6 Estrada V Escritor

3/10/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 408

*
A.M. No. P-02-1651. August 4, 2003.
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.

ESCRITOR, respondent.
Constitutional Law; Freedom of Religion; In the United States, there is

probably no more intensely controverted area of constitutional
interpretation than the religion clauses.—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
_______________
* EN BANC.
2 SUPREME COURT REPORTS ANNOTATED
Estrada vs. Escritor
area of constitutional interpretation than the religion clauses. The U.S.

Supreme Court itself has acknowledged that in this constitutional area, there
is “considerable internal inconsistency in the opinions of the Court.” 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.” 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.”
Same; Same; One cannot understand, much less intelligently criticize
the approaches of the courts and the political branches to religious freedom
in the recent part in the United States without a deep appreciation of the
roots of these controversies in the ancient and medieval world and in the
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American experience.—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. This fresh look at the religion
clauses is proper in deciding this case of first impression.
Same; Same; 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.” —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.” Pleas for tolerance and
freedom of conscience can without doubt be found in the
VOL. 408, AUGUST 4, 2003 3
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. 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. 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.” But when the tables had turned and he was no longer the
hunted heretic, he likewise stated that 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.” 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.
Same; Same; The entire history of church-state relations in Europe up
to the time the United States Constitution was adopted 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, and 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.—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. 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.
Same; Same; American Religion Clauses Case Law: Religion cases
arise from different circumstances, the more obvious ones arise from a
government action which purposely aids or inhibits religion, and 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.—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.
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.
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. 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.
Same; Same; Same; Words and Phrases; Even as defining religion is a
difficult task for even theologians, philosophers and moralists cannot agree
on a comprehensive definition, courts must define religion for constitutional
and other legal purposes.—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. It was in the 1890 case of Davis v.
Beason 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
VOL. 408, AUGUST 4, 2003 5
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. The definition was
clearly theistic which was reflective of the popular attitudes in 1890.
Same; Same; Same; Same; In 1944, the Court stated in United States v.
Ballard, 322 U.S. 78 (1944), 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” but by the 1960s, American
pluralism in religion had flourished to include non-theistic creeds from Asia
such as Buddhism and Taoism.—In 1944, the Court stated in United States
v. Ballard 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.” By the 1960s, American pluralism in
religion had flourished to include non-theistic creeds from Asia such as
Buddhism and Taoism. In 1961, the Court, in Torcaso v. Watkins, 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 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.
Same; Same; Same; Same; It has been proposed that basically, a creed
must meet four criteria to qualify as religion under the First Amendment—
(a) there must be belief in God or some parallel belief that occupies a
central place in the believer’s life, (b) the religion must involve a moral code
transcending individual belief, i.e., it cannot be purely subjective, (c) a
demonstrable sincerity in belief is necessary, but the court must not inquire
into the truth or reasonableness of the belief, and (d) there must be some
associational ties.—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. Fourth, there must be some associational
ties, 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.
Same; Same; Same; U.S. jurisprudence has produced two identifiably
different, 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.—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. (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,
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.
Same; Same; Same; Free Exercise Clause; Words and Phrases;
“ Belief-Action Test” ; The belief-action test allows absolute protection to
belief but not to action.—The Court first interpreted the Free Exercise
Clause in the 1878 case of Reynolds v. United States. 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
VOL. 408, AUGUST 4, 2003 7
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.”
Same; Same; Same; Same; The Free Exercise Clause accords absolute
protection to individual religious convictions and beliefs and proscribes
government from questioning a person’s beliefs or imposing penalties or
disabilities based solely on those beliefs—it extends to both beliefs and
unbeliefs.—The Free Exercise Clause accords absolute protection to
individual religious convictions and beliefs 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, 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, “(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.”
Same; Same; Same; Same; Next to belief which enjoys virtually
absolute protection, religious speech and expressive religious conduct are
accorded the highest degree of protection.—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, 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.
Same; Same; Same; Same; The least protected under the Free Exercise
Clause is religious conduct, usually in the form of unconventional religious
practices.—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. 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.”
Same; Same; Same; Same; Words and Phrases; “ Deliberate-
Inadvertent Distinction” ; Under the “ deliberate-inadvertent distinction,”
the court recognizes 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.—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 beliefaction 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. In the 1940
case of Minersville School District v. Gobitis, 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.
Same; Same; Same; Same; Balancing Test; Under the two-part
balancing test established in Braunfeld v. Brown, 366 U.S. 599 (1961), the
first step is for the plaintiff to show that the regulation placed a real burden
on his religious exercise, and 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 freedom.—Nearly a century after
Reynolds employed the belief-action test, the Warren Court began the
VOL. 408, AUGUST 4, 2003 9
modern free exercise jurisprudence. A two-part balancing test was

established in Braunfeld v. Brown 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. 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.
Same; Same; Same; Same; Compelling State Interest Test; The
compelling state interest test stresses the state interest is not merely any
colorable state interest, but must be paramount and compelling to override
the free exercise claim.—Two years after came the stricter compelling state
interest test in the 1963 case of Sherbert v. Verner. This test was similar to
the two-part balancing test in Braunfeld, 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. (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, endanger-
10
ing paramount interests, give occasion for permissible limitation.’ Thomas v.

Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.”
Same; Same; Same; Same; Exemption Doctrine; Under the exemption
doctrine when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some “ compelling state interest” intervenes.—
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. 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.
Same; Same; Same; Same; 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.—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.
Same; Same; Same; Establishment Clause; The U.S. Supreme Court’s
first encounter with the Establishment Clause was in the case of Everson v.
Board of Education.—The Court’s first encounter with the Establishment
Clause was in the 1947 case of Everson v. Board of Education. Prior cases
had made passing reference to the Establishment Clause and raised
establishment questions but were decided on other grounds. 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
11
VOL. 408, AUGUST 4, 2003 11
“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 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. (emphasis supplied)
Same; Same; Same; Same; 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.—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. 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.”
12
Same; Same; Same; Same; The most controversial of the education

cases involving the Establishment Clause are the school prayer decisions.—
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.”
Same; Same; Same; Strict Neutrality and Benevolent Neutrality
Standards; Two main standards used by the U.S. Supreme 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.—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. But the accommodationists have also attracted a number of influential
scholars and jurists. 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. The latter also appeals to history in support of its position.
Same; Same; Same; Same; The two streams of jurisprudence—
separationist and accommodationist—are anchored on a different reading of
the “ wall of separation.”—The two streams of jurisprudence—separationist
or accommodationist—are anchored on a different reading of the “wall of
separation.” The strict separationist 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. 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. Thus,
according to this Jeffersonian view, the Establishment Clause being meant
to protect the state from the church, the state’s hostility towards
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VOL. 408, AUGUST 4, 2003 13
religion allows no interaction between the two. 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. 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. 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. 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.
Same; Same; Same; Same; 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.—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. 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) 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. 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.
Same; Same; Same; Same; Under benevolent neutrality, which gives
room for accommodation, the wall of separation is meant to protect the
church from the state.—Consequently, the Court has also decided cases
employing benevolent neutrality. Benevolent neutrality which gives room
14
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, i.e.,
the “garden” of the church must be walled in for its own protection from the
“wilderness” of the world with its potential for corrupting those values so
necessary to religious commitment. 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. 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.
Same; Same; Same; Same; Benevolent neutrality is congruent with the
sociological proposition that religion serves a function essential to the
survival of society itself—there is no human society without one or more
ways of performing the essential function of religion.—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.
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.
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.”
Same; Same; Same; Same; 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.—Accommodation is distinguished from strict
neutrality in that the latter holds that government should base public
15
VOL. 408, AUGUST 4, 2003 15
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.
Same; Same; Same; Same; Reasons for Preferring the
Accommodationist Position; The accommodationist interpretation is most
consistent with the language of the First Amendment.—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.
Same; Same; Same; Same; Same; The accommodationist position best
achieves the purposes of the First Amendment.—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
16
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.
Same; Same; Same; Same; Same; 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.—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.
Same; Same; Same; Same; 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.—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
17
VOL. 408, AUGUST 4, 2003 17
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.
Same; Same; Same; Same; 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.—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. 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. 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. 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 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 wit-
18
ness to that which transcends the political order, such denials should be rare
and painfully reluctant.”
Same; Same; Before our country fell under American rule, the blanket
of Catholicism covered the archipelago—there was union of church and
state and Catholicism was the state religion under the Spanish Constitution
of 1876.—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. Catholics alone enjoyed the right of engaging in public
ceremonies of worship. 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. 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.
Same; Same; 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.—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.” 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.
Same; Same; Philippine Religion Clauses Case Law; A close scrutiny
of the Philippine cases involving the religion clauses would 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.—Considering the
American origin of the Philippine religion clauses and the intent to adopt the
historical background, nature, extent and limitations of the First Amend-
19
VOL. 408, AUGUST 4, 2003 19
ment 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.
Same; Same; Same; Words and Phrases; “ 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” ; 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 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.” This pre-Christian term for the cult and
rituals of pagan Rome was first Christianized in the Latin translation of the
Bible. 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 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, 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.
Same; Same; Same; Free Exercise Clause; 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.—
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
20
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.
Same; Same; Same; Same; In interpreting the Free Exercise Clause,
the realm of belief poses no difficulty—the difficulty in interpretation sets in
when belief is externalized into speech and action.—In interpreting the Free
Exercise Clause, the realm of belief poses no difficulty. The early case of
Gerona v. Secretary of Education 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. 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.
Same; Same; Same; Same; The statement in American Bible Society v.
City of Manila, 101 Phil. 386 (1957), that any restraint on the free exercise
and enjoyment of religious profession and worship can only be justified on
the ground that there is clear and present danger of any substantive evil
which the State has the right to prevent is 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.—After defining
religion, the Court, citing Tañada 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. (Tañada and Fernando on the Constitution of the Philippines, vol. 1,
4th 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. 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.
21
VOL. 408, AUGUST 4, 2003 21
Same; Same; Same; Same; 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.—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.
Same; Same; Same; 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; Non-establishment calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding
interfaith dissension.—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. As a social value, it means that the “growth of a
religious sect as a social force must come from the voluntary support of its
members because of the belief that both spiritual and secular society will
benefit if religions are allowed to compete on their own intrinsic merit
without benefit of official patronage. Such voluntarism cannot be achieved
unless the political process is insulated from religion and unless religion is
insulated from politics.” Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding
interfaith dissension.
Same; Same; Same; Free Exercise Clause and 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.—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.
Same; Same; Same; Same; 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—the two clauses
22
should be balanced against each other.—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. 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.” 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.
Same; Same; Same; 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 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.
23
VOL. 408, AUGUST 4, 2003 23
Same; Same; Same; With the expanding reach of government

regulation to a whole gamut of human actions and the growing plurality and
activities of religions, 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—one employing
separation while the other employing benevolent neutrality in interpreting
the religious clauses.—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.
Same; Same; Same; Statutory Construction; 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; 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; 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.—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
24
conclusions, however, are not and were never warranted by the 1987, 1973
and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give
to all of them full, force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent
neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the
constitution.
Same; Same; Same; Same; 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.—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. 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.
Same; Same; Same; Same; Although our constitutional history and
interpretation mandate benevolent neutrality, it does not mean that the
Court ought to grant exemptions every time a free exercise claim comes
before it, but that the Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will strive to accommo-
25
VOL. 408, AUGUST 4, 2003 25
date 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.—
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.
Same; Same; Same; Same; 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.—While the Court cannot adopt a
doctrinal formulation that can eliminate the difficult questions of judgment
in determining the degree of burden on religious practice or importance of
the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not, only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which
the Court should take off in interpreting religion clause cases. The ideal
towards which this approach is directed is the protection of religious liberty
“ not only for a minority, however small—not only for a majority, however
large—but for each of us” to the greatest extent possible within flexible
constitutional limits.
Same; Same; Same; Same; 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.—
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
26
in Philippine jurisdiction is not as high and impregnable as the wall created

by the U.S. Supreme Court in Everson. 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.”
Same; Same; Same; Same; 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, and for which a test must be applied to draw the line between
permissible and forbidden religious exercise.—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.
Same; Same; Law and Morality; At base, morality refers to, in
Socrates’ words, “ how we ought to live” and why, and 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.
—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. 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
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VOL. 408, AUGUST 4, 2003 27
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. 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.
Same; Same; Same; In a constitutional order, people make 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.—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. 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.
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.
Same; Same; Same; In a democracy, the common agreement on
political and moral ideas is distilled in the public square, and 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.—In a democracy, this common agreement on
28
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. 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. 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. 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.
Same; Same; Same; Statutes; The laws enacted become expressions of
public morality, and as Justice Holmes put it, “ (t)he law is the witness and
deposit of our moral life.”—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.” “In a liberal democracy, the law reflects social morality over
a period of time.” 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. Law has also been defined as “something men create in their best
moments to protect themselves in their worst moments.” 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. Law also serves as “a helpful starting point for
29
VOL. 408, AUGUST 4, 2003 29
thinking about a proper or ideal public morality for a society” in pursuit of

moral progress.
Same; Same; Same; Not every moral wrong is foreseen and punished
by law, criminal or otherwise.—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.
Same; Same; Same; Public Officers; Civil Service; Disgraceful and
Immoral Conduct; 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.—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.” 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.
Same; Same; Same; Same; Same; Same; When the law speaks of
“ immorality” in the Civil Service Law or “ immoral” in the Code of
Professional Responsibility for lawyers, or “ public morals” in the Revised
Penal Code, or “ morals” in the New Civil Code, or “ moral character” in
the Constitution, the distinction between public and secular morality on the
one hand, and religious morality, on the other, should be kept in mind—the
morality referred to in the law is public and necessarily secular, not
religious.—Thus, when the law speaks of “immorality” in the Civil Service
Law
30
or “immoral” in the Code of Professional Responsibility for lawyers, or

“public morals” in the Revised Penal Code, or “morals” in the New Civil
Code, or “moral character” in the Constitution, the distinction between
public and secular morality on the one hand, and religious morality, on the
other, should be kept in mind. The morality referred to in the law is public
and necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. “Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms.” Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a “compelled religion,” anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would
tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy.
As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. 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.
Same; Same; Same; Same; Same; Same; Government action, including
its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose.—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. 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
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VOL. 408, AUGUST 4, 2003 31
Court invalidated an ordinance prohibiting animal sacrifice of the Santeria.

Same; Same; Same; Same; Same; Same; 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.—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.
Same; Same; Same; Same; Same; Same; 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.—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.
32
Same; Same; Same; Same; Same; Same; 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, a line that is not
easy to draw for it is like “ a line that divides land and sea, a coastline of
irregularities and indentations.—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.” 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.
Same; Same; Same; Same; Same; Same; Compelling Interest Test; 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.—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.
33
VOL. 408, AUGUST 4, 2003 33
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.
Same; Same; Same; Same; Same; Same; Same; In applying the test, the
first inquiry is whether respondent’s right to religious freedom has been
burdened.—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.”
Same; Same; Same; Same; Same; Same; Same; The second step is to
ascertain respondent’s sincerity in her religious belief.—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 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 respon-
34
dent’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.
Same; Same; Same; Same; Same; Same; Same; 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 being of first
impression, the parties were not aware of the burdens of proof they should
have discharged in the Court’s use of the “ compelling state interest” test.—
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.
Same; Same; Same; Same; Same; Same; Same; 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, who 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.—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 Gen-
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VOL. 408, AUGUST 4, 2003 35
eral. 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. 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.
BELLOSILLO, J., Separate Opinion:
Public Officers; Civil Service; Disgraceful and Immoral Conduct;

Words and Phrases; It is not quite possible to state with precision and fix an
inflexible standard for the administrative offense of disgraceful and immoral
conduct, or to specify the moral delinquency and obliquity that should
render employees of the judiciary unworthy of the public trust—immorality
covers a multitude of sins and it may be doubted whether there are in the
entire civil service many persons so saintly as never to have done any act
which is disapproved by the prevailing mores of our society.—Indeed, it is
not quite possible to state with precision and fix an inflexible standard for
the administrative offense of disgraceful and immoral conduct, or to specify
the moral delinquency and obliquity that should render employees of the
judiciary unworthy of the public trust. Immorality covers a multitude of sins
and it may be doubted whether there are in the entire civil service many
persons so saintly as never to have done any act which is disapproved by the
prevailing mores of our society. Truly, while in the opinion of many,
laziness, gluttony, vanity, selfishness, avarice and cowardice constitute in
themselves immoral conduct, moral guardians get around or avoid
punishing them tangibly.
Same; Same; Same; Same; “ Disgraceful and immoral conduct” is
never considered in the abstract but always in the context of conduct that is
hostile to the welfare of a particular profession or the specific governmental
position to which the alleged disgraceful and immoral employee belongs.
—“Disgraceful and immoral conduct” is never considered in the abstract but
always in the context of conduct that is hostile to the welfare of a particular
profession or the specific governmental position to which the alleged
36
disgraceful and immoral employee belongs. To some degree the

determination of disgracefulness and immorality must depend upon the
nature of the acts, the circumspection or notoriety with which they are
performed and the atmosphere of the community, i.e., the standards of the
general public and not some higher standard, in which they take place.
Same; Same; Same; There is simply nothing disgraceful and immoral
in respondent’s decision to pursue her happiness, and perhaps, security,
after her lawful husband, abandoned her for another woman; To be sure,
there are matters that are best left to the conscience and the moral beliefs of
an individual, and matters of which public law may take cognizance—not
every “ irregular union” constitutes immorality that is actionable under
administrative law.—Moreover, there is simply nothing disgraceful and
immoral in respondent’s decision to pursue her happiness, and perhaps
security, after her lawful husband abandoned her for another woman. She
did not forsake any child nor desert her household. It was her philandering
husband who left her for another woman. To paraphrase Judge Learned
Hand, Soledad was not obligated to live in complete celibacy otherwise
forfeit her claim to good moral character. There ought to be a better order of
moral priorities to avoid the perceived fixation on sex where a person may
have impeccable sexual standards—or indeed be celibate—and yet steal. To
be sure, there are matters that are best left to the conscience and the moral
beliefs of an individual, and matters of which public law may take
cognizance. Obviously, while the latter pertains to matters affecting society
and public life, not every “ irregular union” constitutes immorality that is
actionable under administrative law. Consider this: a Catholic who obtains a
decree of nullity from his church would be available to remarry by the
norms and precepts of his faith and moral standards. Before civil law,
however, his marriage would be bigamous. The second union may be
categorized as a crime, but one would hardly be justified in classifying it as
“ immoral conduct” because the moral standards he lives by—those of his
faith—precisely permit him the second marriage. To hold that the second
union is immoral would be to bind him to follow moral precepts divergent
from those imposed upon him by his faith, contrary to the freedom of
conscience and practice of his religion guaranteed under the Constitution.
Same; Same; Same; Parent and Child; Single Parents; Although some
years back society decried solo parenthood and de facto separated couples
as an affront to the conventional wisdom of a model family, recent social
justice legislation has compassionately redefined the concept of family to
include single mothers and their children regardless of the mother’s civil
status, otherwise no single parent would be employed by the government
service, and that would be discriminatory, if not to say, unconstitutional.—
That is why, although some years back society decried solo parenthood and
de facto separated couples as an affront to the conventional
37
VOL. 408, AUGUST 4, 2003 37
wisdom of a model family, recent social justice legislation has

compassionately redefined the concept of family to include single mothers
and their children regardless of the mother’s civil status, otherwise no single
parent would be employed by the government service, and that would be
discriminatory, if not to say, unconstitutional! In the opinion of a Philippine
Daily Inquirer columnist on the standards of the general public of what is
moral and decent, the humane and moral response to dysfunctional
marriages is that—The quality or authenticity of a family, or a marriage for
that matter, does not lie in its legal status alone, or on the united front that
spouses present before polite society. Rather, it lies in the relationship
between spouses and between them and their children and other members of
the family. If there is genuine caring and concern, respect and fondness
among them, then it is a family in the fullest sense of the word. But if there
is only pretense, indifference and hypocrisy, or worse, cruelty and pain, then
that marriage is better off ended, the family better off liberated.
Same; Same; Same; Administrative Complaints; Although a verified
complaint consisting of hearsay allegations could be the basis of an
administrative case, it begs explanation why only such a weak charge from
a total stranger could be mustered against respondent for her allegedly
immoral relationship spanning more than twenty (20) years.—Although a
verified complaint consisting of hearsay allegations could be the basis of an
administrative case, it begs explanation why only such a weak charge from a
total stranger could be mustered against respondent for her allegedly
immoral relationship spanning more than twenty (20) years. Let it be further
underscored that the legal wife of her partner Feliciano, indisputably the
person most concerned, or any other individual from Atimonan, Quezon, or
in Las Piñas City where respondent found employment, has not sounded any
objection to the relationship. This fact clearly shows that respondent has not
jeopardized her honor, nor that of any citizen in the community. Indeed, if
respondent’s conduct were truly willful, flagrant, shameless, and immoral in
the view of the good and respectable members of the community, there is no
sense why her co-employees themselves never complained against her
conduct. Their silence genuinely indicates not only the absence of outrage
and scandal within the Hall of Justice of Las Piñas City arising from
respondent’s relationship with Feliciano D. Quilapio, Jr., but in all
probability also the community’s acceptance, if not respect, for her true faith
and steadfast commitment to her partner and family of more than two (2)
decades.
Same; Same; Same; Freedom of Religion; When elders of Jehovah’s
Witnesses affixed their imprimatur on the “ Declaration Pledging
Faithfulness” they validated the moral legitimacy of respondent’s informal
conjugal partnership—first and foremost, the appropriate judge of
respondent’s morality is her own church and this task cannot be assigned to
any other
38
institution in society if any religious congregation is to have any purpose at

all.—The Jehovah’s Witnesses is one of the respected congregations of
Christians in the country. It counts among its members upright and
productive citizens whose views on morality cannot be disregarded.
Consequently when elders of this religion affixed their imprimatur on the
“Declaration Pledging Faithfulness” they validated the moral legitimacy of
respondent’s informal conjugal partnership. Of course, first and foremost,
the appropriate judge of respondent’s morality is her own church and this
task cannot be assigned to any other institution in society if any religious
congregation is to have any purpose at all.
Same; Same; Same; Marriage; Husband and Wife; Parent and Child;
The human side of this case should not be totally ignored because
respondent’s present position is not one which has caused scandal to anyone
truly concerned with public morality; Without fear of contradiction, it would
be violating godly laws of charity and love and, to say the least, embracing
cruelty and hypocrisy, if we should require respondent to abandon her
faithful spouse and loving son, or penalize her for treasuring the unity of her
family as she would keep her work, for the punctilious satisfaction of a blind
world.—The human side of this case should not be totally ignored because
respondent’s present position is not one which has caused scandal to anyone
truly concerned with public morality. The instant case may therefore be
viewed and appreciated with human understanding as indeed it is more
attuned to the interest of society and public service that she be able to fulfill
her obligation of maternal support and care for her son and true family than
for us to tear apart an otherwise ideal union of two loving and respectable
individuals. While this Court is aware of the not-so-easy and clear-cut task
of determining whether certain improper conduct would constitute
disgraceful immorality and warrant administrative discipline, to be sure, in
this particular case we are wholly convinced that respondent in living with
her present partner to foster a wholesome family was impelled by only the
honest and decent intention to overcome her previous marital misfortune
and to take anew her natural place in a pleasant and wholesome community.
Without fear of contradiction, it would be violating godly laws of charity
and love and, to say the least, embracing cruelty and hypocrisy, if we should
require respondent to abandon her faithful spouse and loving son, or
penalize her for treasuring the unity of her family as she would keep her
work, for the punctilious satisfaction of a blind world.
Same; Same; Same; Right of Privacy; More enlightened jurisdictions
would treat adverse personnel actions, i.e., dismissal, suspension, fine or
other penalties, arising from a charge of immoral conduct with due
consideration of the constitutional rights of due process and privacy.—More
enlightened jurisdictions would treat adverse personnel actions, i.e.,
dismissal, suspension, fine or other penalties, arising from a charge of
immoral conduct with due consideration of the constitutional rights of due
39
VOL. 408, AUGUST 4, 2003 39
process and privacy. We may also apply the same standard in the instant
case if only to accord ample recognition to the principle that a civil servant
does not surrender his constitutional rights once he assumes public service,
hence, he may not be dismissed from his job for a constitutionally
impermissible reason.
Same; Same; Same; Same; For a public servant, the pivotal question in
determining administrative culpability ought to be whether the challenged
conduct was ultimately prejudicial to public service—we cannot snoop into
bedrooms and peer under bed covers without running afoul of every
person’s constitutionally protected individuality.—Clearly, “ immorality” as
a category of offense for the dismissal of a public servant or a judicial
employee should not be construed as any violation of moral prescriptions.
Otherwise, this tack would only embroil this Court in the eternal debate on
divergent moral theories and systems. For a public servant, the pivotal
question in determining administrative culpability ought to be whether the
challenged conduct is ultimately prejudicial to public service. We cannot
snoop into bedrooms and peer under bed covers without running afoul of
every person’s constitutionally protected individuality. Quite interestingly,
in American jurisprudence, conduct affecting one’s personal character has
been excluded from the ambit of actionable behavior. It stressed: “ But
conduct amounting to mere irregularity or merely affecting one’s character
as a private individual is not usually covered by the term ‘malconduct.’ ”
Same; Same; Same; Freedom of Religion; The primary question should
therefore be whether the evidence shows both disgrace and immorality at
the same time; Absent any evidence confirming the presence of disgrace and
immorality simultaneously, the wrongdoing was not committed and
concomitantly there is no occasion to delve heavily on religious free-dom.—
Respondent is charged with Disgraceful and Immoral Conduct. The primary
question should therefore be: Does the evidence show both disgrace and
immorality at the same time? As has been carefully explained above, one
without the other does not constitute the transgression. The plain
significance of the words comprising Disgraceful and Immoral Conduct
supports this proposition. Absent any evidence confirming the presence of
disgrace and immorality simultaneously, the wrongdoing was not committed
and concomitantly there is no occasion to delve heavily on religious
freedom. The situation is not unlike a criminal case of homicide—self-
defense need not be invoked and examined until there is proof that
somebody has been killed.
Same; Same; Same; Same; We also cannot deduce immorality from the
“ unusual” set-up in the family of respondent because of Sec. 3, Art. XV, of
the Constitution which provides, “ The State shall defend * * * [t]he right of
spouses to found a family in accordance with their religious convictions
40
and the demands of responsible parenthood x x x x. “ is broad enough to

include de facto family relations since it would be absurd to deny the free
exercise of religious convictions by virtue of the existence or non-existence
of marriage.—We also cannot deduce immorality from the “unusual” set-up
in the family of Escritor. This I say because of Sec. 3, Art. XV, of the
Constitution which provides, “The State shall defend x x x [t]he right of
spouses to found a family in accordance with their religious convictions and
the demands of responsible parenthood x x x x” This rule is broad enough to
include de facto family relations since it would be absurd to deny the free
exercise of religious convictions by virtue of the existence or non-existence
of marriage. Besides, such “atypical” family organization is not immoral per
se considering the leeway granted to Moros in Sulu Islamic Association of
Masjid Lambayong v. Malik, and in PD 1083, for surely if the arrangement
is itself heinous no law could be validly enacted to endorse it.
Same; Same; Same; Same; Right of Privacy; More than religious
freedom, I look with partiality to the rights of due process and privacy—law
in general reflects a particular morality or ideology, and so I would rather
not foist upon the populace such criteria as “ compelling state interest, “ but
more, the reasonably foreseeable specific connection between an employee’s
potentially embarrassing conduct and the efficiency of the service.—More
than religious freedom, I look with partiality to the rights of due process and
privacy. Law in general reflects a particular morality or ideology, and so I
would rather not foist upon the populace such criteria as “compelling state
interest,” but more, the reasonably foreseeable specific connection between
an employee’s potentially embarrassing conduct and the efficiency of the
service. This is a fairly objective standard than the compelling interest
standard involved in religious freedom.
Same; Same; Same; Same; Same; If we are to remand the instant case
to the Office of the Court Administrator, we must also configure the rights of
due process and privacy into the equation; As is often said, when we have
learned to reverence each individual’s liberty as we do our tangible wealth,
we then shall have our renaissance.—Verily, if we are to remand the instant
case to the Office of the Court Administrator, we must also configure the
rights of due process and privacy into the equation. By doing so, we can
make a difference not only for those who object out of religious scruples but
also for those who choose to live a meaningful life even if it means
sometimes breaking “oppressive” and “antiquated” application of laws but
are otherwise efficient and effective workers. As is often said, when we have
learned to reverence each individual’s liberty as we do our tangible wealth,
we then shall have our renaissance.
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VOL. 408, AUGUST 4, 2003 41

