ives and that the failure to practice
pol!"am! b! male members of his reli"ion hen circumstances ould permit ould
be punished ith damnation in the life to come. Re!nolds# act of contractin" a second
marria"e violated 'ection 5.5+, Revised 'tatutes prohibitin" and penaliDin" bi"am!,
for hich he as convicted. The Court affirmed Re!nolds# conviction, usin" hat in
(urisprudence ould be called the belief/action test hich allos absolute protection
to belief but not to action. $t cited 1efferson#s Bill Establishin" Reli"ious 4reedom
hich, accordin" to the Court, declares *the true distinction beteen hat properl!
13
belon"s to the Church and hat to the 'tate.*
)00
The bill, makin" a distinction
beteen belief and action, states in relevant part, vizA
That to suffer the civil ma"istrate to intrude his poers into the field of
opinion, and to restrain the profession or propa"ation of principles on
supposition of their ill tendenc!, is a dan"erous fallac! hich at once
destro!s all reli"ious libert!C
that it is time enou"h for the ri"htful purposes of civil "overnment for its
officers to interfere hen principles break out into overt acts a"ainst peace
and "ood order.
)05
,emphasis supplied-
The Court then held, vizA
Con"ress as deprived of all le"islative poer over mere opinion, but as
left free to reach actions hich ere in violation of social duties or
subversive of "ood order. . .
6as are made for the "overnment of actions, and hile the! cannot
interfere ith mere reli"ious belief and opinions, the! ma! ith practices.
'uppose one believed that human sacrifice ere a necessar! part of
reli"ious orship, ould it be seriousl! contended that the civil "overnment
under hich he lived could not interfere to prevent a sacrificeH 9r if a ife
reli"iousl! believed it as her dut! to burn herself upon the funeral pile of
her dead husband, ould it be be!ond the poer of the civil "overnment to
prevent her carr!in" her belief into practiceH
'o here, as a la of the or"aniDation of societ! under the e?clusive
dominion of the &nited 'tates, it is provided that plural marria"es shall not
be alloed. Can a man e?cuse his practices to the contrar! because of his
reli"ious beliefH To permit this ould be to make the professed doctrines of
reli"ious belief superior to the la of the land, and in effect to permit ever!
citiDen to become a la unto himself. Bovernment could e?ist onl! in name
under such circumstances.
)08
The construct as thus simpleA the state as absolutel! prohibited b! the 4ree
E?ercise Clause from re"ulatin" individual reli"ious beliefs, but placed no restriction
on the abilit! of the state to re"ulate reli"iousl! motivated conduct. $t as lo"ical for
belief to be accorded absolute protection because an! statute desi"ned to prohibit a
particular reli"ious belief unaccompanied b! an! conduct ould most certainl! be
motivated onl! b! the le"islature#s preference of a competin" reli"ious belief. Thus,
all cases of re"ulation of belief ould amount to re"ulation of reli"ion for reli"ious
reasons violative of the 4ree E?ercise Clause. 9n the other hand, most state
re"ulations of conduct are for public elfare purposes and have nothin" to do ith
the le"islature#s reli"ious preferences. An! burden on reli"ion that results from state
re"ulation of conduct arises onl! hen particular individuals are en"a"in" in the
"enerall! re"ulated conduct because of their particular reli"ious beliefs. These
burdens are thus usuall! inadvertent and did not fi"ure in the belief/action test. As
lon" as the Court found that re"ulation address action rather than belief, the 4ree
E?ercise Clause did not pose an! problem.
)02
The 4ree E?ercise Clause thus "ave
no protection a"ainst the proscription of actions even if considered central to a
reli"ion unless the le"islature formall! outlaed the belief itself.
)0<
This belief/action distinction as held b! the Court for some !ears as shon b!
cases here the Court upheld other las hich burdened the practice of the Mormon
reli"ion b! imposin" various penalties on pol!"am! such as the @avis case and
Church of 6atter @a! 'aints v. &nited 'tates.
)0;
:oever, more than a centur! since
Re!nolds as decided, the Court has e?panded the scope of protection from belief to
speech and conduct. But hile the belief/action test has been abandoned, the rulin"s
in the earlier 4ree E?ercise cases have "one unchallen"ed. The belief/action
distinction is still of some importance thou"h as there remains an absolute prohibition
of "overnmental proscription of beliefs.
)53
The 4ree E?ercise Clause accords absolute protection to individual reli"ious
convictions and beliefs
)5)
and proscribes "overnment from %uestionin" a person#s
beliefs or imposin" penalties or disabilities based solel! on those beliefs. The Clause
e?tends protection to both beliefs and unbelief. Thus, in To-#"so 2. ,"t3'.s,
)5+
a
unanimous Court struck don a state la re%uirin" as a %ualification for public office
an oath declarin" belief in the e?istence of Bod. The protection also allos courts to
look into the "ood faith of a person in his belief, but prohibits in%uir! into the truth of a
person#s reli"ious beliefs. As held in U.'t$+ St"t$s 2. 5"&&"-+,
)5.
*,h-eres! trials are
forei"n to the Constitution. Men ma! believe hat the! cannot prove. The! ma! not
be put to the proof of their reli"ious doctrines or beliefs.*
Ne?t to belief hich en(o!s virtuall! absolute protection, reli"ious speech and
e?pressive reli"ious conduct are accorded the hi"hest de"ree of protection. Thus, in
the );03 case of C".t)$&& 2. Co..$#t'#ut,
)50
the Court struck don a state la
prohibitin" door/to/door solicitation for an! reli"ious or charitable cause ithout prior
approval of a state a"enc!. The la as challen"ed b! Cantell, a member of the
1ehovah#s >itnesses hich is committed to active prosel!tiDin". The Court
invalidated the state statute as the prior approval necessar! as held to be a
censorship of reli"ion prohibited b! the 4ree E?ercise Clause. The Court held, vizA
$n the realm of reli"ious faith, and in that of political belief, sharp differences
arise. $n both fields the tenets of one ma! seem the rankest error to his
nei"hbor. To persuade others to his point of vie, the pleader, as e kno,
resorts to e?a""eration, to vilification of men ho have been, or are,
prominent in church or state, and even to false statement. But the people of
this nation have ordained in the li"ht of histor!, that, in spite of the
probabilit! of e?cesses and abuses, these liberties are, in the lon" vie,
essential to enli"htened opinion and ri"ht conduct on the part of citiDens of a
democrac!.
)55
14
Cantell took a step forard from the protection afforded b! the Re!nolds case in
that it not onl! affirmed protection of belief but also freedom to act for the propa"ation
of that belief, vizA
Thus the Amendment embraces to concepts / freedom to believe and
freedom to act. The first is absolute but, in the nature of thin"s, the second
cannot be. Conduct remains sub(ect to re"ulation for the protection of
societ!. . . $n ever! case, the poer to re"ulate must be so e?ercised as not,
in attainin" a permissible end, undul! to infrin"e the protected freedom.
,emphasis supplied-
)58
The Court stated, hoever, that "overnment had the poer to re"ulate the times,
places, and manner of solicitation on the streets and assure the peace and safet! of
the communit!.
Three !ears after Cantell, the Court in Doug&"s 2. C't6 o/ J$".$tt$,
)52
ruled that
police could not prohibit members of the 1ehovah#s >itnesses from peaceabl! and
orderl! prosel!tiDin" on 'unda!s merel! because other citiDens complained. $n
another case likeise involvin" the 1ehovah#s >itnesses, N'$1ot3o 2. M"-6&".+,
)5<

the Court unanimousl! held unconstitutional a cit! council#s denial of a permit to the
1ehovah#s >itnesses to use the cit! park for a public meetin". The cit! council#s
refusal as because of the *unsatisfactor!* ansers of the 1ehovah#s >itnesses to
%uestions about Catholicism, militar! service, and other issues. The denial of the
public forum as considered blatant censorship. >hile protected, reli"ious speech in
the public forum is still sub(ect to reasonable time, place and manner re"ulations
similar to non/reli"ious speech. Reli"ious prosel!tiDin" in con"ested areas, for
e?ample, ma! be limited to certain areas to maintain the safe and orderl! flo of
pedestrians and vehicular traffic as held in the case of 7$//-o. 2. I.t$-."t'o."&
So#'$t6 /o- 8-'s0." Co.s#'ous.$ss.
)5;
The least protected under the 4ree E?ercise Clause is reli"ious conduct, usuall! in
the form of unconventional reli"ious practices. Protection in this realm depends on
the character of the action and the "overnment rationale for re"ulatin" the action.
)83

The Mormons# reli"ious conduct of pol!"am! is an e?ample of unconventional
reli"ious practice. As discussed in the Re!nolds case above, the Court did not afford
protection to the practice. Re!nolds as reiterated in the )<;3 case of @avis a"ain
involvin" Mormons, here the Court held, vizA *,c-rime is not the less odious because
sanctioned b! hat an! particular sect ma! desi"nate as reli"ion.*
)8)
The belief/action test in Re!nolds and @avis proved unsatisfactor!. &nder this test,
re"ulation of reli"iousl! dictated conduct ould be upheld no matter ho central the
conduct as to the e?ercise of reli"ion and no matter ho insi"nificant as the
"overnment#s non/reli"ious re"ulator! interest so lon" as the "overnment is
proscribin" action and not belief. Thus, the Court abandoned the simplistic belief/
action distinction and instead reco"niDed the deliberate/inadvertent distinction, i.e.,
the distinction beteen deliberate state interference of reli"ious e?ercise for reli"ious
reasons hich as plainl! unconstitutional and "overnment#s inadvertent
interference ith reli"ion in pursuin" some secular ob(ective.
)8+
$n the );03 case of
M'.$-s2'&&$ S#0oo& D'st-'#t 2. 9o('t's,
)8.
the Court upheld a local school board
re%uirement that all public school students participate in a dail! fla" salute pro"ram,
includin" the 1ehovah#s >itnesses ho ere forced to salute the American fla" in
violation of their reli"ious trainin", hich considered fla" salute to be orship of a
*"raven ima"e.* The Court reco"niDed that the "eneral re%uirement of compulsor!
fla" salute inadvertentl! burdened the 1ehovah >itnesses# practice of their reli"ion,
but (ustified the "overnment re"ulation as an appropriate means of attainin" national
unit!, hich as the *basis of national securit!.* Thus, althou"h the Court as
alread! aare of the deliberate/inadvertent distinction in "overnment interference
ith reli"ion, it continued to hold that the 4ree E?ercise Clause presented no problem
to interference ith reli"ion that as inadvertent no matter ho serious the
interference, no matter ho trivial the state#s non/reli"ious ob(ectives, and no matter
ho man! alternative approaches ere available to the state to pursue its ob(ectives
ith less impact on reli"ion, so lon" as "overnment as actin" in pursuit of a secular
ob(ective.
Three !ears later, the Bobitis decision as overturned in ,$st *'-g'.'" 2.
5"-.$tt$
)80
hich involved a similar set of facts and issue. The Court reco"niDed that
salutin" the fla", in connection ith the pled"es, as a form of utterance and the fla"
salute pro"ram as a compulsion of students to declare a belief. The Court ruled that
*compulsor! unification of opinions leads onl! to the unanimit! of the "rave!ard* and
e?empt the students ho ere members of the 1ehovah#s >itnesses from salutin"
the fla". A close scrutin! of the case, hoever, ould sho that it as decided not on
the issue of reli"ious conduct as the Court said, *,n-or does the issue as e see it
turn on one#s possession of particular reli"ious vies or the sincerit! ith hich the!
are held. >hile reli"ion supplies appellees# motive for endurin" the discomforts of
makin" the issue in this case, man! citiDens ho do not share these reli"ious vies
hold such a compulsor! rite to infrin"e constitutional libert! of the individual.*
,emphasis supplied-
)85
The Court pronounced, hoever, that, *freedoms of speech
and of press, of assembl!, and of orship . . . are susceptible onl! of restriction onl!
to prevent "rave and immediate dan"er to interests hich the state ma! lafull!
protect.*
)88
The Court seemed to reco"niDe the e?tent to hich its approach in Bobitis
subordinated the reli"ious libert! of political minorities / a speciall! protected
constitutional value / to the common ever!da! economic and public elfare
ob(ectives of the ma(orit! in the le"islature. This time, even inadvertent interference
ith reli"ion must pass (udicial scrutin! under the 4ree E?ercise Clause ith onl!
"rave and immediate dan"er sufficin" to override reli"ious libert!. But the seeds of
this hei"htened scrutin! ould onl! "ro to a full floer in the );83s.
)82
Nearl! a centur! after Re!nolds emplo!ed the belief/action test, the >arren Court
be"an the modern free e?ercise (urisprudence.
)8<
A to/part balancin" test as
established in 5-"u./$&+ 2. 5-o).
)8;
here the Court considered the
constitutionalit! of appl!in" 'unda! closin" las to 9rthodo? 1es hose beliefs
re%uired them to observe another da! as the 'abbath and abstain from commercial
activit! on 'aturda!. Chief 1ustice >arren, ritin" for the Court, found that the la
placed a severe burden on 'abattarian retailers. :e noted, hoever, that since the
burden as the indirect effect of a la ith a secular purpose, it ould violate the
15
4ree E?ercise Clause onl! if there ere alternative a!s of achievin" the state#s
interest. :e emplo!ed a to/part balancin" test of validit! here the first step as for
plaintiff to sho that the re"ulation placed a real burden on his reli"ious e?ercise.
Ne?t, the burden ould be upheld onl! if the state shoed that it as pursuin" an
overridin" secular "oal b! the means hich imposed the least burden on reli"ious
practices.
)23
The Court found that the state had an overridin" secular interest in
settin" aside a sin"le da! for rest, recreation and tran%uilit! and there as no
alternative means of pursuin" this interest but to re%uire 'unda! as a uniform rest
da!.
To !ears after came the stricter compellin" state interest test in the );8. case of
S0$-($-t 2. *$-.$-.
)2)
This test as similar to the to/part balancin" test in
Braunfeld,
)2+
but this latter test stressed that the state interest as not merel! an!
colorable state interest, but must be paramount and compellin" to override the free
e?ercise claim. $n this case, 'herbert, a 'eventh @a! Adventist, claimed
unemplo!ment compensation under the la as her emplo!ment as terminated for
refusal to ork on 'aturda!s on reli"ious "rounds. :er claim as denied. 'he sou"ht
recourse in the 'upreme Court. $n la!in" don the standard for determinin" hether
the denial of benefits could ithstand constitutional scrutin!, the Court ruled, vizA
Plainl! enou"h, appellee#s conscientious ob(ection to 'aturda! ork
constitutes no conduct prompted b! reli"ious principles of a kind ithin the
reach of state le"islation. $f, therefore, the decision of the 'outh Carolina
'upreme Court is to ithstand appellant#s constitutional challen"e, it must
be either because her dis%ualification as a beneficiar! represents no
infrin"ement b! the 'tate of her constitutional ri"hts of free e?ercise, or
because an! incidental burden on the free e?ercise of appellant#s reli"ion
ma! be (ustified b! a #compellin" state interest in the re"ulation of a sub(ect
ithin the 'tate#s constitutional poer to re"ulate. . .# NAACP 2. 5utto.,
.2) &' 0)5, 0.< ; 6 ed +d 035, 0+), <. ' Ct .+<.
)2.
,emphasis supplied-
The Court stressed that in the area of reli"ious libert!, it is basic that it is not sufficient
to merel! sho a rational relationship of the substantial infrin"ement to the reli"ious
ri"ht and a colorable state interest. *,$-n this hi"hl! sensitive constitutional area,
#JoKnl! the "ravest abuses, endan"erin" paramount interests, "ive occasion for
permissible limitation.# Thomas v. Collins, .+. &' 5)8, 5.3, <; 6 ed 0.3, 003, 85 '
Ct .)5.*
)20
The Court found that there as no such compellin" state interest to
override 'herbert#s reli"ious libert!. $t added that even if the state could sho that
'herbert#s e?emption ould pose serious detrimental effects to the unemplo!ment
compensation fund and schedulin" of ork, it as incumbent upon the state to sho
that no alternative means of re"ulations ould address such detrimental effects
ithout infrin"in" reli"ious libert!. The state, hoever, did not dischar"e this burden.
The Court thus carved out for 'herbert an e?emption from the 'aturda! ork
re%uirement that caused her dis%ualification from claimin" the unemplo!ment
benefits. The Court reasoned that upholdin" the denial of 'herbert#s benefits ould
force her to choose beteen receivin" benefits and folloin" her reli"ion. This choice
placed *the same kind of burden upon the free e?ercise of reli"ion as ould a fine
imposed a"ainst ,her- for her 'aturda! orship.* This "erminal case of 'herbert
firml! established the e?emption doctrine,
)25
vizA
$t is certain that not ever! conscience can be accommodated b! all the las
of the landC but hen "eneral las conflict ith scruples of conscience,
e?emptions ou"ht to be "ranted unless some #compellin" state interest#
intervenes.
Thus, in a short period of tent!/three !ears from Bobitis to 'herbert ,or even as
earl! as Braunfeld-, the Court moved from the doctrine that inadvertent or incidental
interferences ith reli"ion raise no problem under the 4ree E?ercise Clause to the
doctrine that such interferences violate the 4ree E?ercise Clause in the absence of a
compellin" state interest / the hi"hest level of constitutional scrutin! short of a
holdin" of a per se violation. Thus, the problem posed b! the belief/action test and
the deliberate/inadvertent distinction as addressed.
)28
Throu"hout the );23s and );<3s under the >arren, and afterards, the Bur"er
Court, the rationale in 'herbert continued to be applied. $n T0o1"s 2. R$2'$)
5o"-+
)22
and 7o(('$ 2. U.$1%&o61$.t A%%$"&s D'2's'o.,
)2<
for e?ample, the Court
reiterated the e?emption doctrine and held that in the absence of a compellin"
(ustification, a state could not ithhold unemplo!ment compensation from an
emplo!ee ho resi"ned or as dischar"ed due to unillin"ness to depart from
reli"ious practices and beliefs that conflicted ith (ob re%uirements. But not ever!
"overnmental refusal to allo an e?emption from a re"ulation hich burdens a
sincerel! held reli"ious belief has been invalidated, even thou"h strict or hei"htened
scrutin! is applied. $n U.'t$+ St"t$s 2. L$$,
)2;
for instance, the Court usin" strict
scrutin! and referrin" to Thomas, upheld the federal "overnment#s refusal to e?empt
Amish emplo!ers ho re%uested for e?emption from pa!in" social securit! ta?es on
a"es on the "round of reli"ious beliefs. The Court held that *,b-ecause the broad
public interest in maintainin" a sound ta? s!stem is of such a hi"h order, reli"ious
belief in conflict ith the pa!ment of ta?es affords no basis for resistin" the ta?.*
)<3
$t
reasoned that unlike in 'herbert, an e?emption ould si"nificantl! impair
"overnment#s achievement of its ob(ective / *the fiscal vitalit! of the social securit!
s!stemC* mandator! participation is indispensable to attain this ob(ective. The Court
noted that if an e?emption ere made, it ould be hard to (ustif! not alloin" a
similar e?emption from "eneral federal ta?es here the ta?pa!er ar"ues that his
reli"ious beliefs re%uire him to reduce or eliminate his pa!ments so that he ill not
contribute to the "overnment#s ar/related activities, for e?ample.
The strict scrutin! and compellin" state interest test si"nificantl! increased the
de"ree of protection afforded to reli"iousl! motivated conduct. >hile not affordin"
absolute immunit! to reli"ious activit!, a compellin" secular (ustification as
necessar! to uphold public policies that collided ith reli"ious practices. Althou"h the
members of the Court often disa"reed over hich "overnmental interests should be
considered compellin", thereb! producin" dissentin" and separate opinions in
reli"ious conduct cases, this "eneral test established a stron" presumption in favor of
the free e?ercise of reli"ion.
)<)
16
:ei"htened scrutin! as also used in the );2+ case of ,'s#o.s'. 2. :o+$-
)<+
here
the Court upheld the reli"ious practice of the 9ld 9rder Amish faith over the state#s
compulsor! hi"h school attendance la. The Amish parents in this case did not
permit secular education of their children be!ond the ei"hth "rade. Chief 1ustice
Bur"er, ritin" for the ma(orit!, held, vizA
$t follos that in order for >isconsin to compel school attendance be!ond
the ei"hth "rade a"ainst a claim that such attendance interferes ith the
practice of a le"itimate reli"ious belief, it must appear either that the 'tate
does not den! the free e?ercise of reli"ious belief b! its re%uirement, or that
there is a state interest of sufficient ma"nitude to override the interest
claimin" protection under the 4ree E?ercise Clause. 6on" before there as
"eneral acknoled"ement of the need for universal education, the Reli"ion
Clauses had speciall! and firml! fi?ed the ri"ht of free e?ercise of reli"ious
beliefs, and buttressin" this fundamental ri"ht as an e%uall! firm, even if
less e?plicit, prohibition a"ainst the establishment of an! reli"ion. The
values underl!in" these to provisions relatin" to reli"ion have been
Dealousl! protected, sometimes even at the e?pense of other interests of
admittedl! hi"h social importance. . .
The essence of all that has been said and ritten on the sub(ect is that onl!
those interests of the hi"hest order and those not otherise served can
overbalance le"itimate claims to the free e?ercise of reli"ion. . .
. . . our decisions have re(ected the idea that that reli"iousl! "rounded
conduct is ala!s outside the protection of the 4ree E?ercise Clause. $t is
true that activities of individuals, even hen reli"iousl! based, are often
sub(ect to re"ulation b! the 'tates in the e?ercise of their undoubted poer
to promote the health, safet!, and "eneral elfare, or the 4ederal
"overnment in the e?ercise of its dele"ated poers . . . But to a"ree that
reli"iousl! "rounded conduct must often be sub(ect to the broad police
poer of the 'tate is not to den! that there are areas of conduct protected
b! the 4ree E?ercise Clause of the 4irst Amendment and thus be!ond the
poer of the 'tate to control, even under re"ulations of "eneral applicabilit!.
. . .This case, therefore, does not become easier because respondents
ere convicted for their *actions* in refusin" to send their children to the
public hi"h schoolC in this conte?t belief and action cannot be neatl!
confined in lo"ic/ti"ht compartments. . .
)<.
The onset of the );;3s, hoever, sa a ma(or setback in the protection afforded b!
the 4ree E?ercise Clause. $n Emplo!ment @ivision, O-$go. D$%"-t1$.t o/ 7u1".
R$sou-#$s 2. S1't0,
)<0
the sharpl! divided Rehn%uist Court dramaticall! departed
from the hei"htened scrutin! and compellin" (ustification approach and imposed
serious limits on the scope of protection of reli"ious freedom afforded b! the 4irst
Amendment. $n this case, the ell/established practice of the Native American
Church, a sect outside the 1udeo/Christian mainstream of American reli"ion, came in
conflict ith the state#s interest in prohibitin" the use of illicit dru"s. 9re"on#s
controlled substances statute made the possession of pe!ote a criminal offense. To
members of the church, 'mith and Black, orked as dru" rehabilitation counselors
for a private social service a"enc! in 9re"on. Alon" ith other church members,
'mith and Black in"ested pe!ote, a hallucino"enic dru", at a sacramental ceremon!
practiced b! Native Americans for hundreds of !ears. The social service a"enc! fired
'mith and Black citin" their use of pe!ote as *(ob/related misconduct*. The! applied
for unemplo!ment compensation, but the 9re"on Emplo!ment Appeals Board denied
their application as the! ere dischar"ed for (ob/related misconduct. 1ustice 'calia,
ritin" for the ma(orit!, ruled that *if prohibitin" the e?ercise of reli"ion . . . is . . .
merel! the incidental effect of a "enerall! applicable and otherise valid la, the 4irst
Amendment has not been offended.* $n other ords, the 4ree E?ercise Clause ould
be offended onl! if a particular reli"ious practice ere sin"led out for proscription.
The ma(orit! opinion relied heavil! on the Re!nolds case and in effect, e%uated
9re"on#s dru" prohibition la ith the anti/pol!"am! statute in Re!nolds. The
relevant portion of the ma(orit! opinion held, vizA
>e have never invalidated an! "overnmental action on the basis of the
'herbert test e?cept the denial of unemplo!ment compensation.
Even if e ere inclined to breathe into 'herbert some life be!ond the
unemplo!ment compensation field, e ould not appl! it to re%uire
e?emptions from a "enerall! applicable criminal la. . .
>e conclude toda! that the sounder approach, and the approach in accord ith the
vast ma(orit! of our precedents, is to hold the test inapplicable to such challen"es.
The "overnment#s abilit! to enforce "enerall! applicable prohibitions of sociall!
harmful conduct, like its abilit! to carr! out other aspects of public polic!, *cannot
depend on measurin" the effects of a "overnmental action on a reli"ious ob(ector#s
spiritual development.* . . .To make an individual#s obli"ation to obe! such a la
contin"ent upon the la#s coincidence ith his reli"ious beliefs e?cept here the
'tate#s interest is *compellin"* / permittin" him, b! virtue of his beliefs, *to become a
la unto himself,* . . . / contradicts both constitutional tradition and common sense.
1ustice 9#Connor rote a concurrin" opinion pointin" out that the ma(orit!#s re(ection
of the compellin" "overnmental interest test as the most controversial part of the
decision. Althou"h she concurred in the result that the 4ree E?ercise Clause had not
been offended, she sharpl! criticiDed the ma(orit! opinion as a dramatic departure
*from ell/settled 4irst Amendment (urisprudence. . . and . . . ,as- incompatible ith
our Nation#s fundamental commitment to reli"ious libert!.* This portion of her
concurrin" opinion as supported b! 1ustices Brennan, Marshall and Blackmun ho
dissented from the Court#s decision. 1ustice 9#Connor asserted that *,t-he compellin"
state interest test effectuates the 4irst Amendment#s command that reli"ious libert! is
an independent libert!, that it occupies a preferred position, and that the Court ill
not permit encroachments upon this libert!, hether direct or indirect, unless re%uired
b! clear and compellin" "overnment interest #of the hi"hest order#.* 1ustice Blackmun
re"istered a separate dissentin" opinion, (oined b! 1ustices Brennan and Marshall.
:e char"ed the ma(orit! ith *mischaracteriDin"* precedents and *overturnin". . .
