file:estrada vs escritor am p_02_1651 august 4, 2003 j_ puno.htm

EN BANC

[A.M. No. P-02-1651.  August 4, 2003]

ALEJANDRO ESTRADA, complainant,
vs. SOLEDAD S. ESCRITOR, respondent.

D E C I S I O N

PUNO, J.:

The case at bar takes us to a most difficult area of
constitutional law where man stands accountable to an authority higher than the
state.  To be held on balance are the
state’s interest and the respondent’s religious freedom. In this highly sensitive
area of law, the task of balancing between authority and liberty is most
delicate because to the person invoking religious freedom, the consequences of
the case are not only temporal. The task is not made easier by the American
origin of our religion clauses and the wealth of U.S. jurisprudence on these
clauses for in the United States, there is probably no more intensely
controverted area of constitutional interpretation than the religion clauses.[1]
The U.S. Supreme Court itself has acknowledged that in this constitutional
area, there is “considerable internal inconsistency in the opinions of the
Court.”[2]
As stated by a professor of law, “(i)t is by now notorious that legal doctrines
and judicial decisions in the area of religious freedom are in serious
disarray. In perhaps no other area of constitutional law have confusion and
inconsistency achieved such undisputed sovereignty.”[3]
Nevertheless, this thicket is the only path to take to conquer the mountain of
a legal problem the case at bar presents. Both the penetrating and panoramic
view this climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom question arose
in an administrative case involving only one person does not alter the
paramount importance of the question for the “constitution commands the
positive protection by government of religious freedom -not only for a
minority, however small- not only for a majority, however large- but for each
of us.”[4]

I.  Facts

The facts of the case will determine whether respondent will
prevail in her plea of religious freedom. 
It is necessary therefore to lay down the facts in detail, careful not
to omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant
Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of
Branch 253, Regional Trial Court of Las Piñas City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter in
said court, is living with a man not her husband.  They allegedly have a child of eighteen to
twenty years old.  Estrada is not
personally related either to Escritor or her partner and is a resident not of
Las Piñas City but of Bacoor, Cavite. 
Nevertheless, he filed the charge against Escritor as he believes that
she is committing an immoral act that tarnishes the image of the court, thus
she should not be allowed to remain employed therein as it might appear that
the court condones her act.[5]

Judge Caoibes referred the letter to Escritor who stated that
“there is no truth as to the veracity of the allegation” and challenged Estrada
to “appear in the open and prove his allegation in the proper forum.”[6]
Judge Caoibes set a preliminary conference on October 12, 2000.  Escritor moved for the inhibition of Judge
Caoibes from hearing her case to avoid suspicion and bias as she previously
filed an administrative complaint against him and said case was still pending
in the Office of the Court Administrator (OCA). 
Escritor’s motion was denied.  The
preliminary conference proceeded with both Estrada and Escritor in
attendance.  Estrada confirmed that he
filed the letter-complaint for immorality against Escritor because in his
frequent visits to the Hall of Justice of Las Piñas City, he learned from
conversations therein that Escritor was living with a man not her husband and
that she had an eighteen to twenty-year old son by this man.  This prompted him to write to Judge Caoibes
as he believed that employees of the judiciary should be respectable and
Escritor’s live-in arrangement did not command respect.[7]

Respondent Escritor testified that when she entered the judiciary
in 1999,[8]
she was already a widow, her husband having died in 1998.[9]
She admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son.  But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their religious beliefs.  In fact, after ten years of living together,
she executed on July 28, 1991 a “Declaration of Pledging Faithfulness,” viz:

DECLARATION OF PLEDGING
FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano
D. Quilapio, Jr., as my mate in marital relationship; that I have done all
within my ability to obtain legal recognition of this relationship by the
proper public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this
marital relationship.

I recognize this relationship as a binding tie before ‘Jehovah’ God
and before all persons to be held to and honored in full accord with the
principles of God’s Word.  I will continue
to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances make this
possible, I promise to legalize this union.

Signed this 28^th day of July 1991.[10]

Escritor’s partner, Quilapio, executed a
similar pledge on the same day.[11]
Both pledges were executed in Atimonan, Quezon and signed by three
witnesses.  At the time Escritor executed
her pledge, her husband was still alive but living with another woman.  Quilapio was likewise married at that time,
but had been separated in fact from his wife. 
During her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their “Declarations of Pledging
Faithfulness,” but Judge Caoibes deemed it unnecessary and considered her
identification of her signature and the signature of Quilapio sufficient
authentication of the documents.[12]

Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo
L. Benipayo.  On July 17, 2001, the
Court, upon recommendation of Acting Court Administrator Zenaida N. Elepaño,
directed Escritor to comment on the charge against her.  In her comment, Escritor reiterated her
religious congregation’s approval of her conjugal arrangement with Quilapio, viz:

Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the veracity of
same allegation.  Included herewith are
documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and
Exhibit 2) duly signed by both respondent and her mate in marital relationship
with the witnesses concurring their acceptance to the arrangement as approved
by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before
“JEHOVAH” God and before all persons to be held to and honored in full accord
with the principles of God’s Word.

xxx                                                                          xxx                                                                   xxx

Undersigned submits to the just, humane and fair discretion of the
Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority in
relation to her case.[13]

Deputy Court Administrator Christopher O. Lock recommended that
the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255,
Las Piñas City for investigation, report and recommendation.  In the course of Judge Maceda’s
investigation, Escritor again testified that her congregation allows her
conjugal arrangement with Quilapio and it does not consider it immoral.  She offered to supply the investigating judge
some clippings which explain the basis of her congregation’s belief and
practice regarding her conjugal arrangement. 
Escritor started living with Quilapio twenty years ago when her husband
was still alive but living with another woman. 
She met this woman who confirmed to her that she was living with her
(Escritor’s) husband.[14]

Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985,
also testified.  He had been a presiding
minister since 1991 and in such capacity is aware of the rules and regulations
of their congregation.  He explained the
import of and procedure for executing a “Declaration of Pledging Faithfulness”,
viz:

Q:   Now, insofar as the
pre-marital relationship is concern (sic), can you cite some particular
rules and regulations in your congregation?

A:    Well, we of course, talk
to the persons with regards (sic) to all the parties involved and then
we request them to execute a Public Declaration of Pledge of faithfulness.

Q:   What is that document?

A:    Declaration of Pledge of
faithfulness.

Q:   What are the relations of
the document Declaration of Pledge of faithfulness, who are suppose (sic)
to execute this document?

A:    This must be signed, the
document must be signed by the elders of the congregation; the couple, who is a
member (sic) of the congregation, baptized member and true member of the
congregation.

Q:   What standard rules and
regulations do you have in relation with this document?

A:    Actually, sir, the
signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple
has put themselves on record before God and man that they are faithful to each
other.  As if that relation is validated
by God.

Q:   From your explanation,
Minister, do you consider it a pledge or a document between the parties, who
are members of the congregation?

A:    It is a pledge and a
document.  It is a declaration, pledge of
a (sic) pledge of faithfulness.

Q:   And what does pledge mean
to you?

A:    It means to me that they
have contracted, let us say, I am the one who contracted with the opposite
member of my congregation, opposite sex, and that this document will give us
the right to a marital relationship.

Q:   So, in short, when you
execute a declaration of pledge of faithfulness, it is a preparation for you to
enter a marriage?

A:    Yes, Sir.

Q:   But it does not
necessarily mean that the parties, cohabiting or living under the same roof?

A:    Well, the Pledge of
faithfulness document is (sic) already approved as to the marital
relationship.

Q:   Do you mean to say,
Minister, by executing this document the contracting parties have the right to
cohabit?

A:    Can I sir, cite, what the
Bible says, the basis of that Pledge of Faithfulness as we Christians
follow.  The basis is herein stated in
the Book of Matthew, Chapter Five, Verse Twenty-two.  So, in that verse of the Bible, Jesus said
“that everyone divorcing his wife, except on account of fornication, makes her
a subject for adultery, and whoever marries a divorced woman commits adultery.[15]

Escritor and Quilapio transferred to Salazar’s Congregation, the
Almanza Congregation in Las Piñas, in May 2001. 
The declarations having been executed in Atimonan, Quezon in 1991,
Salazar had no personal knowledge of the personal circumstances of Escritor and
Quilapio when they executed their declarations. 
However, when the two transferred to Almanza, Salazar inquired about
their status from the Atimonan Congregation, gathered comments of the elders
therein, and requested a copy of their declarations.  The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the Atimonan
Congregation when they executed their declarations.

Escritor and Quilapio’s declarations are recorded in the Watch
Tower Central office.  They were executed
in the usual and approved form prescribed by the Watch Tower Bible and Tract
Society which was lifted from the article, “Maintaining Marriage in Honor
Before God and Men,” [16]
in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the
Jehovah’s Witnesses congregation and is binding within the congregation all
over the world except in countries where divorce is allowed.  The Jehovah’s congregation requires that at
the time the declarations are executed, the couple cannot secure the civil
authorities’ approval of the marital relationship because of legal impediments.  It is thus standard practice of the
congregation to check the couple’s marital status before giving imprimatur to
the conjugal arrangement.  The execution
of the declaration finds scriptural basis in Matthew 5:32 that when the spouse
commits adultery, the offended spouse can remarry.  The marital status of the declarants and
their respective spouses’ commission of adultery are investigated before the
declarations are executed.  Thus, in the
case of Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved and the
declaration is valid everywhere, including the Almanza Congregation.  That Escritor’s and Quilapio’s declarations
were approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation.  Salazar confirmed
from the congregation’s branch office that these three witnesses are elders in
the Atimonan Congregation.  Although in
1998 Escritor was widowed, thereby lifting the legal impediment to marry on her
part, her mate is still not capacitated to remarry.  Thus, their declarations remain valid.  Once all legal impediments for both are
lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases.  The elders in the congregations can then
solemnize their marriage as authorized by Philippine law.  In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.[17]

Salvador Reyes, a minister at the General de Leon, Valenzuela
City Congregation of the Jehovah’s Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled,
“Maintaining Marriage Before God and Men” to which Escritor and Minister
Salazar referred in their testimonies. 
The article appeared in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A.  Felix S. Fajardo,
President of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
authorized Reyes to represent him in authenticating the article.  The article is distributed to the Jehovah’s
Witnesses congregations which also distribute them to the public.[18]

The parties submitted their respective memoranda to the
investigating judge.  Both stated that
the issue for resolution is whether or not the relationship between respondent
Escritor and Quilapio is valid and binding in their own religious congregation,
the Jehovah’s Witnesses.  Complainant
Estrada adds however, that the effect of the relationship to Escritor’s
administrative liability must likewise be determined.  Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of the “proper
public authorities” such that she bound herself “to seek means to . . .
legalize their union.”  Thus, even
assuming arguendo that the
declaration is valid and binding in her congregation, it is binding only to her
co-members in the congregation and serves only the internal purpose of
displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. 
Their religious belief and practice, however, cannot override the norms
of conduct required by law for government employees.  To rule otherwise would create a dangerous precedent
as those who cannot legalize their live-in relationship can simply join the
Jehovah’s Witnesses congregation and use their religion as a defense against
legal liability.[19]

On the other hand, respondent Escritor reiterates the validity of
her conjugal arrangement with Quilapio based on the belief and practice of her
religion, the Jehovah’s Witnesses. She quoted portions of the magazine article
entitled, “Maintaining Marriage Before God and Men,” in her memorandum signed
by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits “1” and “2”)
executed by the respondent and her mate greatly affect the administrative
liability of respondent.  Jehovah’s
Witnesses admit and recognize (sic)
the supremacy of the proper public authorities in the marriage
arrangement.  However, it is helpful to
understand the relative nature of Caesar’s authority regarding marriage.  From country to country, marriage and divorce
legislation presents a multitude of different angles and aspects.  Rather than becoming entangled in a confusion
of technicalities, the Christian, or the one desiring to become a disciple of
God’s Son, can be guided by basic Scriptural principles that hold true in all
cases.

God’s view is of first concern. 
So, first of all the person must consider whether that one’s present
relationship, or the relationship into which he or she contemplates entering,
is one that could meet with God’s approval, or whether in itself, it violates
the standards of God’s Word.  Take, for
example, the situation where a man lives with a wife but also spends time
living with another woman as a concubine. 
As long as such a state of concubinage prevails, the relationship of the
second woman can never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so.  The only right course is cessation of the
relationship.  Similarly with an
incestuous relationship with a member of one’s immediate family, or a
homosexual relationship or other such situation condemned by God’s Word.  It is not the lack of any legal validation
that makes such relationships unacceptable; they are in themselves unscriptural
and hence, immoral.  Hence, a person
involved in such a situation could not make any kind of “Declaration of
Faithfulness,” since it would have no merit in God’s eyes.

If the relationship is such that it can have God’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 eyes of all. (Heb. 13:4).  If divorce is possible, then such step should
now be taken so that, having obtained the divorce (on whatever legal grounds
may be available), the present union can receive civil validation as a
recognized marriage.

Finally, if the marital relationship is not one out of harmony with
the principles of God’s Word, and if one has done all that can reasonably be
done to have it recognized by civil authorities and has been blocked in doing
so, then, a Declaration Pledging Faithfulness can be signed.  In some cases, as has been noted, the extreme
slowness of official action may make accomplishing of legal steps a matter of
many, many years of effort.  Or it may be
that the costs represent a crushingly heavy burden that the individual would
need years to be able to meet.  In such
cases, the declaration pledging faithfulness will provide the congregation with
the basis for viewing the existing union as honorable while the individual
continues conscientiously to work out the legal aspects to the best of his
ability.

Keeping in mind the basic principles presented, the respondent as a
Minister of Jehovah God, should be able to approach the matter in a balanced
way, neither underestimating nor overestimating the validation offered by the
political state.  She always gives
primary concern to God’s view of the union. 
Along with this, every effort should be made to set a fine example of
faithfulness and devotion to one’s mate, thus, keeping the marriage “honorable
among all.”  Such course will bring God’s
blessing and result to the honor and praise of the author of marriage, Jehovah
God. (1 Cor. 10:31-33)[20]

Respondent also brought to the attention of the investigating
judge that complainant’s Memorandum came from Judge Caoibes’ chambers[21]
whom she claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda
found Escritor’s factual allegations credible as they were supported by
testimonial and documentary evidence.  He
also noted that “(b)y strict Catholic standards, the live-in relationship of
respondent with her mate should fall within the definition of immoral conduct,
to wit: ‘that which is willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable members of the
community’ (7 C.J.S. 959)’ (Delos Reyes vs. Aznar, 179 SCRA, at p.
666).” He pointed out, however, that “the more relevant question is whether or
not to exact from respondent Escritor, a member of ‘Jehovah’s Witnesses,’ the
strict moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar.”[22]
The investigating judge acknowledged that “religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra,
citing Chief Justice Enrique M. Fernando’s separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531)” and thereby recommended the
dismissal of the complaint against Escritor.[23]

After considering the Report and Recommendation of Executive
Judge Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint.  DCA Lock stressed that although Escritor had
become capacitated to marry by the time she joined the judiciary as her husband
had died a year before, “it is due to her relationship with a married man,
voluntarily carried on, that respondent may still be subject to disciplinary action.”[24]
Considering the ruling of the Court in Dicdican
v. Fernan, et al.[25]
that “court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the court of justice,” DCA Lock found
Escritor’s defense of freedom of religion unavailing to warrant dismissal of
the charge of immorality.  Accordingly,
he recommended that respondent be found guilty of immorality and that she be
penalized with suspension of six months and one day without pay with a warning
that a repetition of a similar act will be dealt with more severely in
accordance with the Civil Service Rules.[26]

II.  Issue

Whether or not respondent should be found guilty of the
administrative charge of “gross and immoral conduct.”  To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondent’s right to religious
freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable. 

III.  Applicable
Laws

Respondent is charged with committing “gross and immoral conduct”
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative
Code which provides, viz:

Sec. 46.  Discipline: General
Provisions. – (a) No officer or employee in the Civil Service shall be suspended
or dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx                                                                          xxx                                                                   xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in layman’s terms, invokes
the religious beliefs and practices and moral standards of her religion, the
Jehovah’s Witnesses, in asserting that her conjugal arrangement with a man not
her legal husband does not constitute disgraceful and immoral conduct for which
she should be held administratively liable. 
While not articulated by respondent, she invokes religious freedom under
Article III, Section 5 of the Constitution, which provides, viz:

Sec. 5.  No law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof.  The free exercise and enjoyment
of religious profession and worship, without discrimination or preference,
shall forever be allowed.  No religious
test shall be required for the exercise of civil or political rights.

IV.  Old World
Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it
would be well to understand not only its birth in the United States, but its
conception in the Old World.  One cannot
understand, much less intelligently criticize the approaches of the courts and
the political branches to religious freedom in the recent past in the United
States without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.[27]
This fresh look at the religion clauses is proper in deciding this case of
first impression.

In primitive times, all of life may be said to have been
religious. Every significant event in the primitive man’s life, from birth to death,
was marked by religious ceremonies. 
Tribal society survived because religious sanctions effectively elicited
adherence to social customs.  A person
who broke a custom violated a taboo which would then bring upon him “the
wrathful vengeance of a superhuman mysterious power.”[28]
Distinction between the religious and non-religious would thus have been
meaningless to him.  He sought protection
from all kinds of evil – whether a wild beast or tribe enemy and lightning or
wind – from the same person.  The head of
the clan or the Old Man of the tribe or the king protected his wards against
both human and superhuman enemies.  In
time, the king not only interceded for his people with the divine powers, but
he himself was looked upon as a divine being and his laws as divine decrees.[29]

Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class.  This saw the birth of the social and communal
problem of the competing claims of the king and priest.  Nevertheless, from the beginning, the king
and not the priest was superior.  The
head of the tribe was the warrior, and although he also performed priestly
functions, he carried out these functions because he was the head and
representative of the community.[30]

There being no distinction between the religious and the secular,
the same authority that promulgated laws regulating relations between man and
man promulgated laws concerning man’s obligations to the supernatural.  This authority was the king who was the head
of the state and the source of all law and who only delegated performance of
rituals and sacrifice to the priests. 
The Code of Hammurabi, king of Babylonia, imposed penalties for
homicide, larceny, perjury, and other crimes; regulated the fees of surgeons
and the wages of masons and tailors and prescribed rules for inheritance of property;[31]
and also catalogued the gods and assigned them their places in the divine
hierarchy so as to put Hammurabi’s own god to a position of equality with
existing gods.[32]
In sum, the relationship of religion to the state (king) in pre-Hebreic times
may be characterized as a union of the two forces, with the state almost
universally the dominant partner.[33]

With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion: theocracy.  The authority and power of the state was
ascribed to God.[34]
The Mosaic creed was not merely regarded as the religion of the state, it was
(at least until Saul) the state itself. 
Among the Hebrews, patriarch, prophet, and priest preceded king and
prince.  As man of God, Moses decided
when the people should travel and when to pitch camp, when they should make war
and when peace.  Saul and David were made
kings by the prophet Samuel, disciple of Eli the priest.  Like the Code of Hammurabi, the Mosaic code
combined civil laws with religious mandates, but unlike the Hammurabi Code,
religious laws were not of secondary importance.  On the contrary, religious motivation was
primary and all-embracing: sacrifices were made and Israel was prohibited from exacting
usury, mistreating aliens or using false weights, all because God commanded
these.

Moses of the Bible led not like the ancient kings.  The latter used religion as an engine to
advance the purposes of the state. Hammurabi unified Mesopotamia and
established Babylon as its capital by elevating its city-god to a primary
position over the previous reigning gods.[35]
Moses, on the other hand, capitalized on the natural yearnings of the Hebrew
slaves for freedom and independence to further God’s purposes.  Liberation and Exodus were preludes to Sinai
and the receipt of the Divine Law.  The
conquest of Canaan was a preparation for the building of the temple and the
full worship of God.[36]

Upon the monotheism of Moses was the theocracy of Israel
founded.  This monotheism, more than
anything else, charted not only the future of religion in western civilization,
but equally, the future of the relationship between religion and state in the
west.  This fact is acknowledged by many
writers, among whom is Northcott who pointed out, viz:

Historically it was the
Hebrew and Christian conception of a single and universal God that introduced a
religious exclusivism leading to compulsion and persecution in the realm of
religion.  Ancient religions were
regarded as confined to each separate people believing in them, and the
question of change from one religious belief to another did not arise.  It was not until an exclusive fellowship,
that the questions of proselytism, change of belief and liberty of religion arose.[37]
(emphasis supplied)

The Hebrew theocracy existed in its pure
form from Moses to Samuel.  In this
period, religion was not only superior to the state, but it was all of the
state.  The Law of God as transmitted
through Moses and his successors was the whole of government.

With Saul, however, the state rose to be the rival and
ultimately, the master, of religion. 
Saul and David each received their kingdom from Samuel the prophet and
disciple of Eli the priest, but soon the king dominated prophet and priest.  Saul disobeyed and even sought to slay Samuel
the prophet of God.[38]
Under Solomon, the subordination of religion to state became complete; he used
religion as an engine to further the state’s purposes.  He reformed the order of priesthood
established by Moses because the high priest under that order endorsed the
claim of his rival to the throne.[39]

The subordination of religion to the state was also true in
pre-Christian Rome which engaged in emperor-worship. When Augustus became head
of the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of
pre-Christian Rome – the worship of the head of the state.  He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less than
worship of Apollo, Jupiter and other gods. 
When Augustus died, he also joined the ranks of the gods, as other
emperors before him.[40]

The onset of Christianity, however, posed a difficulty to the
emperor as the Christians’ dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods.  In the
first two centuries after the death of Jesus, Christians were subjected to
persecution.  By the time of the emperor
Trajan, Christians were considered outlaws. 
Their crime was “hatred of the human race”, placing them in the same
category as pirates and brigands and other “enemies of mankind” who were
subject to summary punishments.[41]

In 284, Diocletian became emperor and sought to reorganize the
empire and make its administration more efficient.  But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state
over which he had no control.  He had two
options: either to force it into submission and break its power or enter into
an alliance with it and procure political control over it.  He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned the
clergy and by torture forced them to sacrifice.[42]
But his efforts proved futile.

The later emperor, Constantine, took the second option of
alliance.  Constantine joined with
Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of
toleration to Christians “on condition that nothing is done by them contrary to
discipline.”[43]
A year later, after Galerius died, Constantine and Licius jointly issued the
epochal Edict of Milan (312 or 313),
a document of monumental importance in the history of religious liberty.  It provided “that liberty of worship shall not be denied to any, but
that the mind and will of every individual shall be free to manage divine
affairs according to his own choice.” (emphasis
supplied) Thus, all restrictive statutes were abrogated and it was enacted
“that every person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or
hindrance.”  Furthermore, it was provided
that the “same free and open power to follow their own religion or worship is
granted also to others, in accordance with the tranquillity of our times, in
order that every person may have free
opportunity to worship the object of his choice.”(emphasis supplied)[44]

Before long, not only did Christianity achieve equal status, but
acquired privilege, then prestige, and eventually, exclusive power.  Religion became an engine of state policy as
Constantine considered Christianity a means of unifying his complex
empire.  Within seven years after the
Edict of Milan, under the emperor’s command, great Christian edifices were
erected, the clergy were freed from public burdens others had to bear, and
private heathen sacrifices were forbidden.

