Religion has always been an interesting topic because, if mixed with the law, it becomes a wee bit confusing. It’s very difficult to define religion or religious acts, much more to decide whether to impose any liability or to offer any protection. In other words, rulings in relation to religion are bound to be filled with inconsistencies. But fear not, because bar exam questions will most likely be about established doctrines already. If not, we’ll still be ready with sound basis to provide a sound answer.
Before we can get to the basic principles of freedom of religion, it’s very enlightening to know its history, as elucidated by Justice Puno in Estrada v. Escritor (2003). It’s too long to include it here, so just read from the case link starting from the subsection “Old World Antecedents of the American Religion Clauses.”
BASIC PRINCIPLES
1. Purpose
The purpose for the separation of church and state, put in very basic terms, is that allowing these two powerful institutions to mingle with each other is just bad for everyone, including them:
“The Constitutional “wall” between the Church and the State, has been jurisprudentially recognized to stem from the country’s unfortunate collective experience when the two institutions are commingled into one entity, exercising both power and influence, oftentimes to the detriment of the populace.”
–Peralta v. Philpost, 2018
“…our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims.”
–Aglipay v. Ruiz, 1937
Because of this, not only is Article III, Sec. 5 the constitutional provision on freedom of religion, there are also others that are scattered across the Constitution with Article II, Sec. 6 as the mother of them all:
But of course, this does not mean that religion should be shunned and set aside. Our SC recognizes the importance of religion in our society:
“At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together. It has embraced minority groups and is tolerant towards all – the religious people of different sects and the non-believers. The undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be, and to Whom they called for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in “imploring the aid of Almighty God” manifested their spirituality innate in our nature and consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of morality. Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987 Constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church property, salary of religious officers in government institutions, and optional religious instructions in public schools.
–Imbong v. Ochoa, 2014
That’s why that there are also constitutional provisions that even cater, or using the proper term, “accommodate” religious practices. An example is Article XIV, Section 3(3):
Other provisions are: (Reminder: fill this one out later)
And of course, aside from putting up a constitutional “wall” to protect society from the mingling of Church and State, the purpose of freedom of religion is also rooted in liberty:
“Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status, well aware that it is “designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good.”
–Re: Letter of Tony Q. Valenciano, 2017
Concept of Religion
What is religion? In looking at previous SC cases, religion has been defined as:
“Religion has been spoken of as ‘a profession of faith to an active power that binds and elevates man to its Creator’ (Aglipay vs. Ruiz, 64 Phil., 201). It has reference to one’s views of his relations to His Creator and to the obligations they impose of reverence to His being and character, and obedience to His Will (Davis vs. Beason, 133 U.S., 342).”
–American Bible Society v. City of Manila, 1957
This is the theistic version (belief in the existence of a god/creator, as opposed to a non-theistic religion like Buddhism which does not refer to a god/creator and is more of a philosophy) and it’s been used prior to the 1987 Constitution. Fr. Bernas has this to say about religion’s definition:
“Some constitutional writers believe that the historic purpose of the Constitutional provision would best be served by extending it to changing notions of religion. The more traditionally minded, however, prefer to reserve the protection of the religion clause for theistic religion. For the non-theistic religions, they offer the protection of the freedom of expression clause, where expression is involved, or the due process clause and the equal protection clause, where action is involved. The 1973 Constitution has left this matter to jurisprudential development. So has the 1987 Constitution.”
-Fr. Bernas, The 1987 Constitution of the R.P. A Commentary, 2009, p. 330
It’s safe to say that there really is no standard definition to religion, and it will be up to the courts to determine whether a certain case is one that involves religion or not:
“After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts.. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meanings to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.”
–Gerona v. Secretary of Education, 1959
But then, if this question comes up in the Bar exams, we can answer with the American Bible Society definition just to be safe.
PRINCIPLE OF SEPARATION OF CHURCH AND STATE
The principle of separation of Church and State entails that these two great institutions should not meddle with each other’s affairs. The State cannot favor or discriminate any religion, and the church cannot impose its beliefs on the State and its citizens:
“Verily, the principle of separation of Church and State is based on mutual respect. Generally, the State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country.”