17
settled la concernin" the Reli"ion Clauses of our Constitution.* :e pointed out that
the Native American Church restricted and supervised the sacramental use of
pe!ote. Thus, the state had no si"nificant health or safet! (ustification for re"ulatin"
the sacramental dru" use. :e also observed that 9re"on had not attempted to
prosecute 'mith or Black, or an! Native Americans, for that matter, for the
sacramental use of pe!ote. $n conclusion, he said that *9re"on#s interest in enforcin"
its dru" las a"ainst reli"ious use of pe!ote ,as- not sufficientl! compellin" to
outei"h respondents# ri"ht to the free e?ercise of their reli"ion.*
The Court ent back to the Re!nolds and Bobitis doctrine in 'mith. The Court#s
standard in 'mith virtuall! eliminated the re%uirement that the "overnment (ustif! ith
a compellin" state interest the burdens on reli"ious e?ercise imposed b! las neutral
toard reli"ion. The 'mith doctrine is hi"hl! unsatisfactor! in several respects and
has been criticiDed as e?hibitin" a shallo understandin" of free e?ercise
(urisprudence.
)<5
4irst, the 4irst amendment as intended to protect minorit! reli"ions
from the t!rann! of the reli"ious and political ma(orit!. A deliberate re"ulator!
interference ith minorit! reli"ious freedom is the orst form of this t!rann!. But
re"ulator! interference ith a minorit! reli"ion as a result of i"norance or sensitivit!
of the reli"ious and political ma(orit! is no less an interference ith the minorit!#s
reli"ious freedom. $f the re"ulation had instead restricted the ma(orit!#s reli"ious
practice, the ma(oritarian le"islative process ould in all probabilit! have modified or
re(ected the re"ulation. Thus, the imposition of the political ma(orit!#s non/reli"ious
ob(ectives at the e?pense of the minorit!#s reli"ious interests implements the
ma(orit!#s reli"ious viepoint at the e?pense of the minorit!#s. 'econd, "overnment
impairment of reli"ious libert! ould most often be of the inadvertent kind as in 'mith
considerin" the political culture here direct and deliberate re"ulator! imposition of
reli"ious orthodo?! is nearl! inconceivable. $f the 4ree E?ercise Clause could not
afford protection to inadvertent interference, it ould be left almost meanin"less.
Third, the Re!nolds/Bobitis/'mith doctrine simpl! defies common sense. The state
should not be alloed to interfere ith the most deepl! held fundamental reli"ious
convictions of an individual in order to pursue some trivial state economic or
bureaucratic ob(ective. This is especiall! true hen there are alternative approaches
for the state to effectivel! pursue its ob(ective ithout serious inadvertent impact on
reli"ion.
)<8
Thus, the 'mith decision has been criticiDed not onl! for increasin" the poer of the
state over reli"ion but as discriminatin" in favor of mainstream reli"ious "roups
a"ainst smaller, more peripheral "roups ho lack le"islative clout,
)<2
contrar! to the
ori"inal theor! of the 4irst Amendment.
)<<
&ndeniabl!, claims for (udicial e?emption
emanate almost invariabl! from relativel! politicall! poerless minorit! reli"ions and
'mith virtuall! iped out their (udicial recourse for e?emption.
)<;
Thus, the 'mith
decision elicited much ne"ative public reaction especiall! from the reli"ious
communit!, and commentaries insisted that the Court as alloin" the 4ree E?ercise
Clause to disappear.
);3
'o much as the uproar that a ma(orit! in Con"ress as
convinced to enact the Reli"ious 4reedom Restoration Act ,R4RA- of );;.. The
R4RA prohibited "overnment at all levels from substantiall! burdenin" a person#s
free e?ercise of reli"ion, even if such burden resulted from a "enerall! applicable
rule, unless the "overnment could demonstrate a compellin" state interest and the
rule constituted the least restrictive means of furtherin" that interest.
);)
R4RA, in
effect, sou"ht to overturn the substance of the 'mith rulin" and restore the status
%uo prior to 'mith. Three !ears after the R4RA as enacted, hoever, the Court,
dividin" 8 to ., declared the R4RA unconstitutional in C't6 o/ 5o$-.$ 2. !&o-$s.
);+

The Court ruled that *R4RA contradicts vital principles necessar! to maintain
separation of poers and the federal balance.* $t emphasiDed the primac! of its role
as interpreter of the Constitution and une%uivocall! re(ected, on broad institutional
"rounds, a direct con"ressional challen"e of final (udicial authorit! on a %uestion of
constitutional interpretation.
After 'mith came C0u-#0 o/ t0$ Lu3u1' 5"("&u A6$, I.#. 2. C't6 o/ 7'"&$"0
);.

hich as ruled consistent ith the 'mith doctrine. This case involved animal
sacrifice of the 'anteria, a blend of Roman Catholicism and >est African reli"ions
brou"ht to the Carribean b! East African slaves. An ordinance made it a crime to
*unnecessaril! kill, torment, torture, or mutilate an animal in public or private ritual or
ceremon! not for the primar! purpose of food consumption.* The ordinance came as
a response to the local concern over the sacrificial practices of the 'anteria. 1ustice
Ienned!, ritin" for the ma(orit!, carefull! pointed out that the %uestioned ordinance
as not a "enerall! applicable criminal prohibition, but instead sin"led out
practitioners of the 'anteria in that it forbade animal slau"hter onl! insofar as it took
place ithin the conte?t of reli"ious rituals.
$t ma! be seen from the fore"oin" cases that under the 4ree E?ercise Clause,
reli"ious belief is absolutel! protected, reli"ious speech and prosel!tiDin" are hi"hl!
protected but sub(ect to restraints applicable to non/reli"ious speech, and
unconventional reli"ious practice receives less protectionC nevertheless conduct,
even if its violates a la, could be accorded protection as shon in >isconsin.
);0
5. Est"(&'s01$.t C&"us$
The Court#s first encounter ith the Establishment Clause as in the );02 case of
E2$-so. 2. 5o"-+ o/ E+u#"t'o..
);5
Prior cases had made passin" reference to the
Establishment Clause
);8
and raised establishment %uestions but ere decided on
other "rounds.
);2
$t as in the Everson case that the &.'. 'upreme Court adopted
1efferson#s metaphor of *a all of separation beteen church and state* as
encapsulatin" the meanin" of the Establishment Clause. The often and loosel! used
phrase *separation of church and state* does not appear in the &.'. Constitution. $t
became part of &.'. (urisprudence hen the Court in the )<2< case of R$6.o&+s 2.
U.'t$+ St"t$s
);<
%uoted 1efferson#s famous letter of )<3+ to the @anbur! Baptist
Association in narratin" the histor! of the reli"ion clauses, vizA
Believin" ith !ou that reli"ion is a matter hich lies solel! beteen man
and his BodC that he oes account to none other for his faith or his orshipC
that the le"islative poers of the Bovernment reach actions onl!, and not
opinions, $ contemplate ith soverei"n reverence that act of the hole
American people hich declared that their 6e"islature should #make no la
respectin" an establishment of reli"ion or prohibitin" the free e?ercise
18
thereof,# thus buildin" a all of separation beteen Church and 'tate.
);;

,emphasis supplied-
Chief 1ustice >aite, speakin" for the ma(orit!, then added, *,c-omin" as this does
from an acknoled"ed leader of the advocates of the measure, it ma! be accepted
almost as an authoritative declaration of the scope and effect of the amendment thus
secured.*
+33
The interpretation of the Establishment Clause has in lar"e part been in cases
involvin" education, notabl! state aid to private reli"ious schools and pra!er in public
schools.
+3)
$n Everson v. Board of Education, for e?ample, the issue as hether a
Ne 1erse! local school board could reimburse parents for e?penses incurred in
transportin" their children to and from Catholic schools. The reimbursement as part
of a "eneral pro"ram under hich all parents of children in public schools and
nonprofit private schools, re"ardless of reli"ion, ere entitled to reimbursement for
transportation costs. 1ustice :u"o Black, ritin" for a sharpl! divided Court, (ustified
the reimbursements on the child benefit theor!, i.e., that the school board as merel!
furtherin" the state#s le"itimate interest in "ettin" children *re"ardless of their reli"ion,
safel! and e?peditiousl! to and from accredited schools.* The Court, after narratin"
the histor! of the 4irst Amendment in Gir"inia, interpreted the Establishment Clause,
vizA
The #establishment of reli"ion# clause of the 4irst Amendment means at least
thisA Neither a state nor the 4ederal Bovernment can set up a church.
Neither can pass las hich aid one reli"ion, aid all reli"ions, or prefer one
reli"ion over another. Neither can force nor influence a person to "o to or
remain aa! from church a"ainst his ill or force him to profess a belief or
disbelief in an! reli"ion. No person can be punished for entertainin" or
professin" reli"ious beliefs or disbeliefs, for church attendance or non/
attendance. No ta? in an! amount, lar"e or small, can be levied to support
an! reli"ious activities or institutions, hatever the! ma! be called, or
hatever form the! ma! adopt to teach or practice reli"ion. Neither a state
nor the 4ederal Bovernment can, openl! or secretl! participate in the affairs
of an! reli"ious or"aniDations or "roups and vice versa. $n the ords of
1efferson, the clause a"ainst establishment of reli"ion b! la as intended
to erect *a all of separation beteen Church and 'tate.*
+3+
The Court then ended the opinion, vizA
The 4irst Amendment has erected a all beteen church and state. That
all must be kept hi"h and impre"nable. >e could not approve the sli"htest
breach. Ne 1erse! has not breached it here.
+3.
B! );2), the Court inte"rated the different elements of the Court#s Establishment
Clause (urisprudence that evolved in the );53s and );83s and laid don a three/
pron"ed test in L$1o. 2. 8u-t;1".
+30
in determinin" the constitutionalit! of policies
challen"ed under the Establishment Clause. This case involved a Penns!lvania
statutor! pro"ram providin" publicl! funded reimbursement for the cost of teachers#
salaries, te?tbooks, and instructional materials in secular sub(ects and a Rhode
$sland statute providin" salar! supplements to teachers in parochial schools. The
6emon test re%uires a challen"ed polic! to meet the folloin" criteria to pass scrutin!
under the Establishment Clause. *4irst, the statute must have a secular le"islative
purposeC second, its primar! or principal effect must be one that neither advances
nor inhibits reli"ion ,Board of Education v. Allen, .;+ &' +.8, +0., +3 6 Ed +d )383,
)385, << ' Ct );+. J);8<K-C finall!, the statute must not foster #an e?cessive
entan"lement ith reli"ion.# ,>alD v.Ta? Commission, .;2 &' 880, 88<, +5 6 Ed +d
8;2, 23), ;3 ' Ct )03; J);23K-* ,emphasis supplied-
+35
&sin" this test, the Court held
that the Penns!lvania statutor! pro"ram and Rhode $sland statute ere
unconstitutional as fosterin" e?cessive entan"lement beteen "overnment and
reli"ion.
The most controversial of the education cases involvin" the Establishment Clause
are the school pra!er decisions. *4e decisions of the modern 'upreme Court have
been criticiDed more intensel! than the school pra!er decisions of the earl! );83s.*
+38
$n the );8+ case of E.g$& 2. *'t"&$,
+32
the Court invalidated a Ne Fork Board of
Re"ents polic! that established the voluntar! recitation of a brief "eneric pra!er b!
children in the public schools at the start of each school da!. The ma(orit! opinion
ritten b! 1ustice Black stated that *in this countr! it is no part of the business of
"overnment to compose official pra!ers for an! "roup of the American people to
recite as part of a reli"ious pro"ram carried on b! "overnment.* $n fact, histor! shos
that this ver! practice of establishin" "overnmentall! composed pra!ers for reli"ious
services as one of the reasons that caused man! of the earl! colonists to leave
En"land and seek reli"ious freedom in America. The Court called to mind that the
first and most immediate purpose of the Establishment Clause rested on the belief
that a union of "overnment and reli"ion tends to destro! "overnment and to de"rade
reli"ion. The folloin" !ear, the En"el decision as reinforced in A('.gto. S#0oo&
D'st-'#t 2. S#0$1%%
+3<
and Mu--"6 2. Cu-&$tt
+3;
here the Court struck don the
practice of Bible readin" and the recitation of the 6ord#s pra!er in the Penns!lvania
and Mar!land schools. The Court held that to ithstand the strictures of the
Establishment Clause, a statute must have a secular le"islative purpose and a
primar! effect that neither advances nor inhibits reli"ion. $t reiterated, vizA
The holesome #neutralit!# of hich this Court#s cases speak thus stems
from a reco"nition of the teachin"s of histor! that poerful sects or "roups
mi"ht brin" about a fusion of "overnmental and reli"ious functions or a
concert or dependenc! of one upon the other to the end that official support
of the 'tate of 4ederal Bovernment ould be placed behind the tenets of
one or of all orthodo?ies. This the Establishment Clause prohibits. And a
further reason for neutralit! is found in the 4ree E?ercise Clause, hich
reco"niDes the value of reli"ious trainin", teachin" and observance and,
more particularl!, the ri"ht of ever! person to freel! choose his on course
ith reference thereto, free of an! compulsion from the state.
+)3
19
The school pra!er decisions dre furious reactions. Reli"ious leaders and
conservative members of Con"ress and resolutions passed b! several state
le"islatures condemned these decisions.
+))
9n several occasions, constitutional
amendments have been introduced in Con"ress to overturn the school pra!er
decisions. 'till, the Court has maintained its position and has in fact reinforced it in
the );<5 case of ,"&&"#$ 2. J"//-$$
+)+
here the Court struck don an Alabama la
that re%uired public school students to observe a moment of silence *for the purpose
of meditation or voluntar! pra!er* at the start of each school da!.
Reli"ious instruction in public schools has also pressed the Court to interpret the
Establishment Clause. 9ptional reli"ious instruction ithin public school premises
and instructional time ere declared offensive of the Establishment Clause in the
);0< case of M#Co&&u1 2. 5o"-+ o/ E+u#"t'o.,
+).
decided (ust a !ear after the
seminal Everson case. $n this case, interested members of the 1eish, Roman
Catholic and a fe Protestant faiths obtained permission from the Board of Education
to offer classes in reli"ious instruction to public school students in "rades four to
nine. Reli"ion classes ere attended b! pupils hose parents si"ned printed cards
re%uestin" that their children be permitted to attend. The classes ere tau"ht in three
separate "roups b! Protestant teachers, Catholic priests and a 1eish rabbi and
ere held eekl! from thirt! to fort! minutes durin" re"ular class hours in the re"ular
classrooms of the school buildin". The reli"ious teachers ere emplo!ed at no
e?pense to the school authorities but the! ere sub(ect to the approval and
supervision of the superintendent of schools. 'tudents ho did not choose to take
reli"ious instruction ere re%uired to leave their classrooms and "o to some other
place in the school buildin" for their secular studies hile those ho ere released
from their secular stud! for reli"ious instruction ere re%uired to attend the reli"ious
classes. The Court held that the use of ta?/supported propert! for reli"ious instruction
and the close cooperation beteen the school authorities and the reli"ious council in
promotin" reli"ious education amounted to a prohibited use of ta?/established and
ta?/supported public school s!stem to aid reli"ious "roups spread their faith. The
Court re(ected the claim that the Establishment Clause onl! prohibited "overnment
preference of one reli"ion over another and not an impartial "overnmental assistance
of all reli"ions. $n <o-"#0 2. C&"uso.,
+)0
hoever, the Court upheld released time
pro"rams alloin" students in public schools to leave campus upon parental
permission to attend reli"ious services hile other students attended stud! hall.
1ustice @ou"las, the riter of the opinion, stressed that *,t-he 4irst Amendment does
not re%uire that in ever! and all respects there shall be a separation of Church and
'tate.* The Court distin"uished Eorach from McCollum, vizA
$n the McCollum case the classrooms ere used for reli"ious instruction
and the force of the public school as used to promote that instruction. . .
>e follo the McCollum case. But e cannot e?pand it to cover the present
released time pro"ram unless separation of Church and 'tate means that
public institutions can make no ad(ustments of their schedules to
accommodate the reli"ious needs of the people. >e cannot read into the
Bill of Ri"hts such a philosoph! of hostilit! to reli"ion.
+)5
$n the area of "overnment displa!s or affirmations of belief, the Court has "iven
leea! to reli"ious beliefs and practices hich have ac%uired a secular meanin" and
have become deepl! entrenched in histor!. 4or instance, in M#9o)". 2.
M"-6&".+,
+)8
the Court upheld las that prohibited certain businesses from operatin"
on 'unda! despite the obvious reli"ious underpinnin"s of the restrictions. Citin" the
secular purpose of the 'unda! closin" las and treatin" as incidental the fact that
this da! of rest happened to be the da! of orship for most Christians, the Court
held, vizA
$t is common knoled"e that the first da! of the eek has come to have
special si"nificance as a rest da! in this countr!. People of all reli"ions and
people ith no reli"ion re"ard 'unda! as a time for famil! activit!, for
visitin" friends and relatives, for later sleepin", for passive and active
entertainments, for dinin" out, and the like.
+)2
$n the );<. case of M"-s0 2. C0"1($-s,
+)<
the Court refused to invalidate
Nebraska#s polic! of be"innin" le"islative sessions ith pra!ers offered b! a
Protestant chaplain retained at the ta?pa!ers# e?pense. The ma(orit! opinion did not
rel! on the 6emon test and instead dre heavil! from histor! and the need for
accommodation of popular reli"ious beliefs, vizA
$n li"ht of the unambi"uous and unbroken histor! of more than +33 !ears,
there can be no doubt that the practice of openin" le"islative sessions ith
pra!er has become the fabric of our societ!. To invoke @ivine "uidance on a
public bod! entrusted ith makin" the las is not, in these circumstances,
an *establishment* of reli"ion or a step toard establishmentC it is simpl! a
tolerable acknoled"ement of beliefs idel! held amon" the people of this
countr!. As 1ustice @ou"las observed, *,-e are a reli"ious people hose
institutions presuppose a 'upreme Bein".* ,Eorach c. Clauson, .0. &' .38,
.). J);5+K-
+);
,emphasis supplied-
'ome vie the Marsh rulin" as a mere aberration as the Court ould *inevitabl! be
embarrassed if it ere to attempt to strike don a practice that occurs in nearl! ever!
le"islature in the &nited 'tates, includin" the &.'. Con"ress.*
++3
That Marsh as not
an aberration is su""ested b! subse%uent cases. $n the );<0 case of L6.#0 2.
Do..$&&6,
++)
the Court upheld a cit!/sponsored nativit! scene in Rhode $sland. B! a
5/0 decision, the ma(orit! opinion hardl! emplo!ed the 6emon test and a"ain relied
on histor! and the fact that the creche had become a *neutral harbin"er of the
holida! season* for man!, rather than a s!mbol of Christianit!.
The Establishment Clause has also been interpreted in the area of ta? e?emption. B!
tradition, church and charitable institutions have been e?empt from local propert!
ta?es and their income e?empt from federal and state income ta?es. $n the );23
case of ,"&; 2. T"4 Co11'ss'o.,
+++
the Ne Fork Cit! Ta? Commission#s "rant of
propert! ta? e?emptions to churches as alloed b! state la as challen"ed b! >alD
on the theor! that this re%uired him to subsidiDe those churches indirectl!. The Court
upheld the la stressin" its neutralit!, vizA
20
$t has not sin"led out one particular church or reli"ious "roup or even
churches as suchC rather, it has "ranted e?emptions to all houses of
reli"ious orship ithin a broad class of propert! oned b! non/profit,
%uasi/public corporations . . . The 'tate has an affirmative polic! that
considers these "roups as beneficial and stabiliDin" influences in
communit! life and finds this classification useful, desirable, and in the
public interest.
++.
The Court added that the e?emption as not establishin" reli"ion but *sparin" the
e?ercise of reli"ion from the burden of propert! ta?ation levied on private profit
institutions*
++0
and preventin" e?cessive entan"lement beteen state and reli"ion. At
the same time, the Court acknoled"ed the lon"/standin" practice of reli"ious ta?
e?emption and the Court#s traditional deference to le"islative bodies ith respect to
the ta?in" poer, vizA
,f-e concepts are more deepl! embedded in the fabric of our national life,
be"innin" ith pre/Revolutionar! colonial times, than for the "overnment to
e?ercise . . . this kind of benevolent neutralit! toard churches and reli"ious
e?ercise "enerall! so lon" as none as favored over others and none
suffered interference.
++5
,emphasis supplied-
C. St-'#t N$ut-"&'t6 2. 5$.$2o&$.t N$ut-"&'t6
To be sure, the cases discussed above, hile citin" man! landmark decisions in the
reli"ious clauses area, are but a small fraction of the hundreds of reli"ion clauses
cases that the &.'. 'upreme Court has passed upon. Court rulin"s contrar! to or
makin" nuances of the above cases ma! be cited. Professor McConnell poi"nantl!
reco"niDes this, vizA
Thus, as of toda!, it is constitutional for a state to hire a Presb!terian
minister to lead the le"islature in dail! pra!ers ,Marsh v. Chambers, 08.
&'2<., 2;+/;.J);<.K-, but unconstitutional for a state to set aside a
moment of silence in the schools for children to pra! if the! ant to ,>allace
v. 1affree, 02+ &' .<, 58 J);<5K-. $t is unconstitutional for a state to re%uire
emplo!ers to accommodate their emplo!ees# ork schedules to their
sabbath observances ,Estate of Thornton v. Caldor, $nc., 02+ &' 23., 23;/
)3 J);<5K- but constitutionall! mandator! for a state to re%uire emplo!ers to
pa! orkers compensation hen the resultin" inconsistenc! beteen ork
and sabbath leads to dischar"e ,. . .'herbert v. Gerner, .20 &' .;<, 03./0
J);8.K-. $t is constitutional for the "overnment to "ive mone! to reli"iousl!/
affiliated or"aniDations to teach adolescents about proper se?ual behavior
,Boen v. Iendrick, 0<2 &' 5<;, 8)) J);<<K-, but not to teach them science
or histor! ,6emon v. IurtDman, 03. &' 83+, 8)</8); J);2)K-. $t is
constitutional for the "overnment to provide reli"ious school pupils ith
books ,Board of Education v. Allen, .;+ &' +.8, +.< J);8<K-, but not ith
maps ,>olman v. >alter, 0.. &' ++;, +0;/5) J);22K-C ith bus rides to
reli"ious schools ,Everson v. Board of Education, ..3 &' ), )2 J);02K-, but
not from school to a museum on a field trip ,>olman v. >alter, 0.. &' ++;,
+5+/55 J);22K-C ith cash to pa! for state/mandated standardiDed tests
,Committee for Pub. Educ. and Reli"ious 6ibert! v. Re"an, 000 &' 808,
85./50 J);<3K-, but not to pa! for safet!/related maintenance ,Committee
for Pub. Educ v. N!%uist, 0). &' 258, 220/<3 J);2.K-. $t is a mess.
++8
But the purpose of the overvie is not to revie the entiret! of the &.'. reli"ion
clause (urisprudence nor to e?tract the prevailin" case la re"ardin" particular
reli"ious beliefs or conduct collidin" ith particular "overnment re"ulations. Rather,
the cases discussed above suffice to sho that, as le"al scholars observe, this area
of (urisprudence has demonstrated to main standards used b! the Court in decidin"
reli"ion clause casesA separation ,in the form of strict separation or the tamer version
of strict neutralit! or separation- and benevolent neutralit! or accommodation. The
ei"ht of current authorit!, (udicial and in terms of sheer volume, appears to lie ith
the separationists, strict or tame.
++2
But the accommodationists have also attracted a
number of influential scholars and (urists.
++<
The to standards producin" to
streams of (urisprudence branch out respectivel! from the histor! of the 4irst
Amendment in En"land and the American colonies and clima?in" in Gir"inia as
narrated in this opinion and officiall! acknoled"ed b! the Court in Everson, and
from American societal life hich reveres reli"ion and practices a"e/old reli"ious
traditions. 'tated otherise, separation / strict or tame / protects the principle of
church/state separation ith a ri"id readin" of the principle hile benevolent
neutralit! protects reli"ious realities, tradition and established practice ith a fle?ible
readin" of the principle.
++;
The latter also appeals to histor! in support of its position,
vizA
The opposin" school of thou"ht ar"ues that the 4irst Con"ress intended to
allo "overnment support of reli"ion, at least as lon" as that support did not
discriminate in favor of one particular reli"ion. . . the 'upreme Court has
overlooked man! important pieces of histor!. Madison, for e?ample, as on
the con"ressional committee that appointed a chaplain, he declared several
national da!s of pra!er and fastin" durin" his presidenc!, and he sponsored
1efferson#s bill for punishin" 'abbath breakersC moreover, hile president,
1efferson alloed federal support of reli"ious missions to the $ndians. . . And
so, concludes one recent book, #there is no support in the Con"ressional
records that either the 4irst Con"ress, hich framed the 4irst Amendment,
or its principal author and sponsor, 1ames Madison, intended that
Amendment to create a state of complete independence beteen reli"ion
and "overnment. $n fact, the evidence in the public documents "oes the
other a!.
+.3
,emphasis supplied-
To succinctl! and poi"nantl! illustrate the historical basis of benevolent neutralit! that
"ives room for accommodation, less than tent!/four hours after Con"ress adopted
the 4irst Amendment#s prohibition on las respectin" an establishment of reli"ion,
Con"ress decided to e?press its thanks to Bod Almi"ht! for the man! blessin"s
en(o!ed b! the nation ith a resolution in favor of a presidential proclamation
declarin" a national da! of Thanks"ivin" and Pra!er. 9nl! to members of Con"ress
21
opposed the resolution, one on the "round that the move as a *mimickin" of
European customs, here the! made a mere mocker! of thanks"ivin"s*, the other on
establishment clause concerns. Nevertheless, the salutar! effect of thanks"ivin"s
throu"hout >estern histor! as acknoled"ed and the motion as passed ithout
further recorded discussion.
+.)
Thus, accommodationists also "o back to the framers
to ascertain the meanin" of the 4irst Amendment, but prefer to focus on acts rather
than ords. Contrar! to the claim of separationists that rationalism pervaded America
in the late );th centur! and that America as less specificall! Christian durin" those
!ears than at an! other time before or since,
+.+
accommodationaists claim that
American citiDens at the time of the Constitution#s ori"ins ere a remarkabl! reli"ious
people in particularl! Christian terms.
+..
The to streams of (urisprudence / separationist or accommodationist / are anchored
on a different readin" of the *all of separation.* The strict separtionist vie holds
that 1efferson meant the *all of separation* to protect the state from the church.
1efferson as a man of the Enli"htenment Era of the ei"hteenth centur!,
characteriDed b! the rationalism and anticlericalism of that philosophic bent.
+.0
:e
has often been re"arded as espousin" @eism or the rationalistic belief in a natural
reli"ion and natural la divorced from its medieval connection ith divine la, and
instead adherin" to a secular belief in a universal harmon!.