The favors granted to
Christianity came at a price: state interference in religious affairs.  Constantine and his successors called and dismissed
church councils, and enforced unity of belief and practice.  Until recently the church had been the victim
of persecution and repression, but this time it welcomed the state’s
persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die
unsaved.

Both in theory as in practice, the partnership between church and
state was not easy.  It was a constant
struggle of one claiming dominance over the other.  In time, however, after the collapse and disintegration of the Roman Empire, and while
monarchical states were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and universal power.  Not surprisingly, therefore, it claimed not
merely equality but superiority over the secular states.  This claim, symbolized by Pope Leo’s
crowning of Charlemagne, became the church’s accepted principle of its
relationship to the state in the Middle Ages. 
As viewed by the church, the union of church and state was now a union
of the state in the church.  The rulers
of the states did not concede to this claim of supremacy.  Thus, while Charlemagne received his crown
from the Pope, he himself crowned his own son as successor to nullify the
inference of supremacy.[45]
The whole history of medieval Europe was
a struggle for supremacy between prince and Pope and the resulting religious
wars and persecution of heretics and nonconformists.  At about the second quarter of the 13^th
century, the Inquisition was established, the purpose of which was the
discovery and extermination of heresy. 
Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope
Innocent IV in 1252.

The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. 
While Protestants are accustomed to ascribe to the Reformation the rise
of religious liberty and its acceptance as the principle governing the
relations between a democratic state and its citizens, history shows that it is
more accurate to say that the “same causes that gave rise to the Protestant
revolution also resulted in the widespread acceptance of the principle of
religious liberty, and ultimately of the principle of separation of church and state.”[46]
Pleas for tolerance and freedom of conscience can without doubt be found in the
writings of leaders of the Reformation. 
But just as Protestants living in the countries of papists pleaded for
toleration of religion, so did the papists that lived where Protestants were dominant.[47]
Papist and Protestant governments alike accepted the idea of cooperation
between church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion.[48]
Certainly, Luther, leader of the Reformation, stated that “neither pope, nor
bishop, nor any man whatever has the right of making one syllable binding on a
Christian man, unless it be done with his own consent.”[49]
But when the tables had turned and he was no longer the hunted heretic, he
likewise stated when he made an alliance with the secular powers that
“(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its
source, and bathe their hands in the blood of the Catholic bishops, and of the
Pope, who is a devil in disguise.”[50]
To Luther, unity among the peoples in the interests of the state was an important
consideration.  Other personalities in
the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion.  In establishing theocracy in Geneva, Calvin
made absence from the sermon a crime, he included criticism of the clergy in
the crime of blasphemy punishable by death, and to eliminate heresy, he
cooperated in the Inquisition.[51]

There were, however, those
who truly advocated religious liberty. 
Erasmus, who belonged to the Renaissance than the Reformation, wrote
that “(t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings,
all these things I can see accomplish nothing except to make the evil more widespread.”[52]
The minority or dissident sects also
ardently advocated religious liberty. 
The Anabaptists, persecuted and despised, along with the Socinians
(Unitarians) and the Friends of the Quakers founded by George Fox in the 17^th
century, endorsed the supremacy and freedom of the individual conscience.  They regarded religion as outside the realm
of political governments.[53]
The English Baptists proclaimed that the “magistrate is not to meddle with
religion or matters of conscience, nor compel men to this or that form of religion.”[54]

Thus, out of the Reformation, three rationalizations of
church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist.  The first
assumed state superiority in ecclesiastical affairs and the use of religion as
an engine of state policy as demonstrated by Luther’s belief that civic
cohesion could not exist without religious unity so that coercion to achieve
religious unity was justified.  The
second was founded on ecclesiastical supremacy and the use of state machinery
to further religious interests as promoted by Calvin.  The third, which was yet to achieve ultimate
and complete expression in the New World, was discernibly in its incipient form
in the arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.[55]
After the Reformation, Erastianism pervaded all Europe except for Calvin’s
theocratic Geneva.  In England, perhaps more than in any other country, Erastianism was at
its height.  To illustrate, a statute
was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on
all clergymen the duty of seeing to it that no person was buried in a shroud
made of any substance other than wool.[56]
Under Elizabeth, supremacy of the crown over the church was complete:
ecclesiastical offices were regulated by her proclamations, recusants were
fined and imprisoned, Jesuits and proselytizing priests were put to death for
high treason, the thirty-nine Articles of the Church of England were adopted
and English Protestantism attained its present doctrinal status.[57]
Elizabeth was to be recognized as “the only Supreme Governor of this realm . .
. as well in all spiritual or ecclesiastical things or causes as temporal.” She
and her successors were vested, in their dominions, with “all manner of
jurisdictions, privileges, and preeminences, in any wise touching or concerning
any spiritual or ecclesiastical jurisdiction.”[58]
Later, however, Cromwell established the constitution
in 1647 which granted full liberty
to all Protestant sects, but denied toleration to Catholics.[59]
In 1689, William III issued the Act of Toleration which established a de facto toleration for all except
Catholics.  The Catholics achieved religious liberty in the 19^th
century when the Roman Catholic Relief Act of 1829 was adopted.  The
Jews followed suit in 1858 when they were finally permitted to sit in Parliament.[60]

When the representatives
of the American states met in Philadelphia in 1787 to draft the constitutional
foundation of the new republic, the theocratic state which had flourished
intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely gone.  The prevailing
church-state relationship in Europe was Erastianism embodied in the system of
jurisdictionalism whereby one faith was favored as the official state-supported
religion, but other faiths were permitted to exist with freedom in various
degrees.  No nation had yet adopted as the basis of its church-state relations
the principle of the mutual independence of religion and government and the
concomitant principle that neither might be used as an engine to further the
policies of the other, although the principle was in its seminal form in the
arguments of some dissident minorities and intellectual leaders of the
Renaissance.  The religious wars of 16^th
and 17^th century Europe were a thing of the past by the time America
declared its independence from the Old World, but their memory was still vivid
in the minds of the Constitutional Fathers as expressed by the United
States Supreme Court, viz: 

The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to maintain
their absolute political and religious supremacy.  With the power of government supporting them,
at various times and places, Catholics had persecuted Protestants, Protestants
had persecuted Catholics, Protestant sects had persecuted other protestant
sects, Catholics of one shade of belief had persecuted Catholics of another
shade of belief, and all of these had from time to time persecuted Jews.  In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed.  Among the offenses
for which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established churches,
non-attendance at those churches, expressions of non-belief in their doctrines,
and failure to pay taxes and tithes to support them.[61]

In 1784, James Madison
captured in this statement the entire history of church-state relations in
Europe up to the time the United States Constitution was adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of
the secular arm to extinguish religious discord, by proscribing all differences
in religious opinions.[62]

In sum, this history shows two salient features: First, with
minor exceptions, the history of church-state relationships was characterized
by persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. 
Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance of that role
by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religion’s
invaluable service.  This was the context
in which the unique experiment of the principle of religious freedom and separation
of church and state saw its birth in American constitutional democracy and in
human history.[63]

V.
Factors Contributing to the Adoption

of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American colonies.  British thought pervaded these colonies as
the immigrants brought with them their religious and political ideas from
England and English books and pamphlets largely provided their cultural fare.[64]
But although these settlers escaped from Europe to be freed from bondage of
laws which compelled them to support and attend government favored churches,
some of these settlers themselves transplanted into American soil the
oppressive practices they escaped from. 
The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the
colonials authorized them to erect religious establishments, which all, whether
believers or not, were required to support or attend.[65]
At one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of religious
diversity.  Still others, which
originally tolerated only a single religion, eventually extended support to
several different faiths.[66]

This was the state of the
American colonies when the unique American experiment of separation of church
and state came about.  The birth of the
experiment cannot be attributed to a single cause or event.  Rather, a number of interdependent practical
and ideological factors contributed in bringing it forth.  Among these were the “English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation
on the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the
success of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European rationalism and deism.”[67]
Each of these factors shall be briefly discussed.

First, the practical
factors.  England’s policy of opening
the gates of the American colonies to different faiths resulted in the multiplicity
of sects in the colonies.  With an
Erastian justification, English lords chose to forego protecting what was
considered to be the true and eternal church of a particular time in order to
encourage trade and commerce.  The
colonies were large financial investments which would be profitable only if
people would settle there.  It would be
difficult to engage in trade with persons one seeks to destroy for religious
belief, thus tolerance was a necessity. 
This tended to distract the colonies from their preoccupations over
their religion and its exclusiveness, encouraging them “to think less of the
Church and more of the State and of commerce.”[68]
The diversity brought about by the colonies’ open gates encouraged religious
freedom and non-establishment in several ways. 
First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. 
Secondly, because of the daily exposure to different religions, the
passionate conviction in the exclusive rightness of one’s religion, which
impels persecution for the sake of one’s religion, waned.  Finally, because of the great diversity of
the sects, religious uniformity was not possible, and without such uniformity,
establishment could not survive.[69]

But while there was a multiplicity of denomination,
paradoxically, there was a scarcity of adherents.  Only about four percent of the entire
population of the country had a church affiliation at the time the republic was
founded.[70]
This might be attributed to the drifting to the American colonies of the
skepticism that characterized European Enlightenment.[71]
Economic considerations might have also been a factor.  The individualism of the American colonist,
manifested in the multiplicity of sects, also resulted in much unaffiliated religion
which treated religion as a personal non-institutional matter.  The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who were not
connected with any church were not likely to persecute others for similar
independence nor accede to compulsory taxation to support a church to which
they did not belong.[72]

However, for those who were affiliated to churches, the colonial
policy regarding their worship generally followed the tenor of the English Act
of Toleration of 1689.  In England, this
Act conferred on Protestant dissenters the right to hold public services
subject to registration of their ministers and places of worship.[73]
Although the toleration accorded to Protestant dissenters who qualified under
its terms was only a modest advance in religious freedom, it nevertheless was
of some influence to the American experiment.[74]
Even then, for practical considerations, concessions had to be made to other
dissenting churches to ensure their cooperation in the War of Independence
which thus had a unifying effect on the colonies.

Next, the ideological
factors.  First, the Great Awakening
in mid-18^th century, an evangelical religious revival originating in
New England, caused a break with formal church religion and a resistance to
coercion by established churches.  This
movement emphasized an emotional, personal religion that appealed directly to
the individual, putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God.  Thus, although they had no quarrel with
orthodox Christian theology as in fact they were fundamentalists, this group
became staunch advocates of separation of church and state.[75]

Then there was the
Williams-Penn tradition.  Roger
Williams was the founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists.  In this colony, religious freedom was not
based on practical considerations but on the concept of mutual independence of
religion and government.  In 1663, Rhode
Island obtained a charter from the British crown which declared that settlers
have it “much on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie in
religious concernments.”[76]
In Williams’ pamphlet, The Bloudy Tenent
of Persecution for cause of Conscience, discussed in a Conference between Truth
and Peace,[77]
he articulated the philosophical basis for his argument of religious
liberty.  To him, religious freedom and
separation of church and state did not constitute two but only one
principle.  Religious persecution is
wrong because it “confounds the Civil and Religious” and because “States . . .
are proved essentially Civil.  The “power
of true discerning the true fear of God” is not one of the powers that the
people have transferred to Civil Authority.[78]
Williams’ Bloudy Tenet is considered
an epochal milestone in the history of religious freedom and the separation of
church and state.[79]

William Penn, proprietor of the land that became Pennsylvania,
was also an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers.  He opposed coercion in matters of conscience
because “imposition, restraint and persecution for conscience sake, highly
invade the Divine prerogative.”  Aside
from his idealism, proprietary interests made toleration in Pennsylvania
necessary.  He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants both
from the Continent and Britain.  At the
end of the colonial period, Pennsylvania had the greatest variety of religious
groups.  Penn was responsible in large part
for the “Concessions and agreements of the Proprietors, Freeholders, and inhabitants
of West Jersey, in America”, a monumental document in the history of civil
liberty which provided among others, for liberty of conscience.[80]
The Baptist followers of Williams and the Quakers who came after Penn continued
the tradition started by the leaders of their denominations.  Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and freedom.[81]
The Constitutional fathers who convened in Philadelphia in 1787, and Congress
and the states that adopted the First Amendment in 1791 were very familiar with
and strongly influenced by the successful examples of Rhode Island and Pennsylvania.[82]

Undeniably, John Locke and
the social contract theory also contributed to the American experiment.  The social contract theory popularized by
Locke was so widely accepted as to be deemed self-evident truth in America’s
Declaration of Independence.  With the
doctrine of natural rights and equality set forth in the Declaration of
Independence, there was no room for religious discrimination.  It was difficult to justify inequality in
religious treatment by a new nation that severed its political bonds with the
English crown which violated the self-evident truth that all men are created equal.[83]

The social contract theory was applied by many religious groups
in arguing against establishment, putting emphasis on religion as a natural
right that is entirely personal and not within the scope of the powers of a
political body.  That Locke and the
social contract theory were influential in the development of religious freedom
and separation is evident from the memorial presented by the Baptists to the
Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an
intention in every one the better to preserve himself, his liberty and
property.  The power of the society, or
Legislature constituted by them, can never be supposed to extend any further
than the common good, but is obliged to secure every one’s property.  To give laws, to receive obedience, to compel
with the sword, belong to none but the civil magistrate; and on this ground we
affirm that the magistrate’s power extends not to establishing any articles of
faith or forms of worship, by force of laws; for laws are of no force without
penalties.  The care of souls cannot belong to the civil magistrate, because his
power consists only in outward force; but pure and saving religion consists in
the inward persuasion of the mind, without which nothing can be acceptable to God.[84] (emphasis
supplied)

The idea that religion was outside the
jurisdiction of civil government was acceptable to both the religionist and
rationalist.  To the religionist, God or
Christ did not desire that government have that jurisdiction (“render unto Caesar
that which is Caesar’s”; “my kingdom is not of this world”) and to the
rationalist, the power to act in the realm of religion was not one of the
powers conferred on government as part of the social contract.[85]

Not only the social contract theory drifted to the colonies from
Europe.  Many of the leaders of the Revolutionary and post-revolutionary period
were also influenced by European deism and rationalism,[86] in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized religion.  Jefferson, Paine, John Adams, Washington,
Franklin, Madison, among others were reckoned to be among the Unitarians or
Deists.  Unitarianism and Deism
contributed to the emphasis on secular interests and the relegation of historic
theology to the background.[87]
For these men of the enlightenment, religion should be allowed to rise and fall
on its own, and the state must be protected from the clutches of the church
whose entanglements has caused intolerance and corruption as witnessed throughout
history.[88]
Not only the leaders but also the masses embraced rationalism at the end of the
eighteenth century, accounting for the popularity of Paine’s Age of Reason.[89]

Finally, the events
leading to religious freedom and separation in Virginia contributed
significantly to the American experiment of the First Amendment.  Virginia
was the “first state in the history of the world to proclaim the decree of
absolute divorce between church and state.”[90]
Many factors contributed to this, among which were that half to two-thirds of
the population were organized dissenting sects, the Great Awakening had won
many converts, the established Anglican Church of Virginia found themselves on
the losing side of the Revolution and had alienated many influential laymen with
its identification with the Crown’s tyranny, and above all, present in Virginia
was a group of political leaders who were devoted to liberty generally,[91]
who had accepted the social contract as self-evident, and who had been greatly
influenced by Deism and Unitarianism.  Among these leaders were Washington,
Patrick Henry, George Mason, James Madison and above the rest, Thomas
Jefferson.

The first major step
towards separation in Virginia was the adoption of the following provision in the
Bill of Rights of the state’s first constitution:

That religion, or the
duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, all men are equally entitled
to the free exercise of religion according to the dictates of conscience;
and that it is the mutual duty of all to practice Christian forbearance, love,
and charity towards each other.[92]
(emphasis supplied)

The adoption of the Bill of Rights
signified the beginning of the end of establishment.  Baptists, Presbyterians and Lutherans flooded
the first legislative assembly with petitions for abolition of
establishment.  While the majority of the
population were dissenters, a majority of the legislature were churchmen.  The legislature compromised and enacted a
bill in 1776 abolishing the more oppressive features of establishment and
granting exemptions to the dissenters, but not guaranteeing separation.  It repealed the laws punishing heresy and
absence from worship and requiring the dissenters to contribute to the support
of the establishment.[93]
But the dissenters were not satisfied; they not only wanted abolition of
support for the establishment, they opposed the compulsory support of their own
religion as others.  As members of the
established church would not allow that only they would pay taxes while the
rest did not, the legislature enacted in 1779 a bill making permanent the
establishment’s loss of its exclusive status and its power to tax its members;
but those who voted for it did so in the hope that a general assessment bill
would be passed.  Without the latter, the
establishment would not survive.  Thus, a
bill was introduced in 1779 requiring every person to enroll his name with the
county clerk and indicate which “society for the purpose of Religious Worship”
he wished to support.  On the basis of
this list, collections were to be made by the sheriff and turned over to the
clergymen and teachers designated by the religious congregation.  The assessment of any person who failed to
enroll in any society was to be divided proportionately among the societies.[94]
The bill evoked strong opposition.

In 1784, another bill, entitled “Bill Establishing a Provision
for Teachers of the Christian Religion” was introduced requiring all persons
“to pay a moderate tax or contribution annually for the support of the
Christian religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship.”[95]
This likewise aroused the same opposition to the 1779 bill.  The most telling blow against the 1784 bill
was the monumental “Memorial and Remonstrance against Religious Assessments”
written by Madison and widely distributed before the reconvening of legislature
in the fall of 1785.[96]
It stressed natural rights, the
government’s lack of jurisdiction over the domain of religion, and the social
contract as the ideological basis of separation while also citing practical
considerations such as loss of population through migration.  He wrote, viz:

Because we hold it for a
‘fundamental and undeniable truth,’ that religion, or the duty which we owe to
our creator, and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence.  The
religion, then, of every man, must be left to the conviction and conscience of
every man; and it is the right of every man to exercise it as these may
dictate.  This right is, in its nature,
an unalienable right.  It is
unalienable, because the opinions of men, depending only on the evidence
contemplated in their own minds, cannot follow the dictates of other men; it is
unalienable, also, because what is here a right towards men, is a duty towards
the creator.  It is the duty of every man to render the creator such homage, and such
only as he believes to be acceptable to him; this duty is precedent, both in
order of time and degree of obligation, to the claims of civil society.  Before any man can be considered as a member
of civil society, he must be considered as a subject of the governor of the
universe; and if a member of civil society, who enters into any subordinate
association, must always do it with a reservation of his duty to the general
authority, much more must every man who becomes a member of any particular civil
society do it with the saving his allegiance to the universal sovereign.[97]
(emphases supplied)

Madison articulated in the Memorial the
widely held beliefs in 1785 as indicated by the great number of signatures
appended to the Memorial.  The assessment
bill was speedily defeated.

Taking advantage of the situation, Madison called up a much
earlier 1779 bill of Jefferson which had not been voted on, the “Bill for
Establishing Religious Freedom”, and it was finally passed in January
1786.  It provided, viz:

Well aware that Almighty God
hath created the mind free; that all attempts to influence it by temporal
punishments or burdens, or by civil incapacitations, tend not only to beget
habits of hypocrisy and meanness, and are a departure from the plan of the Holy
Author of our religion, who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty power to do;

xxx                                                                          xxx                                                                   xxx

Be it therefore enacted by the General Assembly.  That no man shall be compelled to frequent or
support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall
otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and
by argument to maintain, their opinions in matters of religion, and that
the same shall in no wise diminish, enlarge or affect their civil capacities.[98]
(emphases supplied)

This statute forbade any kind of taxation
in support of religion and effectually ended any thought of a general or
particular establishment in Virginia.[99]
But the passage of this law was obtained not only because of the influence of
the great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians and
the Baptists.  The former were never
established in Virginia and an underprivileged minority of the population.  This made them anxious to pull down the
existing state church as they realized that it was impossible for them to be
elevated to that privileged position. 
Apart from these expediential considerations, however, many of the
Presbyterians were sincere advocates of separation[100]
grounded on rational, secular arguments and to the language of natural religion.[101]
Influenced by Roger Williams, the Baptists, on the other hand, assumed that
religion was essentially a matter of concern of the individual and his God,
i.e., subjective, spiritual and supernatural, having no relation with the
social order.[102]
To them, the Holy Ghost was sufficient to maintain and direct the Church
without governmental assistance and state-supported religion was contrary ti
the spirit of the Gospel.[103]
Thus, separation was necessary.[104]
Jefferson’s religious freedom statute was a milestone in the history of religious freedom.  The United States Supreme Court has not just
once acknowledged that the provisions of
the First Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference with
religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by restricting its
free exercise or establishing it was implicit in the Constitution of 1787.  This could be deduced from the prohibition of
any religious test for federal office in Article VI of the Constitution and the
assumed lack of power of Congress to act on any subject not expressly mentioned
in the Constitution.[105]
However, omission of an express guaranty of religious freedom and other natural
rights nearly prevented the ratification of the Constitution.[106]
In the ratifying conventions of almost every state, some objection was
expressed to the absence of a restriction on the Federal Government as regards
legislation on religion.[107]
Thus, in 1791, this restriction was made explicit with the adoption of the
religion clauses in the First Amendment as they are worded to this day, with
the first part usually referred to as the Establishment Clause and the second
part, the Free Exercise Clause, viz:

Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof.

VI.       Religion Clauses in the United States:

Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as to what these
clauses specifically require, permit and forbid.  No agreement has been reached by those who
have studied the religion clauses as regards its exact meaning and the paucity
of records in Congress renders it difficult to ascertain its meaning.[108]
Consequently, the jurisprudence in this
area is volatile and fraught with inconsistencies whether within a Court
decision or across decisions.