–Imbong v. Ochoa, 2014
This principle is reflected in the first sentence of Article III, Section 5 which can be broken down into two significant clauses: the non-establishment clause and the free exercise clause. We’ll explore these two later.
But of course, this does not mean that we adhere to absolute separation:
“This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is “to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.”
xxxx
In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible.”
–Peralta v. Philpost, 2018, citing Lynch v. Donnelly (1984 U.S. case)
The Non-Establishment Clause (or the Establishment Clause)
The values that the non-establishment clause seeks to protect are
1. Voluntarism
2. Insulation of the political process from Interfaith Dissension
What does that mean?
“The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms. As a social value, it means that the “growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics.” Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.“
–Estrada v. Escritor, 2003
Still a little confusing? Here’s Fr. Bernas who will illustrate how those two values are important:
“In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions:
(1) Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension;
(2) Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension;
(3) Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension; and
(4) Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.”
-Fr. Bernas, The 1987 Constitution of the R.P. A Commentary, 2009, p. 346
So what are the actual and tangible manifestations of the non-establishment clause?
“The non-establishment clause reinforces the wall of separation between Church and State. It simply means that the State cannot set up a Church; nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion; that the state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance; that no tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called or whatever form they may adopt or teach or practice religion; that the state cannot openly or secretly participate in the affairs of any religious organization or group and vice versa. Its minimal sense is that the state cannot establish or sponsor an official religion.
In the same breath that the establishment clause restricts what the government can do with religion, it also limits what religious sects can or cannot do. They can neither cause the government to adopt their particular doctrines as policy for everyone, nor can they cause the government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a particular religion and, thus, establish a state religion.“
–Re: Letter of Tony Q. Valenciano, 2017
As it turns out, BOTH the State’s and Church’s actions are restricted by the non-establishment clause.
Wait, so does this mean that the government can NEVER do something that may help, even just incidentally, a specific or particular religion? Well, not really. As we have discussed above, total separation is not really possible. Here are some cases that show this. We’ll also include a case (I think there’s only one) where the non-establishment clause was clearly violated.
1. Aglipay v. Ruiz (1937)
This case involves the State issuing and selling postage of stamps commemorative of the 33rd Int’l Eucharistic Congress:
“It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated.“
Thus, we can safely say that “a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion.“
–Estrada v. Escritor, 2003, citing Aglipay v. Ruiz, 1937
Reinforcing this doctrine is the next case.
2. Garces v. Estenzo (1981)
In this case, the SC held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio:
[It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an “ingrained tradition in rural communities” that “relieves the monotony and drudgery of the lives of the masses.” Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was “purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents.”]
–Estrada v. Escritor, 2003, citing Garces v. Estenzo, 1981
The important doctrine here, similar to Aglipay, is that:
“Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.”
This same doctrine regarding public funds is repeated in other cases, albeit not in the exact same words.
Decades have passed since Aglipay, and yet another eerily similar situation came up in our next case.
3. Peralta v. Philpost (2018)
In this case, Philpost has printed and distributed a whopping 1.2 million Iglesia ni Cristo Stamps commemorating its 100th anniversary. The SC ruled in favor of Philpost. Why? Let’s find out:
“First, there is no law mandating anyone to avail of the INC commemorative stamps, nor is there any law purporting to require anyone to adopt the INC’s teachings. Arguably, while then President Aquino issued Proclamation No. 815, s. 2014, authorizing the issuance of the INC commemorative stamp, the same did not contain any legal mandate endorsing or requiring people to conform to the INC’s teachings.
The secular purpose behind the printing of the INC commemorative stamp is obvious…
x x x x
The centennial celebration of the Iglesia ni Cristo, though arguably involves a religious institution, has a secular aspect…
x x x x
The printing of the INC commemorative stamp…x x x x…is simply an acknowledgment of INC’s existence for a hundred years. It does not necessarily equate to the State sponsoring the INC.