+.5
Thus, accordin" to this
1effersonian vie, the Establishment Clause bein" meant to protect the state from
the church, the state#s hostilit! toards reli"ion allos no interaction beteen the
to.
+.8
$n fact, hen 1efferson became President, he refused to proclaim fast or
thanks"ivin" da!s on the "round that these are reli"ious e?ercises and the
Constitution prohibited the "overnment from intermeddlin" ith reli"ion.
+.2
This
approach erects an absolute barrier to formal interdependence of reli"ion and state.
Reli"ious institutions could not receive aid, hether direct or indirect, from the state.
Nor could the state ad(ust its secular pro"rams to alleviate burdens the pro"rams
placed on believers.
+.<
9nl! the complete separation of reli"ion from politics ould
eliminate the formal influence of reli"ious institutions and provide for a free choice
amon" political vies thus a strict *all of separation* is necessar!.
+.;
'trict
separation faces difficulties, hoever, as it is deepl! embedded in histor! and
contemporar! practice that enormous amounts of aid, both direct and indirect, flo to
reli"ion from "overnment in return for hu"e amounts of mostl! indirect aid from
reli"ion. Thus, strict separationists are cau"ht in an akard position of claimin" a
constitutional principle that has never e?isted and is never likel! to.
+03
A tamer version of the strict separationist vie, the strict neutralit! or separationist
vie is lar"el! used b! the Court, shoin" the Court#s tendenc! to press relentlessl!
toards a more secular societ!.
+0)
$t finds basis in the Everson case here the Court
declared that 1efferson#s *all of separation* encapsulated the meanin" of the 4irst
Amendment but at the same time held that the 4irst Amendment *re%uires the state
to be neutral in its relations ith "roups of reli"ious believers and non/believersC it
does not re%uire the state to be their adversar!. 'tate poer is no more to be used
so as to handicap reli"ions than it is to favor them.* ,emphasis supplied-
+0+
>hile the
strict neutralit! approach is not hostile to reli"ion, it is strict in holdin" that reli"ion
ma! not be used as a basis for classification for purposes of "overnmental action,
hether the action confers ri"hts or privile"es or imposes duties or obli"ations. 9nl!
secular criteria ma! be the basis of "overnment action. $t does not permit, much less
re%uire, accommodation of secular pro"rams to reli"ious belief.
+0.
Professor Iurland
rote, vizA
The thesis proposed here as the proper construction of the reli"ion clauses
of the first amendment is that the freedom and separation clauses should be
read as a sin"le precept that "overnment cannot utiliDe reli"ion as a
standard for action or inaction because these clauses prohibit classification
in terms of reli"ion either to confer a benefit or to impose a burden.
+00
The Court has repeatedl! declared that reli"ious freedom means "overnment
neutralit! in reli"ious matters and the Court has also repeatedl! interpreted this
polic! of neutralit! to prohibit "overnment from actin" e?cept for secular purposes
and in a!s that have primaril! secular effects.
+05
Pra!er in public schools is an area here the Court has applied strict neutralit! and
refused to allo an! form of pra!er, spoken or silent, in the public schools as in En"el
and 'chempp.
+08
The McCollum case prohibitin" optional reli"ious instruction ithin
public school premises durin" re"ular class hours also demonstrates strict neutralit!.
$n these education cases, the Court refused to uphold the "overnment action as the!
ere based not on a secular but on a reli"ious purpose. 'trict neutralit! as also
used in Re!nolds and 'mith hich both held that if "overnment acts in pursuit of a
"enerall! applicable la ith a secular purpose that merel! incidentall! burdens
reli"ious e?ercise, the 4irst Amendment has not been offended. :oever, if the strict
neutralit! standard is applied in interpretin" the Establishment Clause, it could de
facto void reli"ious e?pression in the 4ree E?ercise Clause. As pointed out b! 1ustice
Boldber" in his concurrin" opinion in 'chempp, strict neutralit! could lead to *a
broodin" and pervasive devotion to the secular and a passive, or even active,
hostilit! to the reli"ious* hich is prohibited b! the Constitution.
+02
Professor
6aurence Tribe commented in his authoritative treatise, viDA
To most observers. . . strict neutralit! has seemed incompatible ith the
ver! idea of a free e?ercise clause. The 4ramers, hatever specific
applications the! ma! have intended, clearl! envisioned reli"ion as
somethin" specialC the! enacted that vision into la b! "uaranteein" the
free e?ercise of reli"ion but not, sa!, of philosoph! or science. The strict
neutralit! approach all but erases this distinction. Thus it is not surprisin"
that the 'upreme Court has re(ected strict neutralit!, permittin" and
sometimes mandatin" reli"ious classifications.
+0<
The separationist approach, hether strict or tame, is cau"ht in a dilemma because
hile the 1effersonian all of separation *captures the spirit of the American ideal of
church/state separation*, in real life church and state are not and cannot be totall!
separate.
+0;
This is all the more true in contemporar! times hen both the
"overnment and reli"ion are "roin" and e?pandin" their spheres of involvement
and activit!, resultin" in the intersection of "overnment and reli"ion at man! points.
+53
22
Conse%uentl!, the Court has also decided cases emplo!in" benevolent neutralit!.
Benevolent neutralit! hich "ives room for accommodation is buttressed b! a
different vie of the *all of separation* associated ith >illiams, founder of the
Rhode $sland colon!. $n Mark @e>olfe :oe#s classic, The Barden and the
>ilderness, he asserts that to the e?tent the 4ounders had a all of separation in
mind, it as unlike the 1effersonian all that is meant to protect the state from the
churchC instead, the all is meant to protect the church from the state,
+5)
i.e., the
*"arden* of the church must be alled in for its on protection from the *ilderness*
of the orld
+5+
ith its potential for corruptin" those values so necessar! to reli"ious
commitment.
+5.
:oe called this the *theolo"ical* or *evan"elical* rationale for
church/state separation hile the all espoused b! *enli"htened* statesmen such as
1efferson and Madison, as a *political* rationale seekin" to protect politics from
intrusions b! the church.
+50
But it has been asserted that this contrast beteen the
>illiams and 1effersonian positions is more accuratel! described as a difference in
kinds or st!les of reli"ious thinkin", not as a conflict beteen *reli"ious* and *secular
,political-*C the reli"ious st!le as biblical and evan"elical in character hile the
secular st!le as "rounded in natural reli"ion, more "eneric and philosophical in its
reli"ious orientation.
+55
The >illiams all is, hoever, breached for the church is in the state and so the
remainin" purpose of the all is to safe"uard reli"ious libert!. >illiams# vie ould
therefore allo for interaction beteen church and state, but is strict ith re"ard to
state action hich ould threaten the inte"rit! of reli"ious commitment.
+58
:is
conception of separation is not total such that it provides basis for certain interactions
beteen church and state dictated b! apparent necessit! or practicalit!.
+52
This
*theolo"ical* vie of separation is found in >illiams# ritin"s, vizA
. . . hen the! have opened a "ap in the hed"e or all of separation
beteen the "arden of the church and the ilderness of the orld, Bod hath
ever broke don the all itself, removed the candlestick, and made his
"arden a ilderness, as this da!. And that therefore if :e ill eer please to
restore :is "arden and paradise a"ain, it must of necessit! be alled in
peculiarl! unto :imself from the orld. . .
+5<
Chief 1ustice Bur"er spoke of benevolent neutralit! in >alD, vizA
The "eneral principle deducible from the 4irst Amendment and all that has
been said b! the Court is thisA that e ill not tolerate either "overnmentall!
established reli"ion or "overnmental interference ith reli"ion. 'hort of
those e?pressl! proscribed "overnmental acts there is room for pla! in the
(oints productive of a benevolent neutralit! hich ill permit reli"ious
e?ercise to e?ist ithout sponsorship and ithout interference.
+5;
,emphasis
supplied-
The Eorach case e?pressed the doctrine of accommodation,
+83
viDA
The 4irst Amendment, hoever, does not sa! that in ever! and all respects
there shall be a separation of Church and 'tate. Rather, it studiousl!
defines the manner, the specific a!s, in hich there shall be no concert or
union or dependenc! one or the other. That is the common sense of the
matter. 9therise, the state and reli"ion ould be aliens to each other /
hostile, suspicious, and even unfriendl!. Churches could not be re%uired to
pa! even propert! ta?es. Municipalities ould not be permitted to render
police or fire protection to reli"ious "roups. Policemen ho helped
parishioners into their places of orship ould violate the Constitution.
Pra!ers in our le"islative hallsC the appeals to the Almi"ht! in the messa"es
of the Chief E?ecutiveC the proclamations makin" Thanks"ivin" @a! a
holida!C *so help me Bod* in our courtroom oaths/ these and all other
references to the Almi"ht! that run throu"h our las, our public rituals, our
ceremonies ould be floutin" the 4irst Amendment. A fastidious atheist or
a"nostic could even ob(ect to the supplication ith hich the Court opens
each sessionA #Bod save the &nited 'tates and this :onorable Court.
??? ??? ???
>e are a reli"ious people hose institutions presuppose a 'upreme Bein".
>e "uarantee the freedom to orship as one chooses. . . >hen the state
encoura"es reli"ious instruction or cooperates ith reli"ious authorities b!
ad(ustin" the schedule of public events, it follos the best of our traditions.
4or it then respects the reli"ious nature of our people and accommodates
the public service to their spiritual needs. To hold that it ma! not ould be to
find in the Constitution a re%uirement that the "overnment sho a callous
indifference to reli"ious "roups. . . But e find no constitutional re%uirement
hich makes it necessar! for "overnment to be hostile to reli"ion and to
thro its ei"ht a"ainst efforts to iden their effective scope of reli"ious
influence.
+8)
,emphases supplied-
Benevolent neutralit! is con"ruent ith the sociolo"ical proposition that reli"ion
serves a function essential to the survival of societ! itself, thus there is no human
societ! ithout one or more a!s of performin" the essential function of reli"ion.
Althou"h for some individuals there ma! be no felt need for reli"ion and thus it is
optional or even dispensable, for societ! it is not, hich is h! there is no human
societ! ithout one or more a!s of performin" the essential function of reli"ion.
Even in ostensibl! atheistic societies, there are vi"orous under"round reli"ion,s- and
surro"ate reli"ion,s- in their ideolo"!.
+8+
As one sociolo"ist roteA
$t is idel! held b! students of societ! that there are certain functional
prere%uisites ithout hich societ! ould not continue to e?ist. At first
"lance, this seems to be obvious / scarcel! more than to sa! that an
automobile could not e?ist, as a "oin" s!stem, ithout a carburetor. . . Most
riters list reli"ion amon" the functional prere%uisites.
+8.
23
Another noted sociolo"ist, Talcott Parsons, roteA *There is no knon human societ!
ithout somethin" hich modern social scientists ould classif! as a reli"ionL
Reli"ion is as much a human universal as lan"ua"e.*
+80
Benevolent neutralit! thus reco"niDes that reli"ion pla!s an important role in the
public life of the &nited 'tates as shon b! man! traditional "overnment practices
hich, to strict neutralit!, pose Establishment Clause %uestions. Amon" these are the
inscription of *$n Bod >e Trust* on American currenc!, the reco"nition of America as
*one nation under Bod* in the official pled"e of alle"iance to the fla", the 'upreme
Court#s time/honored practice of openin" oral ar"ument ith the invocation *Bod
save the &nited 'tates and this honorable Court,* and the practice of Con"ress and
ever! state le"islature of pa!in" a chaplain, usuall! of a particular Protestant
denomination to lead representatives in pra!er.
+85
These practices clearl! sho the
preference for one theolo"ical viepoint /the e?istence of and potential for
intervention b! a "od / over the contrar! theolo"ical viepoint of atheism. Church
and "overnment a"encies also cooperate in the buildin" of lo/cost housin" and in
other forms of poor relief, in the treatment of alcoholism and dru" addiction, in forei"n
aid and other "overnment activities ith stron" moral dimension.
+88
The persistence
of these de facto establishments are in lar"e part e?plained b! the fact that
throu"hout histor!, the evan"elical theor! of separation, i.e., >illiams# all, has
demanded respect for these de facto establishments.
+82
But the separationists have a
different e?planation. To characteriDe these as de jure establishments accordin" to
the principle of the 1effersonian all, the &.'. 'upreme Court, the man! dissentin"
and concurrin" opinions e?plain some of these practices as *#de minimis# instances of
"overnment endorsement or as historic "overnmental practices that have lar"el! lost
their reli"ious si"nificance or at least have proven not to lead the "overnment into
further involvement ith reli"ion.
+8<
>ith reli"ion looked upon ith benevolence and not hostilit!, benevolent neutralit!
allos accommodation of reli"ion under certain circumstances. Accommodations are
"overnment policies that take reli"ion specificall! into account not to promote the
"overnment#s favored form of reli"ion, but to allo individuals and "roups to e?ercise
their reli"ion ithout hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the e?ercise of, a person#s or institution#s reli"ion. As 1ustice
Brennan e?plained, the *"overnment Jma!K take reli"ion into accountLto e?empt,
hen possible, from "enerall! applicable "overnmental re"ulation individuals hose
reli"ious beliefs and practices ould otherise thereb! be infrin"ed, or to create
ithout state involvement an atmosphere in hich voluntar! reli"ious e?ercise ma!
flourish.*
+8;
,emphasis supplied- Accommodation is forbearance and not alliance. it
does not reflect a"reement ith the minorit!, but respect for the conflict beteen the
temporal and spiritual authorit! in hich the minorit! finds itself.
+23
Accommodation is distin"uished from strict neutralit! in that the latter holds that
"overnment should base public polic! solel! on secular considerations, ithout
re"ard to the reli"ious conse%uences of its actions. The debate beteen
accommodation and strict neutralit! is at base a %uestion of meansA *$s the freedom
of reli"ion best achieved hen the "overnment is conscious of the effects of its action
on the various reli"ious practices of its people, and seeks to minimiDe interferences
ith those practicesH 9r is it best advanced throu"h a polic! of #reli"ious blindness# /
keepin" "overnment aloof from reli"ious practices and issuesH* An
accommodationist holds that it is "ood public polic!, and sometimes constitutionall!
re%uired, for the state to make conscious and deliberate efforts to avoid interference
ith reli"ious freedom. 9n the other hand, the strict neutralit! adherent believes that
it is "ood public polic!, and also constitutionall! re%uired, for the "overnment to avoid
reli"ion/specific polic! even at the cost of inhibitin" reli"ious e?ercise.
+2)
There are stron" and compellin" reasons, hoever, to take the accommodationist
position rather than the strict neutralit! position. 4irst, the accommodationist
interpretation is most consistent ith the lan"ua"e of the 4irst Amendment. The
reli"ion clauses contain to parallel provisions, both specificall! directed at *reli"ion.*
The "overnment ma! not *establish* reli"ion and neither ma! "overnment *prohibit*
it. Taken to"ether, the reli"ion clauses can be read most plausibl! as ardin" off to
e%ual and opposite threats to reli"ious freedom / "overnment action that promotes
the ,political- ma(orit!#s favored brand of reli"ion and "overnment action that impedes
reli"ious practices not favored b! the ma(orit!. The substantive end in vie is the
preservation of the autonom! of reli"ious life and not (ust the formal process value of
ensurin" that "overnment does not act on the basis of reli"ious bias. 9n the other
hand, strict neutralit! interprets the reli"ion clauses as alloin" "overnment to do
hatever it desires to or for reli"ion, as lon" as it does the same to or for comparable
secular entities. Thus, for e?ample, if "overnment prohibits all alcoholic consumption
b! minors, it can prohibit minors from takin" part in communion. Parado?icall!, this
vie ould make the reli"ion clauses violate the reli"ion clauses, so to speak, since
the reli"ion clauses sin"le out reli"ion b! name for special protection. 'econd, the
accommodationist position best achieves the purposes of the 4irst Amendment. The
principle underl!in" the 4irst Amendment is that freedom to carr! out one#s duties to
a 'upreme Bein" is an inalienable ri"ht, not one dependent on the "race of
le"islature. Althou"h inalienable, it is necessaril! limited b! the ri"hts of others,
includin" the public ri"ht of peace and "ood order. Nevertheless it is a substantive
ri"ht and not merel! a privile"e a"ainst discriminator! le"islation. The
accomplishment of the purpose of the 4irst Amendment re%uires more than the
*reli"ion blindness* of strict neutralit!. >ith the pervasiveness of "overnment
re"ulation, conflicts ith reli"ious practices become fre%uent and intense. 6as that
are suitable for secular entities are sometimes inappropriate for reli"ious entities,
thus the "overnment must make special provisions to preserve a de"ree of
independence for reli"ious entities for them to carr! out their reli"ious missions
accordin" to their reli"ious beliefs. 9therise, reli"ion ill become (ust like other
secular entities sub(ect to pervasive re"ulation b! ma(oritarian institutions. Third, the
accommodationist interpretation is particularl! necessar! to protect adherents of
minorit! reli"ions from the inevitable effects of ma(oritarianism, hich include
i"norance and indifference and overt hostilit! to the minorit!. $n a democratic
republic, las are inevitabl! based on the presuppositions of the ma(orit!, thus not
infre%uentl!, the! come into conflict ith the reli"ious scruples of those holdin"
different orld vies, even in the absence of a deliberate intent to interfere ith
reli"ious practice. At times, this effect is unavoidable as a practical matter because
some las are so necessar! to the common "ood that e?ceptions are intolerable. But
24
in other instances, the in(ur! to reli"ious conscience is so "reat and the advancement
of public purposes so small or incomparable that onl! indifference or hostilit! could
e?plain a refusal to make e?emptions. Because of plural traditions, le"islators and
e?ecutive officials are fre%uentl! illin" to make such e?emptions hen the need is
brou"ht to their attention, but this ma! not ala!s be the case hen the reli"ious
practice is either unknon at the time of enactment or is for some reason unpopular.
$n these cases, a constitutional interpretation that allos accommodations prevents
needless in(ur! to the reli"ious consciences of those ho can have an influence in
the le"islatureC hile a constitutional interpretation that re%uires accommodations
e?tends this treatment to reli"ious faiths that are less able to protect themselves in
the political arena. 4ourth, the accommodationist position is practical as it is a
commonsensical a! to deal ith the various needs and beliefs of different faiths in a
pluralistic nation. >ithout accommodation, man! otherise beneficial las ould
interfere severel! ith reli"ious freedom. Aside from las a"ainst servin" alcoholic
bevera"es to minors conflictin" ith celebration of communion, re"ulations re%uirin"
hard hats in construction areas can effectivel! e?clude Amish and 'ikhs from the
orkplace, or emplo!ment anti/discrimination las can conflict ith the Roman
Catholic male priesthood, amon" others. E?emptions from such las are eas! to
craft and administer and contribute much to promotin" reli"ious freedom at little cost
to public polic!. >ithout e?emptions, le"islature ould be fre%uentl! forced to choose
beteen violatin" reli"ious conscience of a se"ment of the population or dispensin"
ith le"islation it considers beneficial to societ! as a hole. E?emption seems
manifestl! more reasonable than either of the alternativeA no e?emption or no la.
+2+
Benevolent neutralit! "ives room for different kinds of accommodationA those hich
are constitutionall! compelled, i.e., re%uired b! the 4ree E?ercise ClauseC and those
hich are discretionar! or le"islative, i.e., and those not re%uired b! the 4ree
E?ercise Clause but nonetheless permitted b! the Establishment Clause.
+2.
'ome
1ustices of the 'upreme Court have also used the term accommodation to describe
"overnment actions that acknoled"e or e?press prevailin" reli"ious sentiments of
the communit! such as displa! of a reli"ious s!mbol on public propert! or the
deliver! of a pra!er at public ceremonial events.
+20
'tated otherise, usin"
benevolent neutralit! as a standard could result to three situations of
accommodationA those here accommodation is re%uired, those here it is
permissible, and those here it is prohibited. $n the first situation, accommodation is
re%uired to preserve free e?ercise protections and not unconstitutionall! infrin"e on
reli"ious libert! or create penalties for reli"ious freedom. Contrar! to the 'mith
declaration that free e?ercise e?emptions are *intentional "overnment advancement*,
these e?emptions merel! relieve the prohibition on the free e?ercise thus alloin" the
burdened reli"ious adherent to be left alone. The state must create e?ceptions to
las of "eneral applicabilit! hen these las threaten reli"ious convictions or
practices in the absence of a compellin" state interest.
+25
B! alloin" such
e?emptions, the 4ree E?ercise Clause does not "ive believers the ri"ht or privile"e to
choose for themselves to override sociall!/prescribed decisionC it allos them to obe!
spiritual rather than temporal authorit!
+28
for those ho seriousl! invoke the 4ree
E?ercise Clause claim to be fulfillin" a solemn dut!. Reli"ious freedom is a matter
less of ri"hts than dutiesC more precisel!, it is a matter of ri"hts derived from duties.
To den! a person or a communit! the ri"ht to act upon such a dut! can be (ustified
onl! b! appeal to a !et more compellin" dut!. 9f course, those denied ill usuall! not
find the reason for the denial compellin". *Because the! ma! turn out to be ri"ht
about the dut! in %uestion, and because, even if the! are ron", reli"ion bears
itness to that hich transcends the political order, such denials should be rare and
painfull! reluctant.*
+22
The Foder case is an e?ample here the Court held that the state must
accommodate the reli"ious beliefs of the Amish ho ob(ected to enrollin" their
children in hi"h school as re%uired b! la. The 'herbert case is another e?ample
here the Court held that the state unemplo!ment compensation plan must
accommodate the reli"ious convictions of 'herbert.
+2<
$n these cases of *burdensome
effect*, the modern approach of the Court has been to appl! strict scrutin!, i.e., to
declare the burden as permissible, the Court re%uires the state to demonstrate that
the re"ulation hich burdens the reli"ious e?ercise pursues a particularl! important
or compellin" "overnment "oal throu"h the least restrictive means. $f the state#s
ob(ective could be served as ell or almost as ell b! "rantin" an e?emption to those
hose reli"ious beliefs are burdened b! the re"ulation, such an e?emption must be
"iven.
+2;
This approach of the Court on *burdensome effect* as onl! applied since
the );83s. Prior to this time, the Court took the separationist vie that as lon" as the
state as actin" in pursuit of non/reli"ious ends and re"ulatin" conduct rather than
pure reli"ious beliefs, the 4ree E?ercise Clause did not pose a hindrance such as in
Re!nolds.
+<3
$n the second situation here accommodation is permissible, the state
ma!, but is not re%uired to, accommodate reli"ious interests. The >alD case
illustrates this situation here the Court upheld the constitutionalit! of ta? e?emption
"iven b! Ne Fork to church properties, but did not rule that the state as re%uired to
provide ta? e?emptions. The Court declared that *,t-he limits of permissible state
accommodation to reli"ion are b! no means co/e?tensive ith the noninterference
mandated b! the 4ree E?ercise Clause.*
+<)
The Court held that Ne Fork could have
an interest in encoura"in" reli"ious values and avoidin" threats to those values
throu"h the burden of propert! ta?es. 9ther e?amples are the Eorach case alloin"
released time in public schools and Marsh alloin" pa!ment of le"islative chaplains
from public funds. 4inall!, in the situation here accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To sa! that
there are valid e?emptions buttressed b! the 4ree E?ercise Clause does not mean
that all claims for free e?ercise e?emptions are valid.
+<+
An e?ample here
accommodation as prohibited is McCollum here the Court ruled a"ainst optional
reli"ious instruction in the public school premises.
+<.
$n effect, the last situation ould
arrive at a strict neutralit! conclusion.
$n the first situation here accommodation is re%uired, the approach follos this
basic frameorkA
$f the plaintiff can sho that a la or "overnment practice inhibits the free
e?ercise of his reli"ious beliefs, the burden shifts to the "overnment to
demonstrate that the la or practice is necessar! to the accomplishment of
some important ,or #compellin"#- secular ob(ective and that it is the least
restrictive means of achievin" that ob(ective. $f the plaintiff meets this
25
burden and the "overnment does not, the plaintiff is entitled to e?emption
from the la or practice at issue. $n order to be protected, the claimant#s
beliefs must be #sincere#, but the! need not necessaril! be consistent,
coherent, clearl! articulated, or con"ruent ith those of the claimant#s
reli"ious denomination. #9nl! beliefs rooted in reli"ion are protected b! the
4ree E?ercise Clause#C secular beliefs, hoever sincere and conscientious,
do not suffice.
+<0
$n other ords, a three/step process ,also referred to as the *to/step balancin"
process* supra hen the second and third steps are combined- as in 'herbert is
folloed in ei"hin" the state#s interest and reli"ious freedom hen these collide.
Three %uestions are ansered in this process. 4irst, *,h-as the statute or "overnment
action created a burden on the free e?ercise of reli"ionH* The courts often look into
the sincerit! of the reli"ious belief, but ithout in%uirin" into the truth of the belief
because the 4ree E?ercise Clause prohibits in%uirin" about its truth as held in Ballard
and Cantell. The sincerit! of the claimant#s belief is ascertained to avoid the mere
claim of reli"ious beliefs to escape a mandator! re"ulation. As evidence of sincerit!,
the &.'. 'upreme Court has considered historical evidence as in >isconsin here
the Amish people had held a lon"/standin" ob(ection to enrollin" their children in
ninth and tenth "rades in public hi"h schools. $n another case, Do(3'. 2. D'st-'#t o/
Co&u1('",
+<5
the Court denied the claim of a part! ho refused to appear in court on
'aturda! alle"in" he as a 'abbatarian, but the Court noted that he re"ularl!
conducted business on 'aturda!. Althou"h it is true that the Court mi"ht erroneousl!
den! some claims because of a mis(ud"ment of sincerit!, this is not as ar"ument to
re(ect all claims b! not alloin" accommodation as a rule. There mi"ht be in(ur! to
the particular claimant or to his reli"ious communit!, but for the most part, the
in(ustice is done onl! in the particular case.