One source of difficulty
is the difference in the context in which the First Amendment was adopted and
in which it is applied today.  In the
1780s, religion played a primary role in social life – i.e., family
responsibilities, education, health care, poor relief, and other aspects of
social life with significant moral dimension – while government played a
supportive and indirect role by maintaining conditions in which these activities
may be carried out by religious or religiously-motivated associations.  Today, government plays this primary role and
religion plays the supportive role.[109]
Government runs even family planning, sex education, adoption and foster care
programs.[110]
Stated otherwise and with some exaggeration, “(w)hereas two centuries ago, in
matters of social life which have a significant moral dimension, government was
the handmaid of religion, today religion, in its social responsibilities, as
contrasted with personal faith and collective worship, is the handmaid of government.”[111]
With government regulation of individual conduct having become more pervasive, inevitably some of those regulations
would reach conduct that for some individuals are religious.  As a result, increasingly, there may be
inadvertent collisions between purely secular government actions and religion
clause values.[112]

Parallel to this expansion of government has been the expansion
of religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and
cults.  Churches run day-care centers,
retirement homes, hospitals, schools at all levels, research centers,
settlement houses, halfway houses for prisoners, sports facilities, theme parks,
publishing houses and mass media programs. 
In these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches have also
concerned themselves with social and political issues as a necessary outgrowth
of religious faith as witnessed in pastoral letters on war and peace, economic
justice, and human life, or in ringing affirmations for racial equality on religious
foundations.  Inevitably, these
developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity
has significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made.  It is no longer easy for individuals to live
solely among their own kind or to shelter their children from exposure to
competing values.  The result is
disagreement over what laws should require, permit or prohibit;[113]
and agreement that if the rights of believers as well as non-believers are all
to be respected and given their just due, a rigid, wooden interpretation of the
religion clauses that is blind to societal and political realities must be avoided.[114]

Religion cases arise from different circumstances.  The more obvious ones arise from a government
action which purposely aids or inhibits religion. These cases are easier to
resolve as, in general, these actions are plainly unconstitutional.  Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion.[115]
The more difficult religion clause cases involve government action with a
secular purpose and general applicability which incidentally or inadvertently
aids or burdens religious exercise.  In
Free Exercise Clause cases, these government actions are referred to as those
with “burdensome effect” on religious exercise even if the government action is
not religiously motivated.[116]
Ideally, the legislature would recognize the religions and their practices and
would consider them, when practical, in enacting laws of general
application.  But when the legislature
fails to do so, religions that are threatened and burdened turn to the courts
for protection.[117]
Most of these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a “burdensome” effect.[118]

With the change in political and social context and the
increasing inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion clauses has
also been modified to suit current
realities.  Defining religion is a
difficult task for even theologians, philosophers and moralists cannot agree on
a comprehensive definition. 
Nevertheless, courts must define religion for constitutional and other
legal purposes.[119]
It was in the 1890 case of Davis v. Beason[120]
that the United States Supreme Court first
had occasion to define religion, viz:

The term ‘religion’ has
reference to one’s views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of
obedience to his will.  It is often
confounded with the cultus or form of
worship of a particular sect, but is distinguishable from the latter.  The First Amendment to the Constitution, in
declaring that Congress shall make no law respecting the establishment of
religion, or forbidding the free exercise thereof, was intended to allow
everyone under the jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose as may be
approved by his judgment and conscience, and to exhibit his sentiments in such
form of worship as he may think proper, not injurious to the equal rights of
others, and to prohibit legislation for the support of any religious tenets, or
the modes of worship of any sect.[121]

The definition was clearly theistic
which was reflective of the popular attitudes in 1890.

In 1944, the Court stated in United
States v. Ballard[122]
that the free exercise of religion “embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths.”[123]
By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as
Buddhism and Taoism.[124]
In 1961, the Court, in Torcaso v. Watkins,[125]
expanded the term “religion” to non-theistic beliefs such as Buddhism, Taoism,
Ethical Culture, and Secular Humanism. 
Four years later, the Court faced a definitional problem in United States v. Seeger[126]
which involved four men who claimed “conscientious objector” status in refusing
to serve in the Vietnam War.  One of the
four, Seeger, was not a member of any organized religion opposed to war, but
when specifically asked about his belief in a Supreme Being, Seeger stated that
“you could call (it) a belief in a Supreme Being or God.  These just do not happen to be the words that
I use.” Forest Peter, another one of the four claimed that after considerable
meditation and reflection “on values derived from the Western religious and
philosophical tradition,” he determined that it would be “a violation of his
moral code to take human life and that he considered this belief superior to
any obligation to the state.”  The Court
avoided a constitutional question by broadly interpreting not the Free Exercise
Clause, but the statutory definition of religion in the Universal Military
Training and Service Act of 1940 which exempt from combat anyone “who, by
reason of religious training and belief, is conscientiously opposed to
participation in war in any form.” 
Speaking for the Court, Justice Clark ruled, viz:

Congress, in using the expression ‘Supreme Being’ rather than the
designation ‘God,’ was merely clarifying the meaning of religious tradition and
belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the
test of belief ‘in relation to a Supreme Being’ is whether a given belief that
is sincere and meaningful occupies a place in the life of its possessor
parallel to the orthodox belief in God. (emphasis supplied)

The Court was convinced that Seeger,
Peter and the others were conscientious objectors possessed of such religious
belief and training.

Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism.  It has been proposed that
basically, a creed must meet four criteria to qualify as religion under the
First Amendment.  First, there must be belief in God or some parallel belief that
occupies a central place in the believer’s life.  Second,
the religion must involve a moral code transcending individual belief, i.e., it
cannot be purely subjective. Third,
a demonstrable sincerity in belief is necessary, but the court must not inquire
into the truth or reasonableness of the belief.[127]
Fourth, there must be some
associational ties,[128]
although there is also a view that religious beliefs held by a single person
rather than being part of the teachings of any kind of group or sect are
entitled to the protection of the Free Exercise Clause.[129]

Defining religion is only the beginning of the difficult task of
deciding religion clause cases.  Having hurdled the issue of definition, the
court then has to draw lines to determine what is or is not permissible under
the religion clauses.  In this task,
the purpose of the clauses is the
yardstick.  Their purpose is singular;
they are two sides of the same coin.[130]
In devoting two clauses to religion, the Founders were stating not two opposing
thoughts that would cancel each other out, but two complementary thoughts that
apply in different ways in different circumstances.[131]
The purpose of the religion clauses – both in the restriction it imposes on the
power of the government to interfere with the free exercise of religion and the
limitation on the power of government to establish, aid, and support religion –
is the protection and promotion of
religious liberty.[132]
The end, the goal, and the rationale of the religion clauses is this liberty.[133]
Both clauses were adopted to prevent government imposition of religious
orthodoxy; the great evil against which they are directed is government-induced
homogeneity.[134]
The Free Exercise Clause directly
articulates the common objective of the two clauses and the Establishment Clause specifically
addresses a form of interference with religious liberty with which the Framers
were most familiar and for which government historically had demonstrated a propensity.[135]
In other words, free exercise is the end, proscribing establishment is a
necessary means to this end to protect the rights of those who might dissent
from whatever religion is established.[136]
It has even been suggested that the sense of the First Amendment is captured if
it were to read as “Congress shall make no law respecting an establishment of
religion or otherwise prohibiting the
free exercise thereof” because the fundamental and single purpose of the two
religious clauses is to “avoid any infringement on the free exercise of religions”[137]
Thus, the Establishment Clause mandates separation of church and state to
protect each from the other, in service of the larger goal of preserving
religious liberty.  The effect of the
separation is to limit the opportunities for any religious group to capture the
state apparatus to the disadvantage of those of other faiths, or of no faith at
all[138]
because history has shown that religious fervor conjoined with state power is
likely to tolerate far less religious disagreement and disobedience from those
who hold different beliefs than an enlightened secular state.[139]
In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: “(t)he structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions
from religious interference.  On the
other hand, it has secured religious liberty from the invasion of the civil authority.”[140]

In upholding religious liberty
as the end goal in religious clause cases, the line the court draws to ensure
that government does not establish and instead remains neutral toward religion
is not absolutely straight.  Chief
Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to
insure that no religion be sponsored or favored, none commanded and none inhibited.[141]
(emphasis supplied)

Consequently, U.S. jurisprudence has
produced two identifiably different,[142]
even opposing, strains of jurisprudence on the religion clauses: separation (in the form of strict
separation or the tamer version of strict neutrality or separation) and
benevolent neutrality or accommodation.  A view of the landscape of
U.S. religion clause cases would be useful in understanding these two strains,
the scope of protection of each clause, and the tests used in religious clause
cases.  Most of these cases are cited as
authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878
case of Reynolds v. United States.[143]
This landmark case involved Reynolds, a Mormon who proved that it was his
religious duty to have several wives and that the failure to practice polygamy
by male members of his religion when circumstances would permit would be
punished with damnation in the life to come. 
Reynolds’ act of contracting a second marriage violated Section 5352, Revised
Statutes prohibiting and penalizing bigamy, for which he was convicted.  The Court affirmed Reynolds’ conviction,
using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but
not to action.  It cited Jefferson’s Bill
Establishing Religious Freedom which, according to the Court, declares “the
true distinction between what properly belongs to the Church and what to the State.”[144]
The bill, making a distinction between belief and action, states in relevant
part, viz:

That to suffer the civil
magistrate to intrude his powers into the field of opinion, and to restrain
the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy which
at once destroys all religious liberty;

that it is time enough for
the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order.[145]
(emphasis supplied)

The Court then held, viz:

Congress was deprived of all
legislative power over mere opinion, but was left free to reach actions which
were in violation of social duties or subversive of good order. . .

Laws are made for the
government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices.  Suppose one believed that human sacrifice
were a necessary part of religious worship, would it be seriously contended
that the civil government under which he lived could not interfere to prevent a
sacrifice?  Or if a wife religiously
believed it was her duty to burn herself upon the funeral pile of her dead
husband, would it be beyond the power of the civil government to prevent her
carrying her belief into practice?

So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural marriages
shall not be allowed.  Can a man excuse
his practices to the contrary because of his religious belief?  To permit this would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect to
permit every citizen to become a law unto himself.  Government could exist only in name under
such circumstances.[146]

The construct was thus simple: the state
was absolutely prohibited by the Free Exercise Clause from regulating
individual religious beliefs, but placed no restriction on the ability of the
state to regulate religiously motivated conduct.  It was logical for belief to be accorded
absolute protection because any statute designed to prohibit a particular
religious belief unaccompanied by any conduct would most certainly be motivated
only by the legislature’s preference of a competing religious belief.  Thus, all cases of regulation of belief would
amount to regulation of religion for religious reasons violative of the Free
Exercise Clause.  On the other hand, most
state regulations of conduct are for public welfare purposes and have nothing
to do with the legislature’s religious preferences.  Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs.  These burdens are
thus usually inadvertent and did not figure in the belief-action test.  As long
as the Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.[147]
The Free Exercise Clause thus gave no protection against the proscription of
actions even if considered central to a religion unless the legislature
formally outlawed the belief itself.[148]

This belief-action
distinction was held by the Court for some years as shown by cases where the
Court upheld other laws which burdened the practice of the Mormon religion by
imposing various penalties on polygamy such as the Davis case and Church of
Latter Day Saints v. United States.[149]
However, more than a century since Reynolds
was decided, the Court has expanded the
scope of protection from belief to speech and conduct.  But while the belief-action test has been abandoned, the rulings in the earlier
Free Exercise cases have gone unchallenged. The belief-action distinction is
still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.[150]

The Free Exercise Clause accords absolute protection to
individual religious convictions and beliefs[151]
and proscribes government from questioning a person’s beliefs or imposing
penalties or disabilities based solely on those beliefs.  The
Clause extends protection to both beliefs and unbelief.  Thus, in Torcaso
v. Watkins,[152]
a unanimous Court struck down a state law requiring as a qualification for
public office an oath declaring belief in the existence of God.  The protection also allows courts to look
into the good faith of a person in his belief, but prohibits inquiry into the truth of a person’s
religious beliefs.  As held in United States v. Ballard,[153]
“(h)eresy trials are foreign to the Constitution.  Men may believe what they cannot prove.  They may not be put to the proof of their
religious doctrines or beliefs.”

Next to belief which
enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection.  Thus, in the 1940 case of Cantwell v. Connecticut,[154]
the Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency.  The law was challenged by Cantwell, a member
of the Jehovah’s Witnesses which is committed to active proselytizing.  The Court invalidated the state statute as
the prior approval necessary was held to be a censorship of religion prohibited
by the Free Exercise Clause.  The Court held,
viz:

In the realm of religious faith, and in that of political belief,
sharp differences arise.  In both fields
the tenets of one may seem the rankest error to his neighbor.  To persuade others to his point of view, the
pleader, as we know, resorts to exaggeration, to vilification of men who have
been, or are, prominent in church or state, and even to false statement.  But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened opinion
and right conduct on the part of citizens of a democracy.[155]

Cantwell
took a step forward from the protection afforded by the Reynolds case in that it
not only affirmed protection of belief but also freedom to act for the
propagation of that belief, viz:

Thus the Amendment embraces two concepts – freedom to believe and
freedom to act.  The first is absolute
but, in the nature of things, the second cannot be.  Conduct remains subject to regulation for the
protection of society. . . In every
case, the power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom. (emphasis supplied)[156]

The Court stated, however, that
government had the power to regulate the times, places, and manner of
solicitation on the streets and assure the peace and safety of the community.

Three years after Cantwell,
the Court in Douglas v. City of Jeanette,[157]
ruled that police could not prohibit members of the Jehovah’s Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens
complained. In another case likewise involving the Jehovah’s Witnesses, Niemotko v. Maryland,[158]
the Court unanimously held unconstitutional a city council’s denial of a permit
to the Jehovah’s Witnesses to use the city park for a public meeting.  The city council’s refusal was because of the
“unsatisfactory” answers of the Jehovah’s Witnesses to questions about
Catholicism, military service, and other issues.  The denial of the public forum was considered
blatant censorship.  While protected,
religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to non-religious speech.  Religious proselytizing in congested areas,
for example, may be limited to certain areas to maintain the safe and orderly
flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for
Krishna Consciousness.[159]

The least protected under
the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. 
Protection in this realm depends on the character of the action and the
government rationale for regulating the action.[160]
The Mormons’ religious conduct of polygamy
is an example of unconventional religious practice.  As discussed in the Reynolds case above, the Court did not afford protection to the
practice.  Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: “(c)rime is not the less odious
because sanctioned by what any particular sect may designate as religion.”[161]

The belief-action test
in Reynolds and Davis proved unsatisfactory. 
Under this test, regulation of religiously dictated conduct would be
upheld no matter how central the conduct was to the exercise of religion and no
matter how insignificant was the government’s non-religious regulatory interest
so long as the government is proscribing action and not belief.  Thus, the Court abandoned the simplistic belief-action distinction and instead
recognized the deliberate-inadvertent distinction,
i.e., the distinction between deliberate state interference of religious
exercise for religious reasons which was plainly unconstitutional and
government’s inadvertent interference with religion in pursuing some secular objective.[162]
In the 1940 case of Minersville School
District v. Gobitis,[163]
the Court upheld a local school board requirement that all public school
students participate in a daily flag salute program, including the Jehovah’s
Witnesses who were forced to salute the American flag in violation of their
religious training, which considered flag salute to be worship of a “graven
image.”  The Court recognized that the
general requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses’ practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity, which was the
“basis of national security.”  Thus,
although the Court was already aware of the deliberate-inadvertent distinction
in government interference with religion, it continued to hold that the Free
Exercise Clause presented no problem to interference with religion that was
inadvertent no matter how serious the interference, no matter how trivial the
state’s non-religious objectives, and no matter how many alternative approaches
were available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular
objective. 

Three years later, the Gobitis
decision was overturned in West
Virginia v. Barnette[164]
which involved a similar set of facts and issue.  The Court recognized that saluting the flag,
in connection with the pledges, was a form of utterance and the flag salute
program was a compulsion of students to declare a belief.  The Court ruled that “compulsory unification
of opinions leads only to the unanimity of the graveyard” and exempt the
students who were members of the Jehovah’s Witnesses from saluting the
flag.  A close scrutiny of the case,
however, would show that it was decided not on the issue of religious conduct
as the Court said, “(n)or does the issue as we see it turn on one’s possession
of particular religious views or the sincerity with which they are held.  While religion supplies appellees’ motive for
enduring the discomforts of making the issue in this case, many citizens who do
not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.”
(emphasis supplied)[165]
The Court pronounced, however, that, “freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to
prevent grave and immediate danger to
interests which the state may lawfully protect.”[166]
The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious
liberty of political minorities – a specially protected constitutional value –
to the common everyday economic and public welfare objectives of the majority
in the legislature.  This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to override
religious liberty.  But the seeds of this
heightened scrutiny would only grow to a full flower in the 1960s.[167]

Nearly a century after Reynolds
employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence.[168]
A two-part balancing test was established in Braunfeld v. Brown[169]
where the Court considered the constitutionality of applying Sunday closing
laws to Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday.  Chief Justice Warren, writing for the Court,
found that the law placed a severe burden on Sabattarian retailers.  He noted, however, that since the burden was
the indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were
alternative ways of achieving the state’s interest.  He employed a two-part balancing test of validity where the first step was for
plaintiff to show that the regulation placed a real burden on his religious
exercise.  Next, the burden would be
upheld only if the state showed that it was pursuing an overriding secular goal
by the means which imposed the least burden on religious practices.[170]
The Court found that the state had an overriding secular interest in setting
aside a single day for rest, recreation and tranquility and there was no
alternative means of pursuing this interest but to require Sunday as a uniform
rest day.

Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.[171]
This test was similar to the two-part
balancing test in Braunfeld,[172]
but this latter test stressed that the
state interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim.  In this case, Sherbert, a Seventh Day
Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious grounds.  Her claim was denied.  She sought recourse in the Supreme
Court.  In laying down the standard for
determining whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation.  If,
therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either
because her disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any incidental
burden on the free exercise of appellant’s religion may be justified by a
‘compelling state interest in the regulation of a subject within the State’s
constitutional power to regulate. . .’ 
NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173]
(emphasis supplied)

The Court stressed that in the area of
religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right
and a colorable state interest. 
“(I)n this highly sensitive constitutional area, ‘[o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible
limitation.’ Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.”[174]
The Court found that there was no such compelling state interest to override
Sherbert’s religious liberty.  It added
that even if the state could show that Sherbert’s exemption would pose serious
detrimental effects to the unemployment compensation fund and scheduling of
work, it was incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without infringing religious
liberty.  The state, however, did not
discharge this burden.  The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits.  The Court reasoned that upholding the denial
of Sherbert’s benefits would force her to choose between receiving benefits and
following her religion.  This choice
placed “the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship.”  This germinal case of Sherbert firmly established the exemption doctrine, [175]
viz:

It is certain that not every conscience can be accommodated by all
the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted
unless some ‘compelling state interest’ intervenes.

Thus, in a short period of twenty-three
years from Gobitis to Sherbert (or even as early as Braunfeld),
the Court moved from the doctrine that inadvertent or incidental interferences
with religion raise no problem under the Free Exercise Clause to the doctrine
that such interferences violate the Free Exercise Clause in the absence of a
compelling state interest – the highest level of constitutional scrutiny short
of a holding of a per se violation.  Thus, the problem posed by the belief-action
test and the deliberate-inadvertent distinction was addressed.[176]

Throughout the 1970s and 1980s under the Warren, and afterwards,
the Burger Court, the rationale in Sherbert
continued to be applied.  In Thomas v. Review Board[177]
and Hobbie v. Unemployment Appeals Division,[178]
for example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to
unwillingness to depart from religious practices and beliefs that conflicted
with job requirements.  But not every
governmental refusal to allow an exemption from a regulation which burdens a
sincerely held religious belief has been invalidated, even though strict or
heightened scrutiny is applied.  In United States v. Lee,[179]
for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government’s
refusal to exempt Amish employers who requested for exemption from paying
social security taxes on wages on the ground of religious beliefs. The Court
held that “(b)ecause the broad public interest in maintaining a sound tax
system is of such a high order, religious belief in conflict with the payment
of taxes affords no basis for resisting the tax.”[180]
It reasoned that unlike in Sherbert,
an exemption would significantly impair government’s achievement of its objective
– “the fiscal vitality of the social security system;” mandatory participation
is indispensable to attain this objective. 
The Court noted that if an exemption were made, it would be hard to
justify not allowing a similar exemption from general federal taxes where the
taxpayer argues that his religious beliefs require him to reduce or eliminate
his payments so that he will not contribute to the government’s war-related
activities, for example. 

The strict scrutiny and
compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. 
While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that
collided with religious practices. 
Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion.[181]

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182]
where the Court upheld the religious practice of the Old Order Amish faith over
the state’s compulsory high school attendance law.  The Amish parents in this case did not permit
secular education of their children beyond the eighth grade. Chief Justice
Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance interferes with
the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the
Free Exercise Clause.  Long before
there was general acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any
religion.  The values underlying these
two provisions relating to religion have been zealously protected, sometimes
even at the expense of other interests of admittedly high social importance. .
.

The essence of all that has been said and written on the subject is
that only those interests of the highest
order and those not otherwise served can overbalance legitimate claims to the
free exercise of religion. . .

. . . our decisions have rejected the idea that that religiously
grounded conduct is always outside the protection of the Free Exercise
Clause.  It is true that activities of
individuals, even when religiously based, are often subject to regulation by
the States in the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal government in the exercise of its
delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of
the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State
to control, even under regulations of general applicability. . . .This
case, therefore, does not become easier because respondents were convicted for
their “actions” in refusing to send their children to the public high school;
in this context belief and action cannot be neatly confined in logic-tight
compartments. . . [183]

The onset of the 1990s, however, saw a major setback in the
protection afforded by the Free Exercise Clause.  In Employment Division, Oregon
Department of Human Resources v. Smith,[184]
the sharply divided Rehnquist Court dramatically departed
from the heightened scrutiny and compelling justification approach and imposed
serious limits on the scope of protection of religious freedom afforded by the
First Amendment.  In this case, the
well-established practice of the Native American Church, a sect outside the
Judeo-Christian mainstream of American religion, came in conflict with the
state’s interest in prohibiting the use of illicit drugs.  Oregon’s controlled substances statute made
the possession of peyote a criminal offense. 
Two members of the church, Smith and Black, worked as drug
rehabilitation counselors for a private social service agency in Oregon.  Along with other church members, Smith and
Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced
by Native Americans for hundreds of years. 
The social service agency fired Smith and Black citing their use of
peyote as “job-related misconduct”.  They
applied for unemployment compensation, but the Oregon Employment Appeals Board
denied their application as they were discharged for job-related misconduct.
Justice Scalia, writing for the majority, ruled that “if prohibiting the exercise of religion . . . is . . . merely the
incidental effect of a generally applicable and otherwise valid law, the First
Amendment has not been offended.” In other words, the Free Exercise Clause
would be offended only if a particular religious practice were singled out for
proscription.  The majority opinion
relied heavily on the Reynolds case
and in effect, equated Oregon’s drug prohibition law with the anti-polygamy
statute in Reynolds.  The relevant portion of the majority opinion
held, viz:

We have never invalidated any governmental action on the basis of
the Sherbert test except the denial
of unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal
law. . .

We conclude today that the
sounder approach, and the approach in accord with the vast majority of our
precedents, is to hold the test inapplicable to such challenges.  The government’s ability to enforce generally
applicable prohibitions of socially harmful conduct, like its ability to carry
out other aspects of public policy, “cannot depend on measuring the effects of
a governmental action on a religious objector’s spiritual development.” . . .To make an individual’s obligation to obey
such a law contingent upon the law’s coincidence with his religious beliefs except
where the State’s interest is “compelling” – permitting him, by virtue of his
beliefs, “to become a law unto himself,” . . . – contradicts both
constitutional tradition and common sense.