As to the use of the government’s machinery in printing and distribution of the 1.2 million stamps, this Court does not find that the same amounted to sponsorship of INC as a religion considering that the same is no different from other stamps issued by PhilPost acknowledging persons and events of significance to the country, such as those printed celebrating National Artists, past Philippine Presidents, and events of organizations, religious or not. We note that PhilPost has also issued stamps for the Catholic Church such as those featuring Heritage Churches, 15th International Eucharistic Congress, and Pope Francis. In the past, the Bureau of Posts also printed stamps celebrating 300 years of Islam in the 1980s. Likewise, our review of the records does not disclose that PhilPost has exclusively or primarily used its resources to benefit INC, to the prejudice of other religions. Finally, other than this single transaction with INC, this Court did not find PhilPost to have been unnecessarily involved in INC’s affairs.“
That makes sense if we look at it that way. But then, this is basically saying: “Hey, we’re doing it to other religions, so let’s do it for you too.” Anyway, it bears noting that Justice Leonen is the sole dissenter in this case, as well as in our next one.
But wait, there is a test introduced here that can be very useful in determining whether the non-establishment clause is violated:
“The “Lemon test”, which has been extensively applied by the U. S. Supreme Court in issues involving the determination of non-establishment of religion clause originated from the case of Lemon vs. Kurtzman (1971). In that case, the Court used a three-pronged test to adjudge whether the assailed governmental act violated the First Amendment, as follows:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and,
3. The statute must not foster “an excessive government entanglement with religion.“
On to our next case.
4. Re: Letter of Tony Q. Valenciano, 2017
This case involves a holding of a mass at the basement of the QC Hall of Justice wherein Mr. Valenciano sent letters to the Chief Justice saying that these should not be allowed. The SC ruled in favor of allowing the holding of the mass, citing that it is not a form of establishment (which is unconstitutional) but of accommodation (which is ok):
“…it is our considered view that the holding of Catholic masses at the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation. First, there is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. Second, when judiciary employees attend the masses to profess their faith, it is at their own initiative as they are there on their own free will and volition, without any coercion from the judges or administrative officers. Third, no government funds are being spent because the lightings and airconditioning continue to be operational even if there are no religious rituals there. Fourth, the basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced other religions.“
The case explained the difference between establishment and accommodation:
“In order to give life to the constitutional right of freedom of religion, the State adopts a policy of accommodation. Accommodation is a recognition of the reality that some governmental measures may not be imposed on a certain portion of the population for the reason that these measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not impair the public welfare, the attempt of the State to regulate or prohibit such right would be an unconstitutional encroachment.
x x x x
Establishment entails a positive action on the part of the State. Accommodation, on the other hand, is passive. In the former, the State becomes involved through the use of government resources with the primary intention of setting up a state religion. In the latter, the State, without being entangled, merely gives consideration to its citizens who want to freely exercise their religion.“
Thus, since it is merely a passive allowance of holding a mass in the QC Hall of Justice, along with the five reasons mentioned above, it is allowed by our Constitution.
In effect, the ruling here is not only that it is not a case of establishment, it’s also a case of free exercise. Because if we can notice, the first three cases involves an active action by the Government: issuing stamps (Aglipay) , funding a fiesta and buying an image of a saint (Garces), and issuing stamps again (Peralta). In those cases, free exercise cannot be an issue because it is the government doing something. Here, it can be a free exercise issue because it is the religion that’s trying to do something and that the government has the option to prohibit it or not. We’ll see that later on in our discussion on the free exercise clause.
THUS , THIS CASE SHOULD BELONG IN THE NEXT PART OF THIS BLOG (FREE EXERCISE CLAUSE). BUT I WILL NOT PASTE IT THERE BECAUSE I’M LAZY. PLUS, THIS IS GOOD BECAUSE THIS EMPHASIZES WHAT AN ESTABLISHMENT CASE SHOULD INVOLVE.