+<8
Aside from the sincerit!, the court ma!
look into the centralit! of those beliefs, assessin" them not on an ob(ective basis but
in terms of the opinion and belief of the person seekin" e?emption. $n >isconsin, for
e?ample, the Court noted that the Amish people#s convictions a"ainst becomin"
involved in public hi"h schools ere central to their a! of life and faith. 'imilarl!, in
'herbert, the Court concluded that the prohibition a"ainst 'aturda! ork as a
*cardinal principle.*
+<2
Professor 6upu puts to task the person claimin" e?emption,
vizA
9n the claimant#s side, the meanin" and si"nificance of the relevant
reli"ious practice must be demonstrated. Reli"ious command should
outei"h custom, individual conscience should count for more than
personal convenience, and theolo"ical principle should be of "reater
si"nificance than institutional ease. 'incerit! matters, ,footnote omitted- and
lon"evit! of practice / both b! the individual and ithin the individual#s
reli"ious tradition / reinforces sincerit!. Most importantl!, the la of free
e?ercise must be inclusive and e?pansive, reco"niDin" non/Christian
reli"ions / eastern, >estern, abori"inal and otherise / as constitutionall!
e%ual to their Christian counterparts, and acceptin" of the intensit! and
scope of fundamentalist creed.
+<<
'econd, the court asksA *,i-s there a sufficientl! compellin" state interest to (ustif! this
infrin"ement of reli"ious libert!H* $n this step, the "overnment has to establish that its
purposes are le"itimate for the state and that the! are compellin". Bovernment must
do more than assert the ob(ectives at risk if e?emption is "ivenC it must precisel!
sho ho and to hat e?tent those ob(ectives ill be undermined if e?emptions are
"ranted.
+<;
The person claimin" reli"ious freedom, on the other hand, ill endeavor
to sho that the interest is not le"itimate or that the purpose, althou"h le"itimate, is
not compellin" compared to infrin"ement of reli"ious libert!. This step involves
balancin", i.e., ei"hin" the interest of the state a"ainst reli"ious libert! to determine
hich is more compellin" under the particular set of facts. The "reater the state#s
interests, the more central the reli"ious belief ould have to be to overcome it. $n
assessin" the state interest, the court ill have to determine the importance of the
secular interest and the e?tent to hich that interest ill be impaired b! an e?emption
for the reli"ious practice. 'hould the court find the interest trul! compellin", there ill
be no re%uirement that the state diminish the effectiveness of its re"ulation b!
"rantin" the e?emption.
+;3
Third, the court asksA *,h-as the state in achievin" its le"itimate purposes used the
least intrusive means possible so that the free e?ercise is not infrin"ed an! more
than necessar! to achieve the le"itimate "oal of the stateH*
+;)
The anal!sis re%uires
the state to sho that the means in hich it is achievin" its le"itimate state ob(ective
is the least intrusive means, i.e., it has chosen a a! to achieve its le"itimate state
end that imposes as little as possible on reli"ious liberties. $n Cantell, for e?ample,
the Court invalidated the license re%uirement for the door/to/door solicitation as it
as a forbidden burden on reli"ious libert!, notin" that less drastic means of insurin"
peace and tran%uilit! e?isted. As a hole, in carr!in" out the compellin" state interest
test, the Court should "ive careful attention to conte?t, both reli"ious and re"ulator!,
to achieve refined (ud"ment.
+;+
$n sum, as shon b! &.'. (urisprudence on reli"ion clause cases, the competin"
values of secular "overnment and reli"ious freedom create tensions that make
constitutional la on the sub(ect of reli"ious libert! unsettled, mirrorin" the evolvin"
vies of a d!namic societ!.
+;.
*II. R$&'g'o. C&"us$s '. t0$ P0'&'%%'.$s
A. 7'sto-6
Before our countr! fell under American rule, the blanket of Catholicism covered the
archipela"o. There as a union of church and state and Catholicism as the state
reli"ion under the 'panish Constitution of )<28. Civil authorities e?ercised reli"ious
functions and the friars e?ercised civil poers.
+;0
Catholics alone en(o!ed the ri"ht of
en"a"in" in public ceremonies of orship.
+;5
Althou"h the 'panish Constitution itself
as not e?tended to the Philippines, Catholicism as also the established church in
our countr! under the 'panish rule. Catholicism as in fact protected b! the 'panish
Penal Code of )<<0 hich as in effect in the Philippines. 'ome of the offenses in
chapter si? of the Penal Code entitled *Crimes a"ainst Reli"ion and >orship*
26
referred to crimes a"ainst the state reli"ion.
+;8
The comin" of the Americans to our
countr!, hoever, chan"ed this state/church scheme for ith the advent of this
re"ime, the uni%ue American e?periment of *separation of church and state* as
transported to Philippine soil.
Even as earl! as the conclusion of the Treat! of Paris beteen the &nited 'tates and
'pain on @ecember )3, )<;<, the American "uarantee of reli"ious freedom had been
e?tended to the Philippines. The Treat! provided that *the inhabitants of the
territories over hich 'pain relin%uishes or cedes her soverei"nt! shall be secured in
the free e?ercise of reli"ion.*
+;2
Even the 4ilipinos themselves "uaranteed reli"ious
freedom a month later or on 1anuar! ++, )<;; upon the adoption of the Malolos
Constitution of the Philippine Republic under Beneral Emilio A"uinaldo. $t provided
that *the 'tate reco"niDes the libert! and e%ualit! of all reli"ion ,de todos los cultos-
in the same manner as the separation of the Church and 'tate.* But the Malolos
Constitution and "overnment as short/lived as the Americans took over the rei"ns
of "overnment.
+;<
>ith the Philippines under the American re"ime, President McIinle! issued
$nstructions to the 'econd Philippine Commission, the bod! created to take over the
civil "overnment in the Philippines in );33. The $nstructions "uaranteed reli"ious
freedom, vizA
That no la shall be made respectin" the establishment of reli"ion or
prohibitin" the free e?ercise thereof, and that the free e?ercise and
en(o!ment of reli"ious profession and orship ithout discrimination or
preference shall forever be alloed ... that no form of reli"ion and no
minister of reli"ion shall be forced upon the communit! or upon an! citiDen
of the $slands, that, on the other hand, no minister of reli"ion shall be
interfered ith or molested in folloin" his callin".
+;;
This provision as based on the 4irst Amendment of the &nited 'tates Constitution.
6ikeise, the $nstructions declared that *,t-he separation beteen 'tate and Church
shall be real, entire and absolute.*
.33
Thereafter, ever! or"anic act of the Philippines contained a provision on freedom of
reli"ion. 'imilar to the reli"ious freedom clause in the $nstructions, the Philippine Bill
of );3+ provided thatA
No la shall be made respectin" an establishment of reli"ion or prohibitin" the free
e?ercise thereof, and that free e?ercise and en(o!ment of reli"ious orship, ithout
discrimination or preference, shall forever be alloed.
$n U.S. 2. 5"&#o-t",
.3)
the Court stated that the Philippine Bill of );3+ *caused the
complete separation of church and state, and the abolition of all special privile"es
and all restrictions theretofor conferred or imposed upon an! particular reli"ious
sect.*
.3+
The 1ones 6a of );)8 carried the same provision, but e?panded it ith a restriction
a"ainst usin" public mone! or propert! for reli"ious purposes, vizA
That no la shall be made respectin" an establishment of reli"ion or
prohibitin" the free e?ercise thereof, and that the free e?ercise and
en(o!ment of reli"ious profession and orship ithout discrimination or
preference, shall forever be alloedC and no reli"ious test shall be re%uired
for the e?ercise of civil or political ri"hts. No public mone! or propert! shall
ever be appropriated, applied, donated, or used, directl! or indirectl!, for the
use, benefit, or support of an! sect, church, denomination, sectarian
institution, or s!stem of reli"ion, or for the use, benefit or support of an!
priest, preacher, minister, or other reli"ious teachers or di"nitar! as such.
This as folloed b! the Philippine $ndependence 6a or T!din"s/Mc@uffie
6a of );.0 hich "uaranteed independence to the Philippines and
authoriDed the draftin" of a Philippine constitution. $t en(oined 4ilipinos to
include freedom of reli"ion in draftin" their constitution preparator! to the
"rant of independence. The la prescribed that *,a-bsolute toleration of
reli"ious sentiment shall be secured and no inhabitant or reli"ious
or"aniDation shall be molested in person or propert! on account of reli"ious
belief or mode of orship.*
.3.
The Constitutional Convention then be"an orkin" on the );.5 Constitution. $n their
proceedin"s, @ele"ate 1ose P. 6aurel as Chairman of the Committee on Bill of Ri"hts
acknoled"ed that *,i-t as the Treat! of Paris of @ecember )3, )<;<, hich first
introduced reli"ious toleration in our countr!. President McIinle!#s $nstructions to the
'econd Philippine Commission reasserted this ri"ht hich later as incorporated into
the Philippine Bill of );3+ and in the 1ones 6a.*
.30
$n accordance ith the T!din"s/
Mc@uffie 6a, the );.5 Constitution provided in the Bill of Ri"hts, Article $G, 'ection
2, viDA
'ec. 2. No la shall be made respectin" an establishment of reli"ion, or
prohibitin" the free e?ercise thereof, and the free e?ercise and en(o!ment of
reli"ious profession and orship, ithout discrimination or preference, shall
forever be alloed. No reli"ious test shall be re%uired for the e?ercise of civil
or political ri"hts.
This provision, borroed from the 1ones 6a, as readil! approved b! the
Convention.
.35
$n his speech as Chairman of the Committee on Bill of
Ri"hts, @ele"ate 6aurel said that modifications in phraseolo"! of the Bill of
Ri"hts in the 1ones 6a ere avoided henever possible because *the
principles must remain couched in a lan"ua"e e?pressive of their historical
back"round, nature, e?tent and limitations as construed and interpreted b!
the "reat statesmen and (urists that vitaliDed them.*
.38
27
The );2. Constitution hich superseded the );.5 Constitution contained an almost
identical provision on reli"ious freedom in the Bill of Ri"hts in Article $G, 'ection <,
viDA
'ec. <. No la shall be made respectin" an establishment of reli"ion, or
prohibitin" the free e?ercise thereof. The free e?ercise and en(o!ment of
reli"ious profession and orship, ithout discrimination or preference, shall
forever be alloed. No reli"ious test shall be re%uired for the e?ercise of civil
or political ri"hts.
This time, hoever, the Beneral Provisions in Article MG added in 'ection )5 that
*,t-he separation of church and state shall be inviolable.*
>ithout discussion b! the );<8 Constitutional Commission, the );2. reli"ious
clauses ere reproduced in the );<2 Constitution under the Bill of Ri"hts in Article
$$$, 'ection 5.
.32
6ikeise, the provision on separation of church and state as
included verbatim in the );<2 Constitution, but this time as a principle in 'ection 8,
Article $$ entitled @eclaration of Principles and 'tate Policies.
Considerin" the American ori"in of the Philippine reli"ion clauses and the intent to
adopt the historical back"round, nature, e?tent and limitations of the 4irst
Amendment of the &.'. Constitution hen it as included in the );.5 Bill of Ri"hts, it
is not surprisin" that nearl! all the ma(or Philippine cases involvin" the reli"ion
clauses turn to &.'. (urisprudence in e?plainin" the nature, e?tent and limitations of
these clauses. :oever, a close scrutin! of these cases ould also reveal that hile
&.'. (urisprudence on reli"ion clauses flos into to main streams of interpretation /
separation and benevolent neutralit! / the ell/sprin" of Philippine (urisprudence on
this sub(ect is for the most part, benevolent neutralit! hich "ives room for
accommodation.
5. Ju-'s%-u+$.#$
$n revisitin" the landscape of Philippine (urisprudence on the reli"ion clauses, e
be"in ith the definition of *reli"ion*. *Reli"ion* is derived from the Middle En"lish
reli"ioun, from 9ld 4rench reli"ion, from 6atin reli"io, va"uel! referrin" to a *bond
beteen man and the "ods.*
.3<
This pre/Christian term for the cult and rituals of
pa"an Rome as first ChristianiDed in the 6atin translation of the Bible.
.3;
>hile the
&.'. 'upreme Court has had to take up the challen"e of definin" the parameters and
contours of *reli"ion* to determine hether a non/theistic belief or act is covered b!
the reli"ion clauses, this Court has not been confronted ith the same issue. $n
Philippine (urisprudence, reli"ion, for purposes of the reli"ion clauses, has thus far
been interpreted as theistic. $n );.2, the P0'&'%%'.$ #"s$ o/ Ag&'%"6 2. Ru';
.)3

involvin" the Establishment Clause, defined *reli"ion* as a *profession of faith to an
active poer that binds and elevates man to his Creator.* Tent! !ears later, the
Court cited the A"lipa! definition in A1$-'#". 5'(&$ So#'$t6 2. C't6 o/ M".'&",
.))
a
case involvin" the 4ree E?ercise clause. The latter also cited the American case of
@avis in definin" reli"ion, vizA *,i-t has reference to one#s vies of his relations to :is
Creator and to the obli"ations the! impose of reverence to :is bein" and character
and obedience to :is >ill.* The Beason definition, hoever, has been e?panded in
&.'. (urisprudence to include non/theistic beliefs.
1. !-$$ E4$-#'s$ C&"us$
4reedom of choice "uarantees the libert! of the reli"ious conscience and prohibits
an! de"ree of compulsion or burden, hether direct or indirect, in the practice of
one#s reli"ion. The 4ree E?ercise Clause principall! "uarantees voluntarism,
althou"h the Establishment Clause also assures voluntarism b! placin" the burden of
the advancement of reli"ious "roups on their intrinsic merits and not on the support
of the state.
.)+
$n interpretin" the 4ree E?ercise Clause, the realm of belief poses no difficult!. The
earl! case of 9$-o." 2. S$#-$t"-6 o/ E+u#"t'o.
.).
is instructive on the matter, viDA
The realm of belief and creed is infinite and limitless bounded onl! b! one#s
ima"ination and thou"ht. 'o is the freedom of belief, includin" reli"ious
belief, limitless and ithout bounds. 9ne ma! believe in most an!thin",
hoever stran"e, biDarre and unreasonable the same ma! appear to others,
even heretical hen ei"hed in the scales of orthodo?! or doctrinal
standards. But beteen the freedom of belief and the e?ercise of said belief,
there is %uite a stretch of road to travel.
.)0
The difficult! in interpretation sets in hen belief is e?ternaliDed into speech and
action.
Reli"ious speech comes ithin the pale of the 4ree E?ercise Clause as illustrated in
the American Bible 'ociet! case. $n that case, plaintiff American Bible 'ociet! as a
forei"n, non/stock, non/profit, reli"ious missionar! corporation hich sold bibles and
"ospel portions of the bible in the course of its ministr!. The defendant Cit! of Manila
re%uired plaintiff to secure a ma!or#s permit and a municipal license as ordinaril!
re%uired of those en"a"ed in the business of "eneral merchandise under the cit!#s
ordinances. Plaintiff ar"ued that this amounted to *reli"ious censorship and
restrained the free e?ercise and en(o!ment of reli"ious profession, to itA the
distribution and sale of bibles and other reli"ious literature to the people of the
Philippines.*
After definin" reli"ion, the Court, citin" Tanada and 4ernando, made this statement,
vizA
The constitutional "uarant! of the free e?ercise and en(o!ment of reli"ious
profession and orship carries ith it the ri"ht to disseminate reli"ious
information. An! restraint of such ri"ht can onl! be (ustified like other
restraints of freedom of e?pression on the "rounds that there is a clear and
28
present dan"er of an! substantive evil hich the 'tate has the ri"ht to
prevent. ,Tanada and 4ernando on the Constitution of the Philippines, vol.
), 0th ed., p. +;2- ,emphasis supplied-
This as the Court#s maiden une%uivocal affirmation of the *clear and present
dan"er* rule in the reli"ious freedom area, and in Philippine (urisprudence, for that
matter.
.)5
The case did not clearl! sho, hoever, hether the Court proceeded to
appl! the test to the facts and issues of the case, i.e., it did not identif! the secular
value the "overnment re"ulation sou"ht to protect, hether the reli"ious speech
posed a clear and present dan"er to this or other secular value protected b!
"overnment, or hether there as dan"er but it could not be characteriDed as clear
and present. $t is one thin" to appl! the test and find that there is no clear and
present dan"er, and %uite another not to appl! the test alto"ether.
$nstead, the Court cate"oricall! held that the %uestioned ordinances ere not
applicable to plaintiff as it as not en"a"ed in the business or occupation of sellin"
said *merchandise* for profit. To add, the Court, citin" Mu-+o#3 2. P$..s6&2".'",
.)8

ruled that appl!in" the ordinance re%uirin" it to secure a license and pa! a license
fee or ta? ould impair its free e?ercise of reli"ious profession and orship and its
ri"ht of dissemination of reli"ious beliefs *as the poer to ta? the e?ercise of a
privile"e is the poer to control or suppress its en(o!ment.* Thus, in American Bible
'ociet!, the *clear and present dan"er* rule as laid don but it as not clearl!
applied.
$n the much later case of To&$.t'.o 2. S$#-$t"-6 o/ !'.".#$,
.)2
also involvin" the
sale of reli"ious books, the Court distin"uished the American Bible 'ociet! case from
the facts and issues in Tolentino and did not appl! the American Bible 'ociet! rulin".
$n Tolentino, the Philippine Bible 'ociet! challen"ed the validit! of the re"istration
provisions of the Galue Added Ta? ,GAT- 6a as a prior restraint. The Court held,
hoever, that the fi?ed amount of re"istration fee as not imposed for the e?ercise of
a privile"e like a license ta? hich American Bible 'ociet! ruled as violative of
reli"ious freedom. Rather, the re"istration fee as merel! an administrative fee to
defra! part of the cost of re"istration hich as a central feature of the GAT s!stem.
Citin" J'116 S)"gg"-t M'.'st-'$s 2. 5o"-+ o/ E=u"&';"t'o.,
.)<
the Court also
declared prefatoril! that *the 4ree E?ercise of Reli"ion Clause does not prohibit
imposin" a "enerall! applicable sales and use ta? on the sale of reli"ious materials
b! a reli"ious or"aniDation.* $n the Court#s resolution of the motion for reconsideration
of the Tolentino decision, the Court noted that the burden on reli"ious freedom
caused b! the ta? as (ust similar to an! other economic imposition that mi"ht make
the ri"ht to disseminate reli"ious doctrines costl!.
To !ears after American Bible 'ociet! came the );5; case of 9$-o." 2. S$#-$t"-6
o/ E+u#"t'o.,
.);
this time involvin" conduct e?pressive of reli"ious belief collidin"
ith a rule prescribed in accordance ith la. $n this case, petitioners ere members
of the 1ehovah#s >itnesses. The! challen"ed a @epartment 9rder issued b! the
'ecretar! of Education implementin" Republic Act No. )+85 hich prescribed
compulsor! fla" ceremonies in all public schools. $n violation of the 9rder, petitioner#s
children refused to salute the Philippine fla", sin" the national anthem, or recite the
patriotic pled"e, hence the! ere e?pelled from school. 'eekin" protection under the
4ree E?ercise Clause, petitioners claimed that their refusal as on account of their
reli"ious belief that the Philippine fla" is an ima"e and salutin" the same is contrar!
to their reli"ious belief. The Court stated, vizA
. . . $f the e?ercise of reli"ious belief clashes ith the established institutions
of societ! and ith the la, then the former must !ield to the latter. The
Bovernment steps in and either restrains said e?ercise or even prosecutes
the one e?ercisin" it. ,emphasis supplied-
.+3
The Court then proceeded to determine if the acts involved constituted a reli"ious
ceremon! in conflict ith the beliefs of the petitioners ith the folloin" (ustificationA
After all, the determination of hether a certain ritual is or is not a reli"ious ceremon!
must rest ith the courts. $t cannot be left to a reli"ious "roup or sect, much less to a
folloer of said "roup or sectC otherise, there ould be confusion and
misunderstandin" for there mi"ht be as man! interpretations and meanin" to be
"iven to a certain ritual or ceremon! as there are reli"ious "roups or sects or
folloers, all dependin" upon the meanin" hich the!, thou"h in all sincerit! and
"ood faith, ma! ant to "ive to such ritual or ceremon!.
.+)
$t as held that the fla" as not an ima"e, the fla" salute as not a reli"ious
ceremon!, and there as nothin" ob(ectionable about the sin"in" of the national
anthem as it speaks onl! of love of countr!, patriotism, libert! and the "lor! of
sufferin" and d!in" for it. The Court upheld the %uestioned 9rder and the e?pulsion
of petitioner#s children, stressin" thatA
Men ma! differ and do differ on reli"ious beliefs and creeds, "overnment
policies, the isdom and le"alit! of las, even the correctness of (udicial
decisions and decreesC but in the field of love of countr!, reverence for the
fla", national unit! and patriotism, the! can hardl! afford to differ, for these
are matters in hich the! are mutuall! and vitall! interested, for to them,
the! mean national e?istence and survival as a nation or national
e?tinction.
.++
$n support of its rulin", the Court cited 1ustice 4rankfurter#s dissent in the Barnette
case, viDA
The constitutional protection of reli"ious freedom ? ? ? "ave reli"ious
e%ualit!, not civil immunit!. $ts essence is freedom from conformit! to
reli"ious do"ma, not freedom from conformit! to la because of reli"ious
do"ma.
.+.
$t stated in cate"orical terms, viDA
29
The freedom of reli"ious belief "uaranteed b! the Constitution does not and cannot
mean e?emption from or non/compliance ith reasonable and non/discriminator!
las, rules and re"ulations promul"ated b! competent authorit!.
.+0
Thus, the reli"ious freedom doctrines one can derive from Berona areA ,)- it is
incumbent upon the Court to determine hether a certain ritual is reli"ious or notC ,+-
reli"ious freedom ill not be upheld if it clashes ith the established institutions of
societ! and ith the la such that hen a la of "eneral applicabilit! ,in this case the
@epartment 9rder- incidentall! burdens the e?ercise of one#s reli"ion, one#s ri"ht to
reli"ious freedom cannot (ustif! e?emption from compliance ith the la. The Berona
rulin" as reiterated in 5"&(u.", $t "&. 2. S$#-$t"-6 o/ E+u#"t'o., $t "&.
.+5
4ifteen !ears after Berona came the );20 case of Gictoriano v. EliDalde Rope
>orkers &nion.J.+8K $n this unanimousl! decided en banc case, Gictoriano as a
member of the $"lesia ni Cristo hich prohibits the affiliation of its members ith an!
labor or"aniDation. :e orked in the EliDalde Rope 4actor!, $nc. and as a member
of the EliDalde Rope >orkers &nion hich had ith the compan! a closed shop
provision pursuant to Republic Act No. <25 alloin" closed shop arran"ements.
'ubse%uentl!, Republic Act No. ..53 as enacted e?emptin" from the application
and covera"e of a closed shop a"reement emplo!ees belon"in" to an! reli"ious sect
hich prohibits affiliation of their members ith an! labor or"aniDation. Gictoriano
resi"ned from the union after Republic Act No. ..53 took effect. The union notified
the compan! of Gictoriano#s resi"nation, hich in turn notified Gictoriano that unless
he could make a satisfactor! arran"ement ith the union, the compan! ould be
constrained to dismiss him from the service. Gictoriano sou"ht to en(oin the compan!
and the union from dismissin" him. The court havin" "ranted the in(unction, the union
came to this Court on %uestions of la, amon" hich as hether Republic Act No.
..53 as unconstitutional for impairin" the obli"ation of contracts and for "rantin" an
e?emption offensive of the Establishment Clause. >ith respect to the first issue, the
Court ruled, vizA
Reli"ious freedom, althou"h not unlimited, is a fundamental personal ri"ht
and libert! ,'chneider v. $r"in"ton, .3< &.'. )02, )8), <0 6.ed.)55, )80, 83
'.Ct. )08- and has a preferred position in the hierarch! of values.
Contractual ri"hts, therefore, must !ield to freedom of reli"ion. $t is onl!
here unavoidabl! necessar! to prevent an immediate and "rave dan"er to
the securit! and elfare of the communit! that infrin"ement of reli"ious
freedom ma! be (ustified, and onl! to the smallest e?tent necessar!.
.+2

,emphasis supplied-
As re"ards the Establishment Clause issue, the Court after citin" the constitutional
provision on establishment and free e?ercise of reli"ion, declared, vizA
The constitutional provisions not onl! prohibits le"islation for the support of
an! reli"ious tenets or the modes of orship of an! sect, thus forestallin"
compulsion b! la of the acceptance of an! creed or the practice of an!
form of orship ,&.'. Ballard, .++ &.'. 2<, << 6. ed. ))0<, ))5.-, but also
assures the free e?ercise of one#s chosen form of reli"ion ithin limits of
utmost amplitude. $t has been said that the reli"ion clauses of the
Constitution are all desi"ned to protect the broadest possible libert! of
conscience, to allo each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ou"ht to live, consistent
ith the libert! of others and ith the common "ood. ,footnote omitted-. An!
le"islation hose effect or purpose is to impede the observance of one or all
reli"ions, or to discriminate invidiousl! beteen the reli"ions, is invalid, even
thou"h the burden ma! be characteriDed as bein" onl! indirect. ,'herbert v.
Gerner, .20 &.'. .;<, )3 6.ed.+d ;85, <. '. Ct. );23- But if the state
re"ulates conduct b! enactin", ithin its poer, a "eneral la hich has for
its purpose and effect to advance the state#s secular "oals, the statute is
valid despite its indirect burden on reli"ious observance, unless the state
can accomplish its purpose ithout imposin" such burden. ,Braunfeld v.
Bron, .88 &.'. 5;;, 8 6 ed. +d. 58., <) '. Ct. )00C McBoan v. Mar!land,
.88 &.'. 0+3, 000/5 and 00;-
.+<
,emphasis supplied-
=uotin" Ag&'%"6 2. Ru';,
.+;
the Court held that *"overnment is not precluded from
pursuin" valid ob(ectives secular in character even if the incidental result ould be
favorable to a reli"ion or sect.* $t also cited 5o"-+ o/ E+u#"t'o. 2. A&&$.,
..3
hich
held that in order to ithstand the strictures of constitutional prohibition, a statute
must have a secular le"islative purpose and a primar! effect that neither advances
nor inhibits reli"ion. &sin" these criteria in upholdin" Republic Act No. ..53, the
Court pointed out, vizA
,Republic Act No. ..53- as intended to serve the secular purpose of
advancin" the constitutional ri"ht to the free e?ercise of reli"ion, b! avertin"
that certain persons be refused ork, or be dismissed from ork, or be
dispossessed of their ri"ht to ork and of bein" impeded to pursue a
modest means of livelihood, b! reason of union securit! a"reements. . . .
The primar! effects of the e?emption from closed shop a"reements in favor
of members of reli"ious sects that prohibit their members from affiliatin" ith
a labor or"aniDation, is the protection of said emplo!ees a"ainst the
a""re"ate force of the collective bar"ainin" a"reement, and relievin" certain
citiDens of a burden on their reli"ious beliefs, and . . . eliminatin" to a certain
e?tent economic insecurit! due to unemplo!ment.