Justice O’Connor wrote a concurring opinion pointing out that the
majority’s rejection of the compelling governmental interest test was the most
controversial part of the decision. 
Although she concurred in the result that the Free Exercise Clause had
not been offended, she sharply criticized the majority opinion as a dramatic
departure “from well-settled First Amendment jurisprudence. . . and  . . . (as) incompatible with our Nation’s
fundamental commitment to religious liberty.” 
This portion of her concurring opinion was supported by Justices
Brennan, Marshall and Blackmun who dissented from the Court’s decision.  Justice O’Connor asserted that “(t)he compelling state interest test
effectuates the First Amendment’s command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court
will not permit encroachments upon this liberty, whether direct or indirect,
unless required by clear and compelling government interest ‘of the highest
order’.”  Justice Blackmun registered
a separate dissenting opinion, joined by Justices Brennan and Marshall.  He charged the majority with
“mischaracterizing” precedents and “overturning. . . settled law concerning the
Religion Clauses of our Constitution.” 
He pointed out that the Native American Church restricted and supervised
the sacramental use of peyote.  Thus, the
state had no significant health or safety justification for regulating the
sacramental drug use.  He also observed
that Oregon had not attempted to prosecute Smith or Black, or any Native
Americans, for that matter, for the sacramental use of peyote.  In conclusion, he said that “Oregon’s
interest in enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents’ right to the free exercise of
their religion.”

The Court went back to the Reynolds
and Gobitis doctrine in Smith. 
The Court’s standard in Smith
virtually eliminated the requirement that the government justify with a
compelling state interest the burdens on religious exercise imposed by laws
neutral toward religion.  The Smith doctrine is highly unsatisfactory
in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.[185]
First, the First amendment was intended to protect minority religions from the
tyranny of the religious and political majority.  A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny.  But regulatory interference with a minority religion
as a result of ignorance or sensitivity of the religious and political majority
is no less an interference with the minority’s religious freedom.  If the regulation had instead restricted the
majority’s religious practice, the majoritarian legislative process would in
all probability have modified or rejected the regulation.  Thus, the imposition of the political
majority’s non-religious objectives at the expense of the minority’s religious
interests implements the majority’s religious viewpoint at the expense of the
minority’s.  Second, government
impairment of religious liberty would most often be of the inadvertent kind as
in Smith considering the political
culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost
meaningless.  Third, the Reynolds-Gobitis-Smith doctrine simply
defies common sense.  The state should
not be allowed to interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective.  This is
especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on religion.[186]

Thus, the Smith decision
has been criticized not only for increasing the power of the state over
religion but as discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,[187]
contrary to the original theory of the First Amendment.[188]
Undeniably, claims for judicial exemption emanate almost invariably from
relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for exemption.[189]
Thus, the Smith decision elicited
much negative public reaction especially from the religious community, and
commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.[190]
So much was the uproar that a majority in Congress was convinced to enact the
Religious Freedom Restoration Act (RFRA) of 1993.  The RFRA prohibited government at all levels
from substantially burdening a person’s free exercise of religion, even if such
burden resulted from a generally applicable rule, unless the government could
demonstrate a compelling state interest and the rule constituted the least
restrictive means of furthering that interest.[191]
RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status
quo prior to Smith. Three years after the RFRA was enacted, however, the
Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.[192]
The Court ruled that “RFRA contradicts vital principles necessary to maintain
separation of powers and the federal balance.” 
It emphasized the primacy of its role as interpreter of the Constitution
and unequivocally rejected, on broad institutional grounds, a direct
congressional challenge of final judicial authority on a question of
constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah[193]
which was ruled consistent with the Smith doctrine.  This case involved animal sacrifice of the
Santeria, a blend of Roman Catholicism and West African religions brought to
the Carribean by East African slaves.  An
ordinance made it a crime to “unnecessarily kill, torment, torture, or mutilate
an animal in public or private ritual or ceremony not for the primary purpose
of food consumption.”  The ordinance came
as a response to the local concern over the sacrificial practices of the
Santeria.  Justice Kennedy, writing for
the majority, carefully pointed out that the questioned ordinance was not a
generally applicable criminal prohibition, but instead singled out
practitioners of the Santeria in that it forbade animal slaughter only insofar
as it took place within the context of religious rituals.

It may be seen from the foregoing cases that under the Free
Exercise Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be accorded
protection as shown in Wisconsin.[194]

B.  Establishment
Clause

The Court’s first
encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.[195]
Prior cases had made passing reference to the Establishment Clause[196]
and raised establishment questions but were decided on other grounds.[197]
It was in the Everson case that the U.S. Supreme Court adopted
Jefferson’s metaphor of “a wall of separation between church and state” as
encapsulating the meaning of the Establishment Clause.  The often and loosely used phrase “separation
of church and state” does not appear in the U.S. Constitution.  It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States[198]
quoted Jefferson’s famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:

Believing with you that religion is a matter which lies solely
between man and his God; that he owes account to none other for his faith or
his worship; that the legislative powers of the Government reach actions only,
and not opinions, I contemplate with sovereign reverence that act of the whole
American people which declared that their Legislature should ‘make no law
respecting an establishment of religion or prohibiting the free exercise
thereof,’ thus building a wall of
separation between Church and State.[199]
(emphasis supplied)

Chief Justice Waite, speaking for the
majority, then added, “(c)oming as this does from an acknowledged leader of the
advocates of the measure, it may be accepted almost as an authoritative declaration
of the scope and effect of the amendment thus secured.”[200]

The interpretation of the Establishment Clause has in large part
been in cases involving education, notably state aid to private religious
schools and prayer in public schools.[201]
In Everson v. Board of Education,
for example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to and
from Catholic schools.  The reimbursement
was part of a general program under which all parents of children in public
schools and nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. 
Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit
theory, i.e., that the school board was merely furthering the state’s
legitimate interest in getting children “regardless of their religion, safely
and expeditiously to and from accredited schools.”  The Court, after narrating the history of the
First Amendment in Virginia, interpreted the Establishment Clause, viz:

The ‘establishment of religion’ clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set up a
church.  Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. 
Neither can 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.  No person can be punished for entertaining
or professing religious beliefs or disbeliefs, for church attendance or
non-attendance.  No tax in any amount,
large or small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they may adopt to
teach or practice religion.  Neither a
state nor the Federal Government can, openly or secretly participate in the
affairs of any religious organizations or groups and vice versa.  In the
words of Jefferson, the clause against establishment of religion by law was
intended to erect “a wall of separation between Church and State.”[202]

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and
state.  That wall must be kept high and
impregnable.  We could not approve the
slightest breach.  New Jersey has not
breached it here.[203]

By 1971, the Court integrated the different elements of the
Court’s Establishment Clause jurisprudence that evolved in the 1950s and 1960s
and laid down a three-pronged test in Lemon
v. Kurtzman[204]
in determining the constitutionality of policies challenged under the
Establishment Clause.  This case involved
a Pennsylvania statutory program providing publicly funded reimbursement for
the cost of teachers’ salaries, textbooks, and instructional materials in
secular subjects and a Rhode Island statute providing salary supplements to
teachers in parochial schools.  The Lemon test requires a challenged
policy to meet the following criteria to pass scrutiny under the Establishment
Clause.  “First, the statute must have a secular legislative purpose; second,
its primary or principal effect must be one that neither advances nor inhibits
religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065,
88 S Ct 1923 [1968]); finally, the statute must not foster ‘an excessive
entanglement with religion.’ (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed
2d 697, 701, 90 S Ct 1409 [1970])” (emphasis
supplied)[205]
Using this test, the Court held that the Pennsylvania statutory program and
Rhode Island statute were unconstitutional as fostering excessive entanglement
between government and religion. 

The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions.  “Few decisions of the modern Supreme Court
have been criticized more intensely than the school prayer decisions of the
early 1960s.”[206]
In the 1962 case of Engel v. Vitale,[207]
the Court invalidated a New York Board of Regents policy that established the
voluntary recitation of a brief generic prayer by children in the public
schools at the start of each school day. 
The majority opinion written by Justice Black stated that “in this
country it is no part of the business of government to compose official prayers
for any group of the American people to recite as part of a religious program
carried on by government.”  In fact,
history shows that this very practice of establishing governmentally composed
prayers for religious services was one of the reasons that caused many of the
early colonists to leave England and seek religious freedom in America.  The Court called to mind that the first and
most immediate purpose of the Establishment Clause rested on the belief that a
union of government and religion tends to destroy government and to degrade
religion.  The following year, the Engel decision was reinforced in Abington School District v. Schempp[208]
and Murray v. Curlett[209]
where the Court struck down the practice of Bible reading and the recitation of
the Lord’s prayer in the Pennsylvania and Maryland schools.  The Court held that to withstand the
strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion.  It reiterated, viz:

The wholesome ‘neutrality’ of which this Court’s cases speak thus
stems from a recognition of the teachings of history that powerful sects or
groups might bring about a fusion of governmental and religious functions or a
concert or dependency of one upon the other to the end that official support of
the State of Federal Government would be placed behind the tenets of one or of
all orthodoxies.  This the Establishment
Clause prohibits.  And a further reason
for neutrality is found in the Free Exercise Clause, which recognizes the value
of religious training, teaching and observance and, more particularly, the
right of every person to freely choose his own course with reference thereto,
free of any compulsion from the state.[210]

The school prayer decisions drew furious
reactions.  Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.[211]
On several occasions, constitutional amendments have been introduced in
Congress to overturn the school prayer decisions.  Still, the Court has maintained its position
and has in fact reinforced it in the 1985 case of Wallace v. Jaffree[212]
where the Court struck down an Alabama law that required public school students
to observe a moment of silence “for the purpose of meditation or voluntary
prayer” at the start of each school day.

Religious instruction in public schools has also pressed the
Court to interpret the Establishment Clause. 
Optional religious instruction within public school premises and
instructional time were declared offensive of the Establishment Clause in the
1948 case of McCollum v. Board of Education,[213]
decided just a year after the seminal Everson
case.  In this case, interested
members of the Jewish, Roman Catholic and a few Protestant faiths obtained
permission from the Board of Education to offer classes in religious
instruction to public school students in grades four to nine.  Religion classes were attended by pupils
whose parents signed printed cards requesting that their children be permitted
to attend.  The classes were taught in
three separate groups by Protestant teachers, Catholic priests and a Jewish
rabbi and were held weekly from thirty to forty minutes during regular class
hours in the regular classrooms of the school building.  The religious teachers were employed at no
expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. 
Students who did not choose to take religious instruction were required
to leave their classrooms and go to some other place in the school building for
their secular studies while those who were released from their secular study
for religious instruction were required to attend the religious classes.  The Court held that the use of tax-supported
property for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education amounted
to a prohibited use of tax-established and tax-supported public school system
to aid religious groups spread their faith.  
The Court rejected the claim that the Establishment Clause only
prohibited government preference of one religion over another and not an
impartial governmental assistance of all religions.  In Zorach
v. Clauson,[214]
however, the Court upheld released time programs allowing students in public
schools to leave campus upon parental permission to attend religious services
while other students attended study hall. 
Justice Douglas, the writer of the opinion, stressed that “(t)he First
Amendment does not require that in every and all respects there shall be a
separation of Church and State.”  The
Court distinguished Zorach from McCollum, viz:

In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote that
instruction. . . We follow the McCollum case. 
But we cannot expand it to cover the present released time program
unless separation of Church and State means that public institutions can make
no adjustments of their schedules to accommodate the religious needs of the
people.  We cannot read into the Bill of
Rights such a philosophy of hostility to religion.[215]

In the area of government displays or affirmations of belief, the
Court has given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history.  For instance, in McGowan v. Maryland,[216]
the Court upheld laws that prohibited certain businesses from operating on
Sunday despite the obvious religious underpinnings of the restrictions.  Citing the secular purpose of the Sunday
closing laws and treating as incidental the fact that this day of rest happened
to be the day of worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to
have special significance as a rest day in this country.  People of all religions and people with no
religion regard Sunday as a time for family activity, for visiting friends and
relatives, for later sleeping, for passive and active entertainments, for
dining out, and the like.[217]

In the 1983 case of Marsh v. Chambers,[218]
the Court refused to invalidate Nebraska’s policy of beginning legislative
sessions with prayers offered by a Protestant chaplain retained at the
taxpayers’ expense.  The majority opinion
did not rely on the Lemon test and
instead drew heavily from history and the need for accommodation of popular
religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative sessions
with prayer has become the fabric of our society.  To invoke Divine guidance on a public body
entrusted with making the laws is not, in these circumstances, an
“establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. 
As Justice Douglas observed, “(w)e are a religious people whose
institutions presuppose a Supreme Being.” (Zorach c. Clauson, 343 US 306,
313 [1952])[219]
(emphasis supplied)

Some view the Marsh ruling
as a mere aberration as the Court would “inevitably be embarrassed if it were
to attempt to strike down a practice that occurs in nearly every legislature in
the United States, including the U.S. Congress.”[220]
That Marsh was not an aberration is
suggested by subsequent cases.  In the
1984 case of Lynch v. Donnelly,[221]
the Court upheld a city-sponsored nativity scene in Rhode Island.  By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on
history and the fact that the creche had become a “neutral harbinger of the
holiday season” for many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of
tax exemption.  By tradition, church and
charitable institutions have been exempt from local property taxes and their
income exempt from federal and state income taxes.  In the 1970 case of Walz v. Tax Commission,[222]
the New York City Tax Commission’s grant of property tax exemptions to churches
as allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. 
The Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or
even churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . .  The
State has an affirmative policy that considers these groups as beneficial and
stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest.[223]

The Court added that the exemption was
not establishing religion but “sparing the exercise of religion from the burden
of property taxation levied on private profit institutions”[224]
and preventing excessive entanglement between state and religion.  At the same time, the Court acknowledged the
long-standing practice of religious tax exemption and the Court’s traditional
deference to legislative bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our
national life, beginning with
pre-Revolutionary colonial times, than for the government to exercise . . .
this kind of benevolent neutrality toward churches and religious exercise
generally so long as none was favored over others and none suffered interference.[225]
(emphasis supplied)

C.  Strict
Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon.  Court rulings contrary to or
making nuances of the above cases may be cited. 
Professor McConnell poignantly recognizes this, viz:

Thus, as of today, it is constitutional for a state to hire a
Presbyterian minister to lead the legislature in daily prayers (Marsh v.
Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set
aside a moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). 
It is unconstitutional for a state to require employers to accommodate
their employees’ work schedules to their sabbath observances (Estate of
Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally
mandatory for a state to require employers to pay workers compensation when the
resulting inconsistency between work and sabbath leads to discharge (. .
.Sherbert v. Verner, 374 US 398, 403-4 [1963]). 
It is constitutional for the government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual
behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them
science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]).  It is constitutional for the government to
provide religious school pupils with books (Board of Education v. Allen, 392 US
236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51
[1977]); with bus rides to religious schools (Everson v. Board of Education,
330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman
v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444
US 646, 653-54 [1980]), but not to pay for safety-related maintenance
(Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]).  It is a mess.[226]

But the purpose of the overview is not to review the entirety of the
U.S. religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations.  Rather, the
cases discussed above suffice to show that, as legal scholars observe, this
area of jurisprudence has demonstrated
two main standards used by the Court in deciding religion clause cases: separation (in the form of strict
separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation.  The weight of current authority, judicial and
in terms of sheer volume, appears to lie with the separationists, strict or tame.[227]
But the accommodationists have also attracted a number of influential scholars
and jurists.[228]
The two standards producing two streams of jurisprudence branch out
respectively from the history of the First Amendment in England and the
American colonies and climaxing in Virginia as narrated in this opinion and
officially acknowledged by the Court in Everson,
and from American societal life which reveres religion and practices age-old
religious traditions.  Stated otherwise, separation – strict or tame – protects
the principle of church-state separation with a rigid reading of the principle
while benevolent neutrality protects
religious realities, tradition and established practice with a flexible reading
of the principle.[229]
The latter also appeals to history in support of its position, viz:

The opposing school of thought argues that the First Congress
intended to allow government support of
religion, at least as long as that support did not discriminate in favor of one
particular religion. . . the Supreme Court has overlooked many important
pieces of history.  Madison, for example,
was on the congressional committee that appointed a chaplain, he declared
several national days of prayer and fasting during his presidency, and he
sponsored Jefferson’s bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to the Indians.
. . And so, concludes one recent book, ‘there is no support in the
Congressional records that either the First Congress, which framed the First
Amendment, or its principal author and sponsor, James Madison, intended that
Amendment to create a state of complete independence between religion and
government.  In fact, the evidence in the
public documents goes the other way.[230]
(emphasis supplied)

To succinctly and poignantly illustrate
the historical basis of benevolent neutrality
that gives room for accommodation,
less than twenty-four hours after Congress adopted the First Amendment’s
prohibition on laws respecting an establishment of religion, Congress decided
to express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. 
Only two members of Congress opposed the resolution, one on the ground
that the move was a “mimicking of European customs, where they made a mere
mockery of thanksgivings”, the other on establishment clause concerns.  Nevertheless, the salutary effect of
thanksgivings throughout Western history was acknowledged and the motion was
passed without further recorded discussion.[231]
Thus, accommodationists also go back to the framers to ascertain the meaning of
the First Amendment, but prefer to focus on acts rather than words.  Contrary to the claim of separationists that
rationalism pervaded America in the late 19^th century and that
America was less specifically Christian during those years than at any other
time before or since,[232]
accommodationaists claim that American citizens at the time of the
Constitution’s origins were a remarkably religious people in particularly
Christian terms.[233]

The two streams of jurisprudence – separationist or
accommodationist – are anchored on a different reading of the “wall of
separation.”  The strict
separtionist view holds that Jefferson meant the “wall of separation” to
protect the state from the church. 
Jefferson was a man of the Enlightenment Era of the eighteenth century,
characterized by the rationalism and anticlericalism of that philosophic bent.[234]
He has often been regarded as espousing Deism or the rationalistic belief in a
natural religion and natural law divorced from its medieval connection with
divine law, and instead adhering to a secular belief in a universal harmony.[235]
Thus, according to this Jeffersonian view, the Establishment Clause being meant
to protect the state from the church, the state’s hostility towards religion
allows no interaction between the two.[236]
In fact, when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with religion.[237]
This approach erects an absolute barrier to formal interdependence of religion
and state.  Religious institutions could
not receive aid, whether direct or indirect, from the state.  Nor could the state adjust its secular
programs to alleviate burdens the programs placed on believers.[238]
Only the complete separation of religion from politics would eliminate the
formal influence of religious institutions and provide for a free choice among
political views thus a strict “wall of separation” is necessary.[239]
Strict separation faces difficulties, however, as it is deeply embedded in
history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly
indirect aid from religion.  Thus, strict
separationists are caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to.[240]

A tamer version of the
strict separationist view, the strict
neutrality or separationist view
is largely used by the Court, showing the Court’s tendency to press
relentlessly towards a more secular society.[241]
It finds basis in the Everson case
where the Court declared that Jefferson’s “wall of separation” encapsulated the
meaning of the First Amendment but at the same time held that the First
Amendment “requires the state to be neutral
in its relations with groups of religious believers and non-believers; it does not require the state to be their
adversary.  State power is no more to be used so as to handicap religions than it
is to favor them.” (emphasis supplied)[242]
While the strict neutrality approach is not hostile to religion, it is strict
in holding that religion may not be used as a basis for classification for
purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. 
Only secular criteria may be the basis of government action.  It does not permit, much less require,
accommodation of secular programs to religious belief.[243]
Professor Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation clauses
should be read as a single precept that government cannot utilize religion as a
standard for action or inaction because these clauses prohibit classification
in terms of religion either to confer a benefit or to impose a burden.[244]

The Court has repeatedly declared that
religious freedom means government neutrality in religious matters and the
Court has also repeatedly interpreted this policy of neutrality to prohibit
government from acting except for secular purposes and in ways that have
primarily secular effects.[245]

Prayer in public schools is an area where the Court has applied
strict neutrality and refused to allow any form of prayer, spoken or silent, in
the public schools as in Engel and Schempp.[246]
The McCollum case prohibiting
optional religious instruction within public school premises during regular
class hours also demonstrates strict neutrality.  In these education cases, the Court refused
to uphold the government action as they were based not on a secular but on a
religious purpose.  Strict neutrality was
also used in Reynolds and Smith which both held that if
government acts in pursuit of a generally applicable law with a secular purpose
that merely incidentally burdens religious exercise, the First Amendment has
not been offended.  However, if the
strict neutrality standard is applied in interpreting the Establishment Clause,
it could de facto void religious
expression in the Free Exercise Clause. 
As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead
to “a brooding and pervasive devotion to the secular and a passive, or even
active, hostility to the religious” which is prohibited by the Constitution.[247]
Professor Laurence Tribe commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible
with the very idea of a free exercise clause. 
The Framers, whatever specific applications they may have intended,
clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science.  The strict neutrality approach all but erases
this distinction.  Thus it is not
surprising that the Supreme Court has rejected strict neutrality, permitting
and sometimes mandating religious classifications.[248]

The separationist
approach, whether strict or tame, is caught in a dilemma because while the
Jeffersonian wall of separation “captures the spirit of the American ideal of
church-state separation”, in real life church and state are not and cannot be
totally separate.[249]
This is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many points.[250]

Consequently, the Court has also decided cases employing benevolent neutrality.  Benevolent
neutrality which gives room for accommodation
is buttressed by a different view of the “wall of separation” associated with
Williams, founder of the Rhode Island colony. 
In Mark DeWolfe Howe’s classic, The
Garden and the Wilderness, he asserts that to the extent the Founders had a
wall of separation in mind, it was unlike the Jeffersonian wall that is meant
to protect the state from the church; instead, the wall is meant to protect the
church from the state,[251]
i.e., the “garden” of the church must be walled in for its own protection from
the “wilderness” of the world[252]
with its potential for corrupting those values so necessary to religious
commitment.[253]
Howe called this the “theological” or “evangelical” rationale for church-state
separation while the wall espoused by “enlightened” statesmen such as Jefferson
and Madison, was a “political” rationale seeking to protect politics from
intrusions by the church.[254]
But it has been asserted that this contrast between the Williams and
Jeffersonian positions is more accurately described as a difference in kinds or
styles of religious thinking, not as a conflict between “religious” and
“secular (political)”; the religious style was biblical and evangelical in
character while the secular style was grounded in natural religion, more
generic and philosophical in its religious orientation.[255]

The Williams wall is, however, breached for the church is in the
state and so the remaining purpose of the wall is to safeguard religious
liberty.  Williams’ view would therefore
allow for interaction between church and state, but is strict with regard to
state action which would threaten the integrity of religious commitment.[256]
His conception of separation is not total such that it provides basis for
certain interactions between church and state dictated by apparent necessity or
practicality.[257]
This “theological” view of separation is found in Williams’ writings, viz:

. . . when they have opened a gap in the hedge or wall of
separation between the garden of the church and the wilderness of the world, God
hath ever broke down the wall itself, removed the candlestick, and made his
garden a wilderness, as this day.  And
that therefore if He will eer please to restore His garden and paradise again,
it must of necessity be walled in peculiarly unto Himself from the world. . .[258]

Chief Justice Burger spoke of benevolent neutrality in
Walz, viz:

The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with
religion.  Short of those expressly
proscribed governmental acts there is room for play in the joints productive of
a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without interference.[259]
(emphasis supplied)

The Zorach case
expressed the doctrine of accommodation,[260]
viz:

The First Amendment,
however, does not say that in every and all respects there shall be a
separation of Church and State.  Rather, it
studiously defines the manner, the specific ways, in which there shall be no
concert or union or dependency one or the other.  That is the common sense of the matter.  Otherwise, the state and religion would be
aliens to each other – hostile, suspicious, and even unfriendly.  Churches could not be required to pay even
property taxes.  Municipalities would not
be permitted to render police or fire protection to religious groups.  Policemen who helped parishioners into their
places of worship would violate the Constitution.  Prayers in our legislative halls; the appeals
to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths- these
and all other references to the Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the First Amendment.  A fastidious atheist or agnostic could even
object to the supplication with which the Court opens each session: ‘God save
the United States and this Honorable Court.

xxx                                                                          xxx                                                                   xxx

We are a religious people
whose institutions presuppose a Supreme Being.  We guarantee the freedom to worship as one
chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the
schedule of public events, it follows the best of our traditions.  For it then respects the religious nature of
our people and accommodates the public service to their spiritual needs.  To hold that it may not would be to find in
the Constitution a requirement that the government show a callous indifference
to religious groups. . . But we find no constitutional requirement which makes
it necessary for government to be hostile to religion and to throw its
weight against efforts to widen their effective scope of religious influence.[261]
(emphases supplied)

Benevolent
neutrality is congruent with the sociological proposition that religion
serves a function essential to the survival of society itself, thus there is no
human society without one or more ways of performing the essential function of
religion.  Although for some individuals
there may be no felt need for religion and thus it is optional or even
dispensable, for society it is not, which is why there is no human society
without one or more ways of performing the essential function of religion. Even
in ostensibly atheistic societies, there are vigorous underground religion(s)
and surrogate religion(s) in their ideology.[262]
As one sociologist wrote:

It is widely held by students of society that there are certain
functional prerequisites without which society would not continue to
exist.  At first glance, this seems to be
obvious – scarcely more than to say that an automobile could not exist, as a
going system, without a carburetor. . . Most writers list religion among the
functional prerequisites.[263]

Another noted sociologist, Talcott
Parsons, wrote: “There is no known human society without something which modern
social scientists would classify as a religion…Religion is as much a human
universal as language.”[264]

Benevolent neutrality
thus recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict
neutrality, pose Establishment Clause questions.  Among these are the inscription of “In God We
Trust” on American currency, the recognition of America as “one nation under
God” in the official pledge of allegiance to the flag, the Supreme Court’s
time-honored practice of opening oral argument with the invocation “God save
the United States and this honorable Court,” and the practice of Congress and
every state legislature of paying a chaplain, usually of a particular
Protestant denomination to lead representatives in prayer.[265]
These practices clearly show the preference for one theological viewpoint -the
existence of and potential for intervention by a god – over the contrary
theological viewpoint of atheism.  Church
and government agencies also cooperate in the building of low-cost housing and
in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension.[266]
The persistence of these de facto
establishments are in large part explained by the fact that throughout history,
the evangelical theory of separation, i.e., Williams’ wall, has demanded
respect for these de facto establishments.[267]
But the separationists have a different explanation.  To characterize these as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring
opinions explain some of these practices as “‘de minimis’ instances of government endorsement or as historic
governmental practices that have largely lost their religious significance or
at least have proven not to lead the government into further involvement with religion.[268]

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances.  Accommodations are government
policies that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals and groups to exercise their religion without
hindrance.  Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion.  As Justice
Brennan explained, the “government [may] take religion into account…to exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish.”[269]
(emphasis supplied)  Accommodation is forbearance and not
alliance.  it does not reflect agreement with the minority, but respect for the conflict between the
temporal and spiritual authority in which the minority finds itself.[270]

Accommodation is
distinguished from strict neutrality in that the latter holds that government
should base public policy solely on secular considerations, without regard to
the religious consequences of its actions. 
The debate between accommodation and strict neutrality is at base a
question of means: “Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those
practices?  Or is it best advanced
through a policy of ‘religious blindness’ – keeping government aloof from
religious practices and issues?”  An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom.  On the other hand, the strict neutrality
adherent believes that it is good public policy, and also constitutionally
required, for the government to avoid religion-specific policy even at the cost
of inhibiting religious exercise.[271]

There are strong and compelling reasons, however, to take the accommodationist position rather than
the strict neutrality position.  First, the accommodationist interpretation
is most consistent with the language of the First Amendment.  The religion clauses contain two parallel
provisions, both specifically directed at “religion.”  The government may not “establish” religion
and neither may government “prohibit” it. 
Taken together, the religion clauses can be read most plausibly as warding
off two equal and opposite threats to religious freedom – government action
that promotes the (political) majority’s favored brand of religion and
government action that impedes religious practices not favored by the
majority.  The substantive end in view is the preservation of the autonomy of
religious life and not just the formal
process value of ensuring that government does not act on the basis of
religious bias.  On the other hand,
strict neutrality interprets the religion clauses as allowing government to do
whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities.  Thus, for
example, if government prohibits all alcoholic consumption by minors, it can
prohibit minors from taking part in communion. 
Paradoxically, this view would make the religion clauses violate the
religion clauses, so to speak, since the religion clauses single out religion
by name for special protection.  Second, the accommodationist position best
achieves the purposes of the First Amendment.  The principle underlying the First Amendment
is that freedom to carry out one’s
duties to a Supreme Being is an inalienable right, not one dependent on the
grace of legislature.  Although
inalienable, it is necessarily limited by the rights of others, including the
public right of peace and good order. 
Nevertheless it is a substantive right and not merely a privilege
against discriminatory legislation.  The
accomplishment of the purpose of the First Amendment requires more than the
“religion blindness” of strict neutrality. 
With the pervasiveness of government regulation, conflicts with
religious practices become frequent and intense.  Laws that are suitable for secular entities
are sometimes inappropriate for religious entities, thus the government must
make special provisions to preserve a degree of independence for religious
entities for them to carry out their religious missions according to their
religious beliefs.  Otherwise, religion
will become just like other secular entities subject to pervasive regulation by
majoritarian institutions.  Third, the accommodationist interpretation
is particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and
indifference and overt hostility to the minority.  In a democratic republic, laws are inevitably
based on the presuppositions of the majority, thus not infrequently, they come
into conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with religious
practice.  At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. 
But in other instances, the injury to religious conscience is so great
and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions.  Because of plural traditions, legislators and
executive officials are frequently willing to make such exemptions when the
need is brought to their attention, but this may not always be the case when
the religious practice is either unknown at the time of enactment or is for
some reason unpopular.  In these cases, a constitutional
interpretation that allows
accommodations prevents needless injury to the religious consciences of those
who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations
extends this treatment to religious faiths that are less able to protect
themselves in the political arena. 
Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different
faiths in a pluralistic nation.  Without
accommodation, many otherwise beneficial laws would interfere severely with
religious freedom.  Aside from laws
against serving alcoholic beverages to minors conflicting with celebration of
communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment
anti-discrimination laws can conflict with the Roman Catholic male priesthood,
among others.  Exemptions from such laws
are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. 
Without exemptions, legislature would
be frequently forced to choose between violating religious conscience of a
segment of the population or dispensing with legislation it considers
beneficial to society as a whole. 
Exemption seems manifestly more reasonable than either of the alternative:
no exemption or no law.[272]

Benevolent neutrality
gives room for different kinds of accommodation:
those which are constitutionally compelled, i.e., required by the Free Exercise
Clause; and those which are discretionary or legislative, i.e., and those not
required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause.[273]
Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or
express prevailing religious sentiments of the community such as display of a
religious symbol on public property or the delivery of a prayer at public
ceremonial events.[274]
Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible,
and those where it is prohibited.  In the first situation, accommodation is required to preserve free exercise
protections and not unconstitutionally infringe on religious liberty or create
penalties for religious freedom. 
Contrary to the Smith
declaration that free exercise exemptions are “intentional government
advancement”, these exemptions merely relieve the prohibition on the free
exercise thus allowing the burdened religious adherent to be left alone.  The state must create exceptions to laws of
general applicability when these laws threaten religious convictions or
practices in the absence of a compelling state interest.[275]
By allowing such exemptions, the Free Exercise Clause does not give believers
the right or privilege to choose for themselves to override socially-prescribed
decision; it allows them to obey spiritual rather than temporal authority[276]
for those who seriously invoke the Free Exercise Clause claim to be fulfilling
a solemn duty.  Religious freedom is a
matter less of rights than duties; more precisely, it is a matter of rights
derived from duties.  To deny a person or
a community the right to act upon such a duty can be justified only by appeal
to a yet more compelling duty.  Of
course, those denied will usually not find the reason for the denial
compelling. “Because they may turn out to be right about the duty in question,
and because, even if they are wrong, religion bears witness to that which
transcends the political order, such denials should be rare and painfully reluctant.”[277]

The Yoder case is an
example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as
required by law.  The Sherbert case is another example where
the Court held that the state unemployment compensation plan must accommodate
the religious convictions of Sherbert.[278]
In these cases of “burdensome effect”, the modern approach of the Court has
been to apply strict scrutiny, i.e., to declare the burden as permissible, the
Court requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government
goal through the least restrictive means. 
If the state’s objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given.[279]
This approach of the Court on “burdensome effect” was only applied since the
1960s.  Prior to this time, the Court
took the separationist view that as long as the state was acting in pursuit of
non-religious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as in Reynolds.[280]
In the second situation where accommodation is permissible, the state may, but is not required to, accommodate
religious interests.  The Walz case illustrates this situation
where the Court upheld the constitutionality of tax exemption given by New York
to church properties, but did not rule that the state was required to provide
tax exemptions.  The Court declared that
“(t)he limits of permissible state accommodation to religion are by no means
co-extensive with the noninterference mandated by the Free Exercise Clause.”[281]
The Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property
taxes.  Other examples are the Zorach case allowing released time in
public schools and Marsh allowing
payment of legislative chaplains from public funds.  Finally, in the situation where accommodation
is prohibited, establishment concerns
prevail over potential accommodation interests. 
To say that there are valid exemptions buttressed by the Free Exercise
Clause does not mean that all claims for free exercise exemptions are valid.[282]
An example where accommodation was prohibited is McCollum where the Court ruled against optional religious
instruction in the public school premises.[283]
In effect, the last situation would arrive at a strict neutrality conclusion.

In the first situation where accommodation is required, the approach follows this basic
framework:

If the plaintiff can show that a law or government practice
inhibits the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that
it is the least restrictive means of achieving that objective.  If the plaintiff meets this burden and the
government does not, the plaintiff is entitled to exemption from the law or
practice at issue.  In order to be
protected, the claimant’s beliefs must be ‘sincere’, but they need not
necessarily be consistent, coherent, clearly articulated, or congruent with
those of the claimant’s religious denomination. 
‘Only beliefs rooted in religion are protected by the Free Exercise
Clause’; secular beliefs, however sincere and conscientious, do not suffice.[284]

In other words, a three-step process (also referred to as the “two-step balancing
process” supra when the second and
third steps are combined) as in Sherbert
is followed in weighing the state’s interest and religious freedom when these
collide.  Three questions are answered in
this process.  First, “(h)as the statute or government action created a burden on
the free exercise of religion?”  The
courts often look into the sincerity
of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as held in
Ballard and Cantwell.  The sincerity of
the claimant’s belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. 
As evidence of sincerity, the U.S. Supreme Court has considered
historical evidence as in Wisconsin
where the Amish people had held a long-standing objection to enrolling their
children in ninth and tenth grades in public high schools.  In another case, Dobkin v. District of Columbia,[285]
the Court denied the claim of a party who refused to appear in court on
Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday.  Although
it is true that the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all claims by not
allowing accommodation as a rule.  There
might be injury to the particular claimant or to his religious community, but
for the most part, the injustice is done only in the particular case.[286]
Aside from the sincerity, the court may look into the centrality of those
beliefs, assessing them not on an objective basis but in terms of the opinion
and belief of the person seeking exemption. 
In Wisconsin, for example, the Court noted that the Amish people’s
convictions against becoming involved in public high schools were central to their
way of life and faith.  Similarly, in
Sherbert, the Court concluded that the prohibition against Saturday work was a
“cardinal principle.”[287]  Professor Lupu puts to task the person
claiming exemption, viz:

On the claimant’s side, the meaning and significance of the
relevant religious practice must be demonstrated.  Religious command should outweigh custom,
individual conscience should count for more than personal convenience, and
theological principle should be of greater significance than institutional ease.  Sincerity matters, (footnote omitted) and
longevity of practice – both by the individual and within the individual’s
religious tradition – reinforces sincerity. 
Most importantly, the law of free exercise must be inclusive and
expansive, recognizing non-Christian religions – eastern, Western, aboriginal
and otherwise – as constitutionally equal to their Christian counterparts, and
accepting of the intensity and scope of fundamentalist creed.[288]

Second, the court
asks: “(i)s there a sufficiently compelling state interest to justify this
infringement of religious liberty?”  In
this step, the government has to
establish that its purposes are legitimate for the state and that they are
compelling.  Government must do more
than assert the objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined if exemptions are granted.[289]
The person claiming religious freedom, on the other hand, will endeavor to show
that the interest is not legitimate or that the purpose, although legitimate,
is not compelling compared to infringement of religious liberty.  This step
involves balancing, i.e., weighing the interest of the state against
religious liberty to determine which is more compelling under the particular
set of facts.  The greater the state’s interests,
the more central the religious belief would have to be to overcome it.  In assessing the state interest, the court
will have to determine the importance of the secular interest and the extent to
which that interest will be impaired by an exemption for the religious
practice.  Should the court find the
interest truly compelling, there will be no requirement that the state diminish
the effectiveness of its regulation by granting the exemption.[290]

Third, the court asks:
“(h)as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state?”[291]
The analysis requires the state to show that the means in which it is achieving
its legitimate state objective is the least
intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties.  In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it was
a forbidden burden on religious liberty, noting that less drastic means of
insuring peace and tranquility existed. 
As a whole, in carrying out the compelling
state interest test, the Court should give careful attention to context,
both religious and regulatory, to achieve refined judgment.[292]

In sum, as shown by U.S. jurisprudence on religion clause cases,
the competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.[293]

VII. Religion Clauses in the
Philippines

A. History

Before our country fell under American rule, the blanket of
Catholicism covered the archipelago. 
There was a union of church and state and Catholicism was the state
religion under the Spanish Constitution
of 1876.  Civil authorities exercised
religious functions and the friars exercised civil powers.[294]
Catholics alone enjoyed the right of engaging in public ceremonies of worship.[295]
Although the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under the Spanish
rule.  Catholicism was in fact protected
by the Spanish Penal Code of 1884 which was in effect in the Philippines.  Some of the offenses in chapter six of the
Penal Code entitled “Crimes against Religion and Worship” referred to crimes
against the state religion.[296]
The coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment of
“separation of church and state” was transported to Philippine soil. 

Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10,
1898, the American guarantee of religious freedom had been extended to the
Philippines.  The Treaty provided that
“the inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of religion.”[297]
Even the Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos
Constitution of the Philippine Republic under General Emilio Aguinaldo. It
provided that “the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner
as the separation of the Church and State.” 
But the Malolos Constitution and government was short-lived as the
Americans took over the reigns of government.[298]

With the Philippines under the American regime, President
McKinley issued Instructions to the
Second Philippine Commission, the body created to take over the civil
government in the Philippines in 1900. 
The Instructions guaranteed
religious freedom, viz:

That no law shall be made respecting the establishment of religion
or prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed … that no form of religion and no
minister of religion shall be forced upon the community or upon any citizen of
the Islands, that, on the other hand, no minister of religion shall be
interfered with or molested in following his calling.[299]

This provision was based on the First
Amendment of the United States Constitution. 
Likewise, the Instructions
declared that “(t)he separation between State and Church shall be real, entire
and absolute.”[300]

Thereafter, every organic act of the Philippines contained a
provision on freedom of religion. 
Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that free exercise and enjoyment of
religious worship, without discrimination or preference, shall forever be
allowed.

In U.S.
v. Balcorta,[301]
the Court stated that the Philippine Bill of 1902 “caused the complete
separation of church and state, and the abolition of all special privileges and
all restrictions theretofor conferred or imposed upon any particular religious sect.”[302]

The Jones Law of 1916
carried the same provision, but expanded it with a restriction against using
public money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. 
No public money or property shall ever be appropriated, applied,
donated, or used, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution, or system of religion,
or for the use, benefit or support of any priest, preacher, minister, or other
religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or
Tydings-McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution.  It enjoined Filipinos to include freedom of
religion in drafting their constitution preparatory to the grant of
independence.  The law prescribed that
“(a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or property on
account of religious belief or mode of worship.”[303]

The Constitutional Convention then began working on the 1935 Constitution.  In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights
acknowledged that “(i)t was the Treaty of Paris of December 10, 1898, which
first introduced religious toleration in our country.  President McKinley’s Instructions to the Second Philippine Commission reasserted this
right which later was incorporated into the Philippine Bill of 1902 and in the
Jones Law.”[304]
In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in
the Bill of Rights, Article IV, Section 7, viz:

Sec. 7.  No law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed.  No religious test shall be required for the
exercise of civil or political rights.

This provision, borrowed from the Jones
Law, was readily approved by the Convention.[305]
In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel
said that modifications in phraseology of the Bill of Rights in the Jones Law
were avoided whenever possible because “the principles must remain couched in a
language expressive of their historical background, nature, extent and
limitations as construed and interpreted by the great statesmen and jurists
that vitalized them.”[306]

The 1973 Constitution
which superseded the 1935 Constitution contained an almost identical provision
on religious freedom in the Bill of Rights in Article IV, Section 8, viz:

Sec. 8.  No law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof.  The free exercise and enjoyment
of religious profession and worship, without discrimination or preference,
shall forever be allowed.  No religious
test shall be required for the exercise of civil or political rights.

This time, however, the General
Provisions in Article XV added in Section 15 that “(t)he separation of church
and state shall be inviolable.”

Without discussion by the 1986 Constitutional Commission, the
1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.[307]
Likewise, the provision on separation of church and state was included verbatim
in the 1987 Constitution, but this time as a principle in Section 6, Article II
entitled Declaration of Principles and State Policies.

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.

B.  Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the
religion clauses, we begin with the
definition of “religion”.  “Religion”
is derived from the Middle English religioun,
from Old French religion, from Latin religio, vaguely referring to a “bond
between man and the gods.”[308]
This pre-Christian term for the cult and rituals of pagan Rome was first Christianized
in the Latin translation of the Bible.[309]
While the U.S. Supreme Court has had to take up the challenge of defining the
parameters and contours of “religion” to determine whether a non-theistic
belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue.  In
Philippine jurisprudence, religion, for purposes of the religion clauses, has
thus far been interpreted as theistic.  In
1937, the Philippine case of Aglipay v. Ruiz[310]
involving the Establishment Clause, defined “religion” as a “profession of
faith to an active power that binds and elevates man to his Creator.”  Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,[311]
a case involving the Free Exercise clause. 
The latter also cited the American case of Davis in defining religion, viz: “(i)t 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.”  The Beason
definition, however, has been expanded in U.S. jurisprudence to include
non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one’s religion. 
The Free Exercise Clause principally guarantees voluntarism, although
the Establishment Clause also assures voluntarism by placing the burden of the
advancement of religious groups on their intrinsic merits and not on the
support of the state.[312]

In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty.  The early case of Gerona v. Secretary of Education[313]
is instructive on the matter, viz:

The realm of belief and
creed is infinite and limitless bounded only by one’s imagination and
thought.  So is the freedom of belief,
including religious belief, limitless and without bounds.  One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards.  But between the freedom of belief and the
exercise of said belief, there is quite a stretch of road to travel.[314]

The difficulty
in interpretation sets in when belief is externalized into speech and action.

Religious speech comes
within the pale of the Free Exercise Clause as illustrated in the American Bible Society case.  In that case, plaintiff 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.  The defendant City of Manila
required plaintiff to secure a mayor’s permit and a municipal license as
ordinarily required of those engaged in the business of general merchandise
under the city’s ordinances.  Plaintiff
argued that this amounted to “religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale
of bibles and other religious literature to the people of the Philippines.”

After defining religion, the Court, citing Tanada and Fernando,
made this statement, viz:

The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate
religious information.  Any restraint of
such right can only be justified like
other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4^th ed., p. 297) (emphasis supplied)

This
was the Court’s maiden unequivocal affirmation of the “clear and present
danger” rule in the religious freedom area, and in Philippine jurisprudence,
for that matter.[315]
The case did not clearly show, however, whether the Court proceeded to apply
the test to the facts and issues of the case, i.e., it did not identify the
secular value the government regulation sought to protect, whether the religious
speech posed a clear and present danger to this or other secular value
protected by government, or whether there was danger but it could not be
characterized as clear and present.  It
is one thing to apply the test and find that there is no clear and present
danger, and quite another not to apply the test altogether.

Instead, the Court categorically held that the questioned
ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said “merchandise” for profit.  To add, the Court, citing Murdock v. Pennsylvania,[316]
ruled that applying the ordinance requiring it to secure a license and pay a
license fee or tax would impair its free exercise of religious profession and
worship and its right of dissemination of religious beliefs “as the power to
tax the exercise of a privilege is the power to control or suppress its
enjoyment.”  Thus, in American Bible Society, the “clear and
present danger” rule was laid down but it was not clearly applied.

In the much later case of Tolentino
v. Secretary of Finance,[317]
also involving the sale of religious books, the Court distinguished the American Bible Society case from the
facts and issues in Tolentino and
did not apply the American Bible Society
ruling.  In Tolentino, the Philippine Bible Society challenged the validity of
the registration provisions of the Value Added Tax (VAT) Law as a prior
restraint.  The Court held, however, that
the fixed amount of registration fee was not imposed for the exercise of a
privilege like a license tax which American
Bible Society ruled was violative of religious freedom.  Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a
central feature of the VAT system. 
Citing Jimmy Swaggart Ministries
v. Board of Equalization,[318]
the Court also declared prefatorily that “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.”  In the Court’s resolution of the motion for
reconsideration of the Tolentino
decision, the Court noted that the burden on religious freedom caused by
the tax was just similar to any other economic imposition that might make the
right to disseminate religious doctrines costly.