In that sense, these two clauses can produce different results depending on which approach the majority of the SC chooses. See Leonen’s dissenting opinion for this. But then again, for the sake of the bar, we should keep in mind that these clauses “were not designed to serve contradictory purposes”:
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single goal—to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the establishment clause prohibits government from inhibiting religious belief with rewards for religious beliefs and practices.
–Imbong v. Ochoa, 2014
And with regards to the use of public funds, the same with the Aglipay and Garces case is a modern take on the matter because the 1987 Constitution was not yet in effect during these past two cases:
“Section 29 (2), Article VI of the 1987 Constitution provides, “No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.”
x x x x
…the words “pay” and “employ” should be understood to mean that what is prohibited is the use of public money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a particular church.”
This case is similar to Peralta insomuch as it’s reasoning that since we’re already kind of favoring religion in our laws, actions, etc., why stop now? Stopping now would just create chaos that’s really hard to fix:
“To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and commence a domino effect. Strict separation, rather than benevolent neutrality/accommodation, would be the norm. Thus, the establishment of Shari’a courts, the National Commission for Muslim Filipinos, and the exception of Muslims from the provisions of the RPC relative to the crime of bigamy would all be rendered nugatory because of strict separation. The exception of members of Iglesia ni Cristo from joining a union or the non-compulsion recognized in favor of members of the Jehovah’s Witnesses from doing certain gestures during the flag ceremony, will all go down the drain simply because we insist on strict separation.”
Anyway, some good news! In this case, the SC laid down these following rules:
1. In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups.
2. There shall also be no permanent display of religious icons in all halls of justice in the country.
3. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as not to offend the sensibilities of members of other religious denominations or the non-religious public.
4. After any religious affair, the icons and images shall be hidden or concealed from public view.
To sum up these rules, it simply emphasizes that there should be no permanence in allowing any religion to use a public building. Otherwise, if permanence sets in, I think that that would be a case of establishment already and not accommodation.
On to our last case where there is a CLEAR SHOWING of establishment and the SC has no wiggle room to say otherwise.
5. Ang Ladlad LGBT Party v. COMELEC (2010)
In this case, the COMELEC excluded Ang Ladlad as a legitimate party-list based on moral religious grounds, which is pretty much absurd:
“Clearly, “governmental reliance on religious justification is inconsistent with this policy of neutrality.” We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects.
As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. “Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms.” Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a “compelled religion,” anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.“
Thus, here, we saw a classic case of establishment wherein the Bible’s and the Koran’s concept of morality were used to deny some lawful entity’s rights. There is no wiggle room here because there clearly is no other secular purpose in this case. If there was, the SC would most likely have ruled in favor of establishment in the guise of non-establishment.
Summary of Non-Establishment
1. Establishment is a positive act that favors religion. Thus, the non-establishment clause prohibits the government from the following:
1. Government must not prefer one religion over another or religion over irreligion
2. Government funds must not be applied to religious purposes
3. Government action must not aid religion
4. Government action must not result in excessive entanglement with religion
The purpose of these prohibitions is to foster voluntarism and avoid interfaith dissension.
2. But then again, any of these prohibited acts save for “excessive entanglement with religion” is allowed, as long as there is a secular purpose. To be more precise, and for us to have a basis, we can use the “Lemon Test”:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and,
3. The statute must not foster “an excessive government entanglement with religion.
–Lemon vs. Kurtzman (1971)
But to be frank, I think only the “secular purpose” is really the defining factor when it comes to non-establishment clause cases.
3. If the government act is one that does not favor religion or more or less prohibits one to exercise one’s religion (a law that compels children to salute the flag contrary to their religion), that is a case where the free exercise clause is more fitting as a basis instead of the non-establishment clause.
I think that’s understandable enough. Let’s move on to the free exercise clause.
The Free Exercise Clause
If the non-establishment clause says “don’t favor religion!”, then the free exercise clause says “don’t prohibit religion/religious act!” If we imagine ourselves as a specific religion, the non-establishment clause prevents the State from using the “carrot” in gaining our favor or some other religion’s favor, and the free exercise clause prevents the State from using the “stick” against us to either gain some other religion’s favor or force us into a particular action/inaction. It’s fascinating looking at it that way.