..)
The Court stressed that *,a-lthou"h the e?emption ma! benefit those ho are
members of reli"ious sects that prohibit their members from (oinin" labor unions, the
benefit upon the reli"ious sects is merel! incidental and indirect.*
..+
$n enactin"
Republic Act No. ..53, Con"ress merel! relieved the e?ercise of reli"ion b! certain
persons of a burden imposed b! union securit! a"reements hich Con"ress itself
also imposed throu"h the $ndustrial Peace Act. The Court concluded the issue of
e?emption b! citin" 'herbert hich laid don the rule that hen "eneral las conflict
ith scruples of conscience, e?emptions ou"ht to be "ranted unless some
*compellin" state interest* intervenes. The Court then abruptl! added that *,i-n the
instant case, >e see no compellin" state interest to ithhold e?emption.*
...
30
A close look at Gictoriano ould sho that the Court mentioned several tests in
determinin" hen reli"ious freedom ma! be validl! limited. 4irst, the Court
mentioned the test of *immediate and "rave dan"er to the securit! and elfare of the
communit!* and *infrin"ement of reli"ious freedom onl! to the smallest e?tent
necessar!* to (ustif! limitation of reli"ious freedom. 'econd, reli"ious e?ercise ma!
be indirectl! burdened b! a "eneral la hich has for its purpose and effect the
advancement of the state#s secular "oals, provided that there is no other means b!
hich the state can accomplish this purpose ithout imposin" such burden. Third,
the Court referred to the *compellin" state interest* test hich "rants e?emptions
hen "eneral las conflict ith reli"ious e?ercise, unless a compellin" state interest
intervenes.
$t is orth notin", hoever, that the first to tests ere mentioned onl! for the
purpose of hi"hli"htin" the importance of the protection of reli"ious freedom as the
secular purpose of Republic Act No. ..53. &pholdin" reli"ious freedom as a
secular purpose insofar as it relieved the burden on reli"ious freedom caused b!
another la, i.e, the $ndustrial Peace Act providin" for union shop a"reements. The
first to tests ere onl! mentioned in Gictoriano but ere not applied b! the Court to
the facts and issues of the case. The third, the *compellin" state interest* test as
emplo!ed b! the Court to determine hether the e?emption provided b! Republic Act
No. ..53 as not unconstitutional. $t upheld the e?emption, statin" that there as no
*compellin" state interest* to strike it don. :oever, after careful consideration of
the 'herbert case from hich Gictoriano borroed this test, the inevitable conclusion
is that the *compellin" state interest* test as not appropriate and could not find
application in the Gictoriano case. $n 'herbert, appellant 'herbert invoked reli"ious
freedom in seekin" e?emption from the provisions of the 'outh Carolina
&nemplo!ment Compensation Act hich dis%ualified her from claimin"
unemplo!ment benefits. $t as the appellees, members of the 'outh Carolina
Emplo!ment Commission, a "overnment a"enc!, ho propounded the state interest
to (ustif! overridin" 'herbert#s claim of reli"ious freedom. The &.'. 'upreme Court,
considerin" 'herbert#s and the Commission#s ar"uments, found that the state interest
as not sufficientl! compellin" to prevail over 'herbert#s free e?ercise claim. This
situation did not obtain in the Gictoriano case here it as the "overnment itself,
throu"h Con"ress, hich provided the e?emption in Republic Act No. ..53 to allo
Gictoriano#s e?ercise of reli"ion. Thus, the "overnment could not ar"ue a"ainst the
e?emption on the basis of a compellin" state interest as it ould be ar"uin" a"ainst
itselfC hile Gictoriano ould not seek e?emption from the %uestioned la to allo the
free e?ercose of reli"ion as the la in fact provides such an e?emption. $n sum,
althou"h Gictoriano involved a reli"ious belief and conduct, it did not involve a free
e?ercise issue here the 4ree E?ercise Clause is invoked to e?empt him from the
burden imposed b! a la on his reli"ious freedom.
Gictoriano as reiterated in several cases involvin" the $"lesia ni Cristo, namel!
5"s", $t "&. 2. !$+$-"#'o. O(-$-" +$ &" I.+ust-'" T"("=u$-" 6 Ot-os
T-"(">"+o-$s +$ !'&'%'."s,
..0
A.u#$.s'o. 2. N"t'o."& L"(o- U.'o., $t "&.,
..5
and
9o.;"&$s, $t "&. 2. C$.t-"& A;u#"-$-" +$ T"-&"# L"(o- U.'o..
..8
Then came Berman v. Baran"an in );<5 at the hei"ht of the anti/administration
rallies. Petitioners ere alkin" to 't. 1ude Church ithin the Malacanan" securit!
area to pra! for *an end to violence* hen the! ere barred b! the police. $nvokin"
their constitutional freedom of reli"ious orship and locomotion, the! came to the
Court on a petition for mandamus to allo them to enter and pra! inside the 't. 1ude
Chapel. The Court as divided on the issue. The slim ma(orit! of si? reco"niDed their
freedom of reli"ion but noted their absence of "ood faith and concluded that the!
ere usin" their reli"ious libert! to e?press their opposition to the "overnment. Citin"
Cantell, the Court distin"uished beteen freedom to believe and freedom to act on
matters of reli"ion, vizA
. . . Thus the ,4irst- amendment embraces to concepts / freedom to
believe and freedom to act. The first is absolute, but in the nature of thin"s,
the second cannot be.
..2
The Court reiterated the Berona rulin", vizA
$n the case at bar, petitioners are not denied or restrained of their freedom
of belief or choice of their reli"ion, but onl! in the manner b! hich the! had
attempted to translate the same to action. This curtailment is in accord ith
the pronouncement of this Court in Berona v. 'ecretar! of Education ,)38
Phil. +-, thusA
. . . But beteen the freedom of belief and the e?ercise of said belief, there
is %uite a stretch of road to travel. $f the e?ercise of said reli"ious belief
clashes ith the established institutions of societ! and ith the la, then the
former must !ield and "ive a! to the latter. The "overnment steps in and
either restrains said e?ercise or even prosecutes the one e?ercisin" it.
,italics supplied-
The ma(orit! found that the restriction imposed upon petitioners as *necessar! to
maintain the smooth functionin" of the e?ecutive branch of the "overnment, hich
petitioners# mass action ould certainl! disrupt*
..<
and denied the petition. Thus,
ithout considerin" the tests mentioned in Gictoriano, Berman ent back to the
Berona rule that reli"ious freedom ill not be upheld if it clashes ith the established
institutions of societ! and the la.
Then Associate 1ustice Teehankee re"istered a dissent hich in subse%uent
(urisprudence ould be cited as a test in reli"ious freedom cases. :is dissent stated
in relevant part, viDA
A brief restatement of the applicable constitutional principles as set forth in
the landmark case of 1.B.6. Re!es v. Ba"atsin" ,)+5 'CRA 55.J);<.K-
should "uide us in resolvin" the issues.
31
). The ri"ht to freel! e?ercise one#s reli"ion is "uaranteed in 'ection < of our
Bill of Ri"hts. ,footnote omitted- 4reedom of orship, alon"side ith
freedom of e?pression and speech and peaceable assembl! *alon" ith the
other intellectual freedoms, are hi"hl! ranked in our scheme of
constitutional values. $t cannot be too stron"l! stressed that on the (udiciar!
/ even more so than on the other departments / rests the "rave and delicate
responsibilit! of assurin" respect for and deference to such preferred ri"hts.
No verbal formula, no sanctif!in" phrase can, of course, dispense ith hat
has been so felicitousl! termed b! 1ustice :olmes #as the soverei"n
prero"ative of (ud"ment.# Nonetheless, the presumption must be to incline
the ei"ht of the scales of (ustice on the side of such ri"hts, en(o!in" as
the! do precedence and primac!.# ,1.B.6. Re!es, )+5 'CRA at pp. 58;/523-
+. $n the free e?ercise of such preferred ri"hts, there is to be no prior
restraint althou"h there ma! be subse%uent punishment of an! ille"al acts
committed durin" the e?ercise of such basic ri"hts. The sole (ustification for
a prior restraint or limitation on the e?ercise of these basic ri"hts is the
e?istence of a "rave and present dan"er of a character both "rave and
imminent, of a serious evil to public safet!, public morals, public health or
an! other le"itimate public interest, that the 'tate has a ri"ht ,and dut!- to
prevent ,$dem, at pp. 583/58)-.
..;
,emphasis supplied-
The 1.B.6. Re!es v. Ba"atsin" case from hich this portion of 1ustice Teehankee#s
dissent as taken involved the ri"hts to free speech and assembl!, and not the
e?ercise of reli"ious freedom. At issue in that case as a permit sou"ht b! retired
1ustice 1.B.6. Re!es, on behalf of the Anti/Bases Coalition, from the Cit! of Manila to
hold a peaceful march and rall! from the 6uneta to the "ates of the &.'. Embass!.
Nevertheless Ba"atsin" as used b! 1ustice Teehankee in his dissent hich had
overtones of petitioner Berman and his companions# ri"ht to assemble and petition
the "overnment for redress of "rievances.
.03
$n );;., the issue on the 1ehovah#s >itnesses# participation in the fla" ceremon!
a"ain came before the Court in E(-"&'."g 2. T0$ D'2's'o. Su%$-'.t$.+$.t o/
S#0oo&s.
.0)
A unanimous Court overturned the Berona rulin" after three decades.
'imilar to Berona, this case involved several 1ehovah#s >itnesses ho ere
e?pelled from school for refusin" to salute the fla", sin" the national anthem and
recite the patriotic pled"e, in violation of the Administrative Code of );<2. $n resolvin"
the same reli"ious freedom issue as in Berona, the Court this time transported the
*"rave and imminent dan"er* test laid don in 1ustice Teehankee#s dissent in
Berman, vizA
The sole (ustification for a prior restraint or limitation on the e?ercise of
reli"ious freedom ,accordin" to the late Chief 1ustice Claudio Teehankee in
his dissentin" opinion in Berman v. Baran"an, ).5 'CRA 5)0, 5)2- is the
e?istence of a "rave and present dan"er of a character both "rave and
imminent, of a serious evil to public safet!, public morals, public health or
an! other le"itimate public interest, that the 'tate has a ri"ht ,and dut!- to
prevent. Absent such a threat to public safet!, the e?pulsion of the
petitioners from the schools is not (ustified.
.0+
,emphasis supplied-
The Court added, viDA
>e are not persuaded that b! e?emptin" the 1ehovah#s >itnesses from
salutin" the fla", sin"in" the national anthem and recitin" the patriotic
pled"e, this reli"ious "roup hich admittedl! comprises a #small portion of
the school population# ill shake up our part of the "lobe and suddenl!
produce a nation #untau"ht and uninculcated in and unimbued ith
reverence for the fla", patriotism, love of countr! and admiration for national
heroes# ,Berona v. 'ecretar! of Education, )38 Phil. ++0-. After all, hat the
petitioners seek onl! is e?emption from the fla" ceremon!, not e?clusion
from the public schools here the! ma! stud! the Constitution, the
democratic a! of life and form of "overnment, and learn not onl! the arts,
sciences, Philippine histor! and culture but also receive trainin" for a
vocation or profession and be tau"ht the virtues of #patriotism, respect for
human ri"hts, appreciation of national heroes, the ri"hts and duties of
citiDenship, and moral and spiritual values# ,'ec. .J+K, Art. M$G, );<2
Constitution- as part of the curricula. E?pellin" or bannin" the petitioners
from Philippine schools ill brin" about the ver! situation that this Court has
feared in Berona. 4orcin" a small reli"ious "roup, throu"h the iron hand of
the la, to participate in a ceremon! that violates their reli"ious beliefs, ill
hardl! be conducive to love of countr! or respect for dul! constituted
authorities.
.0.
Barnette also found its a! to the opinion, viDA
4urthermore, let it be noted that coerced unit! and lo!alt! even to the
countr!, ? ? ?/ assumin" that such unit! and lo!alt! can be attained throu"h
coercion/ is not a "oal that is constitutionall! obtainable at the e?pense of
reli"ious libert!. A desirable end cannot be promoted b! prohibited means.
,Me!er vs. Nebraska, +8+ &.'. .;3, 82 6. ed. )30+, )308-.
.00
Toards the end of the decision, the Court also cited the Gictoriano case and its use
of the *compellin" state interest* test in accordin" e?emption to the 1ehovah#s
>itnesses, vizA
$n Gictoriano vs. EliDalde Rope >orkers# &nion, 5; 'CRA 50, 2+/25, e
upheld the e?emption of members of the $"lesia ni Cristo, from the covera"e
of a closed shop a"reement beteen their emplo!er and a union because it
ould violate the teachin" of their church not to (oin an! "roupA
#? ? ? $t is certain that not ever! conscience can be accommodated
b! all the las of the landC but hen "eneral las conflict ith
scruples of conscience, e?emptions ou"ht to be "ranted unless
32
some #compellin" state interest# intervenes.# ,'herbert vs. Gerner,
.20 &.'. .;<, )3 6. Ed. +d ;85, ;23, <. '.Ct. )2;3-#
>e hold that a similar e?emption ma! be accorded to the 1ehovah#s
>itnesses ith re"ard to the observance of the fla" ceremon! out of
respect for their reli"ious beliefs, hoever #biDarre# those beliefs ma! seem
to others.
.05
The Court annulled the orders e?pellin" petitioners from school.
Thus, the *"rave and imminent dan"er* test laid don in a dissentin" opinion in
Berman hich involved prior restraint of reli"ious orship ith overtones of the ri"ht
to free speech and assembl!, as transported to Ebralina" hich did not involve
prior restraint of reli"ious orship, speech or assembl!. Althou"h, it mi"ht be
observed that the Court faintl! implied that Ebralina" also involved the ri"ht to free
speech hen in its preliminar! remarks, the Court stated that compellin" petitioners
to participate in the fla" ceremon! *is alien to the conscience of the present
"eneration of 4ilipinos ho cut their teeth on the Bill of Ri"hts hich "uarantees their
ri"hts to free speech and the free e?ercise of reli"ious profession and orshipC* the
Court then stated in a footnote that the *fla" salute, sin"in" the national anthem and
recitin" the patriotic pled"e are all forms of utterances.*
.08
The *compellin" state interest* test as not full! applied b! the Court in Ebralina". $n
the 'olicitor Beneral#s consolidated comment, one of the "rounds cited to defend the
e?pulsion orders issued b! the public respondents as that *,t-he 'tate#s compellin"
interests bein" pursued b! the @EC#s laful re"ulations in %uestion do not arrant
e?emption of the school children of the 1ehovah#s >itnesses from the fla" salute
ceremonies on the basis of their on self/perceived reli"ious convictions.*
.02
The
Court, hoever, referred to the test onl! toards the end of the decision and did not
even mention hat the 'olicitor Beneral ar"ued as the compellin" state interest,
much less did the Court e?plain h! the interest as not sufficientl! compellin" to
override petitioners# reli"ious freedom.
Three !ears after Ebralina", the Court decided the );;8 case of Ig&$s'" .' C-'sto 2.
Cou-t o/ A%%$"&s, $t "&.
.0<
Althou"h there as a dissent ith respect to the
applicabilit! of the *clear and present dan"er* test in this case, the ma(orit! opinion in
une%uivocal terms applied the *clear and present dan"er* test to reli"ious speech.
This case involved the television pro"ram, *An" $"lesia ni Cristo,* re"ularl! aired over
the television. &pon petitioner $"lesia ni Cristo#s submission of the GTR tapes of
some of its episodes, respondent Board of Revie for Motion Pictures and Television
classified these as *M* or not for public viein" on the "round that the! *offend and
constitute an attack a"ainst other reli"ions hich is e?pressl! prohibited b! la.*
$nvokin" reli"ious freedom, petitioner alle"ed that the Board acted ithout (urisdiction
or ith "rave abuse of discretion in re%uirin" it to submit the GTR tapes of its
television pro"ram and ?/ratin" them. >hile upholdin" the Board#s poer to revie
the $"lesia television sho, the Court as emphatic about the preferred status of
reli"ious freedom. =uotin" 1ustice CruD# commentar! on the constitution, the Court
held that freedom to believe is absolute but freedom to act on one#s belief, here it
affects the public, is sub(ect to the authorit! of the state. The commentar! %uoted
1ustice 4rankfurter#s dissent in Barnette hich as %uoted in Berona, viDA *,t-he
constitutional provision on reli"ious freedom terminated disabilities, it did not create
ne privile"es. $t "ave reli"ious libert!, not civil immunit!. $ts essence is freedom from
conformit! to reli"ious do"ma, not freedom from conformit! to la because of
reli"ious do"ma.*
.0;
Nevertheless, the Court as %uick to add the criteria b! hich
the state can re"ulate the e?ercise of reli"ious freedom, that is, hen the e?ercise
ill brin" about the *clear and present dan"er of some substantive evil hich the
'tate is dut! bound to prevent, i.e., serious detriment to the more overridin" interest
of public health, public morals, or public elfare.*
.53
$n annullin" the ?/ratin" of the shos, the Court stressed that the Constitution is
hostile to all prior restraints on speech, includin" reli"ious speech and the ?/ratin"
as a suppression of petitioner#s freedom of speech as much as it as an
interference ith its ri"ht to free e?ercise of reli"ion. Citin" Cantell, the Court
reco"niDed that the different reli"ions ma! criticiDe one another and their tenets ma!
collide, but the Establishment Clause prohibits the state from protectin" an! reli"ion
from this kind of attack.
The Court then called to mind the *clear and present dan"er* test first laid don in
the American Bible 'ociet! case and the test of *immediate and "rave dan"er* ith
*infrin"ement onl! to the smallest e?tent necessar! to avoid dan"er* in Gictoriano
and pointed out that the reviein" board failed to appl! the *clear and present
dan"er* test. Appl!in" the test, the Court noted, viDA
The records sho that the decision of the respondent Board, affirmed b! the
respondent appellate court, is completel! bereft of findin"s of facts to (ustif!
the conclusion that the sub(ect video tapes constitute impermissible attacks
a"ainst another reli"ion. There is no shoin" hatsoever of the t!pe of
harm the tapes ill brin" about especiall! the "ravit! and imminence of the
threatened harm. Prior restraint on speech, includin" reli"ious speech,
cannot be (ustified b! h!pothetical fears but onl! b! the shoin" of a
substantive and imminent evil hich has taken the life of a realit! alread! on
"round.
Repl!in" to the challen"e on the applicabilit! of the *clear and present dan"er* test to
the case, the Court acknoled"ed the permutations that the test has under"one, but
stressed that the test is still applied to four t!pes of speechA *speech that advocates
dan"erous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endan"ers a fair trial*
.5)
and ruled, viDA
. . . even alloin" the drift of American (urisprudence, there is reason to
appl! the clear and present dan"er test to the case at bar hich concerns
speech that attacks other reli"ions and could readil! provoke hostile
audience reaction. $t cannot be doubted that reli"ious truths disturb and
disturb terribl!.
.5+
33
$n $"lesia therefore, the Court ent back to Berona insofar as holdin" that reli"ious
freedom cannot be invoked to seek e?emption from compliance ith a la that
burdens one#s reli"ious e?ercise. $t also reiterated the *clear and present dan"er* test
in American Bible 'ociet! and the *"rave and imminent dan"er* in Gictoriano, but this
time clearl! (ustif!in" its applicabilit! and shoin" ho the test as applied to the
case.
$n sum, the Philippine 'upreme Court has adopted a posture of not invalidatin" a la
offensive to reli"ious freedom, but carvin" out an e?ception or upholdin" an
e?ception to accommodate reli"ious e?ercise here it is (ustified.
.5.
2. Est"(&'s01$.t C&"us$
$n Philippine (urisdiction, there is substantial a"reement on the values sou"ht to be
protected b! the Establishment Clause, namel!, voluntarism and insulation of the
political process from interfaith dissension. The first, voluntarism, has both a personal
and a social dimension. As a personal value, it refers to the inviolabilit! of the human
conscience hich, as discussed above, is also protected b! the free e?ercise clause.
4rom the reli"ious perspective, reli"ion re%uires voluntarism because compulsor!
faith lacks reli"ious efficac!. Compelled reli"ion is a contradiction in terms.
.50
As a
social value, it means that the *"roth of a reli"ious sect as a social force must come
from the voluntar! support of its members because of the belief that both spiritual
and secular societ! ill benefit if reli"ions are alloed to compete on their on
intrinsic merit ithout benefit of official patrona"e. 'uch voluntarism cannot be
achieved unless the political process is insulated from reli"ion and unless reli"ion is
insulated from politics.*
.55
Non/establishment thus calls for "overnment neutralit! in
reli"ious matters to uphold voluntarism and avoid breedin" interfaith dissension.
.58
The neutralit! principle as applied in the first si"nificant non/establishment case
under the );.5 Constitution. $n the );.2 case of Ag&'%"6 2. Ru';,
.52
the Philippine
$ndependent Church challen"ed the issuance and sale of posta"e stamps
commemoratin" the Thirt!/Third $nternational Eucharistic Con"ress of the Catholic
Church on the "round that the constitutional prohibition a"ainst the use of public
mone! for reli"ious purposes has been violated. $t appears that the @irector of Posts
issued the %uestioned stamps under the provisions of Act No. 035+
.5<
hich
appropriated a sum for the cost of plates and printin" of posta"e stamps ith ne
desi"ns and authoriDed the @irector of Posts to dispose of the sum in a manner and
fre%uenc! *advanta"eous to the Bovernment.* The printin" and issuance of the
posta"e stamps in %uestion appears to have been approved b! authorit! of the
President. 1ustice 6aurel, speakin" for the Court, took pains e?plainin" reli"ious
freedom and the role of reli"ion in societ!, and in conclusion, found no constitutional
infirmit! in the issuance and sale of the stamps, vizA
The prohibition herein e?pressed is a direct corollar! of the principle of
separation of church and state. >ithout the necessit! of advertin" to the
historical back"round of this principle in our countr!, it is sufficient to sa!
that our histor!, not to speak of the histor! of mankind, has tau"ht us that
the union of church and state is pre(udicial to both, for occasions mi"ht arise
hen the state ill use the church, and the church the state, as a eapon in
the furtherance of their respective ends and aims . . . $t is almost trite to sa!
no that in this countr! e en(o! both reli"ious and civil freedom. All the
officers of the Bovernment, from the hi"hest to the loest, in takin" their
oath to support and defend the Constitution, bind themselves to reco"niDe
and respect the constitutional "uarantee of reli"ious freedom, ith its
inherent limitations and reco"niDed implications. $t should be stated that
hat is "uaranteed b! our Constitution is reli"ious libert!, not mere
toleration.
Reli"ious freedom, hoever, as a constitutional mandate is not an inhibition of
profound reverence for reli"ion and is not a denial of its influence in human affairs.
Reli"ion as a profession of faith to an active poer that binds and elevates man to
his Creator is reco"niDed. And, in so far as it instills into the minds the purest
principles of moralit!, its influence is deepl! felt and hi"hl! appreciated. >hen the
4ilipino people, in the preamble of their Constitution, implored *the aid of @ivine
Providence, in order to establish a "overnment that shall embod! their ideals,
conserve and develop the patrimon! of the nation, promote the "eneral elfare, and
secure to themselves and their posterit! the blessin"s of independence under a
re"ime of (ustice, libert! and democrac!,* the! thereb! manifested their intense
reli"ious nature and placed unfalterin" reliance upon :im ho "uides the destinies of
men and nations. The elevatin" influence of reli"ion in human societ! is reco"niDed
here as elsehere. $n fact, certain "eneral concessions are indiscriminatel! accorded
to reli"ious sects and denominations. . .
.5;
??? ??? ???
$t is obvious that hile the issuance and sale of the stamps in %uestion ma!
be said to be inseparabl! linked ith an event of a reli"ious character, the
resultin" propa"anda, if an!, received b! the Roman Catholic Church, as
not the aim and purpose of the Bovernment. >e are of the opinion that the
Bovernment should not be embarrassed in its activities simpl! because of
incidental results, more or less reli"ious in character, if the purpose had in
vie is one hich could le"itimatel! be undertaken b! appropriate
le"islation. The main purpose should not be frustrated b! its subordination
to mere incidental results not contemplated. ,Gide Bradfield vs. Roberts, )25
&.'. +;5C +3 'up. Ct. Rep., )+)C 00 6a. ed., )8<-
.83
,emphases supplied-
$n so decidin" the case, the Court, citin" &.'. (urisprudence, laid don the doctrine
that a la or "overnment action ith a le"itimate secular purpose does not offend the
Establishment Clause even if it incidentall! aids a particular reli"ion.
Almost fort!/five !ears after A"lipa! came 9"-#$s 2. Est$.;o.
.8)
Althou"h the Court
found that the separation of church and state as not at issue as the controvers!
as over ho should have custod! of a saint#s ima"e, it nevertheless made
pronouncements on the separation of church and state alon" the same line as the
34
A"lipa! rulin". The Court held that there as nothin" unconstitutional or ille"al in
holdin" a fiesta and havin" a patron saint for the barrio. $t adhered to the barrio
resolutions of the baran"a! involved in the case statin" that the barrio fiesta is a
socio/reli"ious affair, the celebration of hich is an *in"rained tradition in rural
communities* that *relieves the monoton! and drud"er! of the lives of the masses.*
Corollaril!, the Court found nothin" ille"al about an! activit! intended to facilitate the
orship of the patron saint such as the ac%uisition and displa! of his ima"e bou"ht
ith funds obtained throu"h solicitation from the barrio residents. The Court pointed
out that the ima"e of the patron saint as *purchased in connection ith the
celebration of the barrio fiesta honorin" the patron saint, 'an Gicente 4errer, and not
for the purpose of favorin" an! reli"ion nor interferin" ith reli"ious matters or the
reli"ious beliefs of the barrio residents.* Citin" the A"lipa! rulin", the Court declared,
viDA
Not ever! "overnmental activit! hich involves the e?penditure of public
funds and hich has some reli"ious tint is violative of the constitutional
provisions re"ardin" separation of church and state, freedom of orship
and bannin" the use of public mone! or propert!.
Then came the );2< case of P"1'& 2. T$&$-o., $t "&.