VlTUG, J., Separate Opinion:
Law and Morality; Law and morals, albeit closely connected, may
proceed along different planes; Not all societal mores are codified into laws.
—Law and morals, albeit closely connected, may proceed along different
planes. Law is primarily directed at man’s behavior while morals are
directed at his animus or state of mind. While the law often makes reference
to one’s state of mind, it does not, however, punish the existence of immoral
intent without more. It requires only that at the risk of punitive sanctions for
disobedience, one must refrain from the temptation to act in accordance
with such intent to the detriment of another. The ethical principle is
generally cast, affirmatively or negatively, in the form of a direct command,
whereas the legal rule speaks, generally, of the consequences that attend the
violation of a duty. As to purpose, law and morals further diverge. Morals
strive for individual perfection, while law aim at harmony in the community.
Not all societal mores are codified into laws. We have yet to see a law
outlawing vanity, pride, gluttony or sloth. Nor are all laws necessarily
moral. Slavery is outlawed but not so in our distant past. Laws allowing
racial segregation prejudicial to blacks or denying the right to suffrage to
women may seem to be relics of a long gone uncivilized society if one
forgets that the abolition of these “immoral laws” is but less than a century
ago.
Same; With the emergence of the secular state, the greatest
contribution of liberals to the issue of law and morality is not the discovery
of a preexisting, necessary distinction between law and morality—rather, it
is their attempt at separation, the building of the wall to separate law from
morality, whose coincidence is sublimely monstrous; The surge of liberalism
has set the trend in the courts to adopt a neutral and disinterested stand in
cases involving moral issues, often at the expense of obscuring the values
which society seeks to enforce through its moral laws.—With the emergence
of the secular state, the greatest contribution of liberals to the issue is not the
discovery of a pre-existing, necessary distinction between law and morality;
rather, it is their attempt at separation, the building of the wall to separate
law from morality, whose coincidence is sublimely monstrous. Liberals
attempt to divorce law from morality by characteristically adhering to some
form of “harm” principle: public authority may justly use law as coercive
factor only to prevent harm to non-consenting third parties. More
specifically, the main distinguishing feature of liberalism is its opposition to
morals law or the legal interference up to and including (sometimes)
prohibition of putatively “victimless” immoralities such as sodomy,
prostitution, fornication, recreational drug use, suicide and euthanasia.
Liberals argue that moral laws are, in principle, unjust. This surge of
liberalism has set the trend in the courts to adopt a neutral and disinterested
stand in cases involving moral issues, often at the expense of obscuring the
values which society seeks to enforce through its moral laws.
42
This matter brings to mind the case of Grisworld vs. Connecticut where the
US Supreme Court, despite a presupposition that contraception is always
wrong, nevertheless, has invalidated that state’s anti-contraceptive law. In so
deciding, the US Supreme Court has not met head-on the issue of whether
the use of contraception is immoral but instead has struck down the law as
being invalid on the ground of marital privacy. Should Grisworld then be
taken to sanction a moral right to do a moral wrong?
Same; As a rule then, moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society,
and 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.—It might then be deduced that
moral laws are justified when they (1) seek to preserve the moral value
upheld by society and (2) when the morality enforced in a certain case, is
true and correct. It is within these standards that the provision against
“immorality” in the Administrative Code must be examined to the extent
that such standards can apply to the facts and circumstances in the instant
case before the Court. As a rule then, 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.
Same; I vote for the remand of the case to allow a thorough
examination on whether a strict application of the provision in the
administrative code prohibiting immorality, under the facts and
circumstances of the case, would defeat the very purpose which it seeks to
serve.—Are we not sacrificing the substance of marriage—that is a union of
man and woman in a genuine, loving and respectful relationship and, in
effect, the substance of a family, for a mere shell of intricate legality? Lest I
be misunderstood, I am not advocating for a departure from the elevated
concept marriage as being a legally protected union. I merely express
concern that a blanket application of moral laws affecting marriage, without
regard to the peculiarities of every case, might defeat the very purpose for
which those laws are put into place. Thus, I vote for the remand of the case
to allow a thorough examination on whether a strict application of the
provision in the administrative code prohibiting immorality, under the facts
and circumstances of the case, would defeat the very purpose which it seeks
to serve. A remand would allow the parties to assess the factual issues, to
adduce further evidence, if necessary, and to make out their case towards
this direction.
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VOL. 408, AUGUST 4, 2003 43

YNARES-SANTIAGO. J., Dissenting Opinion:
Public Officers; Civil Service; Immorality; The degree of morality

required of every employee or official in the public service has been
consistently high, and the rules are particularly strict when the respondent
is a Judge or a court employee.—The degree of morality required of every
employee or official in the public service has been consistently high. The
rules are particularly strict when the respondent is a Judge or a court
employee. Even where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no untoward conduct
involving public officers should be left without proper and commensurate
sanction. The compassion is shown through relatively light penalties. Never,
however, has this Court justified, condoned, or blessed the continuation of
an adulterous or illicit relationship such as the one in this case, after the
same has been brought to its attention.
Same; Same; Same; The ascertainment of what is moral or immoral
calls for the discovery of contemporary community standards.—The
ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards. For those in the service of the
Government, provisions of law and court precedents also have to be
considered. The task is elusive. The layman’s definition of what is “moral”
pertains to excellence of character or disposition. It relates to the distinction
between right and wrong; virtue and vice; ethical praise or blame. Moral law
refers to the body of requirements in conformity to which virtuous action
consists. Applied to persons, it is conformity to the rules of morality, being
virtuous with regards to moral conduct. That which is not consistent with or
not conforming to moral law, opposed to or violating morality, and now,
more often, morally evil or impure, is immoral. Immoral is the state of not
being virtuous with regard to sexual conduct.
Same; Same; Same; When a case involving the concept of immorality
comes to court, the applicable provisions of law and jurisprudence take
center stage.—Anything plainly evil or dissolute is, of course, unchangingly
immoral. However, at the fringes or boundary limits of what is morally
acceptable and what is unacceptably wrong, the concept of immorality tends
to shift according to circumstances of time, person, and place. When a case
involving the concept of immorality comes to court, the applicable
provisions of law and jurisprudence take center stage. Those who choose to
tolerate the situation where a man and a woman separated from their
legitimate spouses decide to live together in an “ideal” and yet unlawful
union state—or more specifically, those who argue that respondent’s
cohabiting with a man married to another woman is not something which is
willful, flagrant, or shameless—show a moral indifference to the opinion of
the good and respectable members of the community in a manner prejudicial
to the public service.
44
Same; Same; Same; The issue in this case is legal and not
philosophical—the inescapable fact is that acts defined as criminal under
penal law have been committed.—The issue in this case is legal and not
philosophical. It is a limited one. Is respondent Soledad S. Escritor guilty of
“disgraceful and immoral” conduct in the context of the Civil Service Law?
Are there any sanctions that must be imposed? We cannot overlook the fact
that respondent Escritor would have been convicted for a criminal offense if
the offended party had been inclined and justified to prosecute her prior to
his death in 1998. Even now, she is a co-principal in the crime of
concubinage. A married woman who has sexual intercourse with a man not
her husband, and the man who has carnal knowledge of her knowing her to
be married, commit the crime of adultery. Abandonment by the legal
husband without justification does not exculpate the offender; it merely
mitigates the penalty. The concubine with whom a married man cohabits
suffers the penalty of destierro. It is true that criminal proceedings cannot be
instituted against persons charged with adultery or concubinage except upon
complaint of the offended party. This does not mean that no actionable
offense has been committed if the offended party does not press charges. It
simply cannot be prosecuted. The conduct is not thereby approved, endorsed
or commended. It is merely tolerated. The inescapable fact in this case is
that acts defined as criminal under penal law have been committed.
Same; Same; Same; I do not think the Court is ready to render a
precedent-setting decision to the effect that, under exceptional
circumstances, employees of the judiciary may live in a relationship of
adultery or concubinage with no fear of any penalty or sanction and that
after being discovered and charged, they may continue the adulterous
relationship until death ends it.—Our existing rule is that an act so corrupt
or false as to constitute a criminal act is “grossly immoral.” It is not merely
“immoral.” Respondent now asks the Court to go all the way to the opposite
extreme and condone her illicit relations with not even an admonition or a
slight tap on the wrist. I do not think the Court is ready to render a
precedent-setting decision to the effect that, under exceptional
circumstances, employees of the judiciary may live in a relationship of
adultery or concubinage with no fear of any penalty or sanction and that
after being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is not
limited to court interpreter Soledad Escritor. It is not apro hac vice ruling. It
applies to court employees all over the country and to everybody in the civil
service. It is not a private ruling but one which is public and far-reaching in
its consequences.
Same; Same; Same; Times are changing and illicit sex is now looked
upon more kindly but we should not completely disregard or overlook a
relationship of adultery or concubinage involving a court employee and not
45
VOL. 408, AUGUST 4, 2003 45
order it to be terminated.—Times are changing. Illicit sex is now looked

upon more kindly. However, we should not completely disregard or
overlook a relationship of adultery or concubinage involving a court
employee and not order it to be terminated. It should not ignore what people
will say about our moral standards and how a permissive approach will be
used by other court employees to freely engage in similarly illicit
relationship with no fear of disciplinary punishment. As earlier mentioned,
respondent Escritor and Luciano Quilapio, Jr. had existing marriages with
their respective legitimate spouses when they decided to live together. To
give an aura of regularity and respectability to what was undeniably an
adulterous and, therefore, immoral relationship, the two decided to acquire
through a religious ceremony what they could not accomplish legally. They
executed on July 28, 1991 the “Declaration of Pledging Faithfulness” to
make their relationship what they alleged it would be—a binding tie before
Jehovah God.
Same; Same; Same; We must be concerned not with the dogmas or
rules of any church or religious sect but with the legal effects under the
Civil Service Law of an illicit or adulterous relationship characterized by
the facts of this case.—In this case, respondent is charged not as a Jehovah’s
Witness but in her capacity as a court employee. It is contended that
respected elders of the Jehovah’s Witnesses sanction “an informal conjugal
relationship” between respondent and her marital partner for more than two
decades, provided it is characterized by faithfulness and devotion to one
another. However, the “informal conjugal relationship” is not between two
single and otherwise eligible persons where all that is missing is a valid
wedding ceremony. The two persons who started to live together in an
ostensible marital relationship are married to other persons. We must be
concerned not with the dogmas or rules of any church or religious sect but
with the legal effects under the Civil Service Law of an illicit or adulterous
relationship characterized by the facts of this case. There is no conflict in
this case between the dogmas or doctrines of the Roman Catholic Church
and those of the Jehovah’s Witnesses or any other church or denomination.
The perceived conflict is non-existing and irrelevant. The issue is legal and
not religious. The terms “disgraceful” and “immoral” may be religious
concepts, but we are concerned with conduct which under the law and
jurisprudence is proscribed and, if perpetrated, how it should be punished.
Same; Same; Same; The peculiar religious standards alleged to be
those of the sect to which respondent belongs can not shield her from the
effects of the law, and neither can her illicit relationship be condoned on the
basis of a written agreement approved by their religious community.—
Respondent cannot legally justify her conduct by showing that it was
morally right by the standards of the congregation to which she belongs. Her
defense of freedom of religion is unavailing. Her relationship with Mr.
46
Quilapio is illicit and immoral, both under the Revised Administrative Code
and the Revised Penal Code, notwithstanding the supposed imprimatur
given to them by their religion. The peculiar religious standards alleged to
be those of the sect to which respondent belongs cannot shield her from the
effects of the law. Neither can her illicit relationship be condoned on the
basis of a written agreement approved by the basis of a written agreement
approved by their religious community. To condone what is inherently
wrong in the face of the standards set by law is to render nugatory the
safeguards set to protect the civil service and, in this case, the judiciary. The
Court cannot be the instrument by which one group of people is exempted
from the effects of these laws just because they belong to a particular
religion. Moreover, it is the sworn mandate of the Court to supervise the
conduct of an employee of the judiciary, and it must do so with an even
hand regardless of her religious affiliation.
Same; Same; Same; Husband and Wife; Marriage; The relations,
duties, obligations and consequences of marriage are important to the
morals and civilization of a people and to the peace and welfare of society,
and any attempt to inject freedom of religion in an effort to exempt oneself
from the Civil Service rules relating to the sanctity of the marriage tie must
fail.—The strengthening of marriage ties and the concomitant hostility to
adulterous or illicit marital relations is a primary governmental concern. It
has nothing to do with the particular religious affiliations of those affected
by legislation in this field. The relations, duties, obligations and
consequences of marriage are important to the morals and civilization of a
people and to the peace and welfare of society. Any attempt to inject
freedom of religion in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must fail.
CARPIO, J., Dissenting Opinion:
Freedom of Religion; Law and Morality; Sincerity or insincerity in

religious beliefs is not a test in allowing or disallowing exemption from a
harmful conduct that the State has a right to suppress.—I dissent from the
majority opinion remanding this case for further proceedings. The ostensible
purpose of the remand is to allow respondent Soledad S. Escritor “to
buttress the sincerity of her claimed religious belief” and for the Solicitor
General “to meet the test of ‘compelling state interest’ to override
respondent’s religious belief.” However, Escritor expressly admits that she
is cohabiting with Luciano D. Quilapio, Jr. who is married to another
woman. Escritor’s conduct is that of a concubine under Article 334 of the
Revised Penal Code outlawing concubinage. Escritor may now be subjected
to disciplinary sanction for conduct prejudicial to the best interest of the
service. Escritor’s religious belief, no matter how sincere, cannot exempt
her from Article 334 of the Revised Penal Code declaring concubinage a
criminal act. Sincerity or insincerity in religious beliefs is not a test in
47
VOL. 408, AUGUST 4, 2003 47
allowing or disallowing exemption from a harmful conduct that the State

has a right to suppress. A remand of this case for further proceedings is
clearly unnecessary. Escritor’s unlawful cohabitation with Quilapio is an
admitted fact regardless of the outcome of the remand of this case.
Escritor’s cohabitation with Quilapio constitutes concubinage which is a
crime under our laws.
Same; Same; Public Officers; Civil Service; Disgraceful and Immoral
Conduct; The respondent is not liable for “ disgraceful and immoral
conduct” where her cohabitation with her partner has not created any
scandal, moral outrage or malicious gossip in their congregation or even in
the community where they live and work.—I do not find Escritor liable for
“disgraceful and immoral conduct.” The Jehovah’s Witnesses, the church to
which Escritor and Quilapio belong, formally approved in 1991 their
relationship as husband and wife after a long and careful consideration by
church elders. The members of the Jehovah’s Witnesses have fully accepted
the Escritor and Quilapio couple as part of their Christian community. In
their religious and social community, Escritor and Quilapio are seen and
treated just like any other husband and wife. The couple’s cohabitation has
not created any scandal, moral outrage or malicious gossip in their
congregation or even in the community where they live and work. On the
contrary, those who come to know of the couple’s predicament in life
express their sincerest sympathy and compassion.
Same; Same; Same; Same; Same; Words and Phrases; In disgraceful

and immoral conduct, the conduct must not only be immoral, it must also be
disgraceful; Immoral conduct means conduct that is willful, flagrant or
shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community.—In disgraceful and immoral
conduct, the conduct must not only be immoral, it must also be disgraceful.
Immoral conduct means conduct that is willful, flagrant or shameless, and
which shows a moral indifference to the opinion of the good and respectable
members of the community. Disgraceful conduct means conduct that is
ignominious, shameful, and dishonorable Judge Bonifacio Maceda, whom
the Court assigned to investigate the administrative charge, did not find the
relationship between Escritor and Quilapio disgraceful and immoral in view
of the acceptance of the relationship by members of the Jehovah’s
Witnesses. Even the complainant admits that Escritor is a “decent woman.”
Indeed, no one has testified that Escritor’s relationship with Quilapio is
ignominious, shameful, or dishonorable conduct. Not a single witness who
qualifies as a “good and respectable member of the community” has testified
that Escritor’s conduct is willful, flagrant and shameless.
48
Same; Same; Same; Same; Conduct Prejudicial to the Best Interest of

the Service; While respondent is not guilty of disgraceful and immoral
conduct, her cohabitation with the legally married man constitutes conduct
prejudicial to the best interest of the service; In conduct prejudicial to the
best interest of the service, the immorality of the conduct is not in issue—
what is in issue is the adverse effect of the conduct on the efficiency,
integrity and credibility of the civil service, and in the case of the judiciary,
its impact on the administration of justice.—However, while Escritor is not
guilty of disgraceful and immoral conduct, her cohabitation with the legally
married Quilapio, a fact Escritor readily admits, constitutes conduct
prejudicial to the best interest of the service. Quilapio, whose marriage to
another woman still subsists, is liable for concubinage under Article 334 of
the Revised Penal Code for cohabiting with Escritor. There is no showing
that Quilapio’s wife has consented to Quilapio’s cohabitation with Escritor.
In concubinage, the concubine is a necessary co-accused of the offending
spouse. The concubine is punished with destierro. While no one can
criminally prosecute Quilapio and Escritor without the complaint of
Quilapio’s legal wife, still this Court cannot countenance such unlawful
conduct by a court employee. In conduct prejudicial to the best interest of
the service, the immorality of the conduct is not in issue. What is in issue is
the adverse effect of the conduct on the efficiency, integrity and credibility
of the civil service, and in the case of the judiciary, its impact on the
administration of justice.
Same; Same; Same; Same; Same; The Court cannot simply turn a blind
eye to conduct of a court employee that, by the employee’s own admission,
violates our criminal statutes—such conduct is prejudicial to the best
interest of the administration of justice; The courts of justice cannot harbor
those who openly and knowingly commit a crime.—The Court cannot
simply turn a blind eye to conduct of a court employee that, by the
employee’s own admission, violates our criminal statutes. Such conduct is
prejudicial to the best interest of the administration of justice. Court
employees, from the highest magistrate to the lowliest clerk, are expected to
abide scrupulously with the law. They are held to a higher standard since
they are part of the judicial machinery that dispenses justice. The courts of
justice cannot harbor those who openly and knowingly commit a crime.
Courts of justice would lose their moral authority and credibility if they
condone violators of the law. They would be remiss in their solemn duty of
upholding the law if they continue to employ those who admit running afoul
with our criminal statutes. Thus, there exists a compelling state interest to
hold Escritor to the same standards required of every court employee. If
unsanctioned, Escritor’s unlawful conduct would certainly impair the
integrity and credibility of the judiciary.
49
VOL. 408, AUGUST 4, 2003 49
Same; Same; Same; Same; Same; The wall of separation between

Church and State is no defense against the State’s police power over
conduct constituting concubinage, bigamy or polygamy.—In the instant
case, Escritor’s sole constitutional justification in claiming exemption from
the prohibition on concubinage is her religious belief. Escritor does not
claim that her conduct is protected by any other guarantee under the Bill of
Rights. Moreover, Article 334 of the Revised Penal Code, as originally
enacted and as presently in force, does not single out the Jehovah’s
Witnesses. The power of the legislature to declare concubinage a crime
against the State is certainly beyond dispute. In effect, the legislature
pronounces a socially reprehensible act, which may or may not constitute an
immoral act by certain religious standards, a crime that the State has a right
to suppress to protect public order and the general welfare. The wall of
separation between Church and State is no defense against the State’s police
power over conduct constituting concubinage, bigamy or polygamy.
ADMINISTRATIVE MATTER in the Supreme Court. Immorality.
The facts are stated in the opinion of the Court.

Antonio B. Mangano for complainant.
Teodorico N. Diesmos for respondent.
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
1
religion clauses. The U.S. Supreme Court itself has acknowledged
that in this constitutional area, there is “considerable internal
2
inconsistency in the opinions of the Court.” As stated by a professor
of law, “(i)t is by now noto-
_______________
1 Kelley, D. “ ‘Strict Neutrality’ and the Free Exercise of Religion” in Weber, P.,
Equal Separation (1990), p. 17.
2 Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668.
50

rious 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
3
undisputed sovereignty.” 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
4
majority, however large -but for each of us.”
I. F acts
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
5
it might appear that the court condones her act.
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
_______________
3 Smith, S., “ The Rise and Fall of Religious Freedom in Constitutional

Discourse,” University of Pennsylvania Law Review, vol. 140(1), November 1991,
pp. 149-150.
4 Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416
(1963).
5 Rollo, pp. 5-6.
51
VOL. 408, AUGUST 4, 2003 51

6
the proper forum.” 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
7
respect.
Respondent Escritor testified that when she entered the judiciary
8
in 1999, she was already a widow, her husband having died in
9
1998. 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
_______________
6Id. at 8.
7Id., at pp. 19-26; TSN, October 12, 2000, pp. 3-10.
8 Id., at p. 101.
9 Id., at p. 100; Exhibit “3”, Certificate of Death.
52

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.
10
Signed this 28th day of July 1991.
Escritor’s partner, Quilapio, executed a similar pledge on the same

11
day. Both pledges were executed in Atimonan, Quezon and signed
by three witnesses. At the time Escritor executed her pledge, her
husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his
wife. 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
12
documents.
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
_______________
10 Id at p. 10; Exhibit “1”.