Two years after American
Bible Society came the 1959 case of
Gerona v. Secretary of Education,[319]
this time involving conduct
expressive of religious belief colliding with a rule prescribed in accordance
with law.  In this case, petitioners were
members of the Jehovah’s Witnesses.  They
challenged a Department Order issued by the Secretary of Education implementing
Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public
schools. In violation of the Order, petitioner’s children refused to salute the
Philippine flag, sing the national anthem, or recite the patriotic pledge,
hence they were expelled from school. 
Seeking protection under the Free Exercise Clause, petitioners claimed
that their refusal was on account of their religious belief that the Philippine
flag is an image and saluting the same is contrary to their religious
belief.  The Court stated, viz:

. . . If the exercise of religious belief clashes with the
established institutions of society and with the law, then the former must
yield to the latter.  The Government
steps in and either restrains said exercise or even prosecutes the one
exercising it.  (emphasis supplied)[320]

The Court then proceeded to determine if
the acts involved constituted a religious ceremony in conflict with the beliefs
of the petitioners with the following justification:

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
meaning 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.[321]

It was held that the flag was not an
image, the flag salute was not a religious ceremony, and there was nothing
objectionable about the singing of the national anthem as it speaks only of
love of country, patriotism, liberty and the glory of suffering and dying for
it.  The Court upheld the questioned
Order and the expulsion of petitioner’s children, stressing that:

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.[322]

In support of its ruling, the Court cited
Justice Frankfurter’s dissent in the Barnette
case, viz:

The constitutional protection of religious freedom x x x gave
religious equality, not civil immunity. 
Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.[323]

It stated in categorical terms, viz:

The freedom of religious belief guaranteed
by the Constitution does not and cannot mean exemption from or non-compliance
with reasonable and non-discriminatory laws, rules and regulations promulgated
by competent authority.[324]

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon
the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it
clashes with the established institutions of society and with the law such that
when a law of general applicability (in this case the Department Order)
incidentally burdens the exercise of one’s religion, one’s right to religious
freedom cannot justify exemption from compliance with the law.  The Gerona
ruling was reiterated in Balbuna, et
al. v. Secretary of Education, et al.[325]

Fifteen years after Gerona
came the 1974 case of Victoriano v.
Elizalde Rope Workers Union.[326]
In this unanimously decided en banc
case, Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization.  He worked in the Elizalde Rope Factory, Inc.
and was a member of the Elizalde Rope Workers Union which had with the company
a closed shop provision pursuant to Republic Act No. 875 allowing closed shop
arrangements.  Subsequently, Republic Act
No. 3350 was 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.  Victoriano resigned from the union after
Republic Act No. 3350 took effect.  The
union notified the company of Victoriano’s resignation, which in turn notified
Victoriano that unless he could make a satisfactory arrangement with the union,
the company would be constrained to dismiss him from the service.  Victoriano sought to enjoin the company and
the union from dismissing him.  The court
having granted the injunction, the union came to this Court on questions of
law, among which was whether Republic Act No. 3350 was unconstitutional for
impairing the obligation of contracts and for granting an exemption offensive
of the Establishment Clause.  With
respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental
personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84
L.ed.155, 164, 60 S.Ct. 146) 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.[327]
(emphasis supplied)

As regards the Establishment Clause
issue, the Court after citing the constitutional provision on establishment and
free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance of any creed or the practice
of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one’s chosen form of religion within limits
of utmost amplitude.  It has been said that the religion clauses
of the Constitution are all 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. (footnote
omitted).  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.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)  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. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d.
563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328]
(emphasis supplied)

Quoting Aglipay v. Ruiz,[329]
the Court held that “government is not precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to a
religion or sect.”  It also cited Board of Education v. Allen,[330]
which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion.  Using these criteria in upholding Republic
Act No. 3350, the Court pointed out, viz:

(Republic Act No. 3350) 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. . . . The primary
effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force
of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent
economic insecurity due to unemployment.[331]

The Court stressed that “(a)lthough the exemption may benefit
those who are members of religious sects that prohibit their members from
joining labor unions, the benefit upon the religious sects is merely incidental
and indirect.”[332]
In enacting Republic Act No. 3350,
Congress merely relieved the exercise of religion by certain persons of a
burden imposed by union security agreements which Congress itself also imposed
through the Industrial Peace Act. 
The Court concluded the issue of exemption by citing Sherbert  which laid down the rule that when general
laws conflict with scruples of conscience, exemptions ought to be granted
unless some “compelling state interest” intervenes.  The Court then abruptly added that “(i)n the
instant case, We see no compelling state interest to withhold exemption.”[333]

A close look at Victoriano
would show that the Court mentioned several tests in determining when religious
freedom may be validly limited.  First, the Court mentioned the test of
“immediate and grave danger to the security and welfare of the community” and
“infringement of religious freedom only to the smallest extent necessary” to
justify limitation of religious freedom. 
Second, religious exercise
may be indirectly burdened by a general law which has for its purpose and
effect the advancement of the state’s secular goals, provided that there is no
other means by which the state can accomplish this purpose without imposing
such burden.  Third, the Court referred to the “compelling state interest” test
which grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.

It is worth noting, however, that the first two tests were
mentioned only for the purpose of highlighting the importance of the protection
of religious freedom as the secular purpose of Republic Act No. 3350.  Upholding religious freedom was a secular
purpose insofar as it relieved the burden on religious freedom caused by
another law, i.e, the Industrial Peace Act providing for union shop
agreements.  The first two tests were only
mentioned in Victoriano but were not
applied by the Court to the facts and issues of the case.  The third, the “compelling state interest”
test was employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. 
It upheld the exemption, stating that there was no “compelling state
interest” to strike it down.  However,
after careful consideration of the Sherbert
case from which Victoriano
borrowed this test, the inevitable conclusion is that the “compelling state
interest” test was not appropriate and could not find application in the Victoriano case.  In Sherbert,
appellant Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act which
disqualified her from claiming unemployment benefits.  It was the appellees, members of the South
Carolina Employment Commission, a government agency, who propounded the state
interest to justify overriding Sherbert’s claim of religious freedom.  The U.S. Supreme Court, considering Sherbert’s
and the Commission’s arguments, found that the state interest was not
sufficiently compelling to prevail over Sherbert’s free exercise claim.  This situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in Republic
Act No. 3350 to allow Victoriano’s exercise of religion.  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 exercose 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.

Victoriano was reiterated in several cases involving the
Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,[334]
Anucension v. National Labor Union, et al.,[335]
and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]

Then came German v.
Barangan in 1985 at the height of the anti-administration rallies.  Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for “an end to violence” when they
were barred by the police.  Invoking
their constitutional freedom of religious worship and locomotion, they came to
the Court on a petition for mandamus to allow them to enter and pray inside the
St. Jude Chapel.  The Court was divided
on the issue.  The slim majority of six
recognized their freedom of religion but noted their absence of good faith and
concluded that they were using their religious liberty to express their
opposition to the government.  Citing Cantwell, the Court distinguished
between freedom to believe and freedom to act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts – freedom to
believe and freedom to act.  The first is
absolute, but in the nature of things, the second cannot be.[337]

The Court reiterated the Gerona
ruling, viz:

In the case at bar, petitioners are not denied or restrained of
their freedom of belief or choice of their religion, but only in the manner by which they had attempted
to translate the same to action. 
This curtailment is in accord with the pronouncement of this Court in
Gerona v. Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel.  If the
exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the
latter.  The government steps in and
either restrains said exercise or even prosecutes the one exercising it.  (italics
supplied)

The majority found that the restriction
imposed upon petitioners was “necessary to maintain the smooth functioning of
the executive branch of the government, which petitioners’ mass action would
certainly disrupt”[338]
and denied the petition.  Thus, without
considering the tests mentioned in Victoriano,
German went back to the Gerona rule that religious freedom will not be upheld
if it clashes with the established institutions of society and the law.

Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases.  His dissent stated in relevant
part, viz:

A brief restatement of the applicable constitutional principles as
set forth in the landmark case of J.B.L.
Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the
issues.

1.  The right to freely
exercise one’s religion is guaranteed in Section 8 of our Bill of Rights.
(footnote omitted)  Freedom of worship, alongside with freedom of expression and speech and
peaceable assembly “along with the other intellectual freedoms, are highly
ranked in our scheme of constitutional values.  It cannot be too strongly stressed that on
the judiciary – even more so than on the other departments – rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights.  No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes ‘as the sovereign prerogative of judgment.’  Nonetheless,
the presumption must be to incline the weight of the scales of justice on the
side of such rights, enjoying as they do precedence and primacy.’  (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2.  In the free exercise of
such preferred rights, there is to be no prior restraint although there may be
subsequent punishment of any illegal acts committed during the exercise of such
basic rights.  The sole justification for a prior restraint or limitation on the
exercise of these basic rights 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 (Idem, at pp. 560-561).[339]
(emphasis supplied)

The J.B.L.
Reyes v. Bagatsing case from which this portion of Justice Teehankee’s
dissent was taken involved the rights to free speech and assembly, and not the
exercise of religious freedom.  At issue
in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of
the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and
rally from the Luneta to the gates of the U.S. Embassy.  Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions’ right to assemble and
petition the government for redress of grievances.[340]

In 1993, the issue on the Jehovah’s Witnesses’ participation in
the flag ceremony again came before the Court in Ebralinag v. The Division Superintendent of Schools.[341]
A unanimous Court overturned the Gerona ruling after three decades.  Similar to Gerona, this case involved several Jehovah’s Witnesses who were
expelled from school for refusing to salute the flag, sing the national anthem
and recite the patriotic pledge, in violation of the Administrative Code of
1987.  In resolving the same religious
freedom issue as in Gerona, the
Court this time transported the “grave and imminent danger” test laid down in
Justice Teehankee’s dissent in German,
viz:

The sole justification for a prior
restraint or limitation on the exercise of religious freedom (according to
the late Chief Justice Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to
prevent.  Absent such a threat to public
safety, the expulsion of the petitioners from the schools is not justified.[342]
(emphasis supplied)

The Court added, viz:

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 v.
Secretary of Education, 106 Phil. 224). 
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 of 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 has 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.[343]

Barnette also found
its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to
the country, x x x- assuming that such unity and loyalty can be attained
through coercion- is not a goal that is constitutionally obtainable at the
expense of religious liberty.  A
desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262
U.S. 390, 67 L. ed. 1042, 1046).[344]

Towards the end of the decision, the
Court also cited the Victoriano case
and its use of the “compelling state interest” test in according exemption to
the Jehovah’s Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54, 72-75,
we upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it would
violate the teaching of their church not to join any group:

‘x x x It is certain that not every conscience can be accommodated
by all the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some ‘compelling state
interest’ intervenes.’ (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965,
970, 83 S.Ct. 1790)’

We hold that a similar exemption may be accorded to the Jehovah’s
Witnesses with regard to the observance of the flag ceremony out of respect for
their religious beliefs, however ‘bizarre’ those beliefs may seem to others.[345]

The Court annulled the orders expelling petitioners from school.

Thus, the “grave and imminent danger” test laid down in a
dissenting opinion in German which
involved prior restraint of religious worship with overtones of the right to
free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious
worship, speech or assembly.  Although,
it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to
participate in the flag ceremony “is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious
profession and worship;” the Court then stated in a footnote that the “flag
salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances.”[346]

The “compelling state interest” test was not fully applied by the
Court in Ebralinag.  In the Solicitor General’s consolidated
comment, one of the grounds cited to defend the expulsion orders issued by the
public respondents was that “(t)he State’s compelling interests being pursued
by the DEC’s lawful regulations in question do not warrant exemption of the
school children of the Jehovah’s Witnesses from the flag salute ceremonies on
the basis of their own self-perceived religious convictions.”[347]
The Court, however, referred to the test only towards the end of the decision
and did not even mention what the Solicitor General argued as the compelling
state interest, much less did the Court explain why the interest was not
sufficiently compelling to override petitioners’ religious freedom.

Three years after Ebralinag,
the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al.[348]
Although there was a dissent with respect to the applicability of the “clear
and present danger” test in this case, the majority opinion in unequivocal
terms applied the “clear and present danger” test to religious speech.  This case involved the television program,
“Ang Iglesia ni Cristo,” regularly aired over the television.  Upon petitioner Iglesia ni Cristo’s
submission of the VTR tapes of some of its episodes, respondent Board of Review
for Motion Pictures and Television classified these as “X” or not for public
viewing on the ground that they “offend and constitute an attack against other
religions which is expressly prohibited by law.”  Invoking religious freedom, petitioner
alleged that the Board acted without jurisdiction or with grave abuse of
discretion in requiring it to submit the VTR tapes of its television program
and x-rating them.  While upholding the
Board’s power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom.  Quoting Justice Cruz’ commentary on the
constitution, the Court held that freedom to believe is absolute but freedom to
act on one’s belief, where it affects the public, is subject to the authority
of the state.  The commentary quoted
Justice Frankfurter’s dissent in Barnette
which was quoted in Gerona, viz: “(t)he 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.”[349]
Nevertheless, the Court was quick to add the criteria by which the state can
regulate the exercise of religious freedom, that is, when the exercise will
bring about the “clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more overriding
interest of public health, public morals, or public welfare.”[350]

In annulling the x-rating of the shows, the Court stressed that
the Constitution is hostile to all prior restraints on speech, including
religious speech and the x-rating was a suppression of petitioner’s freedom of
speech as much as it was an interference with its right to free exercise of
religion.  Citing Cantwell, the Court recognized that the different religions may
criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of
attack.

The Court then called to mind the “clear and present danger” test
first laid down in the American Bible
Society case and the test of “immediate and grave danger” with
“infringement only to the smallest extent necessary to avoid danger” in Victoriano and pointed out that the
reviewing board failed to apply the “clear and present danger” test.  Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against another
religion.  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.

Replying to the challenge on the
applicability of the “clear and present danger” test to the case, the Court
acknowledged the permutations that the test has undergone, but stressed that
the test is still applied to four types of speech: “speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial”[351]
and ruled, viz:

 . . . even allowing the
drift of American jurisprudence, there is reason to apply the clear and present
danger test to the case at bar which concerns speech that attacks other
religions and could readily provoke hostile audience reaction.  It
cannot be doubted that religious truths disturb and disturb terribly.[352]

In Iglesia therefore,
the Court went back to Gerona
insofar as holding that religious freedom cannot be invoked to seek exemption
from compliance with a law that burdens one’s religious exercise.  It also reiterated the “clear and present
danger” test in American Bible Society
and the “grave and imminent danger” in Victoriano,
but this time clearly justifying its applicability and showing how the test was
applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of
not invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise where it
is justified.[353]

2. Establishment Clause

In Philippine
jurisdiction, there is substantial agreement on the values sought to be
protected by the Establishment Clause, namely, 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 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.[354]
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.”[355] Non-establishment thus calls for
government neutrality in religious matters to uphold voluntarism and avoid
breeding interfaith dissension.[356]

The neutrality principle
was applied in the first significant non-establishment case under the 1935
Constitution.  In the 1937 case of Aglipay v. Ruiz,[357]
the Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress of the
Catholic Church on the ground that the constitutional prohibition against the
use of public money for religious purposes has been violated.  It appears that the Director of Posts issued
the questioned stamps under the provisions of Act No. 4052[358]
which appropriated a sum for the cost of plates and printing of postage stamps
with new designs and authorized the Director of Posts to dispose of the sum in
a manner and frequency “advantageous to the Government.”  The printing and issuance of the postage
stamps in question appears to have been approved by authority of the President.  Justice Laurel, speaking for the Court, took
pains explaining religious freedom and the role of religion in society, and in
conclusion, found no constitutional infirmity in the issuance and sale of the
stamps, viz:

The prohibition herein expressed is a direct corollary of the
principle of separation of church and state. 
Without the necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that 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 . . . It is almost
trite to say now that in this country we enjoy both religious and civil
freedom.  All the officers of the
Government, from the highest to the lowest, in taking their oath to support and
defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations
and recognized implications.  It should
be stated that what is guaranteed by our Constitution is religious liberty, not
mere toleration.

Religious freedom, however,
as a constitutional mandate is not an inhibition of profound reverence for religion
and is not a denial of its influence in human affairs.  Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized.  And, in so far as it instills into the minds
the purest principles of morality, its influence is deeply felt and highly
appreciated.  When the Filipino people,
in the preamble of their Constitution, implored “the aid of Divine Providence, in order to establish
a government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy,” they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations.  The elevating influence of religion in human
society is recognized here as elsewhere. 
In fact, certain general concessions are indiscriminately accorded to
religious sects and denominations. . .[359]

xxx                                                                          xxx                                                                   xxx

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. (Vide
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360]
(emphases supplied)

In so deciding the case, the Court,
citing U.S. jurisprudence, laid down the doctrine 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.

Almost forty-five years after Aglipay came Garces v. Estenzo.[361]
Although the Court found that the separation of church and state was not at
issue as the controversy was over who should have custody of a saint’s image, it
nevertheless made pronouncements on the separation of church and state along
the same line as the Aglipay ruling.  The Court 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.” 
Citing the Aglipay ruling,
the Court declared, viz:

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.

Then came the 1978 case of Pamil
v. Teleron, et al.[362]
which presented a novel issue involving the religion clauses.  In this case, Section 2175 of the Revised
Administrative Code of 1917 disqualifying ecclesiastics from appointment or
election as municipal officer was challenged. 
After protracted deliberation, the Court was sharply divided on the
issue.  Seven members of the Court, one
short of the number necessary to declare a law unconstitutional, approached the
problem from a free exercise perspective and considered the law a religious
test offensive of the constitution.  They
were Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero.  Then Associate
Justice Fernando, the ponente,
stated, viz: “The challenged
Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the Constitution.”  Citing Torcaso
v. Watkins,[363]
the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight.  What was there
involved was the validity of a provision in the Maryland Constitution
prescribing that ‘no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other than a
declaration of belief in the existence of God ***.’  Such a constitutional requirement was
assailed as contrary to the First Amendment of the United States Constitution
by an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God.  He failed in the Maryland Court of Appeals
but prevailed in the United States Supreme Court, which reversed the state
court decision.  It could not have been
otherwise.  As emphatically declared by
Justice Black: ‘this Maryland religious test for public office
unconstitutionally invades the appellant’s freedom of belief and religion and
therefore cannot be enforced against him.

The analogy appears to be obvious. 
In that case, it was lack of belief in God that was a
disqualification.  Here being an
ecclesiastic and therefore professing a religious faith suffices to disqualify
for a public office.  There is thus an
incompatibility between the Administrative Code provision relied upon by
petitioner and an express constitutional mandate.[364]

On the other hand, the prevailing five other members of the Court
– Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino –
approached the case from a non-establishment perspective and upheld the law as
a safeguard against the constant threat of union of church and state that has
marked Philippine history.  Justice
Makasiar stated:  “To allow an
ecclesiastic to head the executive department of a municipality is to permit
the erosion of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion which the
constitutional provision seeks to enforce and protect.”  Consequently, the Court upheld the validity
of Section 2175 of the Revised Administrative Code and declared respondent
priest ineligible for the office of municipal mayor.

Another type of cases interpreting the establishment clause deals
with intramural religious disputes.  Fonacier v. Court of Appeals[365]
is the leading case.  The issue therein
was the right of control over certain properties of the Philippine Independent
Church, the resolution of which necessitated the determination of who was the
legitimate bishop of the church.  The
Court cited American Jurisprudence,[366]
viz:

Where, however, a decision of an ecclesiastical court plainly
violates the law it professes to administer, or is in conflict with the law of
the land, it will not be followed by the civil courts. . . In some instances,
not only have the civil courts the right to inquire into the jurisdiction of
the religious tribunals and the regularity of their procedure, but they have
subjected their decisions to the test of fairness or to the test furnished by
the constitution and the law of the church. . .[367]

The Court then ruled that petitioner
Fonacier was legitimately ousted and respondent de los Reyes was the duly
elected head of the Church, based on their internal laws.  To finally dispose of the property issue, the
Court, citing Watson v. Jones,[368]
declared that the rule in property controversies within religious congregations
strictly independent of any other superior ecclesiastical association (such as
the Philippine Independent Church) is that the rules for resolving such
controversies should be those of any voluntary association.  If the congregation adopts the majority rule
then the majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed.  Applying these rules, Fonacier lost the
case.  While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and
disciplinary differences raised, viz:

The amendments of the constitution, restatement of articles of
religion and abandonment of faith or abjuration alleged by appellant, having to
do with faith, practice, doctrine, form of worship, ecclesiastical law, custom
and rule of a church and having reference to the power of excluding from the
church those allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts.[369]

VIII.  Free
Exercise Clause vis-à-vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise
Clause and the Establishment Clause in their application.  There is a natural antagonism between a
command not to establish religion and a command not to inhibit its practice;
this tension between the religion clauses often leaves the courts with a choice
between competing values in religion cases.[370]

One set of facts, for instance, can be differently viewed from
the Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. 
In Pamil, the majority gave
more weight to the religious liberty of the priest in holding that the
prohibition of ecclesiastics to assume elective or appointive government
positions was violative of the Free Exercise Clause.  On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.

Tension is also apparent when a case is decided to uphold the
Free Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to support
of the religion in violation of the Establishment Clause.  This was the case in the Free Exercise Clause
case of Sherbert where the U.S.
Supreme Court ruled, viz:

In holding as we do, plainly we
are not fostering the “establishment” of the Seventh-day Adventist religion
in South Carolina, for the extension of unemployment benefits to Sabbatarians
in common with Sunday worshippers reflects nothing
more than the governmental obligation of neutrality in the face of religious
differences, and does not represent that involvement of religious with
secular institutions which it is the object of the Establishment Clause to forestall.[371]
(emphasis supplied)

Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to
religious organizations, in effect, required him to contribute to religious bodies
in violation of the Establishment Clause. 
But the Court held that the exemption was not a case of establishing
religion but merely upholding the Free Exercise Clause by “sparing the exercise
of religion from the burden of property taxation levied on private profit
institutions.”  Justice Burger wrote, viz:

(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and either of
which, if expanded to a logical extreme, would tend to clash with the other.[372]

Similarly, the Philippine Supreme Court
in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause.  We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision.  It acted merely to relieve the exercise of religion, by certain persons, of a burden
that is imposed by union security agreements.[373]
(emphasis supplied)

Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated:
“(t)here are certain practices, conceivably violative of the Establishment Clause,
the striking down of which might seriously interfere with certain religious
liberties also protected by the First Amendment.”