.8+
hich presented a novel
issue involvin" the reli"ion clauses. $n this case, 'ection +)25 of the Revised
Administrative Code of );)2 dis%ualif!in" ecclesiastics from appointment or election
as municipal officer as challen"ed. After protracted deliberation, the Court as
sharpl! divided on the issue. 'even members of the Court, one short of the number
necessar! to declare a la unconstitutional, approached the problem from a free
e?ercise perspective and considered the la a reli"ious test offensive of the
constitution. The! ere 1ustices 4ernando, Teehankee, Mu7oD/Palma, Concepcion,
1r., 'antos, 4ernandeD, and Buerrero. Then Associate 1ustice 4ernando, the
ponente, stated, viDA *The challen"ed Administrative Code provision, certainl! insofar
as it declares ineli"ible ecclesiastics to an! elective or appointive office, is, on its
face, inconsistent ith the reli"ious freedom "uaranteed b! the Constitution.* Citin"
To-#"so 2. ,"t3'.s,
.8.
the ponencia held, viDA
Torcaso v. >atkins, an American 'upreme Court decision, has persuasive
ei"ht. >hat as there involved as the validit! of a provision in the
Mar!land Constitution prescribin" that #no reli"ious test ou"ht ever to be
re%uired as a dis%ualification for an! office or profit or trust in this 'tate,
other than a declaration of belief in the e?istence of Bod NNN.# 'uch a
constitutional re%uirement as assailed as contrar! to the 4irst Amendment
of the &nited 'tates Constitution b! an appointee to the office of notar!
public in Mar!land, ho as refused a commission as he ould not declare
a belief in Bod. :e failed in the Mar!land Court of Appeals but prevailed in
the &nited 'tates 'upreme Court, hich reversed the state court decision. $t
could not have been otherise. As emphaticall! declared b! 1ustice BlackA
#this Mar!land reli"ious test for public office unconstitutionall! invades the
appellant#s freedom of belief and reli"ion and therefore cannot be enforced
a"ainst him.
The analo"! appears to be obvious. $n that case, it as lack of belief in Bod
that as a dis%ualification. :ere bein" an ecclesiastic and therefore
professin" a reli"ious faith suffices to dis%ualif! for a public office. There is
thus an incompatibilit! beteen the Administrative Code provision relied
upon b! petitioner and an e?press constitutional mandate.
.80
9n the other hand, the prevailin" five other members of the Court / Chief 1ustice
Castro, 1ustices Barredo, Makasiar, Antonio and A%uino / approached the case from
a non/establishment perspective and upheld the la as a safe"uard a"ainst the
constant threat of union of church and state that has marked Philippine histor!.
1ustice Makasiar statedA *To allo an ecclesiastic to head the e?ecutive department
of a municipalit! is to permit the erosion of the principle of separation of Church and
'tate and thus open the flood"ates for the violation of the cherished libert! of reli"ion
hich the constitutional provision seeks to enforce and protect.* Conse%uentl!, the
Court upheld the validit! of 'ection +)25 of the Revised Administrative Code and
declared respondent priest ineli"ible for the office of municipal ma!or.
Another t!pe of cases interpretin" the establishment clause deals ith intramural
reli"ious disputes. !o."#'$- 2. Cou-t o/ A%%$"&s
.85
is the leadin" case. The issue
therein as the ri"ht of control over certain properties of the Philippine $ndependent
Church, the resolution of hich necessitated the determination of ho as the
le"itimate bishop of the church. The Court cited American 1urisprudence,
.88
vizA
>here, hoever, a decision of an ecclesiastical court plainl! violates the la
it professes to administer, or is in conflict ith the la of the land, it ill not
be folloed b! the civil courts. . . $n some instances, not onl! have the civil
courts the ri"ht to in%uire into the (urisdiction of the reli"ious tribunals and
the re"ularit! of their procedure, but the! have sub(ected their decisions to
the test of fairness or to the test furnished b! the constitution and the la of
the church. . .
.82
The Court then ruled that petitioner 4onacier as le"itimatel! ousted and respondent
de los Re!es as the dul! elected head of the Church, based on their internal las.
To finall! dispose of the propert! issue, the Court, citin" ,"tso. 2. Jo.$s,
.8<

declared that the rule in propert! controversies ithin reli"ious con"re"ations strictl!
independent of an! other superior ecclesiastical association ,such as the Philippine
$ndependent Church- is that the rules for resolvin" such controversies should be
those of an! voluntar! association. $f the con"re"ation adopts the ma(orit! rule then
the ma(orit! should prevailC if it adopts adherence to dul! constituted authorities
ithin the con"re"ation, then that should be folloed. Appl!in" these rules, 4onacier
lost the case. >hile the Court e?ercised (urisdiction over the case, it nevertheless
refused to touch doctrinal and disciplinar! differences raised, vizA
The amendments of the constitution, restatement of articles of reli"ion and
abandonment of faith or ab(uration alle"ed b! appellant, havin" to do ith
faith, practice, doctrine, form of orship, ecclesiastical la, custom and rule
of a church and havin" reference to the poer of e?cludin" from the church
35
those alle"edl! unorth! of membership, are un%uestionabl! ecclesiastical
matters hich are outside the province of the civil courts.
.8;
*III. !-$$ E4$-#'s$ C&"us$ 2's-?-2's Est"(&'s01$.t C&"us$
$n both Philippine and &.'. (urisdiction, it is reco"niDed that there is a tension
beteen the 4ree E?ercise Clause and the Establishment Clause in their application.
There is a natural anta"onism beteen a command not to establish reli"ion and a
command not to inhibit its practiceC this tension beteen the reli"ion clauses often
leaves the courts ith a choice beteen competin" values in reli"ion cases.
.23
9ne set of facts, for instance, can be differentl! vieed from the Establishment
Clause perspective and the 4ree E?ercise Clause point of vie, and decided in
opposite directions. $n Pamil, the ma(orit! "ave more ei"ht to the reli"ious libert! of
the priest in holdin" that the prohibition of ecclesiastics to assume elective or
appointive "overnment positions as violative of the 4ree E?ercise Clause. 9n the
other hand, the prevailin" five (ustices "ave importance to the Establishment Clause
in statin" that the principle of separation of church and state (ustified the prohibition.
Tension is also apparent hen a case is decided to uphold the 4ree E?ercise Clause
and conse%uentl! e?emptions from a la of "eneral applicabilit! are afforded b! the
Court to the person claimin" reli"ious freedomC the %uestion arises hether the
e?emption does not amount to support of the reli"ion in violation of the Establishment
Clause. This as the case in the 4ree E?ercise Clause case of 'herbert here the
&.'. 'upreme Court ruled, vizA
$n holdin" as e do, plainl! e are not fosterin" the *establishment* of the
'eventh/da! Adventist reli"ion in 'outh Carolina, for the e?tension of
unemplo!ment benefits to 'abbatarians in common ith 'unda!
orshippers reflects nothin" more than the "overnmental obli"ation of
neutralit! in the face of reli"ious differences, and does not represent that
involvement of reli"ious ith secular institutions hich it is the ob(ect of the
Establishment Clause to forestall.
.2)
,emphasis supplied-
Tension also e?ists hen a la of "eneral application provides e?emption in order to
uphold free e?ercise as in the >alD case here the appellant ar"ued that the
e?emption "ranted to reli"ious or"aniDations, in effect, re%uired him to contribute to
reli"ious bodies in violation of the Establishment Clause. But the Court held that the
e?emption as not a case of establishin" reli"ion but merel! upholdin" the 4ree
E?ercise Clause b! *sparin" the e?ercise of reli"ion from the burden of propert!
ta?ation levied on private profit institutions.* 1ustice Bur"er rote, vizA
,t-he Court has stru""led to find a neutral course beteen the to reli"ion
clauses, both of hich are cast in absolute terms, and either of hich, if
e?panded to a lo"ical e?treme, ould tend to clash ith the other.
.2+
'imilarl!, the Philippine 'upreme Court in the Gictoriano case held that the
e?emption afforded b! la to reli"ious sects ho prohibit their members from (oinin"
unions did not offend the Establishment Clause. >e ruled, vizA
>e believe that in enactin" Republic Act No. ..53, Con"ress acted
consistentl! ith the spirit of the constitutional provision. $t acted merel! to
relieve the e?ercise of reli"ion, b! certain persons, of a burden that is
imposed b! union securit! a"reements.
.2.
,emphasis supplied-
4inall!, in some cases, a practice is obviousl! violative of the Establishment Clause
but the Court nevertheless upholds it. $n 'chempp, 1ustice Brennan statedA *,t-here
are certain practices, conceivabl! violative of the Establishment Clause, the strikin"
don of hich mi"ht seriousl! interfere ith certain reli"ious liberties also protected
b! the 4irst Amendment.*
:o the tension beteen the Establishment Clause and the 4ree E?ercise Clause
ill be resolved is a %uestion for determination in the actual cases that come to the
Court. $n cases involvin" both the Establishment Clause and the 4ree E?ercise
Clause, the to clauses should be balanced a"ainst each other. The courts must
revie all the relevant facts and determine hether there is a sufficientl! stron" free
e?ercise ri"ht that should prevail over the Establishment Clause problem. $n the
&nited 'tates, it has been proposed that in balancin", the free e?ercise claim must
be "iven an ed"e not onl! because of abundant historical evidence in the colonial
and earl! national period of the &nited 'tates that the free e?ercise principle lon"
antedated an! broad/based support of disestablishment, but also because an
Establishment Clause concern raised b! merel! accommodatin" a citiDen#s free
e?ercise of reli"ion seems far less dan"erous to the republic than pure establishment
cases. Each time the courts side ith the Establishment Clause in cases involvin"
tension beteen the to reli"ion clauses, the courts conve! a messa"e of hostilit! to
the reli"ion that in that case cannot be freel! e?ercised.
.20
American professor of
constitutional la, 6aurence Tribe, similarl! su""ests that the free e?ercise principle
*should be dominant in an! conflict ith the anti/establishment principle.* This
dominance ould be the result of commitment to reli"ious tolerance instead of
*thartin" at all costs even the faintest appearance of establishment.*
.25
$n our
(urisdiction, 4r. 1oa%uin Bernas, '.1. asserts that a literal interpretation of the reli"ion
clauses does not suffice. Modern societ! is characteriDed b! the e?pandin"
re"ulator! arm of "overnment that reaches a variet! of areas of human conduct and
an e?pandin" concept of reli"ion. To ade%uatel! meet the demands of this modern
societ!, the societal values the reli"ion clauses are intended to protect must be
considered in their interpretation and resolution of the tension. This, in fact, has been
the approach folloed b! the Philippine Court.
.28
I@. P0'&'%%'.$ R$&'g'o. C&"us$s N"tu-$, Pu-%os$, T$sts 5"s$+ o. P0'&'%%'.$
".+ A1$-'#". R$&'g'o. C&"us$ 7'sto-6, L") ".+ Ju-'s%-u+$.#$
The histor! of the reli"ion clauses in the );<2 Constitution shos that these clauses
ere lar"el! adopted from the 4irst Amendment of the &.'. Constitution. The reli"ion
36
clauses in the 4irst Amendment ere contained in ever! or"anic Act of the
Philippines under the American re"ime. >hen the dele"ates of the );.0
Constitutional Convention adopted a Bill of Ri"hts in the );.5 Constitution, the!
purposel! retained the phraseolo"! of the reli"ion clauses in the 4irst Amendment as
contained in the 1ones 6a in order to adopt its historical back"round, nature, e?tent
and limitations. At that time, there ere not too man! reli"ion clause cases in the
&nited 'tates as the &.'. 'upreme Court decided an Establishment Clause issue
onl! in the );02 Everson case. The 4ree E?ercise Clause cases ere also scarce
then. 9ver the !ears, hoever, ith the e?pandin" reach of "overnment re"ulation to
a hole "amut of human actions and the "roin" pluralit! and activities of reli"ions,
the number of reli"ion clause cases in the &.'. e?ponentiall! increased. >ith this
increase came an e?pansion of the interpretation of the reli"ion clauses, at times
reinforcin" prevailin" case la, at other times modif!in" it, and still at other times
creatin" contradictions so that to main streams of (urisprudence had become
identifiable. The first stream emplo!s separation hile the second emplo!s
benevolent neutralit! in interpretin" the reli"ious clauses. Alon"side this chan"e in
the landscape of &.'. reli"ion clause (urisprudence, the Philippines continued to
adopt the );.5 Constitution reli"ion clauses in the );2. Constitution and later, the
);<2 Constitution. Philippine (urisprudence and commentaries on the reli"ious
clauses also continued to borro authorities from &.'. (urisprudence ithout
articulatin" the stark distinction beteen the to streams of &.'. (urisprudence. 9ne
mi"ht simpl! conclude that the Philippine Constitutions and (urisprudence also
inherited the disarra! of &.'. reli"ion clause (urisprudence and the to identifiable
streamsC thus, hen a reli"ion clause case comes before the Court, a separationist
approach or a benevolent neutralit! approach mi"ht be adopted and each ill have
&.'. authorities to support it. 9r, one mi"ht conclude that as the histor! of the 4irst
Amendment as narrated b! the Court in Everson supports the separationist
approach, Philippine (urisprudence should also follo this approach in li"ht of the
Philippine reli"ion clauses# histor!. As a result, in a case here the part! claims
reli"ious libert! in the face of a "eneral la that inadvertentl! burdens his reli"ious
e?ercise, he faces an almost insurmountable all in convincin" the Court that the
all of separation ould not be breached if the Court "rants him an e?emption.
These conclusions, hoever, are not and ere never arranted b! the );<2, );2.
and );.5 Constitutions as shon b! other provisions on reli"ion in all three
constitutions. $t is a cardinal rule in constitutional construction that the constitution
must be interpreted as a hole and apparentl! conflictin" provisions should be
reconciled and harmoniDed in a manner that ill "ive to all of them full force and
effect.
.22
4rom this construction, it ill be ascertained that the intent of the framers
as to adopt a benevolent neutralit! approach in interpretin" the reli"ious clauses in
the Philippine constitutions, and the enforcement of this intent is the "oal of
construin" the constitution.
.2<
>e first appl! the hermeneutical scalpel to dissect the );.5 Constitution. At the same
time that the );.5 Constitution provided for an Establishment Clause, it also
provided for ta? e?emption of church propert! in Article G$, 'ection ++, par. .,b-, vizA
,.- Cemeteries, churches, and parsona"es or convents, appurtenant
thereto, and all lands, buildin"s, and improvements used e?clusivel! for
reli"ious, charitable, or educational purposes shall be e?empt from ta?ation.
Before the advent of the );.5 Constitution, 'ection .00 of the Administrative Code
provided for a similar e?emption. To the same effect, the T!din"s/Mc@uffie 6a
contained a limitation on the ta?in" poer of the Philippine "overnment durin" the
Commonealth period.
.2;
The ori"inal draft of the Constitution placed this provision
in an ordinance to be appended to the Constitution because this as amon" the
provisions prescribed b! the T!din"s/Mc@uffie 6a. :oever, in order to have a
constitutional "uarantee for such an e?emption even be!ond the Commonealth
period, the provision as introduced in the bod! of the Constitution on the rationale
that *if churches, convents Jrectories or parsona"esK and their accessories are
ala!s necessar! for facilitatin" the e?ercise of such Jreli"iousK freedom, it ould
also be natural that their e?istence be also "uaranteed b! e?emptin" them from
ta?ation.*
.<3
The amendment as readil! approved ith <. affirmative votes a"ainst
)5 ne"ative votes.
.<)
The Philippine constitutional provision on ta? e?emption is not found in the &.'.
Constitution. $n the &.'. case of >alD, the Court stru""led to (ustif! this kind of
e?emption to ithstand Establishment Clause scrutin! b! statin" that church propert!
as not sin"led out but as e?empt alon" ith propert! oned b! non/profit, %uasi/
public corporations because the state upheld the secular polic! *that considers these
"roups as beneficial and stabiliDin" influences in communit! life and finds this
classification useful, desirable, and in the public interest.* The Court also stated that
the e?emption as meant to relieve the burden on free e?ercise imposed b! propert!
ta?ation. At the same time, hoever, the Court acknoled"ed that the e?emption as
an e?ercise of benevolent neutralit! to accommodate a lon"/standin" tradition of
e?emption. >ith the inclusion of the church propert! ta? e?emption in the bod! of the
);.5 Constitution and not merel! as an ordinance appended to the Constitution, the
benevolent neutralit! referred to in the >alD case as "iven constitutional imprimatur
under the re"ime of the );.5 Constitution. The provision, as stated in the
deliberations, as an acknoled"ment of the necessit! of the e?empt institutions to
the e?ercise of reli"ious libert!, thereb! evincin" benevolence toards reli"ious
e?ercise.
'imilarl!, the );.5 Constitution provides in Article G$, 'ection +.,.-, vizA
,.- No public mone!, or propert! shall ever be appropriated, applied, or
used, directl! or indirectl!, for the use, benefit, or support of an! sect,
church, denomination, sectarian institution or s!stem of reli"ion, for the use,
benefit or support of an! priest, preacher, ministers or other reli"ious
teacher or di"nitar! as such, e?cept hen such priest, preacher, minister, or
di"nitar! is assi"ned to the armed forces or to an! penal institution,
orphana"e, or leprosarium. ,emphasis supplied-
37
The ori"inal draft of this provision as a reproduction of a portion of section . of the
1ones 6a hich did not contain the above e?ception, vizA
No public mone! or propert! shall ever be appropriated, applied, or used,
directl! or indirectl!, for the use, benefit, or support of an! sect, church
denomination, sectarian institution, or s!stem of reli"ion, or for the use,
benefit or support of an! priest, preacher, minister, or di"nitar! as suchL
.<+
$n the deliberations of this draft provision, an amendment as proposed to strike
don ever!thin" after *church denomination.*
.<.
The proposal intended to imitate the
silence of the &.'. Constitution on the sub(ect of support for priests and ministers. $t
as also an imitation of the silence of the Malolos Constitution to restore the situation
under the Malolos Constitution and prior to the 1ones 6a, hen chaplains of the
revolutionar! arm! received pa! from public funds ith no doubt about its le"alit!. $t
as pointed out, hoever, that even ith the prohibition under the 1ones 6a,
appropriations ere made to chaplains of the national penitentiar! and the Auditor
Beneral upheld its validit! on the basis of a similar &nited 'tates practice. But it as
also pointed out that the &.'. Constitution did not contain a prohibition on
appropriations similar to the 1ones 6a.
.<0
To settle the %uestion on the
constitutionalit! of pa!ment of salaries of reli"ious officers in certain "overnment
institutions and to avoid the feared situation here the enumerated "overnment
institutions could not emplo! reli"ious officials ith compensation, the e?ception in
the );.5 provision as introduced and approved. The provision "arnered 20
affirmative votes a"ainst .0 ne"ative votes.
.<5
As pointed out in the deliberations, the
&.'. Constitution does not provide for this e?emption. :oever, the &.'. 'upreme
Court in CruD v. Beto, apparentl! takin" a benevolent neutralit! approach, implicitl!
approved the state of Te?as# pa!ment of prison chaplains# salaries as reasonabl!
necessar! to permit inmates to practice their reli"ion. Also, in the Marsh case, the
&.'. 'upreme Court upheld the lon"/standin" tradition of be"innin" le"islative
sessions ith pra!ers offered b! le"islative chaplains retained at ta?pa!ers# e?pense.
The constitutional provision e?emptin" reli"ious officers in "overnment institutions
affirms the departure of the Philippine Constitution from the &.'. Constitution in its
adoption of benevolent neutralit! in Philippine (urisdiction. >hile the provision
prohibitin" aid to reli"ion protects the all of separation beteen church and state,
the provision at the same time "ives constitutional sanction to a breach in the all.
To further buttress the thesis that benevolent neutralit! is contemplated in the
Philippine Establishment Clause, the );.5 Constitution provides for optional reli"ious
instruction in public schools in Article M$$$, 'ection 5, vizA
. . . 9ptional reli"ious instruction shall be maintained in the public schools
as no authoriDed b! la. . .
The la then applicable as 'ection ;+< of the Administrative Code, vizA
$t shall be laful, hoever, for the priest or minister of an! church
established in the ton here a public school is situated, either in person or
b! a desi"nated teacher of reli"ion, to teach reli"ion for one/half hour three
times a eek, in the school buildin", to those public/school pupils hose
parents or "uardians desire it and e?press their desire therefor in ritin"
filed ith the principal of the school . . .
@urin" the debates of the Constitutional Convention, there ere three positions on
the issue of reli"ious instruction in public schools. The first held that the teachin" of
reli"ion in public schools should be prohibited as this as a violation of the principle
of separation of church and state and the prohibition a"ainst the use of public funds
for reli"ious purposes. The second favored the proposed optional reli"ious instruction
as authoriDed b! the Administrative Code and reco"niDed that the actual practice of
alloin" reli"ious instruction in the public schools as sufficient proof that reli"ious
instruction as not and ould not be a source of reli"ious discord in the schools.
.<8

The third anted reli"ion to be included as a course in the curriculum of the public
schools but ould onl! be taken b! pupils at the option of their parents or "uardians.
After several rounds of debate, the second camp prevailed, thus raisin" to
constitutional stature the optional teachin" of reli"ion in public schools, despite the
opposition to the provision on the "round of separation of church and state.
.<2
As in
the provisions on church propert! ta? e?emption and compensation of reli"ious
officers in "overnment institutions, the &.'. Constitution does not provide for optional
reli"ious instruction in public schools. $n fact, in the McCollum case, the Court, usin"
strict neutralit!, prohibited this kind of reli"ious instruction here the reli"ion teachers
ould conduct class ithin the school premises. The constitutional provision on
optional reli"ious instruction shos that Philippine (urisdiction re(ects the strict
neutralit! approach hich does not allo such accommodation of reli"ion.
4inall!, to make certain the Constitution#s benevolence to reli"ion, the 4ilipino people
*implored ,in"- the aid of @ivine Providence ,,- in order to establish a "overnment
that shall embod! their ideals, conserve and develop the patrimon! of the nation,
promote the "eneral elfare, and secure to themselves and their posterit! the
blessin"s of independence under a re"ime of (ustice, libert!, and democrac!, ,in-
ordain,in"- and promul"at,in"- this Constitution.* A preamble is a *ke! to open the
mind of the authors of the constitution as to the evil sou"ht to be prevented and the
ob(ects sou"ht to be accomplished b! the provisions thereof.*
.<<
There as no
debate on the inclusion of a *@ivine Providence* in the preamble. $n A"lipa!, 1ustice
6aurel noted that hen the 4ilipino people implored the aid of @ivine Providence,
*,t-he! thereb! manifested their intense reli"ious nature and placed unfalterin"
reliance upon :im ho "uides the destinies of men and nations.*
.<;
The );.5
Constitution#s reli"ion clauses, understood alon"side the other provisions on reli"ion
in the Constitution, indubitabl! shos not hostilit!, but benevolence, to reli"ion.
.;3
The );2. Constitution contained in Article G$, 'ection ++,.- a provision similar to
Article G$, 'ection ++, par. .,b- of the );.5 Constitution on e?emption of church
propert! from ta?ation, ith the modification that the propert! should not onl! be
used directl!, but also actuall! and e?clusivel! for reli"ious or charitable purposes.
38
Parallel to Article G$, 'ection +.,.- of the );.5 Constitution, the );2. Constitution
also contained a similar provision on salaries of reli"ious officials emplo!ed in the
enumerated "overnment institutions. Article M$$$, 'ection 5 of the );.5 Constitution
on optional reli"ious instruction as also carried to the );2. Constitution in Article
MG, 'ection <,<- ith the modification that optional reli"ious instruction shall be
conducted *as ma! be provided b! la* and not *as no authoriDed b! la* as stated
in the );.5 Constitution. The );2. counterpart, hoever, made e?plicit in the
constitution that the reli"ious instruction in public elementar! and hi"h schools shall
be done *,a-t the option e?pressed in ritin" b! the parents or "uardians, and ithout
cost to them and the "overnment.* >ith the adoption of these provisions in the );2.
Constitution, the benevolent neutralit! approach continued to en(o! constitutional
sanction. $n Article MG, 'ection )5 of the Beneral Provisions of the );2. Constitution
this provision made its maiden appearanceA *,t-he separation of church and state
shall be inviolable.* The );2. Constitution retained the portion of the preamble
*implorin" the aid of @ivine Providence.*
$n the Report of the Ad :oc 'ub/Committee on Boals, Principles and Problems of the
Committee on Church and 'tate of the );2) Constitutional Convention, the %uestion
arose as to hether the *absolute* separation of Church and 'tate as enunciated in
the Everson case and reiterated in 'chempp / i.e., neutralit! not onl! as beteen one
reli"ion and another but even as beteen reli"ion and non/reli"ion / is embodied in
the Philippine Constitution. The sub/committee#s anser as that it did not seem so.
Citin" the A"lipa! case here 1ustice 6aurel reco"niDed the *elevatin" influence of
reli"ion in human societ!* and the 4ilipinos# implorin" of @ivine Providence in the
);.5 Constitution, the sub/committee asserted that the state ma! not prefer or aid
one reli"ion over another, but ma! aid all reli"ions e%uall! or the cause of reli"ion in
"eneral.
.;)
Amon" the position papers submitted to the Committee on Church on
'tate as a back"round paper for reconsideration of the reli"ion provisions of the
constitution b! 4r. Bernas, '.1. :e stated therein that the Philippine Constitution is
not hostile to reli"ion and in fact reco"niDes the value of reli"ion and accommodates
reli"ious values.
.;+
'tated otherise, the Establishment Clause contemplates not a
strict neutralit! but benevolent neutralit!. >hile the Committee introduced the
provision on separation of church and state in the Beneral Provisions of the );2.
Constitution, this as nothin" ne as accordin" to it, this principle as implied in the
);.5 Constitution even in the absence of a similar provision.
.;.
Then came the );<2 Constitution. The );2. Constitutional provision on ta?
e?emption of church propert! as retained ith minor modification in Article G$,
'ection +<,.- of the );<2 Constitution. The same is true ith respect to the
prohibition on the use of public mone! and propert! for reli"ious purposes and the
salaries of reli"ious officers servin" in the enumerated "overnment institutions, no
contained in Article G$, 'ection +;,+-. Commissioner Bacani, hoever, probed into
the possibilit! of alloin" the "overnment to spend public mone! for purposes hich
mi"ht have reli"ious connections but hich ould benefit the public "enerall!. Citin"
the A"lipa! case, Commissioner Rodri"o e?plained that if a public e?penditure ould
benefit the "overnment directl!, such e?pense ould be constitutional even if it
results to an incidental benefit to reli"ion. >ith that e?planation, Commissioner
Bacani no lon"er pursued his proposal.