Anyway, to explain the free exercise clause, here is Justice Jardeleza:
“The Free Exercise Clause mandates an absolute protection of the freedom to believe. Thus, a person is free to worship any god he or she may choose or none at all. The difficulty and the beauty of the Free Exercise Clause, however, are found in its application in the realm of actions. While a person is free to believe what he or she may choose, he or she is not absolutely free to act on his or her beliefs. In constitutional adjudication, the challenge has often been the determination of whether a governmental act jeopardizes the freedom to act on one’s belief, and whether the freedom to exercise a religion justifies an exemption from a law or government regulation. We have had the opportunity to rule on cases involving the Free Exercise Clause, and we have consistently endeavored to find the delicate balance between the secular interest of the state and the freedom of religion of the individual.”
-Justice Jardeleza, Concurring Opinion, Re: Letter of Tony Q. Valenciano, 2017
In other words, the “free” referred to in the free exercise clause are the (1) freedom to believe and (2) freedom to act on one’s belief SUBJECT TO THE AUTHORITY OF THE STATE:
[(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul – in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. “Men may believe what they cannot prove.” Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: “The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.”]
-Justice Isagani Cruz, Constitutional Law, 2007, pp. 188-189.
Here are some examples of cases wherein the free exercise clause was applied. It’s good to familiarize all of them as they are really not that many.
1. American Bible Society v. City of Manila (1957)
The American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. They were required to secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the city’s ordinances.
The SC ruled in favor of the American Bible Society because of the free exercise clause:
“The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent.”
(Our beloved clear and present danger test was laid down here because this is characterized as religious speech.)
In short, the American Bible Society was not engaged in the business of selling merchandise for profit, they were merely disseminating their religious belief, so why tax them?:
“The power to tax the exercise of a privilege Is the power to control or suppress its enjoyment.
x x x x
…for in doing so it would impair its free exercise and enjoyment of its religious profession and worship as well as its rights of dissemination of religious beliefs.“
But then, in our next case, we will see how a slight variation of the facts can lead to an opposite result.
2. Tolentino v. Secretary of Finance (1994)
This case is similar with the American Bible Society case insofar as they both involve the sale of religious books. But then, they differ because the tax involved here is not a license tax but a value-added tax (VAT):
“There, this Court held that an ordinance of the City of Manila, which imposed a license fee on those engaged in the business of general merchandise, could not be applied to the appellant’s sale of bibles and other religious literature. This Court relied on Murdock v. Pennsylvania, in which it was held that, as a license fee is fixed in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually being imposed as a condition for the exercise of the sect’s right under the Constitution. For that reason, it was held, the license fee “restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise.”
But, in this case, the fee in Sec. 107, although a fixed amount (P1,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right.“
Thus, we can safely say that license tax for sale of religious materials is violative of the free exercise clause, while taxes of general application and use tax like VAT are not:
“For as the U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization.“
3. Gerona v. Secretary of Education (1959) (reversed)
In this case, children who are members of Jehovah’s Witnesses refuse to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge. This act was violative of the rule on compulsory flag ceremonies. Thus, they were expelled. The Court ruled against the refusal to participate in flag ceremonies and upheld the expulsion.
“If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it.
x x x x
Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.”
This reasoning would soon be overturned about 34 years later.
4. Ebralinag v. The Division Superintendent of Schools (1993)
The facts here are practically the same with the Gerona case above. The ruling was different because the SC now realizes that the “prediction” that the 1949 case fears has not come to pass nor can it ever be possible:
“We are not persuaded that by exempting the Jehovah’s Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a “small portion of the school population” will shake up our part of the globe and suddenly produce a nation “untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes” (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of “patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.“
The Court used the clear and present danger test to determine whether or not members of the Jehovah’s Witnesses may be exempted from the law:
“The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent.” Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.”
The free exercise clause found victory here, as well as in our next case.