11 Id., at p. 11; Exhibit “2”.
12 Id., at pp. 27-33.
53
VOL. 408, AUGUST 4, 2003 53

SOCIETY, Philippine Branch . . . to which undersigned believes to be a high

13
authority in relation to her case.
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
14
was living with her (Escritor’s) husband.
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?
_______________
13 Id., at p. 37.
14 Id., at pp. 191 -194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
54

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
15
adultery.
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
_______________
15 Id., at pp. 156-160, TSN, May 29, 2002, pp. 5-9.
55
VOL. 408, AUGUST 4, 2003 55

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
16
God and Men,” in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.
_______________
16 Citing biblical passages, this article addresses the question, “Does the validity of
a marriage depend entirely upon its recognition by civil authorities and does their
validation determine how Jehovah God, the author of marriage, views the union?” It
traces the origins of marriage to the time of the Hebrews when marriage was a family
or tribal affair. With the forming of Israel as a nation, God gave a law containing
provisions on marriage, but there was no requirement for a license to be obtained
from the priesthood nor that a priest or a representative from government be present
in the marriage to validate it. Instead, as long as God’s law was adhered to, the
marriage was valid and honorable within the community where the couple lived. In
later Bible times, marriages came to be registered, but only after the marriage had
been officiated, thereby making the government only a record-keeper of the fact of
marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was likewise chiefly
a family affair and there was no requirement of license from the religious or civil
authority to make it valid and honorable. It was conformity to God’s law that was
necessary for the marriage to be viewed as honorable within the congregation. Later,
however, the civil authorities came to have more prominence in determining the
validity of a marriage while the role of the congregation waned. Christians cannot
turn their back on this reality in desiring to make their marriage honorable “among
all”, i.e., in the sight of God and men. However, the view of civil authorities
regarding the validity of marriage is relative and sometimes even contradictory to the
standards set by the Bible. For example, in some lands, polygamy is approved while
the Bible says that a man should only have one wife. Likewise, some countries allow
divorce for the slightest reasons while others do not allow divorce. The Bible, on the
other hand, states that there is only one ground for divorce, namely, fornication, and
those divorcing for this reason become free to marry.
To obtain a balanced view of civil authority (or Caesars’ authority in Biblical
terms) regarding marriage, it is well to understand the interest of civil governments in
marriage. The government is concerned with the
56

The declaration requires the approval of the elders of the Jehovah’s

Witnesses congregation and is binding within the congrega-
_______________
practical aspects of marriage such as property rights and weakening genetic effects
on children born to blood relatives, and not with the religious or moral aspects of
marriage. Caesar’s authority is to provide legal recognition and accompanying
protection of marital rights in court systems, thus a Christian desiring this recognition
and rights must adhere to Caesar’s requirements. However, God is not bound by
Caesar’s decisions and the Christian “should rightly give conscientious consideration
to Caesar’s marriage and divorce provisions but will always give greatest
consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom. 13:105) . . .
Thus the Christian appreciates that, even though Caesar’s rulings of themselves are
not what finally determine the validity of his marriage in God’s eyes, this does not
thereby exempt him from the Scriptural injunction: ‘Let marriage be honorable
among all.’ (Heb. 13:4) He is obligated to do conscientiously whatever is within the
power to see that his marriage is accorded such honor by all.” Those who wish to be
baptized members of the Christian congregation but do not have legal recognition of
their marital union should do all that is possible to obtain such recognition, thereby
removing any doubt as to the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition. For instance,
in countries where divorce is not allowed even on the Scriptural ground of
fornication, either because of the dominance of one religion or other reasons, a man
might have left his unfaithful wife and lives with another woman with whom he has a
family. He may later learn the truth of God’s Word and desire to be baptized as a
disciple of God’s Son, but he cannot obtain divorce and remarry as the national laws
do not allow these. He might go to a land which permits divorce and remarry under
the laws of that land and add honor to his union, but upon returning to his homeland,
the law therein might not recognize the union. If this option is not available to that
man, he should obtain a legal separation from his estranged mate or resort to other
legal remedies, then “make a written statement to the local congregation pledging
faithfulness to his present mate and declaring his agreement to obtain a legal marriage
certificate if the estranged legal wife should die or if other circumstances should make
possible the obtaining of such registration. If his present mate likewise seeks baptism,
she would also make such a signed statement.” (p. 182) In some cases, a person might
have initiated the process of divorce where the law allows it, but it may take a long
period to finally obtain it. If upon learning Bible truth, the person wants to be
baptized, his baptism should not be delayed by the pending divorce proceedings that
would make his present union honorable for “Bible examples indicate that
unnecessary
57
VOL. 408, AUGUST 4, 2003 57

tion all over the world except in countries where divorce is allowed.
_______________
delay in taking the step of baptism is not advisable (Acts 2:37-41; 8:34-38; 16:30-
34; 22:16).” Such person should then provide the congregation with a statement
pledging faithfulness, thereby establishing his determination to maintain his current
union in honor while he exerts effort to obtain legal recognition of the union.
Similarly, in the case of an already baptized Christian whose spouse proves unfaithful
and whose national laws do not recognize the God-given right to divorce an
adulterous mate and remarry, he should submit clear evidence to the elders of the
congregation of the mate’s infidelity. If in the future he decides to take another mate,
he can do this in an honorable way by signing declarations pledging faithfulness
where they also promise to seek legal recognition of their union where it is feasible.
This declaration will be viewed by the congregation as “a putting of oneself on record
before God and man that the signer will be just as faithful to his or her existing
marital relationship as he or she would be if the union were one validated by civil
authorities. Such declaration is viewed as no less binding than one made before a
marriage officer representing a ‘Caesar’ government of the world. . . It could contain
a statement such as the following:
I, _________, do here declare that I have accepted __________ 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 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 makes this possible I promise to legalize this union.”
The declaration is signed by the declarant and by two others as witnesses and the
date of declaration is indicated therein. A copy of the declaration is kept by the
persons involved, by the congregation to which they belong, and by the branch office
of the Watch Tower Society in that area. It is also beneficial to announce to the
congregation that a declaration was made for their awareness that conscientious steps
are being undertaken to uphold the honorableness of the marriage relationship. It must
be realized, however, that if the declarant is unable to obtain recognition from the
civil authorities, even if he makes that declaration, “whatever consequences result to
him as far as the world outside is concerned are his sole responsibility and must be
faced by him.” (p. 184) For instance, should there be inheritance or property issues
arising from an earlier marriage, he cannot seek legal protection with regard to his
new, unrecognized union.
58

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
17
standing in the congregation.
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 authen-
_______________
17 Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-32.
59
VOL. 408, AUGUST 4, 2003 59

ticating the article. The article is distributed to the Jehovah’s

18
Witnesses congregations which also distribute them to the public.
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
19
religion as a defense against legal liability.
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”) 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.
_______________
18 Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit “6”.
19 Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
60

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
61
VOL. 408, AUGUST 4, 2003 61

result to the honor and praise of the author of marriage, Jehovah God. (1
20
Cor. 10:31-33)
Respondent also brought to the attention of the investigating judge

that complainant’s Memorandum came from Judge Caoibes’
21
chambers 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
22
responsibility in the case at bar.” 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
23
complaint against Escritor.
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
_______________
20 Rollo, pp. 239-240; Respondent’s Memorandum, pp. 1-2; Rollo, pp. 109-110,
“Maintaining Marriage Before God and Men”, pp. 184-185.
21 Rollo, p, 240; Respondent’s Memorandum, p. 2.
22 Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p. 3.
23 Id., at p. 4.
62

relationship with a married man, voluntarily carried on, that

24
respondent may still be subject to disciplinary action.” Considering
25
the ruling of the Court in Dicdican v. Fernan, Jr., et al. 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
26
Service Rules.
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.
_______________
24 Memorandum by Deputy Court Administrator Christopher Lock dated August

28, 2002, p. 6.
25 A.M. No. P-96-1231, February 12, 1997, 268 SCRA 69.
26 Memorandum by Deputy Court Administrator Christopher Lock dated August
28, 2002, p. 7.
63
VOL. 408, AUGUST 4, 2003 63

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
27
ancient and medieval world and in the American experience. 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
28
superhuman mysterious power.” 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
_______________
27 Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
28 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry
Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 22.
64

against both human and superhuman enemies. In time, the king not
only interceded for his people with the divine powers, but he himself
29
was looked upon as a divine being and his laws as divine decrees.
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
30
and representative of the community.
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
31
for inheritance of property; and also catalogued the gods and
assigned them their places in the divine hierarchy so as to put
32
Hammurabi’s own god to a position of equality with existing gods.
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
33
state almost universally the dominant partner.
_______________
29 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry;
Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 29.
30 Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution of
Religion (1923), pp. 68, 206.
31 Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-528.
32 Pfeffer, L., supra, p. 4, citing Clemen, C, Religions of the World (1931), p. 47.
33 Pfeffer, L., supra, p. 4.
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VOL. 408, AUGUST 4, 2003 65

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
34
God. 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
35
previous reigning gods. 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
36
and the full worship of God.
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.
_______________
34 Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in
Complete Works of Josephus, p. 500.
35 Pfeffer, L., supra, p. 5, citing Clemen, pp. 46-47.
36 It may also be said that Moses actually used the concept of a single all-powerful
God as a means of unifying the Hebrews and establishing them as a nation, rather
than vice versa. What is important to note, however, is that the monotheism which
served as foundation of Christianity of western civilization with its consequences in
church-state relations was established by Moses of the Bible, not the Moses of
history. Pfeffer, L, supra, p. 5.
66

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
37
liberty of religion arose. (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
38
to slay Samuel the prophet of God. 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
39
order endorsed the claim of his rival to the throne.
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
40
him.
_______________
37 Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p. 24.
38 Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
39 Pfeffer, L, supra, p. 7.
40 Pfeffer, L, supra, p. 10, citing Kellett, E.E., A Short History of Religions (1934),
p. 108.
67
VOL. 408, AUGUST 4, 2003 67
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
41
mankind” who were subject to summary punishments.
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
42
forced them to sacrifice. 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
43
“on condition that nothing is done by them contrary to discipline.”
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 tranquility of
_______________
41 Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.

43 Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian Church
(1940), p. 108.
68

our times, in order that every person may have free opportunity to
44
worship the object of his choice.” (emphasis supplied)
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
45
his own son as successor to nullify the inference of supremacy. 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 13th
_______________
44 Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.

45 Pfeffer, L, supra, p. 16, citing Encyclopedia Britannica, “Charles the Great,”
14th ed., V, p. 258.
69
VOL. 408, AUGUST 4, 2003 69

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
46
separation of church and state.” 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
47
where Protestants were dominant. Papist and Protestant
governments alike accepted the idea of cooperation between church
and state and regarded as essential to national unity the uniformity
48
of at least the outward manifestations of religion. 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
49
Christian man, unless it be done with his own consent.” But when
the tables had turned and he was no longer the hunted heretic, he
likewise stated that 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
50
disguise.” 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
_______________

48 Greene, E., Religion and the State (1941), p. 8.
49 Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luther’s
Primary Works (1885), pp. 194-195.
50 Pfeffer, L., supra, p. 23, citing Acton, “History of Freedom in Christianity,” in
Essays on Freedom and Power (1949), p. 103.
70

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
51
eliminate heresy, he cooperated in the Inquisition.
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
52
make the evil more widespread.” 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 17th
century, endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political
53
governments. The English Baptists proclaimed that the “magistrate
is not to meddle with religion or matters of conscience, nor compel
54
men to this or that form of religion.”
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
55
affairs. 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
_______________
51 Pfeffer, L., supra, pp. 24-25.

52 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
53 Greene, E., supra, p. 9.
54 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
71
VOL. 408, AUGUST 4, 2003 71

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
56
of any substance other than wool. 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
57
status. 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
58
ecclesiastical jurisdiction.” Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant
59
sects, but denied toleration to Catholics. 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 19th century when the Roman Catholic Relief Act of 1829 was
adopted. The Jews followed suit in 1858 when they were finally
60
permitted to sit in Parliament.
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
_______________
56 Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church and
State in England (1950), p. 93.
57 Pfeffer, L, supra, p. 27, citing Noss, J.B., Man’s Religions (1949), pp. 674-675
and Garbett, C, pp. 61-62.
58 Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents, 130-
135.
59 Pfeffer. L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243.
60 Pfeffer, L, supra, p. 28, citing Stokes, I, p. 132.
72

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 16th
and 17th 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,
61
and failure to pay taxes and tithes to support them.
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
62
religious opinions.
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
_______________
61 Everson v. Board of Education of the Township of Ewing, et al., 330 U.S. 1

(1947), pp. 8-9.
62 Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
73
VOL. 408, AUGUST 4, 2003 73
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
63
constitutional democracy and in human history.
V. F actors 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
64
fare. 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
65
required to support or attend. 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,
66
eventually extended support to several different faiths.
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
_______________
63 Pfeffer, L, supra, p. 30.

64 Beth, L, American Theory of Church and State (1958), p. 3.
65 Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
66 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
74

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,
67
and the influence of European rationalism and deism.” 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
68
and more of the State and of commerce.” 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,
69
establishment could not survive.
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
70
affiliation at the time the republic was founded. This might be
attributed to the drifting to the American colonies of the skepticism
that character-
_______________

70 Another estimate of church membership in 1775 is that in none of the colonies
was membership in excess of 35 percent of the population. (Beth, L., American
Theory of Church and State [1958], p. 73.)
75
VOL. 408, AUGUST 4, 2003 75

71
ized European Enlightenment. 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
72
to support a church to which they did not belong.
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
73
registration of their ministers and places of worship. Although the
toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it
74
nevertheless was of some influence to the American experiment.
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-
18th 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
75
separation of church and state.
Then there was the Williams-Penn tradition. Roger Williams was
the founder of the colony of Rhode Island where he established a
_______________
71 Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making,
Second Edition (1980), p. 1276.
72 Pfeffer, L., supra, pp. 96.
73 Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American Dissent
(1934), p. 202.
75 Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb, S.H.,
The Rise of Religious Liberty in America (1902), p. 485.
76

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
76
concernments.” In Williams’ pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference
77
between Truth and Peace, 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
78
of the powers that the people have transferred to Civil Authority.
Williams’ Bloudy Tenet is considered an epochal milestone in the
79
history of religious freedom and the separation of church and state.
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
80
liberty which provided among others, for liberty of conscience.
The Baptist followers of Williams and the Quakers who came after
Penn continued the tradition started by the leaders
_______________

77 Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
77
VOL. 408, AUGUST 4, 2003 77

of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of
81
separation and freedom. 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
82
Pennsylvania.
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
83
violated the self-evident truth that all men are created equal.
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
_______________
83 Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government (edited by
C.B: Macpherson), pp. 8-10.
78

and saving religion consists in the inward persuasion of the mind, without
84
which nothing can be acceptable to God. (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
85
government as part of the social contract.
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and
postrevolutionary period were also influenced by European deism
86
and rationalism, 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 back-
87
ground. 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
88
intolerance and corruption as witnessed throughout history. Not
only the leaders but also the masses embraced rationalism at the end
of the eighteenth century, accounting for the popularity of Paine’s
89
Age of Reason.
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
_______________
84 Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion in
America, 1774-1789 (1924), pp. 368-369.
86 Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
87 Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of American
Civilization, I (1947), p. 449.
88 Drakeman, D., supra, p. 55.
89 Pfeffer, L., supra, p. 104, citing Laski, H.J., The American Democracy (1948),
p. 267.
79
VOL. 408, AUGUST 4, 2003 79

90
and state.” 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
91
generally, 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
92
other. (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
93
dissenters to contribute to the support of the establishment. But the
dissent-
_______________
90 Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in
Establishing Religious Liberty as a Foundation of the American Government, Papers
of the American Historical Association, II, p. 26.
91 Beth, L., American Theory of Church and State (1958), pp. 61-62.
92 Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition in
Religion and Education, (1950), pp. 46-47.
93 Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion in
America, 1774-1789 (1924), p. 379.
80

ers 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
94
proportionately among the societies. 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
95
Christian worship.” 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
96
reconvening of legislature in the fall of 1785. 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
_______________
94 Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.

95 Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J., The
Separation of Church and State in Virginia (1910), p. 86.
96 Beth, L., supra, p. 63.
81
VOL. 408, AUGUST 4, 2003 81

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
98
same shall in no wise diminish, enlarge or affect their civil capacities.
(emphases supplied)
_______________
97 Id., at pp. 81-82.

98 Id., at pp. 74-75.
82

This statute forbade any kind of taxation in support of religion and

effectually ended any thought of a general or particular
99
establishment in Virginia. 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
100
Presbyterians were sincere advocates of separation grounded on
101
rational, secular arguments and to the language of natural religion.
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,
102
having no relation with the social order. To them, the Holy Ghost
was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary to
103 104
the spirit of the Gospel. Thus, separation was necessary.
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
_______________

100 Id., at pp. 63-65.
101 Smith, S., “The Rise and Fall of Religious Freedom in Constitutional
Discourse” , University of Pennsylvania Law Review, vol. 140(1), November 1991, p.
149, 160.
102 Id., at pp. 63-65.
103 Smith, S., “The Rise and Fall of Religious Freedom in Constitutional
Discourse”, University of Pennsylvania Law Review, vol. 140(1), November 1991, p.
149, 160.
104 Beth, L., supra, pp. 63-65.
83
VOL. 408, AUGUST 4, 2003 83

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
105
expressly mentioned in the Constitution. However, omission of an
express guaranty of religious freedom and other natural rights nearly
106
prevented the ratification of the Constitution. In the ratifying
conventions of almost every state, some objection was expressed to
the absence of a restriction on the Federal Government as regards
107
legislation on religion. 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, J urisprudence,

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 108 in
Congress renders it difficult to ascertain its meaning.
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
_______________
105 Id., at p. 69.
107 Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L., supra,
p. 92, 125, citing Kohler, M.J., “The Fathers of the Republic and Constitutional
Establishment of Religious Liberty” (1930), pp. 692-693.
84

or religiously-motivated associations. Today, government plays this

109
primary role and religion plays the supportive role. Government
runs even family planning, sex education, adoption and foster care
110
programs. 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
111
government.” 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
112
purely secular government actions and religion clause values.
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
_______________
109 Berman, H., “ Religious Freedom and the Challenge of the Modern State,”
Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152.
110 Monsma, S., “The Neutrality Principle and a Pluralist Concept of
Accommodation” in Weber, P., Equal Separation, (1990), p. 74.
111 Berman, H., supra, pp. 151-152.
112 McCoy, T., “A Coherent Methodology for First Amendment Speech and
Religion Clause Cases,” Vanderbilt Law Review, vol. 48(5), October 1995, pp. 1335,
1340.
85
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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
113
disagreement over what laws should require, permit or prohibit,
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
114
political realities must be avoided.
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
115
religion. 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
116
motivated. 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
117
for protection. Most of these free exercise claims brought to the
Court are for exemption, not invalidation of the facially neutral law
118
that has a “burdensome” effect.
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
_______________
113 Weber, P., ‘‘Neutrality and first Amendment Interpretation” in Equal Separation
(1990), pp. 5-7. See also Kauper, P., Religion and the Constitution (1964), p. 99.
114 Monsma, S., supra, p. 73.
115 See Carter, S., “The Resurrection of Religious Freedom,” Harvard Law Review
(1993), vol. 107(1), p. 118, 128-129.
116 Emanuel, S., Constitutional Law (1992), p. 633.
117 Carter, S., supra, p. 118, 140.
118 Sullivan, K., “Religion and Liberal Democracy,” The University of Chicago
Law Review (1992), vol. 59(1), p. 195, 214-215.
86

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
119 120
purposes. It was in the 1890 case of Davis v. Beason 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
121
of any sect.
The definition was clearly theistic which was reflective of the

popular attitudes in 1890.
122
In 1944, the Court stated in United States v. Ballard 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
123
followers of the orthodox faiths.” By the 1960s, American
pluralism in religion had flourished to include non-theistic creeds
124
from Asia such as Buddhism and Taoism. In 1961, the Court, in
125
Torcaso v. Watkins, 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
126
in United States v. Seeger which involved four men who
_______________
119 Kauper, P., Religion and the Constitution (1964), pp, 24-25.
120 133 U.S. 333 (1890).
121 133 U.S. 333 (1890), p. 342.
122 322 U.S. 78 (1944).
123 United States v. Ballard, 322 U.S. 78 (1944), p. 86.
124 Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law, Second
Edition (1999), pp. 522-523.
125 367 U.S. 488 (1961).
126 380 U.S. 163 (1965).
87
VOL. 408, AUGUST 4, 2003 87

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
127
belief. Fourth, there must be some associational
_______________
127 Stephens, Jr., supra, p. 645.
88

128
ties, 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
129
Clause.
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
130
two sides of the same coin. 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
131
different ways in different circumstances. 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
132
religion—is the protection and promotion of religious liberty. The
end, the goal, and the rationale of the religion clauses is this
133
liberty. Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they
134
are directed is government-induced homogeneity. 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
135
demonstrated a propensity. In other words, free exercise is the end,
proscribing establishment is a necessary means to this end to pro-
_______________
128 Id., at p. 524.

129 Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of Employment
Security, 489 U.S. 829 (1989).
130 McCoy, T., “A Coherent Methodology for First Amendment Speech and
Religion Clause Cases,” Vanderbilt Law Review, vol. 48(5), October 1995, pp. 1335,
1336-1337.
131 Kelley, D. “ ‘Strict Neutrality’ and the Free Exercise of Religion” in Weber, P.,
Equal Separation (1990), p. 20.
132 Kauper, P., supra, p. 13.
133 Neuhaus, R., “A New Order of Religious Freedom,” The George Washington
Law Review (1992), vol. 60 (2), p. 620; 626-627.
134 McConnell, M., “Religious Freedom at a Crossroads,” The University of
Chicago Law Review (1992), vol. 59(1), pp. 115, 168.
135 McCoy, T., supra, pp. 1335, 1336-1337.
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VOL. 408, AUGUST 4, 2003 89

tect the rights of those who might dissent from whatever religion is
136
established. 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
137
infringement on the free exercise of religions” 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
138
at all 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
139
enlightened secular state. 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
140
authority.”
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
141
commanded and none inhibited. (emphasis supplied)
_______________
136 Neuhaus, R., “A New Order of Religious “ Freedom,” The George Washington
Law Review (1992), vol. 60 (2), pp. 620, 626-627.
137 Monsma, S., supra, p. 88, citing Neuhaus, R., “Contending for the Future:
Overcoming, the Pfefferian Inversion,” in The First Amendment Religion Liberty
Clauses and American Public Life, p. 183.
138 Carter, S., supra, pp. 118, 134-135.
139 Lupu, I., “The Religion Clauses and Justice Brennan in Full,” California Law
Review (1999), vol. 87(5), pp. 1105, 1114.
140 Everson v. Board of Education, 330 US 1 (1946), p. 15.
141 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
90

Consequently, U.S. jurisprudence has produced two identifiably

142
different, 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
143
of Reynolds v. United States. 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
144
Church and what to the State.” 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
145
and good order. (emphasis supplied)
_______________
142 See McCoy, T., supra, pp . 1335, 1336.

143 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious Liberty
(1980), p. 49; Drakeman, Church-State Constitutional Issues (1991), p. 2.
144 Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
145 Id., at p. 163.
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VOL. 408, AUGUST 4, 2003 91
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
146
under such circumstances.
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
147
Free Exercise Clause did not pose any problem. The Free Exercise
Clause thus gave no protec-
_______________
146 98 U.S. 145, 166

147 McCoy, T., supra, pp. 1335, 1344-45.
92

tion against the proscription of actions even if considered central to

148
a religion unless the legislature formally outlawed the belief itself.
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
149
Day Saints v. United States. 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
150
prohibition of governmental proscription of beliefs.
The Free Exercise Clause accords absolute protection to
151
individual religious convictions and beliefs 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.
152
Watkins, 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.
153
Ballard, “(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.
154
Connecticut, the Court struck down a state law prohibiting door-
to-door
_______________
148 Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), p.
1069.
149 136 U.S. 1 (1890).
150 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
151 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
152 367 U.S. 488 (1961).
153 322 U.S. 78, 86 (1944).
154 310 U.S. 296 (1940).
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VOL. 408, AUGUST 4, 2003 93

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
155
democracy.
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.
156
(emphasis supplied)
The Court stated, however, that government had the power to

regulate the times, places, and manner of solicitation on the streets
and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
157
Jeanette, 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.
158
Maryland, the Court unanimously held unconstitutional a city
council’s denial of a permit to the Jehovah’s Witnesses to use the
city
_______________
155 Id., at p. 310.

156 Id., at pp. 303-304.
157 319 U.S. 157 (1943).
158 340 U.S. 268 (1951).
94

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
159
of Heffron v. International Society for Krishna Consciousness.
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
160
the government rationale for regulating the action. 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
161
sanctioned by what any particular sect may designate as religion.”
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
162
some secular objective. In the 1940 case of Minersville School
163
District v. Gobitis, the Court upheld a local school board
requirement that all public school students participate in a daily flag
salute pro-
_______________
159 452 U.S. 640 (1981).

160 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
161 133 U.S. 333, 345.
162 McCoy, T., supra, p. 1335, 1344-45.
163 310 U.S. 586 (1940).
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gram, 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
164
Virginia v. Barnette 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.”
165
(emphasis supplied) 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
166
protect.” The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty
_______________
164 319 U.S. 624 (1943).

165 Id., at p. 634.
166 Id., at p. 639.
96

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
167
would only grow to a full flower in the 1960s.
Nearly a century after Reynolds employed the belief-action test,
168
the Warren Court began the modern free exercise jurisprudence. A
169
two-part balancing test was established in Braunfeld v. Brown
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
170
the means which imposed the least burden on religious practices.
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
171
the 1963 case of Sherbert v. Verner This test was similar to the
172
two-part balancing test in Braunfeld, but this latter test stressed
that the state interest was not merely any colorable state interest,
_______________
167 McCoy, T., supra, pp. 1335, 1345-46.

168 See Bloostein, M., “ The ‘Core’-‘Periphery’ Dichotomy in First Amendment
Free Exercise Clause Doctrine: Goldman v. Weinberger, Bowen v. Roy, and O’Lone v.
Estate of Shabbaz,z” Cornell Law Review, vol. 72 (4), pp. 827, 828.
169 366 U.S. 599 (1961).
170 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
171 374 U.S. 398 (1963).
172 Nowak, J., Rotunda, R, and Young, J., supra, pp. 1072-1073.
97
VOL. 408, AUGUST 4, 2003 97
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,
173
371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. (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
174
ed 430, 440, 65 S Ct 315.” 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
_______________
173 Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.

174 Id., at p. 406.
98

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
175
exemption doctrine, 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
176
distinction was addressed.
Throughout the 1970s and 1980s under the Warren, and
afterwards, the Burger Court, the rationale in Sherbert continued to
177
be applied. In Thomas v. Review Board and Hobbie v.
178
Unemployment Appeals Division, 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
179
strict or heightened scrutiny is applied. In United States v. Lee, 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
_______________
175 Lupu, I., supra, pp. 1105, 1110.

176 McCoy, T., supra, pp. 1335, 1346-1347.
177 450 U.S. 707 (1981).
178 480 U.S. 136 (1987).
179 455 U.S. 252 (1982).
99
VOL. 408, AUGUST 4, 2003 99

system is of such a high order, religious belief in conflict with the

180
payment of taxes affords no basis for resisting the tax.” 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 gen-eral test
established a strong presumption in favor of the free exercise of
181
religion.
Heightened scrutiny was also used in the 1972 case of Wisconsin
182
v. Yoder 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
_______________
180 United States v. Lee, 455 U.S. 252 (1982), p. 260.

182 406 U.S. 205 (1972).
100

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
183
logic-tight compartments . . .
The onset of the 1990s, however, saw a major setback in the

protection afforded by the Free Exercise Clause. In Employment
184
Division, Oregon Department of Human Resources v. Smith, 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
_______________
183 Id., at pp. 214-215, 219-220.

184 494 U.S. 872 (1990).
101
VOL. 408, AUGUST 4, 2003 101

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 indi-
102

rect, 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
185
understanding of free exercise jurisprudence. 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
_______________
185 McConnell, M., supra, pp. 685, 726.
103
VOL. 408, AUGUST 4, 2003 103

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
186
objective without serious inadvertent impact on religion.
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
187
peripheral groups who lack legislative clout, contrary to the
188
original theory of the First Amendment. Undeniably, claims for
judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped
189
out their judicial recourse for exemption. Thus, the Smith decision
elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing
190
the Free Exercise Clause to disappear. 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
191
means of furthering that interest. 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
192
City of Boerne v. Flores. The Court ruled that
_______________
186 McCoy, T., supra, pp. 1335, 1350-1351.

187 Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and 1191. See
also Sullivan, K., “Religion and Liberal Democracy”, The University of Chicago Law
Review (1992), vol. 59(1), pp. 195, 216.
188 McConnell, M., ‘‘Religious Freedom at a Crossroads”, The University of
189 Sullivan, K., “Religion and Liberal Democracy,” The University of Chicago
Law Review (1992), vol. 59(1), pp. 195, 216.
190 Carter, S., supra, p. 118.
191 Rosenzweig, S., “Restoring Religious Freedom to the Workplace: Title VII,
RFRA and Religious Accommodation,” University of Pennsylvania Law Review
(1996), vol. 144(6), pp. 2513, 2516.
192 138 L.Ed. 2d 624 (1994).
104

“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
193
of Hialeah 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
194
Wisconsin.
B. Establishment Clause
The Court’s first encounter with the Establishment Clause was in the
195
1947 case of Everson v. Board of Education. Prior cases had made
196
passing reference to the Establishment Clause and raised
establishment questions but were decided on other
_______________
193 508 U.S. 520 (1993).