How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the actual
cases that come to the Court.  In cases
involving both the Establishment Clause and the Free Exercise Clause, the two
clauses should be balanced against each other. 
The courts must review all the relevant facts and determine whether
there is a sufficiently strong free exercise right that should prevail over the
Establishment Clause problem.  In the
United States, it has been proposed that in balancing, the free exercise claim
must be given an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free exercise
principle long antedated any broad-based support of disestablishment, but also
because an Establishment Clause concern raised by merely accommodating a
citizen’s free exercise of religion seems far less dangerous to the republic
than pure establishment cases.  Each time
the courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility to
the religion that in that case cannot be freely exercised.[374]
American professor of constitutional law, Laurence Tribe, similarly suggests
that the free exercise principle “should be dominant in any conflict with the
anti-establishment principle.”  This dominance
would be the result of commitment to religious tolerance instead of “thwarting
at all costs even the faintest appearance of establishment.”[375]
In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice.  Modern society is characterized by the
expanding regulatory arm of government that reaches a variety of areas of human
conduct and an expanding concept of religion. 
To adequately meet the demands of this modern society, the societal values
the religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. 
This, in fact, has been the approach followed by the Philippine Court.[376]

IX.
Philippine Religion Clauses: Nature, Purpose, Tests

Based on
Philippine and American Religion Clause History,

Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution
shows that these clauses were largely adopted from the First Amendment of the
U.S. Constitution.  The religion clauses
in the First Amendment were contained in every organic Act of the Philippines
under the American regime.  When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the
1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to adopt
its historical background, nature, extent and limitations.  At that time, there were not too many
religion clause cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case.  The Free
Exercise Clause cases were also scarce then. 
Over the years, however, with the expanding reach of government regulation
to a whole gamut of human actions and the growing plurality and activities of
religions, the number of religion clause cases in the U.S. exponentially
increased.  With this increase came an
expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times
creating contradictions so that two main streams of jurisprudence had become
identifiable.  The first stream employs separation while the second employs benevolent neutrality in interpreting
the religious clauses.  Alongside this
change in the landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the 1973
Constitution and later, the 1987 Constitution. 
Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow authorities from
U.S. jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence.  One
might simply conclude that the Philippine Constitutions and jurisprudence also
inherited the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes before the Court,
a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it.  Or, one might conclude that as the history of
the First Amendment as narrated by the Court in Everson supports the separationist
approach, Philippine jurisprudence should also follow this approach in light of
the Philippine religion clauses’ history. 
As a result, in a case where the party claims religious liberty in the
face of a general law that inadvertently burdens his religious exercise, he
faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption.  These
conclusions, however, are not and were never warranted by the 1987, 1973 and
1935 Constitutions as shown by other provisions on religion in all three
constitutions.  It is a cardinal rule
in constitutional construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be reconciled and harmonized
in a manner that will give to all of them full force and effect.[377]
From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions,
and the enforcement of this intent is the goal of construing the constitution.[378]

We first apply the hermeneutical
scalpel to dissect the 1935 Constitution. 
At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church property in
Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches,
and parsonages or convents, appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious,
charitable, or educational purposes shall be exempt from taxation.

Before the advent of the 1935
Constitution, Section 344 of the Administrative Code provided for a similar
exemption.  To the same effect, the
Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine
government during the Commonwealth period.[379]
The original draft of the Constitution placed this provision in an ordinance to
be appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. 
However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was introduced in
the body of the Constitution on the rationale that “if churches, convents
[rectories or parsonages] and their accessories are always necessary for
facilitating the exercise of such [religious] freedom, it would also be natural
that their existence be also guaranteed by exempting them from taxation.”[380]
The amendment was readily approved with 83 affirmative votes against 15
negative votes.[381]

The Philippine constitutional provision on tax exemption is not
found in the U.S. Constitution.  In the
U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand Establishment Clause
scrutiny by stating that church property was not singled out but was exempt
along with property owned by non-profit, quasi-public corporations because the
state upheld the secular policy “that considers these groups as beneficial and
stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest.” 
The Court also stated that the exemption was meant to relieve the burden
on free exercise imposed by property taxation. 
At the same time, however, the Court acknowledged that the exemption was
an exercise of benevolent neutrality
to accommodate a long-standing tradition of exemption.  With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an ordinance
appended to the Constitution, the benevolent
neutrality referred to in the Walz
case was given constitutional
imprimatur under the regime of the 1935 Constitution.  The provision, as stated in the
deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing benevolence
towards religious exercise. 

Similarly, the 1935 Constitution provides in Article VI, Section
23(3), viz:

(3) No public money, or property shall ever be appropriated,
applied, or used, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution or system of religion,
for the use, benefit or support of any priest, preacher, ministers 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, orphanage, or leprosarium. (emphasis supplied)

The original draft of this provision was
a reproduction of a portion of section 3 of the Jones Law which did not contain
the above exception, viz:

No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church denomination, sectarian institution, or system of religion, or for the
use, benefit or support of any priest, preacher, minister, or dignitary as such…[382]

In the deliberations of this draft
provision, an amendment was proposed to strike down everything after “church denomination.”[383]
The proposal intended to imitate the silence of the U.S. Constitution on the
subject of support for priests and ministers. 
It was also an imitation of the silence of the Malolos Constitution to
restore the situation under the Malolos Constitution and prior to the Jones
Law, when chaplains of the revolutionary army received pay from public funds
with no doubt about its legality.  It was
pointed out, however, that even with the prohibition under the Jones Law,
appropriations were made to chaplains of the national penitentiary and the
Auditor General upheld its validity on the basis of a similar United States
practice.  But it was also pointed out
that the U.S. Constitution did not contain a prohibition on appropriations
similar to the Jones Law.[384]
To settle the question on the constitutionality of payment of salaries of
religious officers in certain government institutions and to avoid the feared
situation where the enumerated government institutions could not employ
religious officials with compensation, the exception in the 1935 provision was
introduced and approved. The provision garnered 74 affirmative votes against 34
negative votes.[385]
As pointed out in the deliberations, the U.S. Constitution does not provide for
this exemption.  However, the U.S.
Supreme Court in Cruz v. Beto,
apparently taking a benevolent neutrality approach, implicitly approved the
state of Texas’ payment of prison chaplains’ salaries as reasonably necessary
to permit inmates to practice their religion. 
Also, in the Marsh case, the
U.S. Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at taxpayers’
expense.  The constitutional provision
exempting religious officers in government institutions affirms the departure
of the Philippine Constitution from the U.S. Constitution in its adoption of
benevolent neutrality in Philippine jurisdiction.  While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.

To further buttress the thesis that benevolent neutrality is
contemplated in the Philippine Establishment Clause, the 1935 Constitution
provides for optional religious instruction in public schools in Article XIII,
Section 5, viz:

 . . . Optional religious
instruction shall be maintained in the public schools as now authorized by law.
. .

The law then applicable was Section 928
of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any
church established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for one-half
hour three times a week, in the school building, to those public-school pupils
whose parents or guardians desire it and express their desire therefor in
writing filed with the principal of the school . . .

During the debates of the Constitutional
Convention, there were three positions on the issue of religious instruction in
public schools.  The first held that the
teaching of religion in public schools should be prohibited as this was a
violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes.  The second favored the proposed optional religious
instruction as authorized by the Administrative Code and recognized that the
actual practice of allowing religious instruction in the public schools was
sufficient proof that religious instruction was not and would not be a source
of religious discord in the schools.[386]
The third wanted religion to be included as a course in the curriculum of the
public schools but would only be taken by pupils at the option of their parents
or guardians.  After several rounds of
debate, the second camp prevailed, thus raising to constitutional stature the
optional teaching of religion in public schools, despite the opposition to the
provision on the ground of separation of church and state.[387]
As in the provisions on church property tax exemption and compensation of religious
officers in government institutions, the U.S. Constitution does not provide for
optional religious instruction in public schools.  In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction
where the religion teachers would conduct class within the school
premises.  The constitutional provision
on optional religious instruction shows that Philippine jurisdiction rejects
the strict neutrality approach which does not allow such accommodation of
religion.

Finally, to make certain the Constitution’s benevolence to
religion, the Filipino people “implored (ing) the aid of Divine Providence (,)
in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime of
justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution.”  A preamble is a “key to
open the mind of the authors of the constitution as to the evil sought to be
prevented and the objects sought to be accomplished by the provisions thereof.”[388]
There was no debate on the inclusion of a “Divine Providence” in the
preamble.  In Aglipay, Justice Laurel noted that when the Filipino people
implored the aid of Divine Providence, “(t)hey thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations.”[389]
The 1935 Constitution’s religion clauses, understood alongside the other
provisions on religion in the Constitution, indubitably shows not hostility,
but benevolence, to religion.[390]

The 1973 Constitution contained in Article VI, Section 22(3) a
provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution
on exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively
for religious or charitable purposes. 
Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973
Constitution also contained a similar provision on salaries of religious
officials employed in the enumerated government institutions.  Article XIII, Section 5 of the 1935 Constitution
on optional religious instruction was also carried to the 1973 Constitution in
Article XV, Section 8(8) with the modification that optional religious
instruction shall be conducted “as may be provided by law” and not “as now
authorized by law” as stated in the 1935 Constitution.  The 1973 counterpart, however, made explicit
in the constitution that the religious instruction in public elementary and
high schools shall be done “(a)t the option expressed in writing by the parents
or guardians, and without cost to them and the government.”  With the adoption of these provisions in the
1973 Constitution, the benevolent neutrality approach continued to enjoy
constitutional sanction.  In Article XV,
Section 15 of the General Provisions of the 1973 Constitution this provision
made its maiden appearance: “(t)he separation of church and state shall be
inviolable.” The 1973 Constitution retained the portion of the preamble
“imploring the aid of Divine Providence.”

In the Report of the Ad Hoc Sub-Committee on Goals, Principles
and Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the “absolute” separation of
Church and State as enunciated in the Everson
case and reiterated in Schempp  – i.e., neutrality not only as between one
religion and another but even as between religion and non-religion – is
embodied in the Philippine Constitution. 
The sub-committee’s answer was that it did not seem so. Citing the Aglipay case where Justice Laurel
recognized the “elevating influence of religion in human society” and the
Filipinos’ imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion over
another, but may aid all religions equally or the cause of religion in general.[391]
Among the position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the
constitution by Fr. Bernas, S.J.  He
stated therein that the Philippine Constitution is not hostile to religion and
in fact recognizes the value of religion and accommodates religious values.[392]
Stated otherwise, the Establishment Clause contemplates not a strict neutrality
but benevolent neutrality.  While the Committee
introduced the provision on separation of church and state in the General
Provisions of the 1973 Constitution, this was nothing new as according to it,
this principle was implied in the 1935 Constitution even in the absence of a
similar provision.[393]

Then came the 1987 Constitution. 
The 1973 Constitutional provision on tax exemption of church property
was retained with minor modification in Article VI, Section 28(3) of the 1987
Constitution.  The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2).  Commissioner Bacani, however,
probed into the possibility of allowing the government to spend public money
for purposes which might have religious connections but which would benefit the
public generally.  Citing the Aglipay case, Commissioner Rodrigo
explained that if a public expenditure would benefit the government directly,
such expense would be constitutional even if it results to an incidental
benefit to religion.  With that
explanation, Commissioner Bacani no longer pursued his proposal.[394]

The provision on optional religious instruction was also adopted
in the 1987 Constitution in Article XIV, Section 3(3) with the modification
that it was expressly provided that optional instruction shall be conducted
“within the regular class hours” and “without additional cost to the
government”.  There were protracted
debates on what additional cost meant, i.e., cost over and above what is needed
for normal operations such as wear and tear, electricity, janitorial services,[395]
and when during the day instruction would be conducted.[396]
In deliberating on the phrase “within the regular class hours,” Commissioner
Aquino expressed her reservations to this proposal as this would violate the
time-honored principle of separation of church and state.  She cited the McCullom case where religious instruction during regular school
hours was stricken down as unconstitutional and also cited what she considered
the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S.
Supreme Court allowed only release time for religious instruction.  Fr. Bernas replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment
of religion, because if it were not necessary to make this exception for
purposes of allowing religious instruction, then we could just drop the
amendment.  But, as a matter of fact,
this is necessary because we are trying
to introduce something here which is contrary to American practices.[397]
(emphasis supplied)

“(W)ithin regular class hours” was approved.

The provision on the separation of church and state was retained
but placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6.  In
opting to retain the wording of the provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the
sentence ‘The separation of Church and State is inviolable,’ is almost a
useless statement; but at the same time it is a harmless statement.  Hence, I am willing to tolerate it there,
because, in the end, if we look at the jurisprudence on Church and State,
arguments are based not on the statement of separation of church and state but
on the non-establishment clause in the Bill of Rights.[398]

The preamble changed “Divine Providence” in the 1935 and 1973
Constitutions to “Almighty God.”  There
was considerable debate on whether to use “Almighty God” which Commissioner
Bacani said was more reflective of Filipino religiosity, but Commissioner
Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God.[399]
“God of History”, “Lord of History” and “God” were also proposed, but the
phrase “Almighty God” prevailed.  Similar
to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is
not hostile nor indifferent to religion;[400]
its wall of separation is not a wall of hostility or indifference.[401]

The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions, did
not intend to erect a high and impregnable wall of separation between the
church and state.[402]
The strict neutrality approach which examines only whether government action is
for a secular purpose and does not consider inadvertent burden on religious
exercise protects such a rigid barrier. 
By adopting the above constitutional provisions on religion, the
Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion
clauses, an approach that looks further than the secular purposes of government
action and examines the effect of these actions on religious exercise.  Benevolent
neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it acknowledges
that government must pursue its secular goals. 
In pursuing these goals, however, government might adopt laws or actions
of general applicability which inadvertently burden religious exercise.  Benevolent
neutrality gives room for accommodation
of these religious exercises as required
by the Free Exercise Clause.  It allows
these breaches in the wall of separation to uphold religious liberty, which after
all is the integral purpose of the religion clauses.  The case at bar involves this first type of accommodation where an exemption is
sought from a law of general applicability that inadvertently burdens religious
exercise.

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a
free exercise claim comes before it.  But
it does mean that the Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will strive to accommodate
them when it can within flexible constitutional limits; it does mean that the
Court will not simply dismiss a claim under the Free Exercise Clause because
the conduct in question offends a law or the orthodox view for this precisely
is the protection afforded by the religion clauses of the Constitution, i.e.,
that in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion clauses
justify it.  While the Court cannot
adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the
state to pursue its interest, the Court can set a doctrine on the ideal towards
which religious clause jurisprudence should be directed.[403]
We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases.  The
ideal towards which this approach is directed is the protection of religious
liberty “not only for a minority, however small- not only for a majority,
however large- but for each of us” to the greatest extent possible within
flexible constitutional limits.

Benevolent neutrality
is manifest not only in the Constitution but has also been recognized in
Philippine jurisprudence, albeit not expressly called “benevolent neutrality”
or “accommodation”.  In Aglipay, the Court not only stressed
the “elevating influence of religion in human society” but acknowledged the
Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious
instruction as well as the provisions of the Administrative Code making
Thursday and Friday of the Holy Week, Christmas Day and Sundays legal
holidays.  In Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but
also acknowledged that government participation in long-standing traditions
which have acquired a social character – “the barrio fiesta is a
socio-religious affair” – does not offend the Establishment Clause.  In Victoriano,
the Court upheld the exemption from closed shop provisions of members of
religious sects who prohibited their members from joining unions upon the
justification that the exemption was not a violation of the Establishment
Clause but was only meant to relieve the burden on free exercise of
religion.  In Ebralinag, members of the Jehovah’s Witnesses were exempt from
saluting the flag as required by law, on the basis not of a statute granting
exemption but of the Free Exercise Clause without offending the Establishment
Clause.

While the U.S. and
Philippine religion clauses are similar in form and origin, Philippine
constitutional law has departed from the U.S. jurisprudence of employing a
separationist or strict neutrality approach.  The Philippine religion clauses have taken a
life of their own, breathing the air of benevolent
neutrality and accommodation.  Thus, the wall of separation in Philippine
jurisdiction is not as high and impregnable as the wall created by the U.S.
Supreme Court in Everson.[404]
While the religion clauses are a unique American experiment which
understandably came about as a result of America’s English background and
colonization, the life that these clauses have taken in this jurisdiction is
the Philippines’ own experiment, reflective of the Filipinos’ own national
soul, history and tradition.  After all,
“the life of the law. . . has been experience.”

But while history, constitutional construction, and earlier
jurisprudence unmistakably show that benevolent
neutrality is the lens with which the Court ought to view religion clause
cases, it must be stressed that the
interest of the state should also be afforded utmost protection.  To do this, a test must be applied to draw the line between permissible and
forbidden religious exercise.  It is
quite paradoxical that in order for the members of a society to exercise their
freedoms, including their religious liberty, the law must set a limit when
their exercise offends the higher interest of the state.  To do otherwise is self-defeating for
unlimited freedom would erode order in the state and foment anarchy, eventually
destroying the very state its members established to protect their
freedoms.  The very purpose of the social
contract by which people establish the state is for the state to protect their
liberties; for this purpose, they give up a portion of these freedoms –
including the natural right to free exercise – to the state.  It was certainly not the intention of the
authors of the constitution that free exercise could be used to countenance
actions that would undo the constitutional order that guarantees free exercise.[405]

The all important question then is the test that should be used
in ascertaining the limits of the exercise of religious freedom.  Philippine jurisprudence articulates several
tests to determine these limits. 
Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the “clear and present danger” test but did not employ it.  Nevertheless, this test continued to be cited
in subsequent cases on religious liberty. 
The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it
violates the established institutions of society and law.  The Victoriano
case mentioned the “immediate and grave danger” test as well as the
doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the
law.  The case also used, albeit
inappropriately, the “compelling state interest” test.  After Victoriano,
German went back to the Gerona rule. 
Ebralinag then employed the
“grave and immediate danger” test and overruled the Gerona test.  The fairly
recent case of Iglesia ni Cristo
went back to the “clear and present danger” test in the maiden case of American Bible Society.  Not surprisingly, all the cases which
employed the “clear and present danger” or “grave and immediate danger” test
involved, in one form or another, religious speech as this test is often used in
cases on freedom of expression.  On
the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and
law.  Gerona, however, which was the authority cited by German has been overruled by Ebralinag which employed the “grave and
immediate danger” test.  Victoriano was the only case that
employed the “compelling state interest” test, but as explained previously, the
use of the test was inappropriate to the facts of the case.

The case at bar does
not involve speech as in American Bible
Society, Ebralinag and Iglesia ni
Cristo where the “clear and present danger” and “grave and immediate
danger” tests were appropriate as speech has easily discernible or immediate
effects.  The Gerona and German doctrine,
aside from having been overruled, is not congruent with the benevolent neutrality approach, thus
not appropriate in this jurisdiction. 
Similar to Victoriano, the present case involves purely conduct
arising from religious belief.  The “compelling state interest” test is
proper where conduct is involved for the whole gamut of human conduct has
different effects on the state’s interests: some effects may be immediate and
short-term while others delayed and far-reaching.  A test that would protect the interests of
the state in preventing a substantive evil, whether immediate or delayed, is
therefore necessary.  However, not any
interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights – “the most inalienable and sacred of all human rights”, in
the words of Jefferson.[406]
This right is sacred for an invocation of the Free Exercise Clause is an appeal
to a higher sovereignty.  The entire
constitutional order of limited government is premised upon an acknowledgment
of such higher sovereignty,[407]
thus the Filipinos implore the “aid of Almighty God in order to build a just
and humane society and establish a government.” 
As held in Sherbert, only the
gravest abuses, endangering paramount
interests can limit this fundamental right. 
A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate.  Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty.  The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed.[408]
In determining which shall prevail between the state’s interest and religious
liberty, reasonableness shall be the guide.[409]
The “compelling state interest” serves the purpose of revering religious
liberty while at the same time affording protection to the paramount interests
of the state.  This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays.  In the
end, the “compelling state interest” test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty
will not be preserved. 

X.  Application of the Religion Clauses to the
Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government
employees engaged in illicit relations are guilty of “disgraceful and immoral
conduct” for which he/she may be held administratively liable.[410]
In these cases, there was not one dissent to the majority’s ruling that their
conduct was immoral.  The respondents
themselves did not foist the defense that their conduct was not immoral, but
instead sought to prove that they did not commit the alleged act or have abated
from committing the act.  The facts of
the 1975 case of De Dios v. Alejo[411]
and the 1999 case of Maguad
v. De Guzman,[412]
are similar to the case at bar – i.e., the complainant is a mere stranger and
the legal wife has not registered any objection to the illicit relation, there
is no proof of scandal or offense to the moral sensibilities of the community
in which the respondent and the partner live and work, and the government
employee is capacitated to marry while the partner is not capacitated but has
long been separated in fact.  Still, the
Court found the government employees administratively liable for “disgraceful
and immoral conduct” and only considered the foregoing circumstances to
mitigate the penalty.  Respondent
Escritor does not claim that there is error in the settled jurisprudence that
an illicit relation constitutes disgraceful and immoral conduct for which a
government employee is held liable.  Nor
is there an allegation that the norms of morality with respect to illicit
relations have shifted towards leniency from the time these precedent cases
were decided.  The Court finds that there
is no such error or shift, thus we find no reason to deviate from these rulings
that such illicit relationship constitutes “disgraceful and immoral conduct”
punishable under the Civil Service Law. Respondent having admitted the alleged
immoral conduct, she, like the respondents in the above-cited cases, could be
held administratively liable.  However,
there is a distinguishing factor that sets the case at bar apart from the cited
precedents, i.e., as a defense, respondent invokes religious freedom since her
religion, the Jehovah’s Witnesses, has, after thorough investigation, allowed
her conjugal arrangement with Quilapio based on the church’s religious beliefs
and practices.  This distinguishing
factor compels the Court to apply the religious clauses to the case at bar.

Without holding that religious freedom is not in issue in the
case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and
the separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case.  A discussion on morality is in order.

At base, morality refers to, in Socrates’ words, “how we ought to
live” and why.  Any definition of
morality beyond Socrates’ simple formulation is bound to offend one or another
of the many rival theories regarding what it means to live morally.[413]
The answer to the question of how we ought to live necessarily considers that
man does not live in isolation, but in society. 
Devlin posits that a society is held together by a community of ideas,
made up not only of political ideas but also of ideas about the manner its
members should behave and govern their lives. 
The latter are their morals; they constitute the public morality.  Each member of society has ideas about what
is good and what is evil.  If people try
to create a society wherein there is no fundamental agreement about good and
evil, they will fail; if having established the society on common agreement,
the agreement collapses, the society will disintegrate.  Society is kept together by the invisible
bonds of common thought so that if the bonds are too loose, the members would
drift apart.  A common morality is part
of the bondage and the bondage is part of the price of society; and mankind,
which needs society, must pay its price.[414]
This design is parallel with the social contract in the realm of politics:
people give up a portion of their liberties to the state to allow the state to
protect their liberties.  In a
constitutional order, people make a fundamental agreement about the powers of
government and their liberties and embody this agreement in a constitution,
hence referred to as the fundamental law of the land.  A complete break of this fundamental agreement
such as by revolution destroys the old order and creates a new one.[415]
Similarly, in the realm of morality, the breakdown of the fundamental agreement
about the manner a society’s members should behave and govern their lives would
disintegrate society.  Thus, society is
justified in taking steps to preserve its moral code by law as it does to
preserve its government and other essential institutions.[416]
From these propositions of Devlin, one cannot conclude that Devlin negates
diversity in society for he is merely saying that in the midst of this
diversity, there should nevertheless be a “fundamental agreement about good and
evil” that will govern how people in a society ought to live.  His propositions, in fact, presuppose
diversity hence the need to come to an agreement; his position also allows for
change of morality from time to time which may be brought about by this
diversity.  In the same vein, a
pluralistic society lays down fundamental rights and principles in their
constitution in establishing and maintaining their society, and these
fundamental values and principles are translated into legislation that governs
the order of society, laws that may be amended from time to time.  Hart’s argument propounded in Mr. Justice
Vitug’s separate opinion that, “Devlin’s view of people living in a single
society as having common moral foundation (is) overly simplistic” because
“societies have always been diverse” fails to recognize the necessity of
Devlin’s proposition in a democracy. 
Without fundamental agreement on political and moral ideas, society will
fall into anarchy; the agreement is necessary to the existence and progress of
society.