5. Victoriano v. Elizalde Rope Workers Union (1974)
Interestingly, this case is not about the State which has a clear-cut law and suddenly the SC grants an exception to religion. Instead, it’s a case where the law itself (RA 3350) provided the exception. RA 3350 enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Of course, Victoriano almost immediately resigned from the union, and of course, the Union does not want that. Hence, the case. The SC ruled in favor of Victoriano and the law allowing exemption:
“Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state’s secular goals the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden.
x x x x
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal. It was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its citizens to find gainful employment whereby they can make a living to support themselves and their families is a valid objective of the state.“
We can also find a useful doctrine here with regards to the hierarchy of rights:
“It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional system. Religious freedom, although not unlimited, is a fundamental personal right and liberty, and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger.“
The test used here was the “compelling state interest test” although it was misused because the test is supposed to be used to grant exemptions when general laws conflict with religious exercise:
“Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercise of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom.“
–Estrada v. Escritor, 2003, commenting on Victoriano v. Elizalde Rope Workers Union, 1974
Anyway, this “misuse” is just a fun fact and will be of no use in the exams. It’s just to show that the case of Victorino is not really one where we can invoke the free exercise clause (although the SC did) because the State has already granted the exemption. In any case, the compelling state interest test is very much useful and it will be properly used in our 7th case in this list.
6. Iglesia ni Cristo v. CA (1996)
This case involved the TV program “Ang Iglesia ni Cristo” and that it attacks other religions on-air. The Board of Review for Motion Pictures and Television classified the show as X rated because of this. The Court ruled in favor of INC, and used the clear and present danger test (no surprise there because this involves speech and expression):
“The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive evil which the State has the right to prevent.
x x x x
There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.“
In other words, as long as there is no clear and present danger, the SC will allow religions to attack each other. It’s pretty weird, but yeah, that’s basically it:
“The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance.“
On to our next and most important case.
7. Estrada v. Escritor (2003) and Estrada v. Escritor (2006) The OG cases on the Religion Clauses
This case pretty much explained all the religion cases the Philippines have had before and how we should deal with religion cases now.
This case declared that our country adheres to benevolent neutrality which gives room for accommodation (remember the discussion on accommodation vis-a-vis establishment in the case of Re: Letter of Tony Q. Valenciano?):
“Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation – separation and benevolent neutrality – the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.”
This benevolent neutrality accommodation has been used (although not in this exact terminology) in almost all religion cases ever since. Apparently, the previous cases in this list has also done so. If we noticed, the stance of the SC is either to uphold the law because of a valid justification (Tolentino and Gerona) or to grant an exemption on the basis of free exercise of religion (all the other cases).
The State should “exempt, when possible, from generally governmental regulation individuals, whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.”
In other words, no law has ever been invalidated, instead, exemptions have been granted in favor of freedom of religion. This is the essence of Benevolent Neutrality.
According to this case, the test that accompanies this benevolent neutrality accommodation can either be the Clear and Present Danger test or the Compelling State Interest test:
1. Clear and Present Danger Test– used when religious speech and/or expression is involved because these have “easily discernable or immediate effects.” For example, dissemination of religious text, refusal to salute the flag, attacking other religions.
We already know how to apply this test from our discussion in freedom of speech and expression:
[As formulated, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”]
–Chavez v. Gonzales, 2008
Two notable things about this test:
1. There is substantial danger that the speech will likely lead to an evil the government has a right to prevent
2. The evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”
2. Compelling State Interest Test– used “where conduct is involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching.” Example of this is being a conscientious objector or the one involved in this case.
The test involves 3 steps:
1. Sincerity of Belief– Has the statute or government action created a burden on the free exercise of religion?
2. Compelling State Interest– Is there a sufficiently compelling state interest to justify this infringement of religious liberty?
3. Use of Least Intrusive Means– Has the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?
The case involved a government employee engaged in an illicit relation. However, her religion allows it and it is not immoral in her religion’s eyes. The 2003 case was not able to apply the test because the SC remanded it to the lower court for presentation of evidence.