195 330 U.S. 1 (1946).
196 Drakeman, D., supra, pp. 4-6.
105
VOL. 408, AUGUST 4, 2003 105

197
grounds. 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.
198
United States 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
199
199
thereof,’ thus building a wall of separation between Church and State.
(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
200
of the scope and effect of the amendment
thus secured.”
The interpretation of the Establishment Clause has in large part
been in cases involving education, notably201state aid to private
religious schools and prayer in public schools. 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
_______________
197 Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.
198 98 U.S. 164 (1878).
199 Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
200 Id. at p. 164.
106

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 Firsts-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
202
to erect “ a wall of separation between Church and State.”
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
203
breach. New Jersey has not breached it here.
By 1971, the Court integrated the different elements of the Court’s
Establishment Clause jurisprudence that evolved in the 1950s and 204
1960s and laid down a three-pronged test in Lemon v. Kurtzman
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
_______________
202 Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.

203 Id., at p. 18.
204 403 U.S. 602 (1971).
107
VOL. 408, AUGUST 4, 2003 107

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])”
205
(emphasis supplied) 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 206
intensely than the school prayer decisions of the early 1960s.” In
207
the 1962 case of Engel v. Vitale, 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
208 209
School District v. Schempp and Murray v. Curlett 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
_______________
205 Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.

206 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
207 370 U.S. 421 (1962).
208 374 U.S. 203 (1963).
209 Id.
108

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
210
with reference thereto, free of any compulsion from the state.
The school prayer decisions drew furious reactions. Religious

leaders and conservative members of Congress and resolutions
211
passed by several state legislatures condemned these decisions. 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
212
case of Wallace v. Jaffree 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
213
v. Board of Education, 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 teach-
_______________
210 Id., at p. 222.

211 Witt, E. (ed.), supra, p. 93.
212 472 U.S. 38 (1985).
213 333 U.S. 203 (1948).
109
VOL. 408, AUGUST 4, 2003 109
ers, 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 214
governmental
assistance of all religions. In Zorach v. Clauson, 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
215
of Rights such a philosophy of hostility to religion.
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
216
entrenched in
history. For instance, in McGowan v. Maryland, the
_______________
214 343 U.S. 306 (1952).

215 Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
216 366 U.S. 420 (1961).
110

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
217
entertainments, for dining out, and the like.
218
In the 1983 case of Marsh v. Chambers, 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 v. Clauson, 343 US 306,
219
313 [1952]) (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
220
legislature in the United
States, including the U.S. Congress.” That Marsh was not an
aberration is suggested by subsequent cases. In the 1984 case of
221
Lynch v. Donnelly, 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
_______________
217 Id., at pp. 451-452.

218 463 U.S. 783 (1983).
219 Marsh v. Chambers, 463 US 783 (1983).
220 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
221 465 U.S. 668 (1984).
111
VOL. 408, AUGUST 4, 2003 111

fact that the crèche 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 222
and state income taxes. In the 1970 case of Walz v. Tax
Commission, 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
223
this classification useful, desirable, and in the public interest.
The Court added that the exemption was not establishing religion
but “sparing the exercise of religion from the burden of property
224
taxation levied on private profit institutions 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 Count’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
225
suffered interference. (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 frac-
_______________
222 397 U.S. 664 (1970).

223 Id., at p. 673.
224 Id.
225 Id., at p. 676.
112

tion 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 US
783, 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
226
for Pub. Educ. v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.
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,
_______________

Chicago Law Review (1992), vol. 59(1), p. 115, 119-120.
113
VOL. 408, AUGUST 4, 2003 113

227
appears to lie with the separationists, strict or tame. But the
accommodationists have also attracted a number of influential
228
scholars and jurists. 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
229
practice with a flexible reading of the principle. 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
230
the other way. (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,
_______________

228 Id., at p. 53.
230 Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State:
Historical Fact and Current Fiction, p. 50.
114

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
acknowledged231
and the motion was passed without further recorded
discussion. 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 19th century and that
America was less specifically Christian during those years than at
232
any other time before or since, accommodationaists claim that
American citizens at the time of the Constitution’s origins 233
were a
remarkably religious people in particularly Christian terms.
The two streams of jurisprudence—separationist or
accommodationist—are anchored on a different reading of the “ wall
of separation.” The strict separationist 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
234
by the rationalism and anticlericalism of that
philosophic bent. 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
235
adhering to a secular belief in a universal harmony. Thus,
according to this Jeffersonian view, the Establishment Clause being
meant to protect the state from the church, the state’s hostility
236
towards religion allows no interaction between the two. 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
237
with religion. This approach erects an absolute barrier to
_______________
231 Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds., The
Debates and Proceedings in the Congress of the United States, Compiled from
Authentic Materials (Annala), vol. 1, pp. 949-950.
233 Drakeman, supra, pp. 57, 82.
234 Buzzard, L., Ericsson, S., supra, p. 46.
236 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
115
VOL. 408, AUGUST 4, 2003 115

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 238
programs to alleviate burdens the
programs placed on believers. Only the complete separation of
religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among239political
views thus a strict “wall of separation” is necessary. 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
240
principle that has never existed and is never likely
to.
A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court,
showing the Court’s
241
tendency to press relentlessly towards a more
secular society. 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 as242to handicap religions than it is to favor them.” (emphasis
supplied) 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
243
to religious belief. Professor Kurland wrote, viz:
_______________
238 The Constitution and Religion, p. 1541.

239 Id., at p. 1539.
240 Weber, P., “Neutrality and First Amendment Interpretation” in Equal
Separation (1990), p. 3.
241 McConnell, M., “Religious Freedom at a Crossroads”, The University of
242 Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
243 The Constitution and Religion, p. 1541, citing Kurland, Of Church and State
and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
116

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
244
of religion either to confer a benefit or to impose a burden.
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 except245for secular purposes and in ways that
have primarily secular effects.
Prayer in public schools is an area where the Court has applied
strict neutrality and refused to allow any form of prayer, spoken
246
or
silent, in the public schools as in Engel and Schempp. 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,247hostility to the religious”
which is prohibited by the Constitution. 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
_______________
244 Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and the Law
(1962), p. 18.
245 Smith, S., “The Rise and Fall of Religious Freedom in Constitutional Discourse,”
University of Pennsylvania Law Review, Vol. 140(1), November 1991, p. 149, 186.
246 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
117
VOL. 408, AUGUST 4, 2003 117

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
248
sometimes mandating religious classifications.
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
249
life church and state are not and cannot be totally separate. This is
all the more true in contemporary times when both the government
and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government
250
and religion at many points.
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
251
protect the church from the state, i.e., the “garden” of the church
must be
252
walled in for its own protection from the “wilderness” of the
world with its potential 253
for corrupting those values so necessary to
religious commitment. 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
254
intrusions by the church. 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 “secu-
_______________
248 Kelley, D., supra, p. 1189.

249 Monsma, S., supra, p. 74.
250 Id., at p. 75.
251 Smith, S., supra, p. 149, 159.
252 Drakeman, supra, p. 54.
253 Grossman, J.B. and Wells, R.S., supra, p. 1276.
254 Smith, S., supra, p. 149, 159.
118

lar (political)”; the religious style was biblical and evangelical in

character while the secular style was grounded in natural religion,
255
more generic and philosophical in its religious orientation.
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 256
would threaten the integrity of religious
commitment. His conception of separation is not total such that it
provides basis for certain interactions between church and state
257
dictated by apparent necessity or practicality. 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 err please to restore His
garden and paradise again, it must of necessity be walled in peculiarly unto
258
Himself from the world. . .
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
259
exercise to exist without sponsorship and without interference. (emphasis
supplied)
260
The Zorach case expressed the doctrine of accommodation, 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
_______________
255 Id., at pp. 149, 159-160.

256 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
257 Id., at pp. 1276-1277, citing Kirby, Jr., J., “Everson to Meek and Roemer: From
Separation to Détente in Church-State Relations”, 55 North Carolina Law Review (April
1977), 563-75.
119
VOL. 408, AUGUST 4, 2003 119

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
261
effective scope of religious influence. (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)
262
in their ideology. 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
_______________
261 Zorach v. Clauson, 343 U.S. 306 (1951), pp, 312-314.

262 Kelley, D., supra, p. 34.
120

automobile could not exist, as a going system, without a carburetor. . . Most

263
writers list religion among the functional prerequisites.
Another noted sociologist, Talcott Parsons, wrote: ‘There is no

known human society without something which modern social
scientists would classify as a 264religion . . . Religion is as much a
human universal as language.”
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
265
Protestant denomination to lead representatives in
prayer. These practices clearly show the preference for one
theological view-point—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 266
other
government activities with strong moral dimension. 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’
267
wall, has demanded respect for these de
facto establishments. 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 mini-mis’ instances of government
endorsement or as historic govern-
_______________
263 Id., at p. 34, citing Milton Yinger, J., The Scientific Study of Religion (1970), p.
21.
264 Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of Religion
(1963), pp. xxvii, xxviii.
266 Berman, H., supra, p. 162.
267 The Constitution and Religion, p. 1569.
121
VOL. 408, AUGUST 4, 2003 121

mental practices that have largely lost their religious significance or

at least have proven not268 to lead the government into further
involvement with religion.
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
269
flourish.” (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
270
in which the minority finds itself.
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
_______________
268 McCoy, T., supra, pp. 1335, 1338-1339.

269 McConnell, M., “ Accommodation of Religion: An Update and a Response to
the Critics”, The George Washington Law Review (1992), vol. 60 (3), pp. 685, 688.
270 Id.
122

also constitutionally required, for the government to avoid

religionspecific policy even at the cost of inhibiting religious
271
271
exercise.
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. Other-
_______________
271 Id., at p. 689.
123
VOL. 408, AUGUST 4, 2003 123

wise, 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
antidiscrimination 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
124

manifestly more reasonable

272
than either of the alternative: no
exemption or no law.
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
273
Clause. 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
274
or the delivery of a prayer at public ceremonial events. 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
275
state interest. 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
276
to obey spiritual rather than temporal authority 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
_______________
272 Id., at pp. 690-694, 715.

273 Id., at p. 686.
274 Id., at p. 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663,679
(1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 US. 668, 673 (1984); Marsh
v. Chambers, 463 U.S. 783, 792 (1983).
Chicago Law Review (1992), vol. 59(1), pp. 115, 139, l84.
276 Id., at p. 174.
125
VOL. 408, AUGUST 4, 2003 125

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
277
order, such denials should be rare and
painfully reluctant.”
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
278
convictions of Sherbert. 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 279 burdened by the regulation, such an
exemption must be given. 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 280
Exercise Clause did not
pose a hindrance such as in Reynolds. 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 coextensive with the noninterference
mandated by the Free Exercise
_______________
277 Neuhaus, R., “A New Order of Religious Freedom,” The George Washington
Law Review (1992), vol. 60 (2), pp. 620, 631.
278 Buzzard, L., Ericsson, S., supra, pp. 61-62.
279 Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional
Law, 2nd ed. (1988), p. 1251. See also Nowak, J., Rotunda, R., and Young, J.,
Constitutional Law, 3rd ed. (1986), pp. 1067-1069.
280 Id., at p. 633.
126

281
Clause.” 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
282
valid. An example where accommodation was prohibited is
McCollum where the Court ruled against 283
optional religious
instruction in the public school premises. 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,
284
do not suffice.
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
_______________

282 McConnell, M., “Accommodation of Religion: An Update and a Response to
the Critics”, The George Washington Law Review (1992), vol. 60 (3), pp. 685, 7l5.
284 McConnell, “The Origins and Historical Understanding of Free Exercise of
Religion,” Harvard Law Review, vol. 103 (1990), pp. 1410, 1416-7.
127
VOL. 408, AUGUST 4, 2003 127

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
285
high schools. In another case,
Dobkin v. District of Columbia, 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 for286the most part, the
injustice is done only in the particular case. 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 287prohibition against Saturday work was a
“cardinal principle.” 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—
_______________

286 McConnell, M., “Accommodation of Religion: An Update and a Response to the
Critics,” The George Washington Law Review (l992), vol. 60 (3), pp. 685, 735.
128

eastern, Western, aboriginal and otherwise—as constitutionally equal to
their Christian counterparts, and accepting of the intensity and scope of
288
fundamentalist creed.
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
289
undermined if exemptions are granted. The person claiming
religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is
not compelling compared to infringement of religious 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
290
the effectiveness of its regulation
by granting the exemption.
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 291more than necessary to achieve the
legitimate goal of the state?” The analysis requires the state to
show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on
religious liberties. 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
_______________
288 Lupu, I., supra, pp. 743, 775.

289 Id., at p. 775.
290 Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
129
VOL. 408, AUGUST 4, 2003 129

give careful attention to context, both religious and regulatory, to

292
achieve refined judgment.
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 liberty293unsettled, mirroring the evolving views of a
dynamic society.
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
294
and the friars exercised civil powers. Catholics alone enjoyed the
295
right of engaging in public ceremonies of worship. 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
296
religion. 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
_______________
292 Lupu, I., supra, pp. 743, 776.

294 Martinez, H., “The High and Impregnable Wall of Separation Between Church
and State” , Philippine Law Journal (1962); vol. 37(5), pp. 748, 766.
295 Article II.
296 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), p. 284.
130

over which Spain relinquishes or cedes her sovereignty shall be

297
secured in the free exercise of religion.” 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
298
government.
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
299
interfered with or molested in following his calling.
This provision was based on the First Amendment of the United

States Constitution. Likewise, the Instructions declared that “(t)he
separation300between State and Church shall be real, entire and
absolute.”
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:
_______________
297 Coquia, J., Church and State Law and Relations, p. 52, citing Article X of the
Treaty of Paris. The territories referred to were Cuba, Puerto Rico, Guam, the West
Indies and the Philippine Islands.
298 Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la Republica
Filipina promulgada el dia 22 de Enero de 1899 (Edicion oficial, Islas Filipinas,
Barazoain, Bul., 1899), p. 9.
299 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights
(1971), pp. 13, 148.
300 Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With
Philippine Organic Laws 10.
131
VOL. 408, AUGUST 4, 2003 131

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.
301
In U.S. v. Balcorta, 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
302
conferred or imposed upon any particular religious sect.”
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
303
worship.”
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 McKin-
_______________
301 25 Phil. 273 (1913).

302 Id., at p. 276.
303 Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd Congress
(1934).
132

ley’s Instructions to the Second Philippine Commission reasserted

this right which later was incorporated into the Philippine Bill of
304
1902 and in the Jones Law.” In accordance with the Tydings-
McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:

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

305
from the Jones Law, was readily approved
by the Convention. 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
306
and jurists that vitalized them.”
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:

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
_______________
304 Laurel, S., Proceedings of the Philippine Constitutional Convention, vol. III
(1966), pp. 654-655.
305 Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p. 164.
306 Id., at p. 150.
133
VOL. 408, AUGUST 4, 2003 133

307
under the Bill of Rights in Article III, Section 5. 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
308
between man and the gods.” This pre-Christian term for the cult
and rituals of pagan Rome was first Christianized in the Latin
309
translation of the Bible. 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
310
as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz involving
the Establishment Clause, defined “religion” as a “profession of faith
to an active
_______________
307 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
308 Baddiri, E., “Islam and the 1987 Constitution: An Issue on the Practice of
Religion,” 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed Muhammad Al-
Naquib Al-Attas, Islam and Secularism 46 (1978).
309 Id., at p. 208, citing Lewis, B., Islam and the West 3 (1993).
310 64 Phil 201 (1937).
134

power that binds and elevates man to his Creator.” Twenty years
later, the Court cited the Aglipay definition in American Bible
311
Society v. City of Manila, 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 religious312groups on their intrinsic merits and not on
the support of the state. In interpreting the Free Exercise Clause,
the realm of belief poses no difficulty. The early case of Gerona v.
313
Secretary of Education 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,
314
there is quite a stretch of road to travel.
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,
_______________
311 101 Phil. 386 (1957).

312 Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
313 106 Phil. 2 (1959).
314 Id., at pp. 9-10.
135
VOL. 408, AUGUST 4, 2003 135

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 Tañada 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. (Tañada and Fernando on the Constitution of the Philippines, vol. 1,
4th ed., p. 297) (emphasis supplied)
This was the Court’s maiden unequivocal affirmation of the “ clear

and present danger” rule in the religious 315
freedom area, and in
Philippine jurisprudence, for that matter. 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” 316
for profit.
To add, the Court, citing Murdock v. Pennsylvania, 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
_______________
315 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary
(1987), p. 225, Footnote 38.
316 319 U.S. 103.
136

“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. 317
In the much later case of Tolentino v. Secretary of Finance, 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 Tolen-tino,
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
318
Ministries v. Board of Equalization, 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 Bible319Society came the 1959 case of
Gerona v. Secretary of Education, 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
_______________
317 234 SCRA 630 (1994).

318 493 U.S. 378 (1990).
319 106 Phil. 2 (1959).
137
VOL. 408, AUGUST 4, 2003 137

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
320
the one exercising it. (emphasis supplied)
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
321
ritual or ceremony.
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
322
extinction.
In support of its ruling, the Court cited Justice Frankfurter’s dissent
in the Barnette case, viz:
_______________
320 106 Phil. 2 (1959), p. 10.

321 Id., at pp. 11-12.
322 Id. at 14.
138

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
323
dogma.
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
324
authority.
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
325
reiterated in Balbuna, et al. v. Secretary of Education, et al.
Fifteen years after Gerona came326
the 1974 case of Victoriano v.
Elizalde Rope Workers Union. 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
_______________
323 Id. at p. 25.

324 Id. at pp. 24-25.
325 110 Phil 150.
326 59 SCRA 54 (1974). See also Basa v. Federation Obrera, 61 SCRA 93 (1974);
Gonzalez v. Central Azucarera de Tarlac Labor Union, 139 SCRA 30 (1985).
139
VOL. 408, AUGUST 4, 2003 139
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
327
freedom may be justified, and only to the smallest extent necessary.
(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.
_______________
327 Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54 (1974), p. 72.
140

Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
328
366 U.S. 420, 444-5 and 449) (emphasis supplied)
329
Quoting Aglipay v. Ruiz, 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
330
cited Board of Education v. Allen, 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
331
certain extent economic insecurity due to unemployment.
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 332
benefit upon the religious sects is merely
incidental and indirect.” In enacting Republic Act No. 3350,
Congress merely relieved the exercise of religion by certain persons
of a burden imposed by union security agreements which Congress
itself also imposed through the Industrial Peace Act. The Court
concluded the issue of exemption by citing Sherbert which laid
down the rule that when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some
“compelling state interest” intervenes. The Court then abruptly
added that
_______________
328 Id., at p. 73.

329 64 Phil. 201.
330 392 US 236.
331 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
332 Id., at p. 75.
141
VOL. 408, AUGUST 4, 2003 141

“(i)n the instant case, We see no compelling state interest to

333
withhold exemption.”
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 Sher-
_______________
333 Id.
142

bert’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
exercise of religion as the law in fact provides such an exemption. In
sum, although Victoriano involved a religious belief and conduct, it
did not involve a free exercise issue where the Free Exercise Clause
is invoked to exempt him from the burden imposed by a law on his
religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera 334
de la Industria
Tabaquera y Otros Trabajadores 335
de Filipinas, Anucension v.
National Labor Union, et al., and Gonzales, et al. v. Central
336
Azucarera de Tarlac Labor Union.
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church
within the Malacañang 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
337
second cannot be.
_______________
334 61 SCRA 93 (1974).

335 80 SCRA 350 (1977).
336 139 SCRA 30 (1985).
337 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing
Cantwell v. Connecticut, 310 U.S. 296.
143
VOL. 408, AUGUST 4, 2003 143

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
338
certainly disrupt” 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,
_______________
338 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
144

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
339
pp. 560-561). (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 340 to assemble and petition the
government for redress of grievances.
In 1993, the issue on the Jehovah’s Witnesses’ participation in
the flag ceremony again came before the341Court in Ebralinag v. The
Division Superintendent of Schools. 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 Ger-man,
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
_______________
339 German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
340 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting Opinion of Justice
Teehankee.
341 219 SCRA 256 (1993), March 1, 1993.
145
VOL. 408, AUGUST 4, 2003 145

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
342
petitioners from the schools is not justified. (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
343
authorities.
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,
344
1046).
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:
_______________
342 Id., at pp. 270-271.

343 Id., at pp. 271-272.
344 Id., at p. 272.
146

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
345
others.
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
346
pledge are all forms of utterances.”
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 ceremonies347
on the basis of their own
self-perceived religious convictions.” The Court, how-
_______________
345 Id., at pp. 272-273.

346 Id., at p. 270.
347 Id., at p. 269.
147
VOL. 408, AUGUST 4, 2003 147

ever, 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
348
the 1996 case of
Iglesia ni Cristo v. Court of Appeals, et al. 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 affect
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
349
because of religious dogma.” 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
350
interest of public health, public morals, or public welfare.”
_______________
348 259 SCRA 529 (1996).

349 Id., at p. 543; citing Cruz, I., Constitutional Law (1991), p. 178.
350 Id., citing Cruz, I., Constitutional Law (1991), p. 544.
148

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
351
contempt and release of information that endangers a
fair trial” 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
_______________
351 Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff, Speech, Harm and
Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91 Col. Law
Rev. No. 6, p. 1453 (1991).
149
VOL. 408, AUGUST 4, 2003 149

hostile audience reaction. It cannot be doubted that religious truths disturb

352
and disturb terribly?
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
353
exercise where it is justified..
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 354
efficacy. Compelled religion is a contradiction in terms. As a
social value, it means that the “growth of a religious sect as a social
force must come from the voluntary support of its members because
of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved
unless the political process is insulated from religion and
_______________
352 Id.
353 Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
354 This argument was a central theme in John Locke’s A Letter Concerning
Toleration, which strongly influenced the thinking of many Americans, including
Jefferson and Madison. (Smith, S., “The Rise and Fall of Religious Freedom in
Constitutional Discourse”, University of Pennsylvania Law Review, vol. 140[1],
November 1991, p. 149, 155).
150

355
unless religion is insulated from politics.” Non-establishment thus
calls for government neutrality in religious matters 356
to uphold
voluntarism and avoid breeding interfaith dissension.
The neutrality principle was applied in the first significant non-
establishment case under the 1935 Constitution. In the 1937 case of
357
Aglipay v. Ruiz, 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 358
issued the questioned stamps under the
provisions of Act No. 4052 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,
_______________
355 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p.
233.
356 Id. at p. 234.
357 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 234.
358 An Act Appropriating the Sum of Sixty Thousand Pesos and Making the Same Available
out of any Funds in the Insular Treasury not otherwise Appropriated for the Cost of Plates and
Printing of Postage Stamps with New Designs, and for other Purposes.
151
VOL. 408, AUGUST 4, 2003 151
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
359
denominations. . .
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
360
U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168) (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.
361
Almost forty-five years after Aglipay came Garces v. Estenzo.
Although the Court found that the separation of church and state
_______________
359 Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.

360 Id., at pp. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
361 104 SCRA 510 (1981).
152

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.
362
Then came the 1978 case of Pamil v. Teleron, et al. 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, Munoz-
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
_______________
362 86 SCRA 413 (1978).
153
VOL. 408, AUGUST 4, 2003 153

with the religious freedom guaranteed by the Constitution.” Citing

363
Torcaso v. Watkins, 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
364
upon by petitioner and an express constitutional mandate.
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
365
with intramural religious disputes. Fonacier v. Court of Appeals is
the leading case. The issue therein was the right of con-
_______________
363 367 U.S. 488 (1961).

364 Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
365 96 Phil. 417 (1955).
154

trol 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
366
Jurisprudence, 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
367
and the law of the church. . .
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 368
dispose of the
property issue, the Court, citing Watson v. Jones, 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
369
matters which are outside the province of the civil courts.
_______________
366 45 Am. Jur. 77.

367 96 Phil 417 (1955), p. 426.
368 Id., at p. 441, citing American authorities.
369 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
155
VOL. 408, AUGUST 4, 2003 155

VIII. F ree 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
370
courts with a choice between competing values in religion cases.
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
371
the Establishment Clause to forestall. (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
_______________
370 Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
371 Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
156

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
372
expanded to a logical extreme, would tend to clash with the other.
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
373
imposed by union security agreements. (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 dises-
_______________
372 Walz v. Tax Commission, supra, p. 668.

373 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
157
VOL. 408, AUGUST 4, 2003 157
tablishment, 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
374
be freely exercised. 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
375
at all costs even the faintest
appearance of establishment.” 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, 376
in fact, has been
the approach followed by the Philippine Court.
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on

Philippine and American Religion Clause History, Law and
J urisprudence
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
_______________

375 Buzzard, L. and Ericsson, S., supra, p. 75.
376 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), pp. 288-289.
158

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 377
in a manner that will give to all of
them full, force and effect. From this construction, it will be
ascertained that the
_______________
377 Ang-Angco v. Castillo, 9 SCRA 619 (1963).
159
VOL. 408, AUGUST 4, 2003 159

intent of the framers was to adopt a benevolent neutrality approach

in interpreting the religious clauses in the Philippine constitutions,
and the enforcement
378
of this intent is the goal of construing the
constitution.
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
379
379
Commonwealth period. 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
380
from taxation.” The amendment was readily approved with 83
381
affirmative votes against 15 negative votes.
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-
_______________
378 Martin, Statutory Construction (1979), p. 210.