In a democracy, this common agreement on political and moral
ideas is distilled in the public square. 
Where citizens are free, every opinion, every prejudice, every
aspiration, and every moral discernment has access to the public square where
people deliberate the order of their life together.  Citizens are the bearers of opinion, including
opinion shaped by, or espousing religious belief, and these citizens have equal
access to the public square.  In this
representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.  Through a constitutionally designed process,
the people deliberate and decide. 
Majority rule is a necessary principle in this democratic governance.[417]
Thus, when public deliberation on moral judgments is finally crystallized into
law, the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups.[418]  Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies — including protection of
religious freedom “not only for a minority, however small- not only for a
majority, however large- but for each of us” — the majority imposes upon
itself a self-denying ordinance.  It
promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.[419]
In the realm of religious exercise, benevolent
neutrality that gives room for accommodation
carries out this promise, provided the compelling interests of the state are
not eroded for the preservation of the state is necessary to the preservation
of religious liberty.  That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless.  It is not surprising that Smith is much criticized for it blocks
the judicial recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality.  As Justice Holmes put it, “(t)he law is the
witness and deposit of our moral life.”[420]
“In a liberal democracy, the law reflects social morality over a period of time.”[421]
Occasionally though, a disproportionate political influence might cause a law
to be enacted at odds with public morality or legislature might fail to repeal
laws embodying outdated traditional moral views.[422]
Law has also been defined as “something men create in their best moments to
protect themselves in their worst moments.”[423]
Even then, laws are subject to amendment or repeal just as judicial
pronouncements are subject to modification and reversal to better reflect the
public morals of a society at a given time. 
After all, “the life of the law…has been experience,” in the words of
Justice Holmes.  This is not to say
though that law is all of morality.  Law
deals with the minimum standards of human conduct while morality is concerned
with the maximum.  A person who regulates
his conduct with the sole object of avoiding punishment under the law does not
meet the higher moral standards set by society for him to be called a morally
upright person.[424]
Law also serves as “a helpful starting point for thinking about a proper or
ideal public morality for a society”[425]
in pursuit of moral progress. 

In Magno v. Court of
Appeals, et al.,[426]
we articulated the relationship between law and public morality.  We held that under the utilitarian theory,
the “protective theory” in criminal law, “criminal law is founded upon the moral disapprobation x x x of actions which
are immoral, i.e., which are detrimental
(or dangerous) to those conditions upon which depend the existence and progress
of human society.  This
disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in
the moral opinions of all. x x x That which we call punishment is only an
external means of emphasizing moral disapprobation: the method of punishment is
in reality the amount of punishment.”[427]
Stated otherwise, there are certain standards of behavior or moral principles
which society requires to be observed and these form the bases of criminal
law.  Their breach is an offense not only
against the person injured but against society as a whole.[428]
Thus, even if all involved in the misdeed are consenting parties, such as in
the case at bar, the injury done is to the public morals and the public
interest in the moral order.[429]
Mr. Justice Vitug expresses concern on this point in his separate opinion.  He observes that certain immoral acts which
appear private and not harmful to society such as sexual congress “between a
man and a prostitute, though consensual and private, and with no injured third
party, remains illegal in this country.” His opinion asks whether these laws on
private morality are justified or they constitute impingement on one’s freedom
of belief.  Discussion on private
morality, however, is not material to the case at bar for whether respondent’s
conduct, which constitutes concubinage,[430]
is private in the sense that there is no injured party or the offended spouse
consents to the concubinage, the inescapable fact is that the legislature has
taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality
of this law is not being raised in the case at bar.  In the definition of the crime of
concubinage, consent of the injured party, i.e., the legal spouse, does not
alter or negate the crime unlike in rape[431]
where consent of the supposed victim negates the crime.  If at all, the consent or pardon of the
offended spouse in concubinage negates the prosecution of the action,[432]
but does not alter the legislature’s characterization of the act as a moral
disapprobation punishable by law.  The
separate opinion states that, “(t)he ponencia
has taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular State
should only concern itself with secular morality.” The Court does not draw this
distinction in the case at bar. The distinction relevant to the case is not, as
averred and discussed by the separate opinion, “between secular and private
morality,” but between public and secular morality on the one hand, and
religious morality on the other, which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal
or otherwise.  We recognized this reality
in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary
Title of the New Civil Code, dealing with Human Relations, provide for the
recognition of the wrong and the concomitant punishment in the form of
damages.  Articles 19 and 21 provide, viz:

Art. 19.  Any person must, in
the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due and observe honesty and good faith.

xxx                                                                          xxx                                                                   xxx

Art. 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commission’s comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is
approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is
impossible for human foresight to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? 
The answer is that, in the last analysis, every good law draws its breath of life from morals, from those
principles which are written with words of fire in the conscience of man.  If this premise is admitted, then the proposed
rule is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages.  When it is reflected that while codes of law
and statutes have changed from age to age, the conscience of man has remained
fixed to its ancient moorings, one can
not but feel that it is safe and salutary to transmute, as far as may be, moral
norms into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon
the social order than that a person may with impunity cause damage to his
fellow-men so long as he does not break any law of the State, though he may be
defying the most sacred postulates of morality. 
What is more, the victim loses faith in the ability of the government to
afford him protection or relief.

A provision similar to the one under consideration is embodied in
article 826 of the German Civil Code.[433]
(emphases supplied)

The public morality expressed in the law is necessarily secular
for in our constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions.  Religious morality proceeds from a person’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,” in accordance
with this Court’s definition of religion in American Bible Society citing Davis.  Religion also dictates “how we ought to live”
for the nature of religion is not just to know, but often, to act in accordance
with man’s “views of his relations to His Creator.”[434]
But the Establishment Clause puts a negative bar against establishment of this
morality arising from one religion or the other, and implies the affirmative
“establishment” of a civil order for the resolution of public moral
disputes.  This agreement on a secular
mechanism is the price of ending the “war of all sects against all”; the
establishment of a secular public moral order is the social contract produced
by religious truce.[435]

Thus, when the law speaks of “immorality” in the Civil Service
Law or “immoral” in the Code of Professional Responsibility for lawyers[436],
or “public morals” in the Revised Penal Code,[437]
or “morals” in the New Civil Code,[438]
or “moral character” in the Constitution,[439]
the distinction between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind.[440]
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.”[441]
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.  Expansive
religious freedom therefore requires that government be neutral in matters of
religion; governmental reliance upon religious justification is inconsistent
with this policy of neutrality.[442]

In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a secular
purpose.  That is, the government
proscribes this conduct because it is “detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society” and
not because the conduct is proscribed by the beliefs of one religion or the
other.  Although admittedly, moral
judgments based on religion might have a compelling influence on those engaged
in public deliberations over what actions would be considered a moral
disapprobation punishable by law.  After
all, they might also be adherents of a religion and thus have religious
opinions and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven.[443]
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian
in its deepest roots, but it must have an articulable and discernible secular
purpose and justification to pass scrutiny of the religion clauses.  Otherwise, if a law has an apparent secular
purpose but upon closer examination shows a discriminatory and prohibitory
religious purpose, the law will be struck down for being offensive of the
religion clauses as in Church of the
Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an
ordinance prohibiting animal sacrifice of the Santeria.  Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitution’s religion clauses prescribe not a strict but a benevolent neutrality.  Benevolent
neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the
greatest extent possible within flexible constitutional limits.  Thus, although the morality contemplated by
laws is secular, benevolent neutrality
could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests. 

Mr. Justice Vitug’s separate opinion embraces the benevolent neutrality approach when it
states that in deciding the case at bar, the approach should consider
that,  “(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to protect
the interests of the larger society.  It
is only where their rigid application would serve to obliterate the value which
society seeks to uphold, or defeat the purpose for which they are enacted
would, a departure be justified.”  In
religion clause parlance, the separate opinion holds that laws of general
applicability governing morals should have a secular purpose of directly or
indirectly protecting the interests of the state.  If the strict application of these laws
(which are the Civil Service Law and the laws on marriage) would erode the
secular purposes of the law (which the separate opinion identifies as upholding
the sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of the unconventional religious belief and practice
(which the separate opinion holds should be respected on the ground of freedom
of belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging Faithfulness
that makes the union binding and honorable before God and men, is required by
the Free Exercise Clause.  The separate
opinion then makes a preliminary discussion of the values society seeks to
protect in adhering to monogamous marriage, but concludes that these values and
the purposes of the applicable laws should be thoroughly examined and evidence
in relation thereto presented in the OCA. 
The accommodation approach in
the case at bar would also require a similar discussion of these values and
presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation
of the unconventional religious belief and practice regarding marriage.

The distinction between public and secular morality as expressed
– albeit not exclusively – in the law, on the one hand, and religious morality,
on the other, is important because the
jurisdiction of the Court extends only to public and secular morality.  Whatever pronouncement the Court makes in the
case at bar should be understood only in this realm where it has authority.
More concretely, should the Court declare respondent’s conduct as immoral and
hold her administratively liable, the Court will be holding that in the realm
of public morality, her conduct is reprehensible or there are state interests
overriding her religious freedom.  For as
long as her conduct is being judged within this realm, she will be accountable
to the state.  But in so ruling, the
Court does not and cannot say that her conduct should be made reprehensible in
the realm of her church where it is presently sanctioned and that she is
answerable for her immorality to her Jehovah God nor that other religions
prohibiting her conduct are correct.  On
the other hand, should the Court declare her conduct permissible, the Court
will be holding that under her unique circumstances, public morality is not
offended or that upholding her religious freedom is an interest higher than
upholding public morality thus her conduct should not be penalized.  But the Court is not ruling that the tenets
and practice of her religion are correct nor that other churches which do not
allow respondent’s conjugal arrangement should likewise allow such conjugal
arrangement or should not find anything immoral about it and therefore members
of these churches are not answerable for immorality to their Supreme
Being.  The Court cannot speak more than
what it has authority to say.  In Ballard, the U.S. Supreme Court held
that courts cannot inquire about the truth of religious beliefs.  Similarly, in Fonacier, this Court declared that matters dealing with “faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a
church…are unquestionably ecclesiastical matters which are outside the province
of the civil courts.”[444]
But while the state, including the Court, accords such deference to religious
belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that
when religious belief flows into speech and conduct that step out of the
religious sphere and overlap with the secular and public realm, the state has
the power to regulate, prohibit and penalize these expressions and embodiments
of belief insofar as they affect the interests of the state.  The state’s inroad on religion exercise in
excess of this constitutional design is prohibited by the religion clauses; the
Old World, European and American history narrated above bears out the wisdom of
this proscription.

Having distinguished between public and secular morality and
religious morality, the more difficult task is determining which immoral acts
under this public and secular morality fall under the phrase “disgraceful and
immoral conduct” for which a government employee may be held administratively
liable.  The line is not easy to draw for
it is like “a line that divides land and sea, a coastline of irregularities and
indentations.”[445]
But the case at bar does not require us to comprehensively delineate between
those immoral acts for which one may be held administratively liable and those
to which administrative liability does not attach.  We need not concern ourselves in this case
therefore whether “laziness, gluttony, vanity, selfishness, avarice and
cowardice” are immoral acts which constitute grounds for administrative
liability.  Nor need we expend too much
energy grappling with the propositions that not all immoral acts are illegal or
not all illegal acts are immoral, or different jurisdictions have different
standards of morality as discussed by the dissents and separate opinions,
although these observations and propositions are true and correct.  It is certainly a fallacious argument that
because there are exceptions to the general rule that the “law is the witness
and deposit of our moral life,” then the rule is not true; in fact, that there
are exceptions only affirms the truth of the rule.  Likewise, the observation that morality is
relative in different jurisdictions only affirms the truth that there is
morality in a particular jurisdiction; without, however, discounting the truth
that underneath the moral relativism are certain moral absolutes such as
respect for life and truth-telling, without which no society will survive.  Only one conduct is in question before this
Court, i.e., the conjugal arrangement of a government employee whose partner is
legally married to another which Philippine law and jurisprudence consider both
immoral and illegal.  Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively
how one ought to live, the Court must focus its attention upon the sole conduct
in question before us. 

In interpreting “disgraceful and immoral conduct,” the dissenting
opinion of Mme. Justice Ynares-Santiago groped for standards of morality and
stated that the “ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards” but did not articulate how these
standards are to be ascertained. 
Instead, it held that, “(f)or those in the service of the Government,
provisions of law and court precedents . . . have to be considered.”  It identified the Civil Service Law and the
laws on adultery and concubinage as laws which respondent’s conduct has
offended and cited a string of precedents where a government employee was found
guilty of committing a “disgraceful and immoral conduct” for maintaining
illicit relations and was thereby penalized. 
As stated above, there is no dispute that under settled jurisprudence,
respondent’s conduct constitutes “disgraceful and immoral conduct.”  However, the cases cited by the dissent do
not involve the defense of religious freedom which respondent in the case at
bar invokes.  Those cited cases cannot
therefore serve as precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v. United States[446]
in laying down the standard of morality, viz:
“(w)hether an act is immoral within the meaning of the statute is not to be
determined by respondent’s concept of morality. 
The law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it condemns.”  The Mann Act under consideration in the Cleveland case declares as an offense
the transportation in interstate commerce of “any woman or girl for the purpose
of prostitution or debauchery, or for any other immoral purpose.”[447]
The resolution of that case hinged on the interpretation of the phrase “immoral
purpose.”  The U.S. Supreme Court held
that the petitioner Mormons’ act of transporting at least one plural wife
whether for the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was covered by the
phrase “immoral purpose.”  In so ruling,
the Court relied on Reynolds which
held that the Mormons’ practice of polygamy, in spite of their defense of
religious freedom, was “odious among the northern and western nations of Europe,”[448]
“a return to barbarism,”[449]
“contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world,”[450]
and thus punishable by law.

The Cleveland
standard, however, does not throw light to the issue in the case at bar.  The pronouncements of the U.S. Supreme Court
that polygamy is intrinsically “odious” or “barbaric” do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy.  Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the Jehovah’s
Witnesses under the same circumstances as respondent will not prevail over the
laws on adultery, concubinage or some other law.  We cannot summarily conclude therefore that
her conduct is likewise so “odious” and “barbaric” as to be immoral and
punishable by law.

While positing the view that the resolution of the case at bar
lies more on determining the applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiago’s dissent nevertheless discussed
respondent’s plea of religious freedom and disposed of this defense by stating
that “(a) clear and present danger of a substantive evil, destructive to public
morals, is a ground for the reasonable regulation of the free exercise and
enjoyment of religious profession. (American Bible Society v. City of Manila,
101 Phil. 386 [1957]).  In addition to
the destruction of public morals, the substantive evil in this case is the
tearing down of morality, good order, and discipline in the judiciary.”  However, the foregoing discussion has shown
that the “clear and present danger” test that is usually employed in cases
involving freedom of expression is not appropriate to the case at bar which
involves purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of
“disgraceful and immoral conduct.”  The Reynolds ruling, however, was reached
with a strict neutrality approach, which is not the approach contemplated by
the Philippine constitution.  As
discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses.

In the same vein, Mr. Justice Carpio’s dissent which employs
strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in interpreting
the Philippine religion clauses.  His
dissent avers that respondent should be held administratively liable not for
“disgraceful and immoral conduct” but “conduct prejudicial to the best interest
of the service” as she is a necessary co-accused of her partner in
concubinage.  The dissent stresses that
being a court employee, her open violation of the law is prejudicial to the
administration of justice. Firstly, the dissent offends due process as
respondent was not given an opportunity to defend herself against the charge of
“conduct prejudicial to the best interest of the service.”  In addition, there is no evidence of the
alleged prejudice to the best interest of the service.  Most importantly, the dissent concludes that
respondent’s plea of religious freedom cannot prevail without so much as
employing a test that would balance respondent’s religious freedom and the
state’s interest at stake in the case at bar. 
The foregoing discussion on the doctrine of religious freedom, however,
shows that with benevolent neutrality
as a framework, the Court cannot simply reject respondent’s plea of religious
freedom without even subjecting it to the “compelling state interest” test that
would balance her freedom with the paramount interests of the state.  The strict neutrality employed in the cases
the dissent cites –Reynolds, Smith and
People v. Bitdu decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality – is not contemplated by our constitution.

Neither is Sulu Islamic
Association of Masjid Lambayong v. Judge Nabdar J. Malik[451]
cited in Mr. Justice Carpio’s dissent decisive of the immorality issue in the
case at bar.  In that case, the Court
dismissed the charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three children
because “it (was) not ‘immoral’ by Muslim standards for Judge Malik to marry a
second time while his first marriage (existed).”  Putting the quoted portion in its proper
context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar.  Immediately prior to the portion quoted by
the dissent, the Court stressed, viz:
“(s)ince Art. 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy ‘shall
not apply to a person married x x x under Muslim Law,’ it is not ‘immoral’
by Muslim standards for Judge Malik to marry a second time while his first
marriage exists.”[452]
It was by law, therefore, that the Muslim conduct in question was classified as
an exception to the crime of bigamy and thus an exception to the general
standards of morality.  The
constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic case.  Thus, the
Court did not determine whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the provision excepting the
challenged Muslim conduct from the crime of bigamy in holding that the
challenged act is not immoral by Muslim standards.  In contradistinction, in the case at bar,
there is no similar law which the Court can apply as basis for treating
respondent’s conduct as an exception to the prevailing jurisprudence on illicit
relations of civil servants.  Instead,
the Free Exercise Clause is being invoked to justify exemption.

B.  Application of Benevolent Neutrality and the

Compelling State Interest Test to
the Case at Bar

The case at bar being one of first impression, we now subject the
respondent’s claim of religious freedom to the “compelling state interest” test from a benevolent neutrality stance
– i.e. entertaining the possibility that respondent’s claim to religious freedom
would warrant carving out an exception from the Civil Service Law; necessarily,
her defense of religious freedom will be unavailing should the government
succeed in demonstrating a more compelling state interest.

In applying the test, the
first inquiry is whether respondent’s right to religious freedom has been
burdened.  There is no doubt that
choosing between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and keeping
her religious practice and family on the other hand, puts a burden on her free
exercise of religion.  In Sherbert, the Court found that
Sherbert’s religious exercise was burdened as the denial of unemployment
benefits “forces her to choose between following the precepts of her religion
and forfeiting benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand.”  The burden on respondent in the case at bar
is even greater as the price she has to pay for her employment is not only her
religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands “honorable before God and men.”

The second step is to
ascertain respondent’s sincerity in her religious belief.  Respondent appears to be sincere in her
religious belief and practice and is not merely using the “Declaration of
Pledging Faithfulness” to avoid punishment for immorality.  She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much
less only after an administrative case for immorality was filed against
her.  The Declaration was issued to her
by her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary.  Ministers from her congregation testified on
the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration
and their doctrinal or scriptural basis for such a practice.  As the ministers testified, the Declaration
is not whimsically issued to avoid legal punishment for illicit conduct but to
make the “union” of their members under respondent’s circumstances “honorable
before God and men.”  It is also worthy
of notice that the Report and Recommendation of the investigating judge annexed
letters[453]
of the OCA to the respondent regarding her request to be exempt from attending
the flag ceremony after Circular No. 62-2001 was issued requiring attendance in
the flag ceremony.  The OCA’s letters
were not submitted by respondent as evidence but annexed by the investigating
judge in explaining that he was caught in a dilemma whether to find respondent
guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondent’s request for
exemption from the flag ceremony on the ground of the Jehovah’s Witnesses’
contrary belief and practice. 
Respondent’s request for exemption from the flag ceremony shows her
sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them
merely to escape punishment.  She is a
practicing member of the Jehovah’s Witnesses and the Jehovah ministers
testified that she is a member in good standing.  Nevertheless, should the government, thru the
Solicitor General, want to further question the respondent’s sincerity and the
centrality of her practice in her faith, it should be given the opportunity to
do so.  The government has not been
represented in the case at bar from its incipience until this point.

In any event, even if the
Court deems sufficient respondent’s evidence on the sincerity of her religious
belief and its centrality in her faith, the case at bar cannot still be decided
using the “compelling state interest” test. 
The case at bar is one of first
impression, thus the parties were not aware of the burdens of proof they
should discharge in the Court’s use of the “compelling state interest”
test.  We note that the OCA found
respondent’s defense of religious freedom unavailing in the face of the Court’s
ruling in Dicdican v. Fernan, et al.,
viz:

It bears emphasis that the image of a court of justice is mirrored
in the conduct, official and otherwise, of the personnel who work thereat, from
the judge to the lowest of its personnel. 
Court personnel have been enjoined to adhere to the exacting standards
of morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the courts of justice.

It is apparent from the OCA’s reliance upon this ruling that the
state interest it upholds is the preservation of the integrity of the judiciary
by maintaining among its ranks a high standard of morality and decency.  However, there is nothing in the OCA’s
memorandum to the Court that demonstrates how this interest is so compelling
that it should override respondent’s plea of religious freedom nor is it shown
that the means employed by the government in pursuing its interest is the least
restrictive to respondent’s religious exercise. 

Indeed, it is inappropriate for the complainant, a private
person, to present evidence on the compelling interest of the state.  The burden of evidence should be discharged
by the proper agency of the government which is the Office of the Solicitor
General.  To properly settle the issue in
the case at bar, the government should be given the opportunity to demonstrate
the compelling state interest it seeks to uphold in opposing the respondent’s
stance that her conjugal arrangement is not immoral and punishable as it comes
within the scope of free exercise protection. 
Should the Court prohibit and
punish her conduct where it is protected by the Free Exercise Clause, the
Court’s action would be an unconstitutional encroachment of her right to
religious freedom.[454]
We cannot therefore simply take a passing look at respondent’s claim of
religious freedom, but must instead apply the “compelling state interest”
test.  The government must be heard on
the issue as it has not been given an opportunity to discharge its burden of
demonstrating the state’s compelling interest which can override respondent’s
religious belief and practice.  To
repeat, this is a case of first impression where we are applying the
“compelling state interest” test in a case involving purely religious conduct.  The careful application of the test is indispensable
as how we will decide the case will make a decisive difference in the life of
the respondent who stands not only before the Court but before her Jehovah God.

IN VIEW WHEREOF, the
case is REMANDED to the Office of
the Court Administrator.  The Solicitor
General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent’s claimed
religious belief and practice; (b) to present evidence on the state’s
“compelling interest” to override respondent’s religious belief and practice;
and (c) to show that the means the state adopts in pursuing its interest is the
least restrictive to respondent’s religious freedom.  The rehearing should be concluded thirty (30)
days from the Office of the Court Administrator’s receipt of this Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.

Bellosillo
and Vitug,
JJ., please see separate opinion.

Ynares-Santiago,
and Carpio,
JJ., see dissenting opinion.

Panganiban, Carpio-Morales, and
Callejo, Sr., JJ., joins the dissenting opinion
of J. Carpio.

Quisumbing, and Sandoval-Gutierrez,
JJ., on official leave.