.;0
The provision on optional reli"ious instruction as also adopted in the );<2
Constitution in Article M$G, 'ection .,.- ith the modification that it as e?pressl!
provided that optional instruction shall be conducted *ithin the re"ular class hours*
and *ithout additional cost to the "overnment*. There ere protracted debates on
hat additional cost meant, i.e., cost over and above hat is needed for normal
operations such as ear and tear, electricit!, (anitorial services,
.;5
and hen durin"
the da! instruction ould be conducted.
.;8
$n deliberatin" on the phrase *ithin the
re"ular class hours,* Commissioner A%uino e?pressed her reservations to this
proposal as this ould violate the time/honored principle of separation of church and
state. 'he cited the McCullom case here reli"ious instruction durin" re"ular school
hours as stricken don as unconstitutional and also cited hat she considered the
most liberal interpretation of separation of church and state in 'urach v. Clauson
here the &.'. 'upreme Court alloed onl! release time for reli"ious instruction. 4r.
Bernas replied, vizA
. . . the hole purpose of the provision as to provide for an e?ception to
the rule on non/establishment of reli"ion, because if it ere not necessar!
to make this e?ception for purposes of alloin" reli"ious instruction, then e
could (ust drop the amendment. But, as a matter of fact, this is necessar!
because e are tr!in" to introduce somethin" here hich is contrar! to
American practices.
.;2
,emphasis supplied-
*,>-ithin re"ular class hours* as approved.
he provision on the separation of church and state as retained but placed under the
Principles in the @eclaration of Principles and 'tate Policies in Article $$, 'ection 8. $n
optin" to retain the ordin" of the provision, 4r. Bernas stated, viDA
. . . $t is true, $ maintain, that as a le"al statement the sentence #The
separation of Church and 'tate is inviolable,# is almost a useless statementC
but at the same time it is a harmless statement. :ence, $ am illin" to
tolerate it there, because, in the end, if e look at the (urisprudence on
Church and 'tate, ar"uments are based not on the statement of separation
of church and state but on the non/establishment clause in the Bill of
Ri"hts.
.;<
The preamble chan"ed *@ivine Providence* in the );.5 and );2. Constitutions to
*Almi"ht! Bod.* There as considerable debate on hether to use *Almi"ht! Bod*
hich Commissioner Bacani said as more reflective of 4ilipino reli"iosit!, but
Commissioner Rodri"o recalled that a number of atheistic dele"ates in the );2)
Constitutional Convention ob(ected to reference to a personal Bod.
.;;
*Bod of
:istor!*, *6ord of :istor!* and *Bod* ere also proposed, but the phrase *Almi"ht!
Bod* prevailed. 'imilar to the );.5 and );2) Constitutions, it is obvious that the
);<2 Constitution is not hostile nor indifferent to reli"ionC
033
its all of separation is
not a all of hostilit! or indifference.
03)
39
The provisions of the );.5, );2. and );<2 constitutions on ta? e?emption of church
propert!, salar! of reli"ious officers in "overnment institutions, optional reli"ious
instruction and the preamble all reveal ithout doubt that the 4ilipino people, in
adoptin" these constitutions, did not intend to erect a hi"h and impre"nable all of
separation beteen the church and state.
03+
The strict neutralit! approach hich
e?amines onl! hether "overnment action is for a secular purpose and does not
consider inadvertent burden on reli"ious e?ercise protects such a ri"id barrier. B!
adoptin" the above constitutional provisions on reli"ion, the 4ilipinos manifested their
adherence to the benevolent neutralit! approach in interpretin" the reli"ion clauses,
an approach that looks further than the secular purposes of "overnment action and
e?amines the effect of these actions on reli"ious e?ercise. Benevolent neutralit!
reco"niDes the reli"ious nature of the 4ilipino people and the elevatin" influence of
reli"ion in societ!C at the same time, it acknoled"es that "overnment must pursue
its secular "oals. $n pursuin" these "oals, hoever, "overnment mi"ht adopt las or
actions of "eneral applicabilit! hich inadvertentl! burden reli"ious e?ercise.
Benevolent neutralit! "ives room for accommodation of these reli"ious e?ercises as
re%uired b! the 4ree E?ercise Clause. $t allos these breaches in the all of
separation to uphold reli"ious libert!, hich after all is the inte"ral purpose of the
reli"ion clauses. The case at bar involves this first t!pe of accommodation here an
e?emption is sou"ht from a la of "eneral applicabilit! that inadvertentl! burdens
reli"ious e?ercise.
Althou"h our constitutional histor! and interpretation mandate benevolent neutralit!,
benevolent neutralit! does not mean that the Court ou"ht to "rant e?emptions ever!
time a free e?ercise claim comes before it. But it does mean that the Court ill not
look ith hostilit! or act indifferentl! toards reli"ious beliefs and practices and that it
ill strive to accommodate them hen it can ithin fle?ible constitutional limitsC it
does mean that the Court ill not simpl! dismiss a claim under the 4ree E?ercise
Clause because the conduct in %uestion offends a la or the orthodo? vie for this
precisel! is the protection afforded b! the reli"ion clauses of the Constitution, i.e.,
that in the absence of le"islation "rantin" e?emption from a la of "eneral
applicabilit!, the Court can carve out an e?ception hen the reli"ion clauses (ustif! it.
>hile the Court cannot adopt a doctrinal formulation that can eliminate the difficult
%uestions of (ud"ment in determinin" the de"ree of burden on reli"ious practice or
importance of the state interest or the sufficienc! of the means adopted b! the state
to pursue its interest, the Court can set a doctrine on the ideal toards hich
reli"ious clause (urisprudence should be directed.
03.
>e here la! don the doctrine
that in Philippine (urisdiction, e adopt the benevolent neutralit! approach not onl!
because of its merits as discussed above, but more importantl!, because our
constitutional histor! and interpretation indubitabl! sho that benevolent neutralit! is
the launchin" pad from hich the Court should take off in interpretin" reli"ion clause
cases. The ideal toards hich this approach is directed is the protection of reli"ious
libert! *not onl! for a minorit!, hoever small/ not onl! for a ma(orit!, hoever lar"e/
but for each of us* to the "reatest e?tent possible ithin fle?ible constitutional limits.
Benevolent neutralit! is manifest not onl! in the Constitution but has also been
reco"niDed in Philippine (urisprudence, albeit not e?pressl! called *benevolent
neutralit!* or *accommodation*. $n A"lipa!, the Court not onl! stressed the *elevatin"
influence of reli"ion in human societ!* but acknoled"ed the Constitutional
provisions on e?emption from ta? of church propert!, salar! of reli"ious officers in
"overnment institutions, and optional reli"ious instruction as ell as the provisions of
the Administrative Code makin" Thursda! and 4rida! of the :ol! >eek, Christmas
@a! and 'unda!s le"al holida!s. $n Barces, the Court not onl! reco"niDed the
Constitutional provisions indiscriminatel! "rantin" concessions to reli"ious sects and
denominations, but also acknoled"ed that "overnment participation in lon"/
standin" traditions hich have ac%uired a social character / *the barrio fiesta is a
socio/reli"ious affair* / does not offend the Establishment Clause. $n Gictoriano, the
Court upheld the e?emption from closed shop provisions of members of reli"ious
sects ho prohibited their members from (oinin" unions upon the (ustification that the
e?emption as not a violation of the Establishment Clause but as onl! meant to
relieve the burden on free e?ercise of reli"ion. $n Ebralina", members of the
1ehovah#s >itnesses ere e?empt from salutin" the fla" as re%uired b! la, on the
basis not of a statute "rantin" e?emption but of the 4ree E?ercise Clause ithout
offendin" the Establishment Clause.
>hile the &.'. and Philippine reli"ion clauses are similar in form and ori"in,
Philippine constitutional la has departed from the &.'. (urisprudence of emplo!in" a
separationist or strict neutralit! approach. The Philippine reli"ion clauses have taken
a life of their on, breathin" the air of benevolent neutralit! and accommodation.
Thus, the all of separation in Philippine (urisdiction is not as hi"h and impre"nable
as the all created b! the &.'. 'upreme Court in Everson.
030
>hile the reli"ion
clauses are a uni%ue American e?periment hich understandabl! came about as a
result of America#s En"lish back"round and coloniDation, the life that these clauses
have taken in this (urisdiction is the Philippines# on e?periment, reflective of the
4ilipinos# on national soul, histor! and tradition. After all, *the life of the la. . . has
been e?perience.*
But hile histor!, constitutional construction, and earlier (urisprudence unmistakabl!
sho that benevolent neutralit! is the lens ith hich the Court ou"ht to vie reli"ion
clause cases, it must be stressed that the interest of the state should also be
afforded utmost protection. To do this, a test must be applied to dra the line
beteen permissible and forbidden reli"ious e?ercise. $t is %uite parado?ical that in
order for the members of a societ! to e?ercise their freedoms, includin" their
reli"ious libert!, the la must set a limit hen their e?ercise offends the hi"her
interest of the state. To do otherise is self/defeatin" for unlimited freedom ould
erode order in the state and foment anarch!, eventuall! destro!in" the ver! state its
members established to protect their freedoms. The ver! purpose of the social
contract b! hich people establish the state is for the state to protect their libertiesC
for this purpose, the! "ive up a portion of these freedoms / includin" the natural ri"ht
to free e?ercise / to the state. $t as certainl! not the intention of the authors of the
constitution that free e?ercise could be used to countenance actions that ould undo
the constitutional order that "uarantees free e?ercise.
035
The all important %uestion then is the test that should be used in ascertainin" the
limits of the e?ercise of reli"ious freedom. Philippine (urisprudence articulates several
40
tests to determine these limits. Be"innin" ith the first case on the 4ree E?ercise
Clause, American Bible 'ociet!, the Court mentioned the *clear and present dan"er*
test but did not emplo! it. Nevertheless, this test continued to be cited in subse%uent
cases on reli"ious libert!. The Berona case then pronounced that the test of
permissibilit! of reli"ious freedom is hether it violates the established institutions of
societ! and la. The Gictoriano case mentioned the *immediate and "rave dan"er*
test as ell as the doctrine that a la of "eneral applicabilit! ma! burden reli"ious
e?ercise provided the la is the least restrictive means to accomplish the "oal of the
la. The case also used, albeit inappropriatel!, the *compellin" state interest* test.
After Gictoriano, Berman ent back to the Berona rule. Ebralina" then emplo!ed the
*"rave and immediate dan"er* test and overruled the Berona test. The fairl! recent
case of $"lesia ni Cristo ent back to the *clear and present dan"er* test in the
maiden case of American Bible 'ociet!. Not surprisin"l!, all the cases hich
emplo!ed the *clear and present dan"er* or *"rave and immediate dan"er* test
involved, in one form or another, reli"ious speech as this test is often used in cases
on freedom of e?pression. 9n the other hand, the Berona and Berman cases set the
rule that reli"ious freedom ill not prevail over established institutions of societ! and
la. Berona, hoever, hich as the authorit! cited b! Berman has been overruled
b! Ebralina" hich emplo!ed the *"rave and immediate dan"er* test. Gictoriano as
the onl! case that emplo!ed the *compellin" state interest* test, but as e?plained
previousl!, the use of the test as inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible 'ociet!, Ebralina" and
$"lesia ni Cristo here the *clear and present dan"er* and *"rave and immediate
dan"er* tests ere appropriate as speech has easil! discernible or immediate
effects. The Berona and Berman doctrine, aside from havin" been overruled, is not
con"ruent ith the benevolent neutralit! approach, thus not appropriate in this
(urisdiction. 'imilar to Gictoriano, the present case involves purel! conduct arisin"
from reli"ious belief. The *compellin" state interest* test is proper here conduct is
involved for the hole "amut of human conduct has different effects on the state#s
interestsA some effects ma! be immediate and short/term hile others dela!ed and
far/reachin". A test that ould protect the interests of the state in preventin" a
substantive evil, hether immediate or dela!ed, is therefore necessar!. :oever, not
an! interest of the state ould suffice to prevail over the ri"ht to reli"ious freedom as
this is a fundamental ri"ht that en(o!s a preferred position in the hierarch! of ri"hts /
*the most inalienable and sacred of all human ri"hts*, in the ords of 1efferson.
038

This ri"ht is sacred for an invocation of the 4ree E?ercise Clause is an appeal to a
hi"her soverei"nt!. The entire constitutional order of limited "overnment is premised
upon an acknoled"ment of such hi"her soverei"nt!,
032
thus the 4ilipinos implore the
*aid of Almi"ht! Bod in order to build a (ust and humane societ! and establish a
"overnment.* As held in 'herbert, onl! the "ravest abuses, endan"erin" paramount
interests can limit this fundamental ri"ht. A mere balancin" of interests hich
balances a ri"ht ith (ust a colorable state interest is therefore not appropriate.
$nstead, onl! a compellin" interest of the state can prevail over the fundamental ri"ht
to reli"ious libert!. The test re%uires the state to carr! a heav! burden, a compellin"
one, for to do otherise ould allo the state to batter reli"ion, especiall! the less
poerful ones until the! are destro!ed.
03<
$n determinin" hich shall prevail beteen
the state#s interest and reli"ious libert!, reasonableness shall be the "uide.
03;
The
*compellin" state interest* serves the purpose of reverin" reli"ious libert! hile at the
same time affordin" protection to the paramount interests of the state. This as the
test used in 'herbert hich involved conduct, i.e. refusal to ork on 'aturda!s. $n the
end, the *compellin" state interest* test, b! upholdin" the paramount interests of the
state, seeks to protect the ver! state, ithout hich, reli"ious libert! ill not be
preserved.
@. A%%&'#"t'o. o/ t0$ R$&'g'o. C&"us$s to t0$ C"s$ "t 5"-
A. T0$ R$&'g'o. C&"us$s ".+ Mo-"&'t6
$n a catena of cases, the Court has ruled that "overnment emplo!ees en"a"ed in
illicit relations are "uilt! of *dis"raceful and immoral conduct* for hich heOshe ma!
be held administrativel! liable.
0)3
$n these cases, there as not one dissent to the
ma(orit!#s rulin" that their conduct as immoral. The respondents themselves did not
foist the defense that their conduct as not immoral, but instead sou"ht to prove that
the! did not commit the alle"ed act or have abated from committin" the act. The facts
of the );25 case of D$ D'os 2. A&$>o
0))
and the );;; case of M"gu"+ 2. D$
9u;1".,
0)+
are similar to the case at bar / i.e., the complainant is a mere stran"er
and the le"al ife has not re"istered an! ob(ection to the illicit relation, there is no
proof of scandal or offense to the moral sensibilities of the communit! in hich the
respondent and the partner live and ork, and the "overnment emplo!ee is
capacitated to marr! hile the partner is not capacitated but has lon" been
separated in fact. 'till, the Court found the "overnment emplo!ees administrativel!
liable for *dis"raceful and immoral conduct* and onl! considered the fore"oin"
circumstances to miti"ate the penalt!. Respondent Escritor does not claim that there
is error in the settled (urisprudence that an illicit relation constitutes dis"raceful and
immoral conduct for hich a "overnment emplo!ee is held liable. Nor is there an
alle"ation that the norms of moralit! ith respect to illicit relations have shifted
toards lenienc! from the time these precedent cases ere decided. The Court finds
that there is no such error or shift, thus e find no reason to deviate from these
rulin"s that such illicit relationship constitutes *dis"raceful and immoral conduct*
punishable under the Civil 'ervice 6a. Respondent havin" admitted the alle"ed
immoral conduct, she, like the respondents in the above/cited cases, could be held
administrativel! liable. :oever, there is a distin"uishin" factor that sets the case at
bar apart from the cited precedents, i.e., as a defense, respondent invokes reli"ious
freedom since her reli"ion, the 1ehovah#s >itnesses, has, after thorou"h
investi"ation, alloed her con(u"al arran"ement ith =uilapio based on the church#s
reli"ious beliefs and practices. This distin"uishin" factor compels the Court to appl!
the reli"ious clauses to the case at bar.
>ithout holdin" that reli"ious freedom is not in issue in the case at bar, both the
dissentin" opinion of Mme. 1ustice Fnares/'antia"o and the separate opinion of Mr.
1ustice Gitu" dell more on the standards of moralit! than on the reli"ion clauses in
decidin" the instant case. A discussion on moralit! is in order.
41
At base, moralit! refers to, in 'ocrates# ords, *ho e ou"ht to live* and h!. An!
definition of moralit! be!ond 'ocrates# simple formulation is bound to offend one or
another of the man! rival theories re"ardin" hat it means to live morall!.
0).
The
anser to the %uestion of ho e ou"ht to live necessaril! considers that man does
not live in isolation, but in societ!. @evlin posits that a societ! is held to"ether b! a
communit! of ideas, made up not onl! of political ideas but also of ideas about the
manner its members should behave and "overn their lives. The latter are their
moralsC the! constitute the public moralit!. Each member of societ! has ideas about
hat is "ood and hat is evil. $f people tr! to create a societ! herein there is no
fundamental a"reement about "ood and evil, the! ill failC if havin" established the
societ! on common a"reement, the a"reement collapses, the societ! ill
disinte"rate. 'ociet! is kept to"ether b! the invisible bonds of common thou"ht so
that if the bonds are too loose, the members ould drift apart. A common moralit! is
part of the bonda"e and the bonda"e is part of the price of societ!C and mankind,
hich needs societ!, must pa! its price.
0)0
This desi"n is parallel ith the social
contract in the realm of politicsA people "ive up a portion of their liberties to the state
to allo the state to protect their liberties. $n a constitutional order, people make a
fundamental a"reement about the poers of "overnment and their liberties and
embod! this a"reement in a constitution, hence referred to as the fundamental la of
the land. A complete break of this fundamental a"reement such as b! revolution
destro!s the old order and creates a ne one.
0)5
'imilarl!, in the realm of moralit!,
the breakdon of the fundamental a"reement about the manner a societ!#s members
should behave and "overn their lives ould disinte"rate societ!. Thus, societ! is
(ustified in takin" steps to preserve its moral code b! la as it does to preserve its
"overnment and other essential institutions.
0)8
4rom these propositions of @evlin, one
cannot conclude that @evlin ne"ates diversit! in societ! for he is merel! sa!in" that
in the midst of this diversit!, there should nevertheless be a *fundamental a"reement
about "ood and evil* that ill "overn ho people in a societ! ou"ht to live. :is
propositions, in fact, presuppose diversit! hence the need to come to an a"reementC
his position also allos for chan"e of moralit! from time to time hich ma! be
brou"ht about b! this diversit!. $n the same vein, a pluralistic societ! la!s don
fundamental ri"hts and principles in their constitution in establishin" and maintainin"
their societ!, and these fundamental values and principles are translated into
le"islation that "overns the order of societ!, las that ma! be amended from time to
time. :art#s ar"ument propounded in Mr. 1ustice Gitu"#s separate opinion that,
*@evlin#s vie of people livin" in a sin"le societ! as havin" common moral foundation
,is- overl! simplistic* because *societies have ala!s been diverse* fails to reco"niDe
the necessit! of @evlin#s proposition in a democrac!. >ithout fundamental a"reement
on political and moral ideas, societ! ill fall into anarch!C the a"reement is necessar!
to the e?istence and pro"ress of societ!.
$n a democrac!, this common a"reement on political and moral ideas is distilled in
the public s%uare. >here citiDens are free, ever! opinion, ever! pre(udice, ever!
aspiration, and ever! moral discernment has access to the public s%uare here
people deliberate the order of their life to"ether. CitiDens are the bearers of opinion,
includin" opinion shaped b!, or espousin" reli"ious belief, and these citiDens have
e%ual access to the public s%uare. $n this representative democrac!, the state is
prohibited from determinin" hich convictions and moral (ud"ments ma! be
proposed for public deliberation. Throu"h a constitutionall! desi"ned process, the
people deliberate and decide. Ma(orit! rule is a necessar! principle in this democratic
"overnance.
0)2
Thus, hen public deliberation on moral (ud"ments is finall!
cr!stalliDed into la, the las ill lar"el! reflect the beliefs and preferences of the
ma(orit!, i.e., the mainstream or median "roups.
0)<
Nevertheless, in the ver! act of
adoptin" and acceptin" a constitution and the limits it specifies // includin" protection
of reli"ious freedom *not onl! for a minorit!, hoever small/ not onl! for a ma(orit!,
hoever lar"e/ but for each of us* // the ma(orit! imposes upon itself a self/den!in"
ordinance. $t promises not to do hat it otherise could doA to ride rou"hshod over
the dissentin" minorities.
0);
$n the realm of reli"ious e?ercise, benevolent neutralit!
that "ives room for accommodation carries out this promise, provided the compellin"
interests of the state are not eroded for the preservation of the state is necessar! to
the preservation of reli"ious libert!. That is h! benevolent neutralit! is necessar! in
a pluralistic societ! such as the &nited 'tates and the Philippines to accommodate
those minorit! reli"ions hich are politicall! poerless. $t is not surprisin" that 'mith
is much criticiDed for it blocks the (udicial recourse of the minorit! for reli"ious
accommodations.
The las enacted become e?pressions of public moralit!. As 1ustice :olmes put it,
*,t-he la is the itness and deposit of our moral life.*
0+3
*$n a liberal democrac!, the
la reflects social moralit! over a period of time.*
0+)
9ccasionall! thou"h, a
disproportionate political influence mi"ht cause a la to be enacted at odds ith
public moralit! or le"islature mi"ht fail to repeal las embod!in" outdated traditional
moral vies.
0++
6a has also been defined as *somethin" men create in their best
moments to protect themselves in their orst moments.*
0+.
Even then, las are
sub(ect to amendment or repeal (ust as (udicial pronouncements are sub(ect to
modification and reversal to better reflect the public morals of a societ! at a "iven
time. After all, *the life of the la...has been e?perience,* in the ords of 1ustice
:olmes. This is not to sa! thou"h that la is all of moralit!. 6a deals ith the
minimum standards of human conduct hile moralit! is concerned ith the
ma?imum. A person ho re"ulates his conduct ith the sole ob(ect of avoidin"
punishment under the la does not meet the hi"her moral standards set b! societ!
for him to be called a morall! upri"ht person.
0+0
6a also serves as *a helpful startin"
point for thinkin" about a proper or ideal public moralit! for a societ!*
0+5
in pursuit of
moral pro"ress.
$n M"g.o 2. Cou-t o/ A%%$"&s, $t "&.,
0+8
e articulated the relationship beteen la
and public moralit!. >e held that under the utilitarian theor!, the *protective theor!* in
criminal la, *criminal la is founded upon the moral disapprobation ? ? ? of actions
hich are immoral, i.e., hich are detrimental ,or dan"erous- to those conditions
upon hich depend the e?istence and pro"ress of human societ!. This
disapprobation is inevitable to the e?tent that moralit! is "enerall! founded and built
upon a certain concurrence in the moral opinions of all. ? ? ? That hich e call
punishment is onl! an e?ternal means of emphasiDin" moral disapprobationA the
method of punishment is in realit! the amount of punishment.*
0+2
'tated otherise,
there are certain standards of behavior or moral principles hich societ! re%uires to
be observed and these form the bases of criminal la. Their breach is an offense not
onl! a"ainst the person in(ured but a"ainst societ! as a hole.
0+<
Thus, even if all
42
involved in the misdeed are consentin" parties, such as in the case at bar, the in(ur!
done is to the public morals and the public interest in the moral order.
0+;
Mr. 1ustice
Gitu" e?presses concern on this point in his separate opinion. :e observes that
certain immoral acts hich appear private and not harmful to societ! such as se?ual
con"ress *beteen a man and a prostitute, thou"h consensual and private, and ith
no in(ured third part!, remains ille"al in this countr!.* :is opinion asks hether these
las on private moralit! are (ustified or the! constitute impin"ement on one#s freedom
of belief. @iscussion on private moralit!, hoever, is not material to the case at bar
for hether respondent#s conduct, hich constitutes concubina"e,
0.3
is private in the
sense that there is no in(ured part! or the offended spouse consents to the
concubina"e, the inescapable fact is that the le"islature has taken concubina"e out
of the sphere of private morals. The le"islature included concubina"e as a crime
under the Revised Penal Code and the constitutionalit! of this la is not bein" raised
in the case at bar. $n the definition of the crime of concubina"e, consent of the in(ured
part!, i.e., the le"al spouse, does not alter or ne"ate the crime unlike in rape
0.)
here
consent of the supposed victim ne"ates the crime. $f at all, the consent or pardon of
the offended spouse in concubina"e ne"ates the prosecution of the action,
0.+
but
does not alter the le"islature#s characteriDation of the act as a moral disapprobation
punishable b! la. The separate opinion states that, *,t-he ponencia has taken pains
to distin"uish beteen secular and private moralit!, and reached the conclusion that
the la, as an instrument of the secular 'tate should onl! concern itself ith secular
moralit!.* The Court does not dra this distinction in the case at bar. The distinction
relevant to the case is not, as averred and discussed b! the separate opinion,
*beteen secular and private moralit!,* but beteen public and secular moralit! on
the one hand, and reli"ious moralit! on the other, hich ill be subse%uentl!
discussed.
Not ever! moral ron" is foreseen and punished b! la, criminal or otherise. >e
reco"niDed this realit! in Gela!o, et al. v. 'hell Co. of the Philippine $slands, et al.,
here e e?plained that for those ron"s hich are not punishable b! la, Articles
); and +) in Chapter + of the Preliminar! Title of the Ne Civil Code, dealin" ith
:uman Relations, provide for the reco"nition of the ron" and the concomitant
punishment in the form of dama"es. Articles ); and +) provide, viDA
Art. );. An! person must, in the e?ercise of his ri"hts and in the
performance of his duties, act ith (ustice, "ive ever!one his due and
observe honest! and "ood faith.
??? ??? ???
Art. +). An! person ho illfull! causes loss or in(ur! to another in a manner
that is contrar! to morals, "ood customs or public polic! shall compensate
the latter for the dama"e. ,emphasis supplied-
>e then cited in Gela!o the Code Commission#s comment on Article +)A
Thus at one stroke, the le"islator, if the fore"oin" rule is approved ,as it as
approved-, ould vouchsafe ade%uate le"al remed! for that untold numbers
of moral ron"s hich is impossible for human foresi"ht to provide for
specificall! in the statutes.
But, it ma! be asked, ould this proposed article obliterate the boundar!
line beteen moralit! and laH The anser is that, in the last anal!sis,
ever! "ood la dras its breath of life from morals, from those principles
hich are ritten ith ords of fire in the conscience of man. $f this premise
is admitted, then the proposed rule is a prudent earnest of (ustice in the face
of the impossibilit! of enumeratin", one b! one, all ron"s hich cause
dama"es. >hen it is reflected that hile codes of la and statutes have
chan"ed from a"e to a"e, the conscience of man has remained fi?ed to its
ancient moorin"s, one can not but feel that it is safe and salutar! to
transmute, as far as ma! be, moral norms into le"al rules, thus impartin" to
ever! le"al s!stem that endurin" %ualit! hich ou"ht to be one of its
superlative attributes.