379 Aruego, J., supra, pp. 331-337.
(1971), pp. 154-155, citing Francisco (ed), Journal of the Constitutional Convention
of the Philippines, vol. 4, pp. 1550, 1552.
381 Aruego, J., supra, p. 337.
160

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
.
_______________
382 “Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights
(1971), p. 153.
161
VOL. 408, AUGUST 4, 2003 161

In the deliberations of this draft provision, an amendment was 383

proposed to strike down everything after “church denomination.”
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
384
a prohibition on appropriations similar to the Jones
Law. 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
385
garnered 74 affirmative votes against 34 negative
votes. 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.
_______________
383 Id., at p. 153, citing Francisco (ed.), Journal of the Constitutional Convention
of the Philippines, vol. 4, p. 1539.
384 Id., at pp. 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
385 Aruego, J., supra, pp. 340-345.
162

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
386
schools. 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
opposition387to the provision on the ground of separation of church
and state. 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
_______________
(1971), pp. 156-157, citing Escareal (ed.), Constitutional Convention Record, vol. 10
(1967), p. 29.
387 Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp. 627-
629.
163
VOL. 408, AUGUST 4, 2003 163

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 388
objects sought to be accomplished by the provisions thereof.”
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
389
reliance upon Him who guides the destinies of men and nations.”
The 1935 Constitution’s religion clauses, understood alongside the
other provisions on religion in the Constitution, indubitably shows
390
not hostility, but benevolence, to religion.
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
op-
_______________
388 Martin, supra, p. 218.

389 Aglipay v. Ruiz, supra, p. 206.
390 Tañada, L. and Fernando, E., Constitution of the Philippines, vol. 1 (1952), pp.
269-270.
164

tional 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,391
but may aid
all religions equally or the cause of religion in general. 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
392
values. 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 Con-
_______________
391 Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the
Committee on Church and State of the 1971 Constitutional Convention, p. 18.
392 Bernas, J., Background paper for reconsideration of the religion provisions of
the constitution (1971), pp. 41-43.
165
VOL. 408, AUGUST 4, 2003 165

stitution, this was nothing new as according to it, this principle was
implied in393the 1935 Constitution even in the absence of a similar
provision.
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 that394explanation, Commissioner
Bacani no longer pursued his proposal.
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 normal395 operations such as wear and tear, electricity,
janitorial services,
396
and when during the day instruction would be
conducted. 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
_______________
393 Tingson, J., Report of the Committee on Church and State of the 1971
Constitutional Convention Report, p. 5.
394 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406, citing
Records of the Constitutional Commission, vol. II, pp. 193-194.
395 Records of the Constitutional Commission, vol. 4, p. 362.
396 Id., at p. 358.
166

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
397
American practices. (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
398
church and state but on the non-establishment clause in the Bill of Rights.
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
399
God. “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
400
400
is not hostile nor indifferent to religion; its wall of separation is
401
not a wall of hostility or indifference.
_______________
397 Id., at p. 359.

398 Id., at p. 973.
399 Records of the Constitutional Commission, vol. 1, p. 102.
400 Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268.
401 Cruz, I., Constitutional Law (1995), p. 167.
167
VOL. 408, AUGUST 4, 2003 167

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 402
and
impregnable wall of separation between the church and state. 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
can-
_______________
402 Martinez, H., supra, p. 768-772.
168

not 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
403
clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not, only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty “ not only for a
minority, however small—not only for a majority, however large—
but for each of us” to the greatest extent possible within 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
_______________
403 McConnell, M., “Religious Freedom at a Crossroads”, The University of

Chicago Law Review (1992), vol. 59(1), p. 115, 169.
169
VOL. 408, AUGUST 4, 2003 169

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
404
Everson. 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 that405would undo the constitutional order that
guarantees free exercise.
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom.
_______________
404 Martinez, H., supra, p. 773.

405 Neuhaus, R., supra, p. 630
170

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
immedi-
171
VOL. 408, AUGUST 4, 2003 171

ate 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
406
and sacred of all human
rights”, in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher
sovereignty, The entire constitutional order of limited government 407is
premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the “aid of Almighty God in order to build
a just and humane society and establish a government.” As held in
Sherbert, only the gravest abuses, endangering paramount interests
can limit this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially the
408
less powerful ones until they are destroyed. In determining which
shall prevail between the state’s 409
interest and religious liberty,
reasonableness shall be the guide. The “compelling state interest”
serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to
work on Saturdays. In the end, the “compelling state interest” test,
by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved.
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
_______________
406 Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the
University of Virginia, in The Complete Jefferson (Saul K. Padover ed, 1969), pp.
957, 958.
407 Neuhaus, R., supra, p. 630.
408 Carter, S., supra, pp. 140-142.
409 Cruz, I., Constitutional Law (1995), p. 178.
172

410
liable. 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 from411committing the act. The facts of the 1975 case 412of
De Dios v. Alejo and the 1999 case of Maguad v. De Guzman,
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.
_______________
410 Liguid v. Camano, Jr., A.M., No. RTJ-99-1509, August 8, 2002, 387 SCRA 1;
Bucatcat v. Bucatcat, 380 Phil. 555; 323 SCRA 578 (2000); Navarro v. Navarro, 339
SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510; 273 SCRA 320 (1997);
Nalupta v. Tapec, 220 SCRA 505(1993); Aquino v. Navarro, 220 Phil. 49; 135 SCRA
361 (1985).
411 68 SCRA 354 (1975).
412 305 SCRA 469 (1999).
173
VOL. 408, AUGUST 4, 2003 173

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
413
theories regarding what it means to live morally. 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
414
price. 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 415
as by revolution
destroys the old order and creates a new one. 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
416
its government and other essential institutions. From
_______________
413 Rachels, J., The Elements of Moral Philosophy (1986), p. 1.

414 Devlin, P., The Enforcement of Morals (1965), p. 10.
415 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
416 Devlin, P., supra, 13.
174
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
417
rule is a necessary principle in this
democratic governance. 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
418
median groups. 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
_______________
417 Neuhaus, R., supra, pp. 621, 624-625.

418 McConnel, M., “Religious F reedom at a Crossroads”, The University of
175
VOL. 408, AUGUST 4, 2003 175

each of us”—the majority imposes upon itself a self-denying

ordinance. It promises not to do what it otherwise
419
could do: to ride
roughshod over the dissenting minorities. 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
420
put it, “(t)he law is the witness and deposit of our
moral life.” “In a liberal democracy, the law reflects social
421
morality over a period of time.” Occasionally though, a
disproportionate political influence might cause a law to be enacted
at odds with public morality or legislature might
422
fail to repeal laws
embodying outdated traditional moral views. Law has also been
defined as “something men create in423their best moments to protect
themselves in their worst moments.” 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
424
person. Law also serves as “a helpful starting point for thinking
about a
_______________
419 Neuhaus, R., supra, pp. 624-625.

420 Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The Path
of the Law, 10 Harv. L. Rev., 457, 459 (1897).
421 Id., at p. 247.
422 Greenwalt, K., supra, p. 272.
423 Buzzard, L. and Ericsson, S., supra, p. 31.
424 Devlin, P., supra, pp. 19-20.
176

425
proper or ideal public morality for a society” in pursuit of moral
progress. 426
In Magno v. Court of Appeals, et al., 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 427
method
of punishment is in reality the amount of punishment.” 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
428
428
injured but against society as a whole. 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
429
moral order. 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
430
whether respondent’s conduct, which constitutes concubinage, is
private in the sense that there
_______________
425 Id., at p. 247.

426 210 SCRA 471 (1992).
427 Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing
Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12, citing People v.
Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablo’s view in People v.
Piosca and Peremne, 86 Phil. 31.
428 Devlin, P., supra, pp. 6-7.
429 Id., at p. 19.
430 Article 334 of the Revised Penal Code provides, viz:
“Art. 334. Concubinage.—Any husband who shall keep amistress in the conjugal dwelling, or
shall have sexual intercourse,
177
VOL. 408, AUGUST 4, 2003 177

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.,
431
the legal spouse, does not alter or negate the crime unlike
in rape where consent of the supposed victim negates the crime. If
at all, the consent or pardon of the offended spouse in concubinage
432
negates the prosecution of the action, 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
_______________
under scandalous circumstances, with a woman who, is not his wife, or shall cohabit with her in
any other place, shall be punished by prision correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro.”
431 Article 266-A of the Revised Penal Code.

432 Rule 110 of the Revised Rules of Criminal Procedure, as amended provides in
relevant part, viz:
“The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse. The offended party cannot institute criminal prosecution without
including the guilty parties, if both are alive, nor, in any case, if the offended party has
consented to the offense or pardoned the offenders.”
178

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
433
826 of the German Civil Code. (emphases supplied)
_______________
433 Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186 (1956),
pp. 202-203, citing Report of the Code Commission on the Proposed Civil Code of the
Philippines, pp. 40-41.
179
VOL. 408, AUGUST 4, 2003 179

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
434
man’s “views of his relations to His Creator.” 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
435
religious truce.
Thus, when the law speaks of “immorality” in the Civil Service
Law or 436
“immoral” in the Code of Professional Responsibility 437
for
lawyers, or “public morals” in the Revised Penal Code, or
438
“morals” in the New Civil Code, or “moral character” in the
Constitu-
_______________
434 Carter, S., supra, p. 138.

435 Sullivan, K., supra, pp. 197-198.
436 Rule 1.01 of the Code of Professional Responsibility provides that, “(a) lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis
supplied)
437 Title Six of the Revised Penal Code is entitled Crimes against Public Morals
and includes therein provisions on gambling and betting. (emphasis supplied)
438 The New Civil Code provides, viz:
“Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public
policy, morals, or good customs or prejudicial to a third person with a right recognized by law.
Article 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided that are not contrary to law, morals, good
customs, public order, or public policy.
180
439
tion, the distinction between public and secular morality on the
one hand, and religious morality, on the other, should be kept in
440
mind. 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
441
grounds articulable in secular terms.” Otherwise, if government
relies upon religious beliefs in formulating public policies
_______________
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy; x x x” (emphasis supplied)
439 Article XIV, Section 3 provides in relevant part, viz:
(1) All educational institutions shall include the study of the Constitution as part of the
curricula.
(2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for
human rights, appreciation of the role of national heroes in the historical development of the
country, teach the rights and duties of citizenship, strengthen ethical and spiritual values,
develop moral character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational efficiency.
(emphasis supplied)
440 To illustrate the distinction between public or secular morality and religious
morality, we take the example of a judge. If the public morality of a society deems
that the death penalty is necessary to keep society together and thus crystallizes this
morality into law, a judge might find himself in a conflict between public morality and
his religious morality. He might discern that after weighing all considerations, his
religious beliefs compel him not to impose the death penalty as to do so would be
immoral. If the judge refuses to impose the death penalty where the crime warrants it,
he will be made accountable to the state which is the authority in the realm of public
morality and be held administratively liable for failing to perform his duty to the state.
If he refuses to act according to the public morality because he finds more compelling
his religious morality where he is answerable to an authority he deems higher than the
state, then his choice is to get out of the public morality realm where he has the duty
to enforce the public morality or continue to face the sanctions of the state for his
failure to perform his duty. See Griffin, L., “The Relevance of Religion to a Lawyer’s
Work: Legal Ethics”, Fordham Law Review (1998), vol. 66(4), p. 1253 for a
discussion of a similar dilemma involving lawyers.
441 Sullivan, K., supra, p. 196.
181
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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
442
justification is inconsistent with this policy of neutrality.
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
443
society in a uniform manner, harmonizing earth with heaven.
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
_______________
442 Smith, S., supra, pp. 184-185. For a defense of this view, see William P.
Marshall, We Know It When We See It” : The Supreme Court and Establishment, 59
S.Cal. L. Rev. 495 (1986). For an extended criticism of this position, see Steven D.
Smith, “ Symbols, Perceptions, and-Doctrinal Illusions: Establishment Neutrality and
the ‘No Establishment’ Test”, 86 Mich. L. Rev. 266 (1987).
443 Ostrom, V., “Religion and the Constitution of the American Political System”,
Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville, Democracy in
America (1945), p. 305.
182

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
183
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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
444
matters which are
outside the province of the civil courts.” But while the state,
including the
_______________
444 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
184

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
445
land and sea, a coastline of
irregularities and indentations.” 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
_______________
445 Devlin, P., supra, p. 22.
185
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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 446
Ynares-Santiago’s dissent also cites Cleveland v.
United States 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 purpose447of prostitution or debauchery, or for any other
immoral purpose.” 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
_______________
446 329 U.S. 14 (1946).

447 Cleveland v. United States, 329 U.S. 14, p. 16.
186

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,448was “odious among the northern
449
and
western nations of Europe,” “a return to barbarism,” “contrary
to the spirit of Christianity and of the civilization which Christianity
450
has produced in the Western world,” 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
_______________
448 Reynolds v. United States, supra, p. 164.

449 Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
450 Id.
187
VOL. 408, AUGUST 4, 2003 187

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 451
Association of Masjid Lambayong v.
Judge Nabdar J. Malik 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
_______________
451 226 SCRA 193 (1993).
188

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 Judge452
Malik to marry a second time while his first marriage
exists.” 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
_______________
452 Id., at p. 199.
189
VOL. 408, AUGUST 4, 2003 189

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
453
and
Recommendation of the investigating judge annexed letters 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
_______________
453 Annexes “A” and “B” of the Report and Recommendation of Executive Judge
Bonifacio Sanz Maceda.
190

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
191
VOL. 408, AUGUST 4, 2003 191

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
454
encroachment of her right to religious freedom. 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, J., Please see Separate Opinion.
Vitug, J., Please see Separate Opinion.
Panganiban, J., I join the Dissenting Opinion of Mr. Justice
Carpio.
Quisumbing and Sandoval-Gutierrez JJ., On Official Leave.
Ynares-Santiago, J., Please see dissenting opinion.
_______________
454 Cruz, I., supra, p. 176.
192

Carpio, J., See dissenting opinion.

Carpio-Morales, J., I concur with the dissenting opinion of
J. Carpio.
Callejo, Sr., J., I concur with the dissenting opinion of Mr.
Justice Antonio T. Carpio.
**
SEPARATE OPINION
Two roads diverged in a wood, and I

I took the one less traveled by
And that has made all the difference.
—Robert Frost, “The Road Not
Taken”
BELLOSILLO, J.:
With due respect to my very gracious and distinguished colleagues,

Mme. Justice Consuelo Ynares-Santiago and Mr. Justice Antonio T.
Carpio, I beg to disagree with the views espoused by them. This is
an exceptional case calling for an extraordinary solution, hence, the
wise foreboding “not to go where the path leads; rather, go where
there is no path, and blaze a trail!”
Indeed, it would have been too easy and convenient—for those
who are not familiar with the whole story of this case—to conclude
at first blush that immorality is present and penalty is its just reward;
for the fabulous fans of the tide, their inference would not have had
any better foundation. But in the proper context in which the events
complained of transpired, we cannot avoid being drawn to the
conclusion that respondent Soledad S. Escritor should be absolved
of the administrative charge against her for there is absolutely
nothing from her actuations that would constitute disgraceful or
immoral conduct.
Contrary to some impressions, the core of complainant’s factual
allegations occurred long before respondent joined the judiciary in
1999. She was a widow capacitated to marry when she was
appointed court interpreter. Her status as “ separada” who had been
faithfully, devotedly and peacefully taking good care of her family—
her partner and their twenty-two (22) year old son—was sanc-
_______________
** Originally a Dissenting Opinion to the ponencia of Mme. Justice Consuelo

Ynares-Santiago hence the tenor of this Separate Opinion.
193
VOL. 408, AUGUST 4, 2003 193

tified as early as 1991 by the Jehovah’s Witnesses, the religious

group to which she and her family belonged, a period of almost ten
(10) years before she was employed as court interpreter and before
the instant complaint against her was filed in the year 2000. Indeed,
in light of these facts, what better institution is there to judge her
morality than her own church; what business does the government
have to judge her conduct that is not criminal in nature nor
destructive of her efficiency in the service? This is the pith and soul
of what may be referred to as “a lonely voice in the wilderness.”
For emphasis, respondent was already a widow when she joined
the judiciary in 1999 as court interpreter of RTC-Br. 253, Las Piñas
City. At that time she was legally free to marry her partner of more
than twenty (20) years, one Feliciano D. Quilapio Jr., who has been
her family ever since her husband Joselito V. de Torres, now
deceased, abandoned her for another woman in 1979. Unfortunately
it is Feliciano who remains incapacitated to exchange vows with
respondent since his wife from whom he had been separated de facto
even before he and Soledad fell in love with each other, is still alive
and their marriage subsisting in the cold eyes of the law. These legal
complications however vanished in the stream of care,
understanding and love as they bore their first and only child, now
twenty-two (22) years of age, in a family that each never had in their
past marriages.
Respondent and her de facto husband belong to the church
known as Jehovah’s Witnesses. According to their congregation, the
informal conjugal partnership between them has been characterized
by faithfulness and devotion to each other for more than two (2)
decades. On 28 July 1991, with the proper inspiration and guidance
of their spiritual leaders in Atimonan, Quezon, where they were then
residing before their transfer to Metro Manila, Soledad and Feliciano
voluntarily executed a document called “ Declaration Pledging
Faithfulness,” conformably with their religious practice and with the
sanction of their respected elders in the Jehovah’s Witnesses who
acted willingly as their witnesses. In this document they confirmed
the presence of legal impediments to their marrying each other but
nonetheless promised to remain loyal and committed to one another
at all times as they sought all
194

avenues to1 obtain legal recognition of their union by civil

authorities.
As the record also shows, the “ Declaration Pledging
Faithfulness” was issued only after an exhaustive investigation of
the personal circumstances of respondent and her partner Feliciano
while they were still residents of Atimonan, Quezon, approximately
more than two hundred (200) kilometers away from Las Piñas City
where respondent was eventually employed. The religious document
was not given out perfunctorily and indiscriminately. It was
executed in their favor and released to them only after some ten (10)
years of faithful and uneventful cohabitation, as well as close
monitoring and observation, and long before the instant complaint
was filed.
On 22 August 2000 respondent was charged with the
administrative offense of “ Disgraceful and Immoral Conduct,” a
grave offense under the Omnibus Civil Service Rules and
Regulation, by a total stranger in her life and place of work.
Complainant is a resident of Bacoor, Cavite, while respondent’s
place of work is in Las Piñas City. Quite obviously, the sudden spark
of “moral conscience” on the part of complainant Alejandro Estrada
was stage-managed by an “unseen hand” against whom respondent
had earlier filed an administrative complaint; hitting back, in other
words.
A total outsider and a mere kibitzer in the “war” between
respondent and the “unseen hand,” complainant confessed that he
had nothing personal against respondent whom he did not even
know, much less acquainted with, but simply wanted allegedly to
protect the court from the embarrassment of having to “employ a
person of questionable moral standards.” Significantly, while
accusing her of disgraceful and immoral conduct, 2
complainant
admitted that respondent was a “ decent woman.” All told, the
accusation is a fiddle and a ruse meant to impress all and sundry into
believing that strangers and people in general have become “moral
crusaders without compassion”—a simply silly thought in the midst
of awry moral priorities and rampant rent-seeking incredibly
tolerated in our society. The succeeding paragraph apparently shows
the bias and prejudice of respondent’s presiding judge against her.
_______________
1 Record, p. 15.
2 TSN, 12 October 2000, p. 7; Rollo, p. 23.
195
VOL. 408, AUGUST 4, 2003 195

On 9 October 2000 respondent moved for the inhibition of the

presiding judge of RTC-Br. 253, Las Piñas City, whom she accused
of partiality due to the administrative complaint she had filed against
him with the Office of the Court Administrator. In her perception,
complainant Estrada was only a dummy of her presiding judge who,
quite interestingly, was himself the subject of two (2) administrative
3
cases for “ acts of serious impropriety unbecoming a judge” and for
“ gross ignorance of procedural law and unreasonable delay 4
in the
issuance of an order for the execution of a civil judgment.” But the
presiding judge denied the motion for his inhibition reasoning out
that the mere filing of an administrative complaint against him by
respondent did not disqualify him from hearing the case.
On 12 October 2000 respondent was able to confront her accuser
as their respective testimonies were taken one after the other.
Curiously, the presiding judge volunteered to act as counsel, as he
did, for Soledad Escritor when the latter manifested that she had no
lawyer who could take her direct testimony, (a seemingly improper
procedure considering that he is the respondent in the other
administrative case filed by respondent herein against him), thus
leaving to his discretion the details of respondent’s defense that went
on record. Respondent judge in fact propounded the direct questions
on respondent Escritor.
On 7 November 2000 the presiding judge endorsed the complaint
along with respondent’s answer thereto and the transcript of the
initial proceedings to Executive Judge Manuel B. Fernandez, Jr. of
RTC, Las Piñas City, who on 13 November 2000 in turn transmitted
the records to the Office of the Court Administrator for proper
disposition.
On 17 July 2001 we ordered respondent Escritor to comment on
the letter-complaint of Estrada, which she promptly did. On 22
January 2002 Executive Judge Bonifacio Sanz Maceda, RTC, Las
Piñas City, was directed by the Court Administrator to investigate
the letter-complaint and to submit his report and recommendation
thereon within sixty (60) days from receipt of the records.
_______________
3 Alumbres v. Caoibes, Jr., A.M. No. RTJ-99-1431, 23 January 2002, 374 SCRA
255.
4 Spouses Monterola v. Caoibes, Jr., A.M. No. RTJ-01-1620, 18 March 2002, 379
SCRA 334.
196

The parties presented their respective witnesses and documents on
three (3) hearing dates where the offer of evidence apparently
revolved around Judge Maceda’s formulation of the issue, i.e.,
whether to exact from respondent Escritor the moral standards of the
Catholic faith in determining her administrative responsibility when
5
she is a member of the Jehovah’s Witnesses. In the investigation a
quo, respondent proved the due execution and authenticity of the
“ Declaration Pledging Faithfulness.”
On 1 July 2002 Judge Maceda rendered his Report and
Recommendation absolving respondent of the charge of immorality
on the ground that her relationship has been well-accepted by the
religious sect to which she and her partner adhered.
Indeed, it is not quite possible to state with precision and fix an
inflexible standard for the administrative offense of disgraceful and
immoral conduct, or to specify the moral delinquency and obliquity
that should render employees of the judiciary unworthy of the public
trust. Immorality covers a multitude of sins and it may be doubted
whether there are in the entire civil service many persons so saintly
as never to have done6 any act which is disapproved by the prevailing
mores of our society. Truly, while in the opinion of many, laziness,
gluttony, vanity, selfishness, avarice and cowardice constitute in
themselves immoral conduct, moral guardians get around or avoid
punishing them tangibly.
To find merit in a charge of disgraceful and immoral conduct is
therefore a sensitive task, especially so when considered against the
7
gravity of the offense and penalty attached to it by law together
with the social consequence of ascribing a “ badge of infamy,” so to
speak, that disqualifies the respondent from any further employment,
including prospects of private employment,
8
which stamps the stigma
of official defamation of character. To say the least, we must be
careful when delineating the fine line separating
_______________
5 Hearings were held on 8 March 2002, 15 April 2002 and 29 May 2002; see
Report and Recommendation, p. 3.
6 Norton v. Macy, 417 F.2d 1161 (1969).
7 The Omnibus Civil Service Rules and Regulations classifies ‘‘disgraceful and
immoral conduct” as a grave offense and imposes the penalty of suspension from
office for six (6) months and one (1) day to one (1) year in the first instance.
8 Norton v. Macy, supra at 1164.
197
VOL. 408, AUGUST 4, 2003 197

the simply obnoxious or unconventional behavior from the

genuinely actionable conduct meriting administrative discipline.
“ Disgraceful and immoral conduct” is never considered in the
abstract but always in the context of conduct that is hostile to the
welfare of a particular profession or the specific governmental
position to which the alleged disgraceful and immoral employee
9
belongs. To some degree the determination of disgracefulness and
immorality must depend upon the nature of the acts, the
circumspection or notoriety with which they are performed and the
atmosphere of the community, i.e., the standards of the general
10 11
public and not some higher standard, in which they take place. As
explained in Morrison v. State Board of Education—
By interpreting these broad terms to apply to the employee’s performance
on the job, the decisions x x x give content to language which otherwise
would be too sweeping to be meaningful. Terms such as “immoral or
unprofessional conduct” or “moral turpitude” stretch over so wide a range
that they embrace an unlimited area of conduct. In using them the
Legislature surely did not mean to endow the employing agency with the
power to dismiss any employee whose personal, private conduct incurred its
disapproval. Hence the courts have consistently related the terms to the
issue of whether, when applied to the performance of the employee on the
12
job, the employee has disqualified himself.
This understanding is crucial because our jurisprudence defines

disgraceful and immoral conduct as “that which is willful, flagrant,
or shameless, and which shows a moral indifference to the 13
opinion
of the good and respectable members of the community,” none of
which is true in this case, and the Constitution recognizes our multi-
cultural experience and decrees a principle of unity in diversity. As
the definition poignantly suggests, a charge of disgraceful and
immoral conduct does not depend solely upon the character of
_______________
9 Morrison v. State Board of Education, 461 P.2d 375 (1969).