And then, in 2006, the SC ruled in favor of Escritor. The reason? Escritor passed the test of sincerity of belief via a “Declaration of Pledging Faithfulness” and The State did not offer an evidence of compelling state interest:
“Thus, it is not the State’s broad interest in “protecting the institutions of marriage and the family,” or even “in the sound administration of justice” that must be weighed against respondent’s claim, but the State’s narrow interest in refusing to make an exception for the cohabitation which respondent’s faith finds moral. In other words, the government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.
x x x x
In the case at bar, the State has not evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. The State has never sought to prosecute respondent nor her partner. The State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition.“
Well, that’s a bit anti-climactic. Anyway, that’s basically it.
On to our last case which used the compelling state interest test on conscientious objectors.
8. Imbong v. Ochoa, 2014
This is the famous RH Law case. Sections 7, 23, and 24 thereof “mandate that a hospital or a medical practitioner to immediately refer a person seeking health care and services under the law to another accessible healthcare provider despite their conscientious objections based on religious or ethical beliefs.” Using the compelling state interest test, the SC ruled in favor of free exercise of religion.
“In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the compelling state interest test in line with the Court’s espousal of the Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector’s claim to religious freedom would warrant an exemption from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector’s right to religious freedom has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The scenario is an illustration of the predicament of medical practitioners whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modern reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, “at the basis of the free exercise clause is the respect for the inviolability of the human conscience.”
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by indirect participation.
x x x x
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of “the principle of non-coercion” enshrined in the constitutional right to free exercise of religion.“
Thus, the takeaways here are:
1. This is a free exercise clause situation because there is a general law (or government action) that conflicts with a person (or persons) religious belief/exercise. The question thus is, should exemption be proper?
2. To determine if an exemption is proper, and because this is a case of CONDUCT (instead of speech or expression), the Compelling State Interest test must be used (as opposed to the Clear and Present Danger test).
3. The interest of the state “to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children” is not enough of a compelling state interest against “religious beliefs and moral convictions of individuals.”
Summary of the Free Exercise Clause
We don’t need to summarize further because the summary of the Free Exercise Clause is it caters to Benevolent Neutrality which favors Accommodation. The Tests are already laid out in the case of Estrada v. Escritor above.
Final Thoughts
1. We use the Non-establishment Clause when the State does a positive act that may favor religion (make religious stamps, fund fiestas and buy religious images, base the concept of morality on the Bible and Koran).
We use the Free Exercise Clause when the there is a religious act that is prohibited or may be prohibited by the State (distribute religious texts, refuse to salute the flag because of religion, refuse to affiliate with labor organizations because of religion, commit bigamy or concubinage allowed by their religion, attack other religions on-air, being a conscientious objector).
2. In an establishment case, we can use the Lemon test:
For a statute to not be violative of the non-establishment clause:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and,
3. The statute must not foster “an excessive government entanglement with religion.
–Lemon vs. Kurtzman, 1971 (U.S.)
OR
Simply use these following justifications:
For a government action that incidentally supports a religion:
A law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion.
-Aglipay v. Ruiz, 1937
For a government action that uses funds incidentally supporting a religion:
-Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.
-Garces v. Estenzo, 1981
-The words “pay” and “employ” in Article VI Sec. 29 (2) should be understood to mean that what is prohibited is the use of public money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a particular church.”
-Re: Letter of Tony Q. Valenciano, 2017
For a government action with NO SECULAR PURPOSE:
It is a grave violation of the non-establishment clause for the government to aid any religion without any secular purpose or in ways that have primarily secular effects.
-Ang Ladlad LGBT Party v. COMELEC, 2010
3. In a free exercise case, just look at the discussion in Estrada v. Escritor. It’s literally just before this section. So just scroll up a little.
AND NEVER FORGET THE PROVISION ITSELF. These last two sentences are easy to build bar exam questions on:
Whew. Alright, that’s it. Tomorrow, we’ll “move” to Liberty of Abode and Freedom of Movement.
The Bartender 