4urthermore, there is no belief of more baneful conse%uence upon the
social order than that a person ma! ith impunit! cause dama"e to his
fello/men so lon" as he does not break an! la of the 'tate, thou"h he
ma! be def!in" the most sacred postulates of moralit!. >hat is more, the
victim loses faith in the abilit! of the "overnment to afford him protection or
relief.
A provision similar to the one under consideration is embodied in article <+8
of the Berman Civil Code.
0..
,emphases supplied-
The public moralit! e?pressed in the la is necessaril! secular for in our
constitutional order, the reli"ion clauses prohibit the state from establishin" a reli"ion,
includin" the moralit! it sanctions. Reli"ious moralit! proceeds from a person#s
*vies of his relations to :is Creator and to the obli"ations the! impose of reverence
to :is bein" and character and obedience to :is >ill,* in accordance ith this Court#s
definition of reli"ion in American Bible 'ociet! citin" @avis. Reli"ion also dictates
*ho e ou"ht to live* for the nature of reli"ion is not (ust to kno, but often, to act in
accordance ith man#s *vies of his relations to :is Creator.*
0.0
But the
Establishment Clause puts a ne"ative bar a"ainst establishment of this moralit!
arisin" from one reli"ion or the other, and implies the affirmative *establishment* of a
civil order for the resolution of public moral disputes. This a"reement on a secular
mechanism is the price of endin" the *ar of all sects a"ainst all*C the establishment
of a secular public moral order is the social contract produced b! reli"ious truce.
0.5
Thus, hen the la speaks of *immoralit!* in the Civil 'ervice 6a or *immoral* in
the Code of Professional Responsibilit! for la!ers
0.8
, or *public morals* in the
Revised Penal Code,
0.2
or *morals* in the Ne Civil Code,
0.<
or *moral character* in
the Constitution,
0.;
the distinction beteen public and secular moralit! on the one
hand, and reli"ious moralit!, on the other, should be kept in mind.
003
The moralit!
43
referred to in the la is public and necessaril! secular, not reli"ious as the dissent of
Mr. 1ustice Carpio holds. *Reli"ious teachin"s as e?pressed in public debate ma!
influence the civil public order but public moral disputes ma! be resolved onl! on
"rounds articulable in secular terms.*
00)
9therise, if "overnment relies upon
reli"ious beliefs in formulatin" public policies and morals, the resultin" policies and
morals ould re%uire conformit! to hat some mi"ht re"ard as reli"ious pro"rams or
a"enda. The non/believers ould therefore be compelled to conform to a standard of
conduct buttressed b! a reli"ious belief, i.e., to a *compelled reli"ion,* anathema to
reli"ious freedom. 6ikeise, if "overnment based its actions upon reli"ious beliefs, it
ould tacitl! approve or endorse that belief and thereb! also tacitl! disapprove
contrar! reli"ious or non/reli"ious vies that ould not support the polic!. As a result,
"overnment ill not provide full reli"ious freedom for all its citiDens, or even make it
appear that those hose beliefs are disapproved are second/class citiDens.
E?pansive reli"ious freedom therefore re%uires that "overnment be neutral in matters
of reli"ionC "overnmental reliance upon reli"ious (ustification is inconsistent ith this
polic! of neutralit!.
00+
$n other ords, "overnment action, includin" its proscription of immoralit! as
e?pressed in criminal la like concubina"e, must have a secular purpose. That is,
the "overnment proscribes this conduct because it is *detrimental ,or dan"erous- to
those conditions upon hich depend the e?istence and pro"ress of human societ!*
and not because the conduct is proscribed b! the beliefs of one reli"ion or the other.
Althou"h admittedl!, moral (ud"ments based on reli"ion mi"ht have a compellin"
influence on those en"a"ed in public deliberations over hat actions ould be
considered a moral disapprobation punishable b! la. After all, the! mi"ht also be
adherents of a reli"ion and thus have reli"ious opinions and moral codes ith a
compellin" influence on themC the human mind endeavors to re"ulate the temporal
and spiritual institutions of societ! in a uniform manner, harmoniDin" earth ith
heaven.
00.
'uccinctl! put, a la could be reli"ious or Iantian or A%uinian or utilitarian
in its deepest roots, but it must have an articulable and discernible secular purpose
and (ustification to pass scrutin! of the reli"ion clauses. 9therise, if a la has an
apparent secular purpose but upon closer e?amination shos a discriminator! and
prohibitor! reli"ious purpose, the la ill be struck don for bein" offensive of the
reli"ion clauses as in Church of the 6ukumi Babalu A!e, $nc. here the &.'.
'upreme Court invalidated an ordinance prohibitin" animal sacrifice of the 'anteria.
Reco"niDin" the reli"ious nature of the 4ilipinos and the elevatin" influence of
reli"ion in societ!, hoever, the Philippine constitution#s reli"ion clauses prescribe not
a strict but a benevolent neutralit!. Benevolent neutralit! reco"niDes that "overnment
must pursue its secular "oals and interests but at the same time strives to uphold
reli"ious libert! to the "reatest e?tent possible ithin fle?ible constitutional limits.
Thus, althou"h the moralit! contemplated b! las is secular, benevolent neutralit!
could allo for accommodation of moralit! based on reli"ion, provided it does not
offend compellin" state interests.
Mr. 1ustice Gitu"#s separate opinion embraces the benevolent neutralit! approach
hen it states that in decidin" the case at bar, the approach should consider that,
*,a-s a rule . . . moral las are (ustified onl! to the e?tent that the! directl! or
indirectl! serve to protect the interests of the lar"er societ!. $t is onl! here their ri"id
application ould serve to obliterate the value hich societ! seeks to uphold, or
defeat the purpose for hich the! are enacted ould, a departure be (ustified.* $n
reli"ion clause parlance, the separate opinion holds that las of "eneral applicabilit!
"overnin" morals should have a secular purpose of directl! or indirectl! protectin"
the interests of the state. $f the strict application of these las ,hich are the Civil
'ervice 6a and the las on marria"e- ould erode the secular purposes of the la
,hich the separate opinion identifies as upholdin" the sanctit! of marria"e and the
famil!-, then in a benevolent neutralit! frameork, an accommodation of the
unconventional reli"ious belief and practice ,hich the separate opinion holds should
be respected on the "round of freedom of belief- that ould promote the ver! same
secular purpose of upholdin" the sanctit! of marria"e and famil! throu"h the
@eclaration Pled"in" 4aithfulness that makes the union bindin" and honorable
before Bod and men, is re%uired b! the 4ree E?ercise Clause. The separate opinion
then makes a preliminar! discussion of the values societ! seeks to protect in
adherin" to mono"amous marria"e, but concludes that these values and the
purposes of the applicable las should be thorou"hl! e?amined and evidence in
relation thereto presented in the 9CA. The accommodation approach in the case at
bar ould also re%uire a similar discussion of these values and presentation of
evidence before the 9CA b! the state that seeks to protect its interest on marria"e
and opposes the accommodation of the unconventional reli"ious belief and practice
re"ardin" marria"e.
The distinction beteen public and secular moralit! as e?pressed / albeit not
e?clusivel! / in the la, on the one hand, and reli"ious moralit!, on the other, is
important because the (urisdiction of the Court e?tends onl! to public and secular
moralit!. >hatever pronouncement the Court makes in the case at bar should be
understood onl! in this realm here it has authorit!. More concretel!, should the
Court declare respondent#s conduct as immoral and hold her administrativel! liable,
the Court ill be holdin" that in the realm of public moralit!, her conduct is
reprehensible or there are state interests overridin" her reli"ious freedom. 4or as
lon" as her conduct is bein" (ud"ed ithin this realm, she ill be accountable to the
state. But in so rulin", the Court does not and cannot sa! that her conduct should be
made reprehensible in the realm of her church here it is presentl! sanctioned and
that she is anserable for her immoralit! to her 1ehovah Bod nor that other reli"ions
prohibitin" her conduct are correct. 9n the other hand, should the Court declare her
conduct permissible, the Court ill be holdin" that under her uni%ue circumstances,
public moralit! is not offended or that upholdin" her reli"ious freedom is an interest
hi"her than upholdin" public moralit! thus her conduct should not be penaliDed. But
the Court is not rulin" that the tenets and practice of her reli"ion are correct nor that
other churches hich do not allo respondent#s con(u"al arran"ement should
likeise allo such con(u"al arran"ement or should not find an!thin" immoral about
it and therefore members of these churches are not anserable for immoralit! to
their 'upreme Bein". The Court cannot speak more than hat it has authorit! to sa!.
$n Ballard, the &.'. 'upreme Court held that courts cannot in%uire about the truth of
reli"ious beliefs. 'imilarl!, in 4onacier, this Court declared that matters dealin" ith
*faith, practice, doctrine, form of orship, ecclesiastical la, custom and rule of a
churchLare un%uestionabl! ecclesiastical matters hich are outside the province of
the civil courts.*
000
But hile the state, includin" the Court, accords such deference to
44
reli"ious belief and e?ercise hich en(o! protection under the reli"ious clauses, the
social contract and the constitutional order are desi"ned in such a a! that hen
reli"ious belief flos into speech and conduct that step out of the reli"ious sphere
and overlap ith the secular and public realm, the state has the poer to re"ulate,
prohibit and penaliDe these e?pressions and embodiments of belief insofar as the!
affect the interests of the state. The state#s inroad on reli"ion e?ercise in e?cess of
this constitutional desi"n is prohibited b! the reli"ion clausesC the 9ld >orld,
European and American histor! narrated above bears out the isdom of this
proscription.
:avin" distin"uished beteen public and secular moralit! and reli"ious moralit!, the
more difficult task is determinin" hich immoral acts under this public and secular
moralit! fall under the phrase *dis"raceful and immoral conduct* for hich a
"overnment emplo!ee ma! be held administrativel! liable. The line is not eas! to
dra for it is like *a line that divides land and sea, a coastline of irre"ularities and
indentations.*
005
But the case at bar does not re%uire us to comprehensivel! delineate
beteen those immoral acts for hich one ma! be held administrativel! liable and
those to hich administrative liabilit! does not attach. >e need not concern
ourselves in this case therefore hether *laDiness, "lutton!, vanit!, selfishness,
avarice and coardice* are immoral acts hich constitute "rounds for administrative
liabilit!. Nor need e e?pend too much ener"! "rapplin" ith the propositions that
not all immoral acts are ille"al or not all ille"al acts are immoral, or different
(urisdictions have different standards of moralit! as discussed b! the dissents and
separate opinions, althou"h these observations and propositions are true and
correct. $t is certainl! a fallacious ar"ument that because there are e?ceptions to the
"eneral rule that the *la is the itness and deposit of our moral life,* then the rule is
not trueC in fact, that there are e?ceptions onl! affirms the truth of the rule. 6ikeise,
the observation that moralit! is relative in different (urisdictions onl! affirms the truth
that there is moralit! in a particular (urisdictionC ithout, hoever, discountin" the
truth that underneath the moral relativism are certain moral absolutes such as
respect for life and truth/tellin", ithout hich no societ! ill survive. 9nl! one
conduct is in %uestion before this Court, i.e., the con(u"al arran"ement of a
"overnment emplo!ee hose partner is le"all! married to another hich Philippine
la and (urisprudence consider both immoral and ille"al. 6est the Court
inappropriatel! en"a"e in the impossible task of prescribin" comprehensivel! ho
one ou"ht to live, the Court must focus its attention upon the sole conduct in %uestion
before us.
$n interpretin" *dis"raceful and immoral conduct,* the dissentin" opinion of Mme.
1ustice Fnares/'antia"o "roped for standards of moralit! and stated that the
*ascertainment of hat is moral or immoral calls for the discover! of contemporar!
communit! standards* but did not articulate ho these standards are to be
ascertained. $nstead, it held that, *,f-or those in the service of the Bovernment,
provisions of la and court precedents . . . have to be considered.* $t identified the
Civil 'ervice 6a and the las on adulter! and concubina"e as las hich
respondent#s conduct has offended and cited a strin" of precedents here a
"overnment emplo!ee as found "uilt! of committin" a *dis"raceful and immoral
conduct* for maintainin" illicit relations and as thereb! penaliDed. As stated above,
there is no dispute that under settled (urisprudence, respondent#s conduct constitutes
*dis"raceful and immoral conduct.* :oever, the cases cited b! the dissent do not
involve the defense of reli"ious freedom hich respondent in the case at bar invokes.
Those cited cases cannot therefore serve as precedents in settlin" the issue in the
case at bar.
Mme. 1ustice Fnares/'antia"o#s dissent also cites C&$2$&".+ 2. U.'t$+ St"t$s
008
in
la!in" don the standard of moralit!, viDA *,-hether an act is immoral ithin the
meanin" of the statute is not to be determined b! respondent#s concept of moralit!.
The la provides the standardC the offense is complete if respondent intended to
perform, and did in fact perform, the act hich it condemns.* The Mann Act under
consideration in the Cleveland case declares as an offense the transportation in
interstate commerce of *an! oman or "irl for the purpose of prostitution or
debaucher!, or for an! other immoral purpose.*
002
The resolution of that case hin"ed
on the interpretation of the phrase *immoral purpose.* The &.'. 'upreme Court held
that the petitioner Mormons# act of transportin" at least one plural ife hether for
the purpose of cohabitin" ith her, or for the purpose of aidin" another member of
their Mormon church in such a pro(ect, as covered b! the phrase *immoral
purpose.* $n so rulin", the Court relied on Re!nolds hich held that the Mormons#
practice of pol!"am!, in spite of their defense of reli"ious freedom, as *odious
amon" the northern and estern nations of Europe,*
00<
*a return to barbarism,*
00;

*contrar! to the spirit of Christianit! and of the civiliDation hich Christianit! has
produced in the >estern orld,*
053
and thus punishable b! la.
The Cleveland standard, hoever, does not thro li"ht to the issue in the case at bar.
The pronouncements of the &.'. 'upreme Court that pol!"am! is intrinsicall!
*odious* or *barbaric* do not appl! in the Philippines here Muslims, b! la, are
alloed to practice pol!"am!. &nlike in Cleveland, there is no (urisprudence in
Philippine (urisdiction holdin" that the defense of reli"ious freedom of a member of
the 1ehovah#s >itnesses under the same circumstances as respondent ill not
prevail over the las on adulter!, concubina"e or some other la. >e cannot
summaril! conclude therefore that her conduct is likeise so *odious* and *barbaric*
as to be immoral and punishable b! la.
>hile positin" the vie that the resolution of the case at bar lies more on determinin"
the applicable moral standards and less on reli"ious freedom, Mme. 1ustice Fnares/
'antia"o#s dissent nevertheless discussed respondent#s plea of reli"ious freedom
and disposed of this defense b! statin" that *,a- clear and present dan"er of a
substantive evil, destructive to public morals, is a "round for the reasonable
re"ulation of the free e?ercise and en(o!ment of reli"ious profession. ,American Bible
'ociet! v. Cit! of Manila, )3) Phil. .<8 J);52K-. $n addition to the destruction of public
morals, the substantive evil in this case is the tearin" don of moralit!, "ood order,
and discipline in the (udiciar!.* :oever, the fore"oin" discussion has shon that the
*clear and present dan"er* test that is usuall! emplo!ed in cases involvin" freedom
of e?pression is not appropriate to the case at bar hich involves purel! reli"ious
conduct. The dissent also cites Re!nolds in supportin" its conclusion that respondent
is "uilt! of *dis"raceful and immoral conduct.* The Re!nolds rulin", hoever, as
45
reached ith a strict neutralit! approach, hich is not the approach contemplated b!
the Philippine constitution. As discussed above, Philippine (urisdiction adopts
benevolent neutralit! in interpretin" the reli"ion clauses.
$n the same vein, Mr. 1ustice Carpio#s dissent hich emplo!s strict neutralit! does not
reflect the constitutional intent of emplo!in" benevolent neutralit! in interpretin" the
Philippine reli"ion clauses. :is dissent avers that respondent should be held
administrativel! liable not for *dis"raceful and immoral conduct* but *conduct
pre(udicial to the best interest of the service* as she is a necessar! co/accused of her
partner in concubina"e. The dissent stresses that bein" a court emplo!ee, her open
violation of the la is pre(udicial to the administration of (ustice. 4irstl!, the dissent
offends due process as respondent as not "iven an opportunit! to defend herself
a"ainst the char"e of *conduct pre(udicial to the best interest of the service.* $n
addition, there is no evidence of the alle"ed pre(udice to the best interest of the
service. Most importantl!, the dissent concludes that respondent#s plea of reli"ious
freedom cannot prevail ithout so much as emplo!in" a test that ould balance
respondent#s reli"ious freedom and the state#s interest at stake in the case at bar.
The fore"oin" discussion on the doctrine of reli"ious freedom, hoever, shos that
ith benevolent neutralit! as a frameork, the Court cannot simpl! re(ect
respondent#s plea of reli"ious freedom ithout even sub(ectin" it to the *compellin"
state interest* test that ould balance her freedom ith the paramount interests of
the state. The strict neutralit! emplo!ed in the cases the dissent cites /Re!nolds,
'mith and People v. Bitdu decided before the );.5 Constitution hich unmistakabl!
shos adherence to benevolent neutralit! / is not contemplated b! our constitution.
Neither is 'ulu $slamic Association of Mas(id 6amba!on" v. 1ud"e Nabdar 1. Malik
05)

cited in Mr. 1ustice Carpio#s dissent decisive of the immoralit! issue in the case at
bar. $n that case, the Court dismissed the char"e of immoralit! a"ainst a Tausu"
(ud"e for en"a"in" in an adulterous relationship ith another oman ith hom he
had three children because *it ,as- not #immoral# b! Muslim standards for 1ud"e
Malik to marr! a second time hile his first marria"e ,e?isted-.* Puttin" the %uoted
portion in its proper conte?t ould readil! sho that the 'ulu $slamic case does not
provide a precedent to the case at bar. $mmediatel! prior to the portion %uoted b! the
dissent, the Court stressed, viDA *,s-ince Art. )<3 of P.@. No. )3<., otherise knon
as the Code of Muslim Personal 6as of the Philippines, provides that the penal las
relative to the crime of bi"am! #shall not appl! to a person married ? ? ? under
Muslim 6a,# it is not #immoral# b! Muslim standards for 1ud"e Malik to marr! a
second time hile his first marria"e e?ists.*
05+
$t as b! la, therefore, that the
Muslim conduct in %uestion as classified as an e?ception to the crime of bi"am!
and thus an e?ception to the "eneral standards of moralit!. The constitutionalit! of
P.@. No. )3<. hen measured a"ainst the Establishment Clause as not raised as
an issue in the 'ulu $slamic case. Thus, the Court did not determine hether P.@. No.
)3<. suffered from a constitutional infirmit! and instead relied on the provision
e?ceptin" the challen"ed Muslim conduct from the crime of bi"am! in holdin" that
the challen"ed act is not immoral b! Muslim standards. $n contradistinction, in the
case at bar, there is no similar la hich the Court can appl! as basis for treatin"
respondent#s conduct as an e?ception to the prevailin" (urisprudence on illicit
relations of civil servants. $nstead, the 4ree E?ercise Clause is bein" invoked to
(ustif! e?emption.
5. A%%&'#"t'o. o/ 5$.$2o&$.t N$ut-"&'t6 ".+ t0$ Co1%$&&'.g St"t$ I.t$-$st T$st
to t0$ C"s$ "t 5"-
The case at bar bein" one of first impression, e no sub(ect the respondent#s claim
of reli"ious freedom to the *compellin" state interest* test from a benevolent
neutralit! stance / i.e. entertainin" the possibilit! that respondent#s claim to reli"ious
freedom ould arrant carvin" out an e?ception from the Civil 'ervice 6aC
necessaril!, her defense of reli"ious freedom ill be unavailin" should the
"overnment succeed in demonstratin" a more compellin" state interest.
$n appl!in" the test, the first in%uir! is hether respondent#s ri"ht to reli"ious freedom
has been burdened. There is no doubt that choosin" beteen keepin" her
emplo!ment and abandonin" her reli"ious belief and practice and famil! on the one
hand, and "ivin" up her emplo!ment and keepin" her reli"ious practice and famil! on
the other hand, puts a burden on her free e?ercise of reli"ion. $n 'herbert, the Court
found that 'herbert#s reli"ious e?ercise as burdened as the denial of unemplo!ment
benefits *forces her to choose beteen folloin" the precepts of her reli"ion and
forfeitin" benefits, on the one hand, and abandonin" one of the precepts of her
reli"ion in order to accept ork, on the other hand.* The burden on respondent in the
case at bar is even "reater as the price she has to pa! for her emplo!ment is not
onl! her reli"ious precept but also her famil! hich, b! the @eclaration Pled"in"
4aithfulness, stands *honorable before Bod and men.*
The second step is to ascertain respondent#s sincerit! in her reli"ious belief.
Respondent appears to be sincere in her reli"ious belief and practice and is not
merel! usin" the *@eclaration of Pled"in" 4aithfulness* to avoid punishment for
immoralit!. 'he did not secure the @eclaration onl! after enterin" the (udiciar! here
the moral standards are strict and defined, much less onl! after an administrative
case for immoralit! as filed a"ainst her. The @eclaration as issued to her b! her
con"re"ation after ten !ears of livin" to"ether ith her partner, =uilapio, and ten
!ears before she entered the (udiciar!. Ministers from her con"re"ation testified on
the authenticit! of the 1ehovah#s >itnesses# practice of securin" a @eclaration and
their doctrinal or scriptural basis for such a practice. As the ministers testified, the
@eclaration is not himsicall! issued to avoid le"al punishment for illicit conduct but
to make the *union* of their members under respondent#s circumstances *honorable
before Bod and men.* $t is also orth! of notice that the Report and
Recommendation of the investi"atin" (ud"e anne?ed letters
05.
of the 9CA to the
respondent re"ardin" her re%uest to be e?empt from attendin" the fla" ceremon!
after Circular No. 8+/+33) as issued re%uirin" attendance in the fla" ceremon!. The
9CA#s letters ere not submitted b! respondent as evidence but anne?ed b! the
investi"atin" (ud"e in e?plainin" that he as cau"ht in a dilemma hether to find
respondent "uilt! of immoralit! because the Court Administrator and @eput! Court
Administrator had different positions re"ardin" respondent#s re%uest for e?emption
from the fla" ceremon! on the "round of the 1ehovah#s >itnesses# contrar! belief
46
and practice. Respondent#s re%uest for e?emption from the fla" ceremon! shos her
sincerit! in practicin" the 1ehovah#s >itnesses# beliefs and not usin" them merel! to
escape punishment. 'he is a practicin" member of the 1ehovah#s >itnesses and the
1ehovah ministers testified that she is a member in "ood standin". Nevertheless,
should the "overnment, thru the 'olicitor Beneral, ant to further %uestion the
respondent#s sincerit! and the centralit! of her practice in her faith, it should be "iven
the opportunit! to do so. The "overnment has not been represented in the case at
bar from its incipience until this point.
$n an! event, even if the Court deems sufficient respondent#s evidence on the
sincerit! of her reli"ious belief and its centralit! in her faith, the case at bar cannot
still be decided usin" the *compellin" state interest* test. The case at bar is one of
first impression, thus the parties ere not aare of the burdens of proof the! should
dischar"e in the Court#s use of the *compellin" state interest* test. >e note that the
9CA found respondent#s defense of reli"ious freedom unavailin" in the face of the
Court#s rulin" in @icdican v. 4ernan, et al., vizA
$t bears emphasis that the ima"e of a court of (ustice is mirrored in the
conduct, official and otherise, of the personnel ho ork thereat, from the
(ud"e to the loest of its personnel. Court personnel have been en(oined to
adhere to the e?actin" standards of moralit! and decenc! in their
professional and private conduct in order to preserve the "ood name and
inte"rit! of the courts of (ustice.
$t is apparent from the 9CA#s reliance upon this rulin" that the state interest it
upholds is the preservation of the inte"rit! of the (udiciar! b! maintainin" amon" its
ranks a hi"h standard of moralit! and decenc!. :oever, there is nothin" in the
9CA#s memorandum to the Court that demonstrates ho this interest is so
compellin" that it should override respondent#s plea of reli"ious freedom nor is it
shon that the means emplo!ed b! the "overnment in pursuin" its interest is the
least restrictive to respondent#s reli"ious e?ercise.
$ndeed, it is inappropriate for the complainant, a private person, to present evidence
on the compellin" interest of the state. The burden of evidence should be dischar"ed
b! the proper a"enc! of the "overnment hich is the 9ffice of the 'olicitor Beneral.
To properl! settle the issue in the case at bar, the "overnment should be "iven the
opportunit! to demonstrate the compellin" state interest it seeks to uphold in
opposin" the respondent#s stance that her con(u"al arran"ement is not immoral and
punishable as it comes ithin the scope of free e?ercise protection. 'hould the Court
prohibit and punish her conduct here it is protected b! the 4ree E?ercise Clause,
the Court#s action ould be an unconstitutional encroachment of her ri"ht to reli"ious
freedom.
050
>e cannot therefore simpl! take a passin" look at respondent#s claim of
reli"ious freedom, but must instead appl! the *compellin" state interest* test. The
"overnment must be heard on the issue as it has not been "iven an opportunit! to
dischar"e its burden of demonstratin" the state#s compellin" interest hich can
override respondent#s reli"ious belief and practice. To repeat, this is a case of first
impression here e are appl!in" the *compellin" state interest* test in a case
involvin" purel! reli"ious conduct. The careful application of the test is indispensable
as ho e ill decide the case ill make a decisive difference in the life of the
respondent ho stands not onl! before the Court but before her 1ehovah Bod.
$N G$E> >:ERE94, the case is REMAN@E@ to the 9ffice of the Court
Administrator. The 'olicitor Beneral is ordered to intervene in the case here it ill
be "iven the opportunit! ,a- to e?amine the sincerit! and centralit! of respondent#s
claimed reli"ious belief and practiceC ,b- to present evidence on the state#s
*compellin" interest* to override respondent#s reli"ious belief and practiceC and ,c- to
sho that the means the state adopts in pursuin" its interest is the least restrictive to
respondent#s reli"ious freedom. The rehearin" should be concluded thirt! ,.3- da!s
from the 9ffice of the Court Administrator#s receipt of this @ecision.
'9 9R@ERE@.
47