10 Risner v. State Personnel Board of Review, 381 N.E.2d 346, 350 (1978).
11 Major v. Hampton, 413 F. Supp. 66 (1976).
12 Morrison v. State Board of Education, supra at 382.
13 Obusan v. Obusan, A.C. No. 1392, 2 April 1984, 128 SCRA 485, 487; Narag v.
Narag, A.C. No. 3405, 29 June 1998, 291 SCRA 451.
198

the protested act or series of acts but must include 14

a holistic
evaluation of the circumstances obtaining in each case.
Even this Court’s oft-repeated justification for penalizing
disgraceful and immoral conduct does not treat the questioned action
in isolation nor chastises it for its own sake, but instead refers to the
tendency of the allegedly disgraceful and immoral conduct to
discredit either the employee himself or the service. Verily, in
appropriate cases, private morality can be isolated from the
circumscription of the public sphere where 15
respondent’s moral
lapses do not prove prejudicial to the service.
Given the foregoing standard by which to judge a particular
conduct as disgraceful and immoral, Executive Judge Bonifacio
Sanz Maceda of RTC, Las Piñas City, as investigating Judge was
correct when he reduced the issue in this case to whether the moral
standards of the Catholic faith, to which a great majority of us
belongs, must be exacted of respondent in determining her
administrative responsibility when she is a member of the Jehovah’s
Witnesses, and recommended the absolution of respondent of the
charge of disgraceful and immoral conduct on the ground that her
relationship has been well-accepted by the religious sect to which
she and her partner adhered. But even if we do apply the standards
of the Catholic faith to non-Catholics, although we should not, Judge
Maceda’s recommendation to free respondent from any culpability is
clearly justified as respondent’s actuation is not, nor is it even hinted
at that it is, prejudicial to the service.
None can honestly posit, much less assert, that respondent is
guilty of disgraceful and immoral conduct in the sense that she had
done something willful, flagrant, or shameless, and which shows a
moral indifference to the opinion of the good and respectable
members of the community in a manner prejudicial to the service.
For one, punishing Soledad Escritor by any kind of penalty will not
solve or prove anything because she stands to be harassed and
penalized again and again every time somebody dislikes her face, as
her situation will inevitably continue until we direct them
_______________
14 Madredijo v. Loyao, A.M. No. RTJ-98-1424, 13 October 1999, 316 SCRA 544;
Santos v. National Labor Relations Commission, G.R. No. 115795, 6 March 1998,
287 SCRA 117.
15 De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354; Burgos v.
Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.
199
VOL. 408, AUGUST 4, 2003 199

to break up their church-sanctioned relationship, which we are not

prepared to do for being cruel and unusual.
The alternative is not any better. This Court might be dissolving a
strong and peaceful family of more than two (2) decades and, in the
extreme case, deprive respondent of livelihood from which to feed
herself and her family. At bottom, if we are to uphold the complaint,
we will be breaking up an otherwise ideal union of two (2)
individuals who have managed to stay together as husband and wife
for more than twenty (20) years and at peace with the world as
solemnly attested to by the Jehovah’s Witnesses to which they
belong. And what happens to their son born of their happy union?
Certainly, it will adversely affect him in his interaction with his
friends and neighbors. This, in all conscience, Christians cannot
countenance.
Moreover, there is simply nothing disgraceful and immoral in
respondent’s decision to pursue her happiness, and perhaps security,
after her lawful husband abandoned her for another woman. She did
not forsake any child nor desert her household. It was her
philandering husband who left her for another woman. To
paraphrase Judge Learned Hand, Soledad was not obligated to live
in complete celibacy otherwise forfeit her claim to good moral
16
character. There ought to be a better order of moral priorities to
avoid the perceived fixation on sex where a person may have
impeccable sexual standards—or indeed be celibate—and yet steal.
To be sure, there are matters that are best left to the conscience
and the moral beliefs of an individual, and matters of which public
law may take cognizance. Obviously, while the latter pertains to
matters affecting society and public life, not every “ irregular union”
constitutes immorality that is actionable under administrative law.
Consider this: a Catholic who obtains a decree of nullity from his
church would be available to remarry by the norms and precepts of
his faith and moral standards. Before civil law, however, his
marriage would be bigamous. The second union may be categorized
as a crime, but one would hardly be justified in classifying it as
“ immoral conduct” because the moral standards he lives by—those
of his faith—precisely permit him the second marriage. To hold that
the second union is immoral would be to bind him to follow moral
precepts divergent from those imposed upon him by his
_______________
16 Schmidt v. United States, 177 F.2d 450, 451 (1949).
200

faith, contrary to the freedom of conscience and practice of his

religion guaranteed under the Constitution.
That is why, although some years back society decried solo
parenthood and de facto separated couples as an affront to the
conventional wisdom of a model family, recent social justice
legislation has compassionately redefined the concept of family to
include single mothers and their children regardless of the mother’s
civil status, otherwise no single parent would be employed by the
government service, and that would be discriminatory, if not to say,
17
unconstitutional! In the opinion of a Philippine Daily Inquirer
columnist on18 the standards of the general public of what is moral
and decent, the humane and moral response to dysfunctional
marriages is that—
The quality or authenticity of a family, or a marriage for that matter, does

not lie in its legal status alone, or on the united front that spouses present
before polite society. Rather, it lies in the relationship between spouses and
between them and their children and other members of the family. If there is
genuine caring and concern, respect and fondness among them, then it is a
family in the fullest sense of the word. But if there is only pretense,
indifference and hypocrisy, or worse, cruelty and pain, then that marriage is
19
better off ended, the family better off liberated.
It must be emphasized that nothing was presented in the

investigation a quo to prove that respondent lived her life in a
scandalous or disgraceful manner, or that by any means she has
20
affected her standing in the community. Certainly there was no
intention on her part to embarrass the judiciary since the relationship
started in 1980 and blessed by ministers and elders of the Jehovah’s
Witnesses in 1991 in Atimonan, Quezon, after establishing a faithful
partnership of more than ten (10) years.
_______________
17 Rep. Act No. 8972 (2000). This law is popularly known as “Solo Parents’
Welfare Act of 2000.”
18 See the “2002 ISSP Survey on the Family” of the Social Weather Station which
concluded that “[o]nly 28% agree, whereas 58% disagree, that ‘It is better to have a
bad marriage than no marriage at all’ ” at http://www.sws.org.ph.
19 “Welcome Relief for Couples, Courts,” At Large by Columnist Rina Jimenez-
David, 19 January 2003 issue of the Philippine Daily Inquirer.
20 Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.
201
VOL. 408, AUGUST 4, 2003 201

Although a verified complaint consisting of21 hearsay allegations

could be the basis of an administrative case, it begs explanation
why only such a weak charge from a total stranger could be
mustered against respondent for her allegedly immoral relationship
spanning more than twenty (20) years. Let it be further underscored
that the legal wife of her partner Feliciano, indisputably the person
most concerned, or any other individual from Atimonan, Quezon, or
in Las Piñas City where respondent found employment, has not
sounded any objection to the relationship. This fact clearly shows
that respondent has not jeopardized her honor, nor that of any citizen
in the community.
Indeed, if respondent’s conduct were truly willful, flagrant,
shameless, and immoral in the view of the good and respectable
members of the community, there is no sense why her co-employees
themselves never complained against her conduct. Their silence
genuinely indicates not only the absence of outrage and scandal
within the Hall of Justice of Las Piñas City arising from
respondent’s relationship with Feliciano D. Quilapio, Jr., but in all
probability also the community’s acceptance, if not respect, for her
true faith and steadfast commitment to her partner and family of
more than two (2) decades.
There is no cogent reason to justify any action that will disrupt or
break apart the peaceful existence of the family founded by Soledad
and her other half. The record does not show that they have caused
discomfiture and embarrassment to the judiciary nor that the
relationship ever compromised her duties as a court interpreter. Her
efficiency in her job has never been doubted for any reason
attributable to the union with her informal partner. Certainly we
cannot describe the concern and love she has for so long exhibited as
a willful, flagrant and shameless conduct.
Without doubt, too, the genuine sensitivity and overwhelming
solicitude of respondent to the demands of morality and
righteousness, and “ the opinion of the good and respectable
members of the community,” are manifested by her attempt to seek
the clarification and guidance of her moral mentors—the elders of
the church
_______________
21 Celis v. Marquez, A.M. No. R-156-P, 27 August 1985, 138 SCRA 256 citing
Anonymous Complaint v. Araula, A. M. No. 1571-CFI, 7 February 1978, 81 SCRA
483; Bernardo v. Fabros, A.M. No. MTJ-99-1189, 12 May 1999, 307 SCRA 28.
202

to which she and her partner belong; they who in 1991 ruled that
they did not find anything immoral about the union. Precisely, in the
“ Declaration Pledging Faithfulness” before revered elders of the
Jehovah’s Witnesses, respondent and her partner promised to secure
the formal approval of civil authorities and to stay devoted to each
other thus—
I, Soledad Escritor, do here declare that I have accepted Feliciano 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 makes this possible, I promise to legalize
this union.
It bears stressing that the “ Declaration Pledging Faithfulness,” a

duly executed and genuine document, was not perfunctorily or
indiscriminately issued; it was only after some ten (10) years of
authentic family life and an exhaustive investigation and evaluation
of the relationship of the parties thereto. Clearly, the act was done
long before the instant complaint was filed and definitely with no
intention to deceive anyone as to the character and motive of their
union. While we do not encourage such a union, we cannot on the
other hand totally ignore a fact of life.
The Jehovah’s Witnesses is one of the respected congregations of
Christians in the country. It counts among its members upright and
productive citizens whose views on morality cannot be disregarded.
Consequently when elders of this religion affixed their imprimatur
on the “ Declaration Pledging Faithfulness” they validated the
moral legitimacy of respondent’s informal conjugal partnership. Of
course, first and foremost, the appropriate judge of respondent’s
morality is her own church and this task cannot be assigned to any
other institution in society if any religious congregation is to have
any purpose at all.
We cannot ignore the religious sentiment of the Jehovah’s
Witnesses which in any event falls squarely within society’s interest
in a functional family. This Court’s respect for the positive traditions
203
VOL. 408, AUGUST 4, 2003 203

of the Jehovah’s Witnesses stands on equal footing with our

deference to a Muslim judge’s prerogative to have more than one
wife in exceptional cases provided he can deal with them with equal
22
companionship and just treatment as enjoined by Islamic law as
with any other legitimate social and cultural practices.
Verily, this is not the first time that this Court is dismissing a
charge of disgraceful and immoral conduct on the ground of
distinctive bona fide beliefs and practices. In Sulu Islamic
Association of Masjid Lambayong v. Malik we 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
23
Malik to marry a second time while his first marriage [existed].”
24
In De Dios v. Alejo we quoted with approval a decision of the then
Board of Civil Service to extend compassion to a situation
analogous to the instant case—
Of equal pertinence to the case at bar, is the decision of the Board of Civil
Service in Administrative Case No. III x x x promulgated on July 30, 1941.
The Board of Civil Service Appeal ruled as follows: “x x x x The
complainant in this case was a total outsider, and the legal wife, who are the
persons most concerned, have not vowed any objection to the situation. This
fact, while not significant by itself, reveals that the respondent has not
jeopardized the honor of any third person. This Board is aware that it is not
an easy task to determine whether a certain improper conduct constitutes
immoral conduct within the meaning of the Civil Service Rules and
Regulations to warrant removal from the service; but in this particular case,
this Board is fully convinced that the respondent in taking another woman—
was impelled by no other than an honest and decent intention to overcome
his misfortune and to live anew to take his natural place among his
fellowmen. It would be in violation of all human conventions—cruel to say
the least—to require the respondent to live with his unfaithful spouse. The
respondent is a mere principal clerk—a position which does not exercise a
moral influence in the community x x x x It is pertinent to state here that the
efficiency of the respondent in the discharge of his duties is not questioned x
x x x In this connection, we quote the words of
_______________
22 See Pres. Decree No. 1083 (1977), Art. 27. This law is entitled “A Decree to Ordain and
Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim
Personal Laws, and Providing for its Administration and for Other Purposes.”
23 A.M. No. MTJ-92-691, 10 September 1993, 226 SCRA 193, 199.
24 A.M. No. P-137, 15 December 1975, 68 SCRA 354 .
204

Governor General Theodore Roosevelt in the case of Municipal Treasurer

Juan T. Soriano who was similarly charged with immorality way back in
1932: The undersigned x x x would be inclined to favor dropping this case
entirely and restoring him to his former positions. There are involved in the
case six people beside himself—his legal wife, the woman with whom he is
living, and four children. It does not appear that any of these people who are
most concerned of all have voiced an objection to the situation as it existed
for ten (10) years nor that they would be in anyway benefited by the action
proposed herein. In fact, such action would probably work great hardship on
25
most of them.
The cases where the charge of disgraceful and immoral conduct was
sufficiently proved by evidence cannot be controlling since the
instant case differs
26
from them in several27respects. In Marquez v.
Clores-Ramos, Bucatcat v. Bucatcat and Maguad v. De
28
Guzman, for example, the illicit relationship in question clearly
caused furor within the community whose moral sensibilities were
offended as shown by the social standing and manifest interest of the
complainants therein. In the instant case, all we have is the word of a
kibitzer who could not even get the support of respondent’s co-
employees to prove that Soledad’s actions indeed caused scandal in
the office and in the community at large.
Furthermore, unlike the relationship between respondent and her
mate, the informal partnership in Clores-Ramos, Bucatcat and De
Guzman blossomed while the parties concerned were already
employees of the trial court, and worse, without the benefit of the
same respect showed by respondent for “ the opinion of the good and
respectable members of the community” since the guilty liaisons
therein were fueled only by passion for the paramour. Quite
obviously, as demonstrated by the fact that Soledad was admitted
into the service and allowed to assume office as court interpreter
despite her relationship with Feliciano D. Quilapio Jr., the judiciary
believed in the innocence of her domestic arrangement for more than
twenty (20) years and fully accepted her private morality. The
human side of this case should not be totally ignored because
respondent’s present position is not one which has caused scandal to
anyone truly concerned with public morality. The in-
_______________
25 Id., pp. 359-360, 362.

26 A.M. No. P-96-1182, 19 July 2000, 336 SCRA 122.
27 A.M. No. P-93-985, 28 January 2000, 323 SCRA 578.
28 A.M. No. P-94-1015, 29 March 1999, 305 SCRA 469.
205
VOL. 408, AUGUST 4, 2003 205

stant case may therefore be viewed and appreciated with human

understanding as indeed it is more attuned to the interest of society
and public service that she be able to fulfill her obligation of
maternal support and care for her son and true family than for us to
tear apart an otherwise ideal union of two loving and respectable
individuals.
While this Court is aware of the not-so-easy and clear-cut task of
determining whether certain improper conduct would constitute
disgraceful immorality and warrant administrative discipline, to be
sure, in this particular case we are wholly convinced that respondent
in living with her present partner to foster a wholesome family was
impelled by only the honest and decent intention to overcome her
previous marital misfortune and to take anew her natural place in a
pleasant and wholesome community. Without fear of contradiction,
it would be violating godly laws of charity and love and, to say the
least, embracing cruelty and hypocrisy, if we should require
respondent to abandon her faithful spouse and loving son, or
penalize her for treasuring the unity of her family as she would
29
keep
her work, for the punctilious satisfaction of a blind world.
More enlightened jurisdictions would treat adverse personnel
actions, i.e., dismissal, suspension, fine or other penalties, arising
from a charge of immoral conduct with due consideration of the
constitutional rights of due process and privacy. We may also apply
the same standard in the instant case if only to accord ample
recognition to the principle that a civil servant does not surrender his
constitutional rights once he assumes public service, hence, he may
not be dismissed from his job for a constitutionally impermissible
30
reason.
31
Mindel v. Civil Service Commission, for example, involves a
post office clerk who was removed from the service for “immoral
conduct” because he had lived with a young lady without the benefit
of marriage. The federal court ordered his reinstatement since
“ Mindel’s termination was arbitrary and capricious, and therefore
_______________
29 See Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.
30 McMahon v. Board of Selection of Town Newtown, 506 F.Supp. 537 (1981).
31 312 F. Supp. 485 (1970).
206

32
violated due process x x x and his right to privacy.” It was
observed that Mindel was employed in a most insensitive position as
postal clerk and his alleged
33
conduct was discreet, not notorious,
much less scandalous. The federal court held finally that even if
Mindels conduct can be characterized as “ immoral,” he cannot
constitutionally be penalized on this ground absent “ a rational
nexus between his conduct and his duties as a postal clerk. A
reviewing court must at least be able to discern some reasonably
foreseeable specific connection between an employee’s potentially
34
embarrassing conduct and the efficiency of the service.”
Clearly, “ immorality” as a category of offense for the dismissal
of a public servant or a judicial employee should not be construed as
any violation of moral prescriptions. Otherwise, this tack would only
embroil this Court in the eternal debate on divergent moral theories
and systems. For a public servant, the pivotal question in
determining administrative culpability ought to be whether the
challenged conduct is ultimately prejudicial to public service. We
cannot snoop into bedrooms and peer under bed covers without
running afoul of every person’s constitutionally protected
individuality. Quite interestingly, in American jurisprudence,
conduct affecting one’s personal character has been excluded from
the ambit of actionable behavior. It stressed: “ But conduct
amounting to mere irregularity or merely affecting one’s character
as a private individual is not usually covered by the term
35
‘malconduct.’ ”
We agree with the ponente, Mr. Justice Reynato S. Puno, that we
may resolve this case on the basis of the standards of religious
freedom. Nonetheless, this is not the threshold issue. Religious
freedom may constitute Escritor’s defense in avoidance but must she
in the first place get around eluding an offense whose elements were
not proved?
Respondent is charged with Disgraceful and Immoral Conduct.
The primary question should therefore be: Does the evidence show
both disgrace and immorality at the same time? As has been
carefully explained above, one without the other does not constitute
the transgression. The plain significance of the words comprising
Dis-
_______________
32 Id., p. 487.
33 Ibid.
34 Ibid.
35 63 A Am. Jur. 2d, Public Officers and Employees, Sec. 247.
207
VOL. 408, AUGUST 4, 2003 207

graceful and Immoral Conduct supports this proposition. Absent any

evidence confirming the presence of disgrace and immorality
simultaneously, the wrongdoing was not committed and
concomitantly there is no occasion to delve heavily on religious
freedom. The situation is not unlike a criminal case of homicide—
self-defense need not be invoked and examined until there is proof
that somebody has been killed.
If we go by the definition of disgrace, then we would be
requiring evidence to prove a question of fact, i.e., “ 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.” Unfortunately for complainant, no evidence has
been presented on this score; hence, no administrative misconduct of
Disgraceful and Immoral Conduct may be found. Ei incumbit
probatio, qui dicit, non qui negat. He who asserts, not he who
denies, must prove. Is respondent now called upon to prove what
complainant failed to prove? This is unusually and awkwardly
unprocedural!
In fact, the reverse is true: No disgraceful conduct may be
inferred from the actuations of respondent since even her church or
religion sanctifies her relationship; complainant himself admits that
Escritor is a decent woman; no question has been raised on her
efficiency in the service; and community standards have been
changing as shown by the Solo Parents’ Welfare Act of 2000 and the
attitude of people who shape public opinion.
We also cannot deduce immorality from the “unusual” set-up in
the family of Escritor. This I say because of Sec. 3, Art. XV, of the
Constitution which provides, “The State shall defend x x x [t]he
right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood x x x x”
This rule is broad enough to include de facto family relations since it
would be absurd to deny the free exercise of religious convictions by
virtue of the existence or non-existence of marriage. Besides, such
“atypical” family organization is not immoral per se considering the
leeway granted to Moros in Sulu Islamic Association of Masjid
Lambayong v. Malik, and in PD 1083, for surely if the arrangement
is itself heinous no law could be validly enacted to endorse it.
More than religious freedom, I look with partiality to the rights
of due process and privacy. Law in general reflects a particular
morality or ideology, and so I would rather not foist upon the
208

populace such criteria as “compelling state interest,” but more, the

reasonably foreseeable specific connection between an employee’s
potentially embarrassing conduct and the efficiency of the service.
This is a fairly objective standard than the compelling interest
standard involved in religious freedom.
Verily, if we are to remand the instant case to the Office of the
Court Administrator, we must also configure the rights of due
process and privacy into the equation. By doing so, we can make a
difference not only for those who object out of religious scruples but
also for those who choose to live a meaningful life even if it means
sometimes breaking “oppressive” and “antiquated” application of
laws but are otherwise efficient and effective workers. As is often
said, when we have learned to reverence each individual’s liberty as
we do our tangible wealth, we then shall have our renaissance.
Mr. Justice Antonio T. Carpio is candid enough to admit that
Escritor is not liable for Disgraceful and Immoral Conduct. I am
grateful that he took account of the two (2) words that make up the
offense, i.e., disgraceful and immoral, to decide the way he did. But
there can be no comfort with the rest of his position to find Escritor
guilty of Conduct Prejudicial to the Best Interest of the Service
allegedly because she is continuously engaging in concubinage in
violation of the Revised Penal Code. It is time to tame the tenacity to
uncover fault out of this poor woman’s conduct.
We may admit that there is Conduct Prejudicial to the Best
Interest of the Service where the efficiency, integrity and credibility
of the civil service or of the administration of justice are adversely
affected. I however do not discern any evidence of these harmful
consequences. Verily, the opposite is again true: Complainant
admitted that respondent Escritor is a decent woman and has not
caused embarrassment to the judiciary. On the other hand, if we
penalize respondent, force her family to break up and remove her
from her job, it is then that we will prejudice government service.
Certainly, we are not jeopardizing the ability of government to
execute the laws faithfully and credibly by allowing respondent to
continue with her present family relations. In the first place, she
cannot be said to be breaking the proscriptions of the Revised Pe-nal
Code since there is no conviction by final judgment against her for
concubinage; as it is, she is entitled to the presumption of innocence.
Furthermore, Art. 344 of the Revised Penal Code itself offers the
justification for the government not to prosecute and persecute
209
VOL. 408, AUGUST 4, 2003 209

Escritor as this law requires a complaint from the offended spouses

for any action thereon to prosper. In the absence of such complaint
as in the case at bar, we cannot conclude that the government is
being partial to respondent for not enforcing the pertinent penal
provisions against her.
It is more than a matter of sympathy; it is a clear dose of justice
indeed to conclude that respondent did not fail to live up to her
ethical obligations; in conscience and in law, this Court should be
the last, and never, to cast the stone and stamp the badge of infamy
upon her legitimate desire for personal security and safety that in
reality has bothered no one, least of all, our own judicial institution.
WHEREFORE, I do not agree with the respective views
expressed by Mme. Justice Consuelo Ynares-Santiago and Mr.
Justice Antonio T. Carpio but concur with the ponencia of Mr.
Justice Reynato S. Puno in the result.
SEPARATE OPINION
VITUG, J.:
The facts, mostly conceded, would appear to be a little less than

adequate to respond to some fundamental issues spawned by the
case. The controversy involves Soledad S. Escritor, a court
interpreter of the Regional Trial Court of Las Piñas, Branch 253,
who, admittedly, has since 1980 and while married to another, been
cohabiting with Luciano Quilapio Jr., himself married to another.
Escritor and Quilapio have a nineteen-year old son. Private
complainant, Alejandro Estrada, is not personally related to Escritor
nor does he personally know her. He, however, would have her
relationship with Quilapio adjudged by this Court to be immoral in
consonance with the pertinent provisions of the Administrative
1
Code. In her defense, Escritor contends that under the rules of the
_______________
1 Book V, Title I, Chapter VI, Section 46(b) (5) of the Revised Administrative
Code 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
210

Jehovah’s Witnesses, a religious sect of which she is a member, the

2
act of signing a Declaration Pledging Faithfulness, is sufficient to
legitimize a union which would otherwise, be classified as
adulterous and bigamous. Escritor alleges that in compliance with
the foregoing rules, she and her partner signed the Declaration
Pledging Faithfulness in 1991 and by virtue of such act, they are, for
all purposes, regarded as husband and wife by the religious
denomination of which they are devout adherents.
The ponencia has thus justifiably discussed the ramifications of
the constitutionally protected right of freedom of religion clause on
the issue. Nevertheless, one cannot help but have a few misgivings.
Escritor has admitted to having lived with Quilapio since 1980, or
for a period of twenty-three years, yet she has signed the Declaration
of Pledging Faithfulness only on 28 July 1991, or a total of eleven
years since her questioned cohabitation. The delay might be
attributed to a number of reasons. One possibility would be that
Escritor and Quilapio have tried to comply with the rules of the
religious sect which, as can be so gleaned from the wordings of the
Declaration, requires one with an impediment to legalize a
subsequent union to do “all within his ability to obtain recognition
of the relationship by the proper authorities.” The facts do not show
that either Escritor or Quilapio, complied with the foregoing
requisite by seeking the annulment of their respective marriages
during the first eleven years of the questioned union. It may be of no
moment that Escritor has joined the judiciary only in 1999, already
then a
_______________
(5) disgraceful and immoral conduct.
2 DECLARATION 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 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 the circumstances makes this possible, I promise to legalize this union. Signed
this 28th day of July, 1991.
211
VOL. 408, AUGUST 4, 2003 211

widow, and thus capacitated to enter into another marriage because

then and now Quilapio remains married to another. Does the act of
Escritor in signing the declaration pledging faithfulness, long after
the actual union, a fait accompli, serve to legitimize what might not
originally be? I fear that the focus would have to instead be on
Escritor’s freedom of personal belief, i.e., whether the invoked
provision in the Administrative Code would impinge on Escritor’s
freedom of an honestly held belief that her conduct is morally
acceptable and justifiable. The issue then is the meaning of
“immorality,” the standards that can be used to measure it and the
role that society must be perceived to play. Not all moral norms are
covered by law nor are all laws moral norms.
It is established that adultery and concubinage constitute criminal
offenses. Thus, I shall not delve on the legal and philosophical
intricacies that surround them. The question should rather be, given
the settings, whether under the basic facts and circumstances thus far
disclosed, such “immoral conduct” should be dealt with and
sanctioned by law. If so, one might likewise examine under what
“moral” authority the law purports to so act.
The 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. I agree with its well-written dissertation
emphasizing, in particular, that the state can interfere with “private
immoralities” to the extent that they affect the general or the
common good. Defining, however, the line where an immoral
conduct crosses the private sphere to the realm of a general concern
could be a most daunting task. Can it be argued, for instance, that
there having been no private offended party, their respective legal
spouses never having filed any criminal or civil complaint against
them, the relationship between Escritor and Quilapio should be
confined solely to the sphere of private morality? This question but
typifies the thorny relationship, in turn, between law and morality
that has engaged philosophers for centuries—Does society possess
the right to pass judgment on matter of morals? Second, if it has the
right to pass such judgment, has it also the right to use the weapon
of law to enforce it?
Philippine laws on the subject are veritable repositories of moral
laws that sanction immoral conduct which, at first glance, could
appear to be private and to cause no harm to larger society but
212

nevertheless dealt with. Examples of such instances include general

references to “good moral character” as a qualification and as a
condition for remaining in public office, and sex between a man and
a prostitute, though consensual and private, and with no injured third
party, remains illegal in this country. Until just about a month ago,
the United States Supreme Court has outlawed acts of sodomy or
consensual sexual relations between 3 two consenting males, even if
done in the privacy of the bedroom. Are moral laws such as these
justified? Do they not unduly impinge on one’s own freedom of
belief?
Law and Morals

Law and morals, albeit closely connected, may proceed along
different planes. Law is primarily directed at man’s behavior while
4
morals are directed at his animus or state of mind. While the law
often makes reference to one’s state of mind, it does not, however,
punish the existence of immoral intent without more. It requires only
that at the risk of punitive sanctions for disobedience, one must
refrain from the temptation to act in accordance with such intent to
the detriment of another. The ethical principle is generally cast,
affirmatively or negatively, in the form of a direct command,
whereas the legal rule speaks, generally, of the consequences that
5
attend the violation of a duty. As to purpose, law and morals further
diverge. Morals strive for 6individual perfection, while law aim at
harmony in the community.
Not all societal mores are codified into laws. We have yet to see a
law outlawing vanity, pride, gluttony or sloth. Nor are all laws
necessarily moral. Slavery is outlawed but not so in our distant past.
Laws allowing racial segregation prejudicial to blacks or denying
the right to suffrage to women may seem to be relics of a long gone
uncivilized society if one forgets that the abolition of these “immoral
laws” is but less than a century ago.
The observation brings to the fore some characteristics of morals,
which make it unwise to insist that it be, at all times, co-
_______________
3 Lawrence, et al. v. Texas, US Supreme Court, 26 June 2003.

4 Louis Altman, Calimann on Unfair Competition, Trademarks and Monopolies,
(4th Edition) Current through the Spring 2003 Supplement.
5 Ibid.
6 Ibid.
213
VOL. 408, AUGUST 4, 2003 213

extensive with law—First, morals are not entirely error free. To

insist that laws should always embody the prevailing morality
without questioning whether the morals sought to be upheld are in
themselves right or wrong would be a dangerous proposition.
Second, morals continuously change over time, often too slowly to
be immediately discerned. To ensure that laws keep pace with the
ever-changing moralities would be quite a perplexed, if not a futile,
an endeavor. Third, standards of morality vary. Modern society is
essentially pluralist. People of different faiths owe common
allegiance to the State. Different moral judgments flow from varying
7
religious premises that, obviously, the law cannot all accommodate.
The Common Origin of Morality and the Law
That law and morals are closely intertwined is a traditionally held
belief. One school of thought even go as far as calling a law without
morality as not law at all; but naked power, and that human beings8
not only have a legal, but also the moral obligation to obey the law.
It suggests that where law clashes with morality, it can impose no
obligation, moral or otherwise, upon anyone to obey it; one may
9
actually be morally bound to disobey such law. The ancient role
held by the Christian Church as being the ruler of both spiritual and
temporal affairs of men has laid that groundwork for the impression.
The Judaic-Christian God is thought to be the source of both law and
morality and man has come to know of His law and morals through
10
the human soul, the human conscience and the human mind. With
the rise of the secular state in the 16th and 17th centuries and the
corresponding decline in the authority of the Church, legal thinkers
such as Pufendorf, Vattel, and Burlamaqui would establish legal
systems based on scientific principles deduced from the nature of
men and things, that would guide the behavior of the metaphysical
man in directions that promote political order and assure a measure
of protected individ-
_______________
7 Norman St. John-Stevas, “Law and Morals,” Hawthorne Books Publishers, N.Y.
Ist Edition, October 1964, at p. 18.
8 Calvin Woodard, Symposium: The Moral Lawyer. “ Thoughts on the Interplay
Between Morality and Law in Modern Legal Thought” Notre Dame Law Review
1989.
9 Ibid.
10 Ibid.
214

11
ual dignity. Such treatises on natural law have offered model
political systems based on scientific principles logically deduced
from the nature of man and the nature of things, serving to give a
kind of scientific legitimacy to the newly formed nation states
emerging in the 17th and 18th centuries under human sovereigns.
Not surprisingly, sovereigns of that era promulgated natural law
codes consisting of religious commandments, quasi-human moral
values and civic virtues all couched in the language of legal
12
proscriptions proclaimed and enforced by secular states. Human
conduct condemned by God’s law and forbidden by the sovereign’s
law would be said to be morally, as well as legally, reprehensible or
13
malum in se.
As the law of the state became inexorably intertwined with
higher moral law, based on both divine law and the law of nature, so,
14
also, human law was seen to carry the moral authority of both.
Jurisprudential ramifications could hardly be contained.
In the last 19th century, legal reformers have consciously
inculcated moral concepts such as fault, intent, and extenuating
circumstances into both civil and criminal law. Law and morals have
been drawn closer together so that legal accountability, more
15
accurately than not, would likewise reflect moral culpability.
Vestiges of these reforms are still enshrined in our laws. In the
Revised Penal Code, for example, mitigating, extenuating or
aggravating circumstances that may either decrease or increase the
penalties to be meted on an offender are all based on the moral
attributes of the crime and the criminal.
The academic polemic

With the emergence of the secular state, the greatest contribution of
liberals to the issue is not the discovery of a pre-existing, necessary
distinction between law and morality; rather, it is their attempt at
separation, the building of the wall to separate law from
_______________
11 Ibid.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid.
215
VOL. 408, AUGUST 4, 2003 215

16
morality, whose coincidence is sublimely monstrous. Liberals
attempt to divorce law from morality by characteristically adhering
to some form of “harm” principle: public authority may justly use
law as coercive factor only to prevent harm to non-consenting third
parties. More specifically, the main distinguishing feature of
liberalism is its opposition to morals law or the legal interference up
to and including (sometimes) prohibition of putatively “victimless”
immoralities such as sodomy, prostitution, fornication, recreational
17
drug use, suicide and euthanasia. Liberals argue that moral laws
are, in principle, unjust.
This surge of liberalism has set the trend in the courts to adopt a
neutral and disinterested stand in cases involving moral issues, often
at the expense of obscuring the values which society seeks to
enforce through its moral laws. This matter brings to mind the case
18
of Grisworld vs. Connecticut where the US Supreme Court,
despite a presupposition that contraception is always wrong,
nevertheless, has invalidated that state’s anti-contraceptive law. In so
deciding, the US Supreme Court has not met head-on the issue of
whether the use of contraception is immoral but instead has struck
down the law as being invalid on the ground of marital privacy.
Should Grisworld then be taken to sanction a moral right to do a
moral wrong?
Into the Twentieth Century: the Devlin-Hart Debate

On September 1957 in England, the Committee on Homosexual
Offenses and Prostitution chaired by Sir John Wolfenden has
recommended in its report to the British Parliament that homosexual
behavior between two consenting adults in private should no longer
be a criminal offense. The thesis holds that it is not the duty of the
law to concern itself with immorality as such. The report has
proposed to resolve questions of the legitimacy of legally enforcing
moral obligations by distinguishing immoralities that implicate
_______________
16 Jeanne L. Schroeder and David Gray Carlson, “Review Essay: Kenneth Starr:
Diabolically Evil?,” California Law Review, March 2000.
17 Gerard Bradley, “Plural Perfectionism: A Review Essay of Making Men Moral”,
Notre Dame Law Review, 1996.
18 381 US 479 (1965).
216

19
public interests from immoralities that are merely private. The
Wolfenden Report would spark an academic debate that persists to
this day.
Patrick Devlin, then a High Court judge, has argued at the British
Academy’s 1959 Maccabaean Lecture that it would be a mistake to
posit a private sphere of immorality into which the law ought not to
venture. Devlin’s legal moralism hinges on the theory that moral
offenses insofar as they affect common good are fit subjects for
legislation. Whether behavior, private or public may affect common
good in such a manner that endanger the fabric of society and should
thus be suppressed by law is a question of fact, which can be
answered only after a full consideration of the conditions prevailing
20
in a given society. To Devlin, morals are not merely a matter of
private judgment; society should be in a position to enforce its moral
standards as a means of self-preservation, ‘‘whatever its morality
21
happens to be.” Devlin would thus become the forerunner of
ethical relativism which suggests that there is no “right” and
“wrong” in any absolute sense, that right or wrong22
depend entirely
on the culture in which one happens to live. Devlin then would
tolerate individual freedom only as far as possible and as long as it is
23
consistent with the integrity of society. Hence, while privacy 24
is
respected, it may be forfeited where one person injures another.
H.L.A. Hart refutes Devlin’s suggestion that immorality, even if
private, can be likened to treason, against
25
which it is permissible for
society to take steps to preserve itself. Hart sees Devlin’s view of
people living in a single society as having common moral
foundation as overly simplistic. To Hart, societies have always been
diverse. With the rise of democracy, society could more accurately
be called a collectivity of ideas and attitudes, an assemblage or
gathering of people who live together and work together and govern
_______________
19 Robert P. George, “Making Men Moral” , Civil Liberties and Public Morality,”
Clarendon Press, Oxford, 1993.
20 Norman St. John-Stevas, supra., at p. 27.
21 Gerard V. Bradley, supra.
22 Burton M. Leiser, Liberty, Justice and Morals: Contemporary Value Conflicts,”
MacMillan Publishing Co., Inc., New York, 1973, at p. 12.
23 Ibid., p. 25.
24 Ibid., p. 13.
25 Ibid.
217
VOL. 408, AUGUST 4, 2003 217

themselves collectively in spite of the great diversities that divide
26
them. Hart places emphasis on the right to privacy and freedom of
action which ought to be protected and should be interfered with
only when private behavior ceases to be private and becomes a
27
menace to the public or to some part of the public. One may
deduce from Hart’s arguments that private consensual moral
offenses should not be legally prohibited because of the difficulties
in enforcing such laws and the near impossibility of detecting
28
most
offenses without an unconscionable invasion of privacy.
Hart criticizes attempts to impose the morality of the majority on
a few. Justification for punishment especially when applied to
conduct not harmful to others represents a value to be pursued at the
cost of human suffering, the bare expression of moral condemnation
and treats the infliction of suffering as a uniquely appropriate mode
of expression. The idea that we may punish offenders against a
moral code not to prevent harm but simply as a means of venting or
expressing moral condemnation is uncomfortably close to human
29
sacrifice as a form of religious worship. To Hart, Vox populi does
30
not necessarily translate to Vox Dei. Hart particularly singles out
laws aimed at enforcing sexual morality as oppressive—“Laws
designed to enforce sexual morality to the extent that they interfere
with certain forms of sexual expression and restrict the sexual outlet
that may be available, impose an acute form of suffering upon those
who are thus deprived of the only outlet available to them.” Such
laws and the coercive measures that may be used to enforce them
“may create misery of quite a special degree. All restraints then must
31
be justified by strong reasons.” Quoting John Stuart Mill in his
essay “On Liberty”, Hart expounds—“The only purpose for which
power can rightfully be exercised over any member of a civilized
community against his will is to prevent harm to others. His own
good, either physical or moral is not a sufficient warrant. He cannot
be rightfully compelled to do or forbear because it will be better for
him to do so, because it will
_______________
26 Ibid., pp. 28-32.

27 Ibid.
28 Ibid.
29 Hart, infra, at pp. 65-66.
30 Hart, infra, at p. 79.
31 Leiser, supra., at p. 15.
218

make him happier, 32

because in the opinion of others, to do so would
be wise or right.”
Arriving at an Acceptable Middle Ground

But Hart is not without his critics, among them being Robert P.
George. George acknowledges that laws per se cannot make men
moral; laws can only succeed in commanding outward conformity to
moral rules but cannot compel internal acts of reason. Such an
instance would be a law requiring all people to contribute to the
charities. While fear of sanctions would force one to make such
contribution, the same does not necessarily make him charitable.
George, however, contends that laws can be utilized to make men
moral by: (1) preventing further self-corruption, (2) preventing bad
example, (3) helping to preserve the moral ecology, and (4)
33
educating people about right and wrong. Thus, to him, moral laws
punishing victimless sexual immoralities, for example, proceed from
the conviction that the acts are truly wrong and that they damage the
characters of the people who perform them, block the path to virtue,
34
and in specific ways offend against the common good. George cites
Aristotle who, centuries ago, had long anticipated but criticized and
firmly rejected the doctrine of mainstream contemporary liberalism,
namely the belief that the law should merely be a guarantor of men’s
rights against another—instead of being, as it should be, a rule of
life such as will make the members of the polis good and just.
Robert George submits, and I agree, that while morality cannot
be legislated, laws can help make men moral by creating a “moral
ecology” and profoundly affecting notions in society about what is
morally acceptable, forbidden and required. People shape their own
lives and often treat others very differently in the light of these
notions. The point is, “a good moral ecology benefits people by
encouraging and supporting their efforts to be good, a bad moral
ecology harms people by offering them 35 opportunities and
inducements to do things that are wicked.” To illustrate, the
decision of
_______________
32 H.L.A. Hart, “Law, Liberty and Morality,” Stanford University Press, Stanford
California, 1963, pp. 4-5.
33 Robert P. George, supra., at p. 1.
34 Bradley, supra.
35 Bradley, supra.
219
VOL. 408, AUGUST 4, 2003 219

US Supreme Court in Brown vs. Topeka Board of Education in 1954

and of the Civil Rights Act of 1964 has primarily been responsible
in changing society’s perception on forced segregation or interracial
marriage.
It might then be deduced that moral laws are justified when they
(1) seek to preserve the moral value upheld by society and (2) when
the morality enforced in a certain case, is true and correct. It is
within these standards that the provision against “immorality” in the
Administrative Code must be examined to the extent that such
standards can apply to the facts and circumstances in the instant case
before the Court. As a rule then, 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.
The Morality of Marriage

Marriage is one area where law and morality closely intersect. The
act of respondent Escritor of cohabiting with Quilapio, a married
man, can only be called “immoral” in the sense that it defies and
transgresses the institution of marriage. Society having a deep
interest in the preservation of marriage, adultery is a matter of
36
36
public, not merely private, concern, that cannot readily be ignored.
This deep-seated interest is apparent in our Civil Code so replete
with rules as in defining the parties’ legal capacity to marry, in
laying down the essential requisites of the union, in regulating the
rights and duties of the spouses, even their property relations, and in
protecting the rights of children. Marriage has acquired a legal
definition as early as the 12th century that has since grown towards a
cherished institution with Gregorian Reform of the 11th and 12th
centuries.
With the separation of the Church and State, marriage has
retained its status as a legally protected viculum because it is
perceived to be imbued with societal interest as a foundation of the
family and the basic unit of society. While Islamic states recognize
polygamous marriages and, in Western countries, divorce is
acceptable, in the Philippines, however, absolute monogamy is still
_______________
36 Leiser, supra, at p. 12.
220

the order of the day. Societal interest in monogamous unions is

grounded on the belief that the cohesiveness of the family is better
protected, and children, prized for their role in the perpetuation of
the future of the community, are better reared when spouses remain
together. These societal interests are embodied in moral laws geared
towards protecting the monogamous nature of Philippine
37
marriages. But I do not endeavor to examine whether Philippine
society is correct in viewing monogamy as the better means for the
protection of societal interest on the family but I do would focus
myself on, given the facts of the case, whether or not societal
interest is rightly served.
Thus, I, in conscience, would take exception to the 1975 case of
38
De Dios vs. Alejo. In De Dios, respondents Elias Marfil and Julieta
O. Alejo, deputy sheriff and stenographer of the then Court of First
Instance of Rizal, respectively, were administratively found guilty of
immorality for living together despite Marfil’s prior existing
marriage with another woman. Never mind if Marfil exerted valiant
efforts to save his marriage by enduring the recriminations,
unhappiness and extreme incompatibility he had with his wife.
Never mind if notwithstanding his efforts, his wife abandoned him
and their four children to live with another man. Never mind if Alejo
took on the duties and responsibilities of being the mother to his
children, rearing them as though they were her very own long after
their natural mother had left them. Never mind if the children had, in
fact, regarded her as their very own mother. Never mind if she was a
good wife to the man she was living with, fulfilling the wifely duties
long after the legal wife had abdicated them. Never mind if in all
respects, they had become a family. Did not the Court in adjudging
them guilty of immorality and in ordering them to put an end to their
relationship, destroy a de facto family? Did not its narrow-minded
view of marriage as a contractual transaction and its exacting
application of the standards of monogamy, in effect, defeat the very
moral purpose for which the law was put into place?
_______________
37 Crimes against chastity under our Revised Penal Code include adultery,
concubinage, and bigamy. Under our Civil Code, divorce is not allowed. Annulment
of marriage, which capacitates a person to contract a subsequent marriage, is granted
only in very limited instances.
38 68 SCRA 354.
221
VOL. 408, AUGUST 4, 2003 221

Are we not sacrificing the substance of marriage—that is a union of

man and woman in a genuine, loving and respectful relationship and,
in effect, the substance of a family, for a mere shell of intricate
legality? Lest I be misunderstood, I am not advocating for a
departure from the elevated concept marriage as being a legally
protected union. I merely express concern that a blanket application
of moral laws affecting marriage, without regard to the peculiarities
of every case, might defeat the very purpose for which those laws
are put into place.
Thus, I vote for the remand of the case to allow a thorough
examination on whether a strict application of the provision in the
administrative code prohibiting immorality, under the facts and
circumstances of the case, would defeat the very purpose which it
seeks to serve. A remand would allow the parties to assess the
factual issues, to adduce further evidence, if necessary, and to make
out their case towards this direction.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
While I commend the thoroughly researched and well-written

ponencia of our esteemed colleague, Justice Reynato Puno, I am
unable to agree with the decision of the majority to remand this case
to the Office of the Court Administrator for reception of further
evidence. Indeed, my reading of the records of the case at bar
revealed that there are no more factual issues to be resolved here.
Respondent Soledad S. Escritor has admitted on more than one
occasion her cohabitation with Luciano D. Quilapio, Jr., a married
man. However, the distinguished ponente has put forth the need to
allow respondent to buttress the sincerity of her claimed religious
belief and practice, and to require the Solicitor General to meet the
test of compelling state interest to override respondent’s religious
belief and practice. These, to my mind, are unnecessary.
Respondent’s conduct need not only be measured against her
religious beliefs. The same may even constitute offenses under our
criminal statutes. Moreover, the definition of disgraceful and
immoral conduct under our civil service law is simple. Therefore, I
submit, that there is extant in the records of this case sufficient bases
to hold respondent administratively liable.
222

The issue in this case is simple. What is the meaning or standard of

“disgraceful and immoral conduct” to be applied by the Supreme
Court in disciplinary cases involving court personnel?
The degree of morality required of every employee or official in
the public service has been consistently high. The rules are
particularly strict when the respondent is a Judge or a court
1
employee. Even where the Court has viewed certain cases with
human understanding and compassion, it has insisted that no
untoward conduct involving public officers should be left without
2
proper and commensurate sanction. The compassion is shown
through relatively light penalties. Never, however, has this Court
justified, condoned, or blessed the continuation of an adulterous or
illicit relationship such as the one in this case, after the same has
been brought to its attention.
Is it time to adopt a more liberal approach, a more “modern”
view and a more permissive pragmatism which allow adulterous or
illicit relations to continue provided the job performance of the court
employee concerned is not affected and the place and order in the
workplace are not compromised? When does private morality
involving a court employee become a matter of public concern?
The Civil Service Law punishes public officers and employees
3
for disgraceful and immoral conduct. Whether an act is immoral
within the meaning of the statute is not to be determined by
respondent’s concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in
4
fact perform, the act which it condemns.
The ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards. For those in the
service of the Government, provisions of law and court precedents
also have to be considered. The task is elusive.
The layman’s definition of what is “moral” pertains to excellence
of character or disposition. It relates to the distinction between right
and wrong; virtue and vice; ethical praise or blame. Moral
_______________
1 Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235 SCRA 290.
2 De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.
3 Revised Administrative Code, Book V, Title I, Subtitle A, Section 46 (b) (5).
4 Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).
223
VOL. 408, AUGUST 4, 2003 223

law refers to the body of requirements in conformity to which

virtuous action consists. Applied to persons, it is conformity to the
5
rules of morality, being virtuous with regards to moral conduct.
That which is not consistent with or not conforming to moral law,
opposed to or violating morality, and now, more often, morally evil
or impure, is immoral. Immoral 6
is the state of not being virtuous
with regard to sexual conduct.
The term begs the definition. Hence, anything contrary to the
standards of moral conduct is immoral. A grossly immoral act must
be so corrupt and false as to constitute a criminal act or so
7
unprincipled as to be reprehensible to a high degree.
Anything plainly evil or dissolute is, of course, unchangingly
immoral. However, at the fringes or boundary limits of what is
morally acceptable and what is unacceptably wrong, the concept of
immorality tends to shift according to circumstances of time, person,
and place. When a case involving the concept of immorality comes
to court, the applicable provisions of law and jurisprudence take
center stage.
Those who choose to tolerate the situation where a man and a
woman separated from their legitimate spouses decide to live
together in an “ideal” and yet unlawful union state—or more
specifically, those who argue that respondent’s cohabiting with a
man married to another woman is not something which is willful,
flagrant, or shameless—show a moral indifference to the opinion of
the good and respectable members of the community in a manner
prejudicial to the public service.
Insofar as concepts of morality are concerned, various
individuals or cultures may indeed differ. In certain countries, a
woman who does not cover herself with a burka from head to foot
may be arrested for immoral behavior. In other countries, near
nudity in beaches passes by unnoticed. In the present case, the
perceived fixation of our society over sex is criticized. The lesser
degree of condemnation on the sins of laziness, gluttony, vanity,
selfishness, avarice and cowardice is decried as discriminatory.
_______________
5 Oxford Universal Dictionary, Vol. 2, p. 1280.

6 Id., p. 961.
7 Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva, 116 Phil.
1208 (1962); Reyes v. Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668.
224

The issue in this case is legal and not philosophical. It is a limited

one. Is respondent Soledad S. Escritor guilty of “disgraceful and
immoral” conduct in the context of the Civil Service Law? Are there
any sanctions that must be imposed?
We cannot overlook the fact that respondent Escritor would have
been convicted for a criminal offense if the offended party had been
inclined and justified to prosecute her prior to his death in 1998.
Even now, she is a co-principal in the crime of concubinage. A
married woman who has sexual intercourse with a man not her
husband, and the man who has carnal knowledge of her knowing her
8
to be married, commit the crime of adultery. Abandonment by the
legal husband without justification does not exculpate the offender;
it merely mitigates the penalty.
The concubine with whom a married man cohabits suffers the
9
penalty of destierro. It is true that criminal proceedings cannot be
instituted against persons charged with adultery or concubinage
10
except upon complaint of the offended party. This does not mean
that no actionable offense has been committed if the offended party
does not press charges. It simply cannot be prosecuted. The conduct
is not thereby approved, endorsed or commended. It is merely
tolerated.
The inescapable fact in this case is that acts defined as criminal
under penal law have been committed.
There are experts in Criminal Law who believe that the codal
provisions on adultery and concubinage are terribly outmoded and
should be drastically revised. However, the task of amendment or
revision belongs to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to constitute
11
a criminal act is “grossly immoral.” It is not merely “immoral.”
Respondent now asks the Court to go all the way to the opposite
extreme and condone her illicit relations with not even an
admonition or a slight tap on the wrist.
I do not think the Court is ready to render a precedent-setting
decision to the effect that, under exceptional circumstances, em-
_______________
8 Revised Penal Code, Art. 333.

9 Revised Penal Code, Art. 334.
10 Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule 110,
Section 5.
11 Reyes v. Wong, supra.
225
VOL. 408, AUGUST 4, 2003 225

ployees of the judiciary may live in a relationship of adultery or

concubinage with no fear of any penalty or sanction and that after
being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is
not limited to court interpreter Soledad Escritor. It is not a pro hac
vice ruling. It applies to court employees all over the country and to
everybody in the civil service. It is not a private ruling but one
which is public and far-reaching in its consequences.
12
In the 1975 case of De Dios v. Alejo, the Court applied
compassion and empathy but nonetheless recognized as most
important a mending of ways through a total breaking of
relationships. The facts in that case are strikingly similar to those in
this case. Yet, the Court required a high degree of morality even in
the presence of apparently exculpating circumstances. It was stated:
While it is permissible to view with human understanding and compassion a

situation like that in which respondents find themselves, the good of the
service and the degree of morality which every official and employee in the
public service must observe, if respect and confidence are to be maintained
by the government in the enforcement of the law, demand that no untoward
conduct on his part, affecting morality, integrity and efficiency, while
holding office should be left without proper and commensurate sanction, all
attendant circumstances taken into account. In the instant case, We cannot
close our eyes to the important considerations that respondents have
rendered government service for more than thirty-three and twenty-five
years, respectively, and that there is no showing that they have ever been
found guilty of any administrative misconduct during all those periods. In
the case of respondent Alejo, it seems rather sadistic to make her suffer the
extreme penalty of dismissal from the service after she had taken care of her
co-respondent’s four children, giving them the needed love and attention of
a foster mother after they were completely abandoned by their errant and
unfaithful natural mother. Even respondent Marfil, if to a lesser degree, is
deserving of compassion. Most importantly, respondents have amply
demonstrated that they recognize their mistake and have, therefore, actually
mended their ways by totally breaking their relationship complained of, in
order to conform with the imperatives of public interest. (Emphasis
supplied)
The standards for those in the judicial service are quite exacting.
_______________
12 Supra.
226

The Court has ruled that in the case of public servants who are in the
judiciary, their conduct and behavior, from the presiding judge to the
lowliest clerk, must not only be characterized by 13propriety and
decorum, but above all else, must be above suspicion.
14
In Burgos v. Aquino, it was ruled:
The Code of Judicial Ethics mandates that the conduct of court personnel
must be free from any whiff of impropriety, not only with respect to his
duties in the judicial branch but also to his behavior outside the court as a
private individual. There is no dichotomy of morality; a court employee is
also judged by his private morals. These exacting standards of morality and
decency have been strictly adhered to and laid down by the Court to those in
the service of the judiciary. Respondent, as a court ste-nographer, did not
live up to her commitment to lead a moral life. Her act of maintaining
relations with Atty. Burgos speaks for itself.
Respondent Aquino was a court stenographer who was suspended

for six months for maintaining illicit relations with the husband of
complainant Virginia E. Burgos. The Court therein stated that a
second offense shall result in dismissal.
We should not lose sight of the fact that the judicial system over
which it presides is essentially composed of human beings who, as
such, are naturally prey to weakness 15
and prone to errors.
Nonetheless, in Ecube-Badel v. Badel we imposed on respondent a
suspension for six months and one day to one year with warning of
dismissal should the illicit
16
relations be repeated or continued.
In Nalupta v. Tapec, a deputy sheriff was suspended, also for six
months, for having illicit relations with a certain Cristian Dalida
who begot a son by him. His wife complained and neighbors
confirmed that Tapec was frequently seen leaving the house of
Consolacion Inocencio in the morning and returning to it in the
afternoon. Tapec and Inocencio begot two children. Consistently
with the other cases, we imposed the penalty of suspension for the
first offense with the graver penalty of dismissal for a second
offense.
_______________
13 Lacuata v. Bautista, supra.

14 Supra.
15 339 Phil. 510; 273 SCRA 320 (1997).
16 A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.
227
VOL. 408, AUGUST 4, 2003 227
17
The earlier case of Aquino v. Navarro involved an officer in the
Ministry of Education, Culture and Sports who was abandoned by
her husband a year after their marriage and who lived alone for
eighteen years with their child. Pretending that she sincerely
believed her husband to have died, she entered into a marital
relationship with Gonzalo Aquino and had children by him in 1968
and 1969. Eighteen days before their third child was born on May
25, 1975, the two decided to get married. Notwithstanding the illicit
relationship which blossomed into a bigamous marriage, the full
force of the law was not applied on her, “considering the exceptional
circumstances that befell her in her quest for a better life.” Still, a
penalty of six months suspension was imposed with a warning that
“any moral relapse on her part will be severely dealt with.”
Times are changing. Illicit sex is now looked upon more kindly.
However, we should not completely disregard or overlook a
relationship of adultery or concubinage involving a court employee
and not order it to be terminated. It should not ignore what people
will say about our moral standards and how a permissive approach
will be used by other court employees to freely engage in similarly
illicit relationship with no fear of disciplinary punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio,
Jr. had existing marriages with their respective legitimate spouses
when they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore,
immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on
July 28, 1991 the “Declaration of Pledging Faithfulness” to make
their relationship what they alleged it would be—a binding tie
before Jehovah God.
In this case, respondent is charged not as a Jehovah’s Witness but
in her capacity as a court employee. It is contended that respected
elders of the Jehovah’s Witnesses sanction “an informal conjugal
relationship” between respondent and her marital partner for more
than two decades, provided it is characterized by faithfulness and
devotion to one another. However, the “informal conjugal
relationship” is not between two single and otherwise eligible
persons where all that is missing is a valid wedding ceremony. The
_______________
17 220 Phil. 49; 135 SCRA 361 (1985).
228

two persons who started to live together in an ostensible marital

relationship are married to other persons.
We must be concerned not with the dogmas or rules of any
church or religious sect but with the legal effects under the Civil
Service Law of an illicit or adulterous relationship characterized by
the facts of this case.
There is no conflict in this case between the dogmas or doctrines
of the Roman Catholic Church and those of the Jehovah’s Witnesses
or any other church or denomination. The perceived conflict is non-
existing and irrelevant.
The issue is legal and not religious. The terms “disgraceful” and
“immoral” may be religious concepts, but we are concerned with
conduct which under the law and jurisprudence is proscribed and, if
perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by showing that it
was morally right by the standards of the congregation to which she
belongs. Her defense of freedom of religion is unavailing. Her
relationship with Mr. Quilapio is illicit and immoral, both under the
18 19
Revised Administrative Code and the Revised Penal Code,
notwithstanding the supposed imprimatur given to them by their
religion.
The peculiar religious standards alleged to be those of the sect to
which respondent belongs cannot shield her from the effects of the
law. Neither can her illicit relationship be condoned on the basis of a
written agreement approved by their religious community. To
condone what is inherently wrong in the face of the standards set by
law is to render nugatory the safeguards set to protect the civil
service and, in this case, the judiciary.
The Court cannot be the instrument by which one group of
people is exempted from the effects of these laws just because they
belong to a particular religion. Moreover, it is the sworn mandate of
the Court to supervise the conduct of an employee of the judiciary,
and it must do so with an even hand regardless of her religious
affiliation.
I find that respondent’s “Declaration of Pledging Faithfulness”
does nothing for her insofar as this administrative matter is con-
_______________
18 E.O. 292, Sec. 46(5).

19 Art. 334.
229
VOL. 408, AUGUST 4, 2003 229

cerned, for written therein are admissions regarding the legal

impediments to her marrying Quilapio. In the said document, she
even pledged to seek all avenues to obtain legal recognition by civil
20
authorities of her union with Quilapio. However, the record is
silent as to any effort on respondent’s part to effect this covenant.
The evidence shows that respondent repeatedly admitted the
existence of the legal infirmities that plague her relationship with
21
Quilapio. As a court interpreter, she is an integral member of the
judiciary and her service as such is crucial to the administration of
justice. Her acts and omissions constitute a possible violation of the
law—the very same law that she is sworn to uphold as an employee
of the judiciary. How can she work under the pretense of being a
contributing force to the judicial system if she herself is committing
acts that may constitute breaking the law?
Respondent invokes her constitutional right to religious freedom.
The separation of church and state has been inviolable in this
jurisdiction for a century. However, the doctrine is not involved in
22
this case. Furthermore, the legislature made cohabitation with a
woman who is not one’s wife a crime through the enactment of the
23
Revised Penal Code. The legislative power has also seen fit to
enact the Civil Service Law and has given said law general
application.
The argument that a marital relationship is the concern of
religious authorities and not the State has no basis.
24
In Reynolds v. United States, the U.S. Supreme Court stated:
It is impossible to believe that the constitutional guaranty of religious

freedom was intended to prohibit legislation in respect to this most
important feature of social life. Marriage, while from its very nature a
sacred obligation, is, nevertheless, in most civilized nations, a civil contract,
and usually regulated by law. Upon it society may be said to be built, and
out of its fruits spring social relations and social obligations and duties, with
which government is necessarily required to deal.
_______________
20 Rollo, Exhibits “1” and “2”, pp. 14-15.

21 TSN, October 12, 2000, pp. 11-15.
22 Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.
23 Art. 334.
24 98 U.S. 145; 25 L.Ed. 244 (1879).
230

The strengthening of marriage ties and the concomitant hostility to

adulterous or illicit marital relations is a primary governmental
concern. It has nothing to do with the particular religious affiliations
of those affected by legislation in this field.
The relations, duties, obligations and consequences of marriage
are important to the morals and civilization of a people and to the
25
peace and welfare of society. Any attempt to inject freedom of
religion in an effort to exempt oneself from the Civil Service rules
relating to the sanctity of the marriage tie must fail.
The U.S. Supreme Court in the above-cited case of Reynolds v.
26
United States upheld federal legislation prohibiting bigamy and
polygamy in territories of the United States, more specifically Utah.
Members of the Mormon Church asserted that the duty to practice
polygamy was an accepted doctrine of their church. In fact,
Mormons had trekked from the regular States of the Union to what
was then a mere Territory in order to practice their religious beliefs,
among them polygamy. The Court declared that while it protected
religious belief and opinion, it did not deprive Congress of the
power to reach actions violative of social duties or subversive of
good order. Polygamy was outlawed even for Mormons who
considered it a religious obligation.
We must not exempt illegal conduct or adulterous relations from
governmental regulation simply because their practitioners claim it
is part of their free exercise of religious profession and worship.
Indeed, the Court distinguishes between religious practices,
including the seemingly bizarre, which may not be, regulated, and
unacceptable religious conduct which should be prevented despite
claims that it forms part of religious freedom.
27
In Ebralinag v. Division Superintendent of Schools, we
validated the exemption of Jehovah’s Witnesses from coerced
participation in flag ceremonies of 28public schools. Following the
ruling in West Virginia v. Barnette, we declared that unity and
loyalty, the avowed objectives of flag ceremonies, cannot be attained
through coercion. Enforced unity and loyalty is not a good that is
constitu-
_______________
25 Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.

26 Supra.
27 G.R. No. 95770, 1 March 1993, 219 SCRA 256.
28 319 U.S. 624 (1943).
231
VOL. 408, AUGUST 4, 2003 231

tionally obtainable at the expense of religious liberty. A desirable

end cannot be promoted by prohibited means.
The exemption from participation in flag ceremonies cannot be
applied to the tolerance of adulterous relationships by court
personnel in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to
public morals, is a ground for the reasonable regulation of the free
29
exercise and enjoyment of religious profession. In addition to the
destruction of public morals, the substantive evil in this case is the
tearing down of morality, good order, and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in the civil
service has been consistent. There is nothing in this case that
warrants a departure from precedents. We must not sanction or
encourage illicit or adulterous relations among government
employees.
Soledad S. Escritor and Luciano D. Quilapio are devoted
members of Jehovah’s Witness. Exemptions granted under our
Muslim Laws to legitimate followers of Islam do not apply to
30
them. The Court has no legislative power to place Jehovah’s
Witness in the same legal category as Muslims.
31
In Bucatcat v. Bucatcat, it was held that conduct such as that
demonstrated by the respondent is immoral and deserving of
punishment. For such conduct, the respondent, another court
interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of integrity,

uprightness and honesty. Like any public servant, he must exhibit the
highest sense of honesty and integrity not only in the performance of his
official duties but in his personal and private dealings with other people, to
preserve the court’s good name and standing. It cannot be overstressed that
the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest
of its personnel. Court employees have been enjoined to adhere to the
exacting standards of morality and decency in their professional and pri-
_______________
29 American Bible Society v. City of Manila, 101 Phil. 386 (1957).

30 Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No. MTJ-92-691, 10
September 1993, 226 SCRA 193.
31 380 Phil. 555; 323 SCRA 578 (2000).
232
vate conduct in order to preserve the good name and integrity of courts of
justice.
All those who work in the judiciary are bound by the most exacting
standards of ethics and morality to maintain the people’s faith
32
in the
courts as dispensers of justice. In Liguid v. Camano, Jr., it was
ruled:
Surely, respondent’s behavior of living openly and scandalously for over

two (2) decades with a woman not his wife and siring a child by her is
representative of the gross and serious misconduct penalized by the ultimate
penalty of dismissal under Section 22 (c), Rule XIV of the Omnibus Rules
Implementing Book IV of Executive Order No. 292 otherwise known as the
Revised Administrative Code of 1987. As defined, misconduct is a
transgression of some established or definite rule of action, more
particularly, unlawful behavior or gross negligence by the public officer.
Respon-dent’s conduct is an example of the kind of gross and flaunting
misconduct that so quickly and surely corrodes the respect for the courts
without which government cannot continue and that tears apart the bonds of
our polity.
33
Earlier, in Navarro v. Navarro the penalty of suspension was
imposed on a court employee for maintaining illicit relations with a
woman not his wife, thus:
Time and again we have stressed adherence to the principle that public
office is a public trust. All government officials and employees must at all
times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives. This constitutional mandate should always be in the minds of
all public servants to guide them in their actions during their entire tenure in
the government service. The good of the service and the degree of morality
which every official and employee in the public service must observe, if
respect and confidence are to be maintained by the Government in the
enforcement of the law, demand that no untoward conduct on his part,
affecting morality, integrity and efficiency while holding office should be
left without proper and commensurate sanction, all attendant circumstances
taken into account.
The exacting standards of ethics and morality imposed upon court

judges and court employees are required to maintain the
_______________
32 A.M. No. RTJ-99-1509, 8 August 2002, 387 SCRA 1.

33 A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.
233
VOL. 408, AUGUST 4, 2003 233

people’s faith in the courts as dispensers of justice, and whose image

is mirrored by their actuations. As the Court eloquently stated
through Madame Justice Cecilia Muñoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the conduct,
official or otherwise, of the men and woman who work thereat, from the
judge to the least and lowest of its personnel—hence, it becomes the
imperative sacred duty of each and everyone in the court to maintain its
34
good name and standing as a true temple of justice.
The high degree of moral uprightness that is demanded of

employees of the government entails many sacrifices that are
peculiar to the civil service. By aspiring to these positions,
government employees are deemed to have submitted themselves to
greater scrutiny of their conduct, all in the pursuit of a professional
civil service. The Court has repeatedly applied these principles in
35
analogous cases.
Immorality is punishable by suspension of six (6) months and
one day to one (1) year for the first offense and dismissal for the
36
second offense. Considering that respondent’s misconduct is in the
nature of a continuing offense, it must be treated as a first offense,
and her continued cohabitation with Luciano E. Quilapio, Jr. must be
deemed a second offense, which will warrant the penalty of
dismissal.
ACCORDINGLY, I vote that respondent Soledad S. Escritor be
found GUILTY of immorality and disgraceful conduct and that she
be SUSPENDED for a period of Six (6) months and One (1) day
without pay, with a warning that the continuance of her illicit
cohabitation with Luciano D. Quilapio, Jr. shall be deemed a second
offense which shall warrant the imposition of the appropriate
penalty.
_______________
34 Id., at pp. 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9 January
1992, 205 SCRA 21 and Sy v. Cruz, 321 Phil. 231; 250 SCRA 639 [1995].
35 Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001, 372 SCRA 208;
Alday v. Cruz, A.M. No. RTJ-00-1530, 14 March 2001, 354 SCRA 322.
36 Civil Service Rules, Rule XIV, Section 23 (o).
234

DISSENTING OPINION
CARPIO, J.:
I dissent from the majority opinion remanding this case for further
proceedings. The ostensible purpose of the remand is to allow
respondent Soledad S. Escritor “to buttress the sincerity of her
claimed religious belief ” and for the Solicitor General “to meet the
test of ‘compelling state interest’ to override respondent’s religious
belief.”
However, Escritor expressly admits that she is cohabiting with
Luciano D. Quilapio, Jr. who is married to another woman.
Escritor’s conduct is that of a concubine under Article 334 of the
Revised Penal Code outlawing concubinage. Escritor may now be
subjected to disciplinary sanction for conduct prejudicial to the best
interest of the service. Escritor’s religious belief, no matter how
sincere, cannot exempt her from Article 334 of the Revised Penal
Code declaring concubinage a criminal act. Sincerity or insincerity
in religious beliefs is not a test in allowing or disallowing exemption
from a harmful conduct that the State has a right to suppress.
A remand of this case for further proceedings is clearly
unnecessary. Escritor’s unlawful cohabitation with Quilapio is an
admitted fact regardless of the outcome of the remand of this case.
Escritor’s cohabitation with Quilapio constitutes concubinage which
is a crime under our laws.
The issue then would inevitably turn on whether Escritor, or any
citizen for that matter, may invoke religious freedom to justify
conduct that patently violates our criminal statutes. Such conduct in
the present case is concubinage. However, under the same claim of
religious freedom, such conduct may be bigamy, sacrifice of infants
or infanticide, sacrifice of virgins or murder, or use and possession
of prohibited drugs as part of religious rituals. This is the issue that I
address in this dissent, after showing that Escritor’s conduct is
neither disgraceful nor immoral.
Escritor and Quilapio have lived together since 1980. They have
a 21-year old son whom they raised together. Escritor was
previously married but her husband left her in 1979 for another
woman. Escritor’s husband died in 1998. Escritor joined the
judiciary only in 1999. On the other hand, Quilapio and his legal
wife were already separated in fact even before Escritor and
Quilapio began
235
VOL. 408, AUGUST 4, 2003 235

living together. Quilapio’s wife has not filed any complaint against
either Quilapio or Escritor.
On 22 August 2000, complainant Alejandro Estrada filed this
complaint for disgraceful and immoral conduct against Escritor for
cohabiting with a man who is not her husband. Complainant, who is
not a court employee, admits not knowing Escritor personally.
I do not find Escritor liable for “disgraceful and immoral
conduct.” The Jehovah’s Witnesses, the church to which Escritor
1
and Quilapio belong, formally approved in 1991 their relationship
as husband and wife after a long and careful consideration by church
elders. The members of the Jehovah’s Witnesses have fully accepted
the Escritor and Quilapio couple as part of their Christian
community. In their religious and social community, Escritor and
Quilapio are seen and treated just like any other husband and wife.
The couple’s cohabitation has not created any scandal, moral outrage
or malicious gossip in their congregation or even in the community
where they live and work. On the contrary, those who come to know
of the couple’s predicament in life express their sincerest sympathy
and compassion.
When the Catholic Church annuls a marriage, and the parties
remarry in church with different partners even without a court
annulment of their marriage, do we condemn their second marriages
as “disgraceful and immoral conduct”? When a Muslim man lives
with more than one wife, do we declare his relationship with his
other wives as “disgraceful and immoral”? In Sulu Islamic
_______________
1 Escritor and Quilapio signed the Declaration Pledging Faithfulness with their
church leaders as witnesses. This document states:
Declaration of Pledging Faithfulness
I, Soledad S. Escritor, do here 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 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 (sic) this possible, I promise to legalize this union.
236

2
Association of Masjid Lambayong v. Malik, this Court ruled that a
Muslim judge who takes a second wife is not guilty of disgraceful
and immoral conduct because such practice is “not ‘immoral’ by
Muslim standards.” The Muslim judge is not also criminally liable
for bigamy because Shari’a law allows a Muslim to have more than
one wife.
3
In De Dios v. Alejo, the Court quoted with approval a decision of
4
the Board of Civil Service dismissing an immorality charge against
a clerk who, in the words of the Board, “does not exercise a moral
influence in the community” and whose conduct “has not
jeopardized the honor of any third person.” The Board explained
that those most concerned with the relationship—the unfaithful legal
wife who no longer lived with respondent, the woman living with
respondent and the four children, have not “voiced an objection to
the situation as it existed for ten (10) years.” The Board added that
technically, the clerk was “guilty of immorality, but actually this can
hardly be considered as notoriously disgraceful immoral conduct.”
The term “disgraceful and immoral conduct” is not necessarily a
single, ironclad universal code applicable to all situations, ethnic
groups and religions. This Court has recognized a “Muslim
standards” on disgraceful and immoral conduct with respect to
multiple marriages by Muslims. We cannot reject a “Jehovah’s
Witnesses standards” on the same matter without violating the equal
5 6
protection clause, the free exercise
7
of religion, and the separation
of Church and State provision of the Constitution.
_______________
2 Adm. Matter No. MTJ-92-691, 10 September 1993, 226 SCRA 193.

3 Adm. Matter No. P-137, 15 December 1975, 68 SCRA 354.
4 Now the Civil Service Commission.
5 Section 1, Article III of the 1987 Constitution provides: “No person shall be x x
x denied the equal protection of the laws.”
6 Section 5, Article III of the 1987 Constitution provides: “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 and political rights.”
7 Section 6, Article II of the 1987 Constitution provides; “The separation of
Church and State shall be inviolable.”
237
VOL. 408, AUGUST 4, 2003 237

In disgraceful and immoral conduct, the conduct must not only be

immoral, it must also be disgraceful. Immoral conduct means
conduct that is willful, flagrant or shameless, and which shows a
moral indifference to the opinion
8
of the good and respectable
members of the community. Disgraceful conduct means conduct
9
that is ignominious, shameful, and dishonorable Judge Bonifacio
Maceda, whom the Court assigned to investigate the administrative
charge, did not find the relationship between Escritor and Quilapio
disgraceful and immoral in view of the acceptance of the
10
relationship by members of the Jehovah’s Witnesses. Even the
11
complainant admits that Escritor is a “decent woman.” Indeed, no
one has testified that Escritor’s relationship with Quilapio is
ignominious, shameful, or dishonorable conduct. Not a single
witness who qualifies as a “good and respectable member of the
community” has testified that Escritor’s conduct is willful, flagrant
and shameless.
However, while Escritor is not guilty of disgraceful and immoral
conduct, her cohabitation with the legally married Quilapio, a fact
Escritor readily admits, constitutes conduct prejudicial to the best
interest of the service. Quilapio, whose marriage to another woman
still subsists, is liable for concubinage under Article 334 of the
Revised Penal Code for cohabiting with Escritor. There is no
showing that Quilapio’s wife has consented to Quilapio’s
cohabitation with Escritor. In concubinage, the concubine is a
12
necessary co-accused of the offending spouse. The concubine is
punished with destierro. While no one can criminally prosecute
Quilapio and Es-
_______________
8 Arciga v. Maniwang, Admin. Case. No. 1608, 14 August 1981, 106 SCRA 594;
Black’s Law Dictionary, p. 751, 6th Edition (1990).
9 Black’s Law Dictionary, p. 468, ibid.
10 Report and Recommendation of Investigating Judge Bonifacio Maceda dated 1
July 2002.
11 TSN, 12 October 2000, p. 7; Rollo, p. 23.
12 Article 334 of the Revised Penal Code provides:
“The crimes of adultery and concubinage shall not be prosecuted except upon the complaint
filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty
parties if they are both alive, nor, in any case, if he shall have consented or pardoned the
offenders.
x x x.”
238

13
critor without the complaint of Quilapio’s legal wife, still this
Court cannot countenance such unlawful conduct by a court
employee. In conduct prejudicial to the best interest of the service,
the immorality of the conduct is not in issue. What is in issue is the
adverse effect of the conduct on the efficiency, integrity and
credibility of the civil service, and in the case of the judiciary, its
impact on the administration of justice.
The Court cannot simply turn a blind eye to conduct of a court
employee that, by the employee’s own admission, violates our
criminal statutes. Such conduct is prejudicial to the best interest of
the administration of justice. Court employees, from the highest
magistrate to the lowliest clerk, are expected to abide scrupulously
with the law. They are held to a higher standard since they are part
of the judicial machinery that dispenses justice. The courts of justice
cannot harbor those who openly and knowingly commit a crime.
Courts of justice would lose their moral authority and credibility if
they condone violators of the law. They would be remiss in their
solemn duty of upholding the law if they continue to employ those
who admit running afoul with our criminal statutes. Thus, there
exists a compelling state interest to hold Escritor to the same
standards required of every court employee. If unsanctioned,
Escritor’s unlawful conduct would certainly impair the integrity and
credibility of the judiciary.
Unlike in Sulu Islamic Association of Masjid Lambayong v.
14
Malik, no law validates the cohabitation of Escritor with Quilapio.
For the Court to provide a safe haven to Escritor despite her
admission of cohabitation with Quilapio would undermine the integ-
_______________
13 Ibid.
14 See note 2. Article 180 of Presidential Decree No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides: “The provisions of the
Revised Penal Code relative to the crime of bigamy shall not apply to a person
married in accordance with the provisions of this Code or, before its effectivity, under
Muslim law.” In the United States, Native Americans are allowed to marry according
to their customs as long as they “are members of a tribe recognized and treated with
as such by the United States government.” Thus, a Native American can enter into a
polygamous marriage if his tribe’s customs allow it, even if it conflicts with state law
(Hallowell v. Commons, 210 F. 793, 8th Circuit, 1914). The various Indian tribes in
the United States were dealt with by the U.S. Government as independent nations and
treaties were made with them [People v. Bitdu, 58 Phil. 817 (1933)].
239
VOL. 408, AUGUST 4, 2003 239

rity and capacity of this Court to dispense justice equally and fairly.
The Jehovah’s Witnesses cannot declare Escritor’s cohabitation with
Quilapio as lawful, although it can declare such cohabitation as
compatible with its religious beliefs. The Court cannot penalize
Escritor’s cohabitation as immoral in view of the freedom of religion
and the separation of Church and State. However, on the same
principle of separation of Church and State, the Court can penalize
Escritor’s cohabitation as conduct prejudicial to the best interest of
the service.
15
Thomas Jefferson, who championed the free exercise of religion
and non-establishment clauses in the U.S. Constitution, from which
we adopted our own counterpart provisions, wrote to the Baptists in
1802 when he was President:
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 and worship,
that the legislative powers of 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.
Adhering to this expression of the supreme will of the nation in behalf of the
rights of conscience, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore to man all his natural rights,
16
convinced he has no natural right in opposition to his social duties.
(Emphasis supplied)
_______________
15 While generally credited as the leading advocate of the First Amendment,

Thomas Jefferson was neither a framer nor signer of the U.S. Constitution. In Everson
v. Board of Education [330 U.S. 1 (1947)], the credit for authoring the First
Amendment is given to James Madison, an author of the Federalist Papers and
known as the “Father of the Constitution.” In his dissenting opinion in Wallace v.
Jaffree [472 U.S. 38 (1985)], Justice William Rehnquist totally belittles Jefferson’s
role in the adoption of the First Amendment. Rehnquist claims that Jefferson “would
seem to any detached observer as a less than ideal source of contemporary history as
to the meaning of the Religion Clause of the First Amendment.” Rehnquist even
criticizes Jefferson’s “wall of separation” as a “misleading metaphor.”
16 Quoted in Reynolds v. United States, infra, see note 15.
240

17
In the landmark case of Reynolds v. United States, the U.S.
Supreme Court stated that Jefferson’s explanation is “almost an
authoritative declaration of the scope and effect” of the two
constitutional clauses. The legislature has no power to regulate mere
religious belief or opinion. The legislature, however, may regulate
actions or conduct, even though religiously motivated, that violate
the public order. The legislature’s power to outlaw concubinage,
bigamy, polygamy and other conduct harmful to public order,
despite religious practices
18
allowing such conduct, is well-settled in
American jurisprudence.
19
In Employment Division v. Smith, the U.S. Supreme Court
rejected20 a claim by the Native American Church that smoking
peyote, classified as a “controlled substance,” is protected by the
free exercise of religion if done as part of a religious ceremony. The
U.S.
21
Supreme Court clarified its earlier ruling in Wisconsin v. Yoder
by stating that it had “never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate.”
In Smith, the U.S. Supreme Court stated that the legislation
prohibiting “controlled substances” was a “neutral law that applied
to all citizens” and did not single out the Native American Church.
Applying the “hybrid test,” the U.S. Supreme Court held that the
free exercise of religion, standing alone without any other
constitutional right being invoked, cannot defeat the State’s right to
regulate the use of “controlled substances.”
In the instant case, Escritor’s sole constitutional justification in
claiming exemption from the prohibition on concubinage is her
religious belief. Escritor does not claim that Her conduct is protected
by any other guarantee under the Bill of Rights. Moreover, Article
334 of the Revised Penal Code, as originally enacted and as
presently in force, does not single out the Jehovah’s Witnesses.
_______________
17 98 U.S. 145.
18 David Barton, The Image and the Reality: Thomas Jefferson and the First
Amendment, 17 Notre Dame Journal of Law, Ethics and Public Policy 399 (2003).
19 414 U.S. 872 (1990).
20 A Mexican intoxicant made from the tops of a spineless, dome-shaped cactus
native to Mexico and the southwest United States.
21 406 U.S. 205 (1972).
241
VOL. 408, AUGUST 4, 2003 241

The power of the legislature to declare concubinage a crime against

the State is certainly beyond dispute. In effect, the legislature
pronounces a socially reprehensible act, which may or may not
constitute an immoral act by certain religious standards, a crime that
the State has a right to suppress to protect public order and the
general welfare. The wall of separation between Church and State is
no defense against the State’s police power over conduct
constituting concubinage, bigamy or polygamy.
While Escritor’s cohabitation with Quilapio conforms to the
religious beliefs of the Jehovah’s Witnesses, the cohabitation
violates Article 334 of the Revised Penal Code. The State cannot
interfere with the religious beliefs of the Jehovah’s Witnesses, in the
same way that the Jehovah’s Witnesses cannot interfere with the
State’s prohibition on concubinage. The free exercise of religion
protects practices based on religious grounds provided such
practices do not violate existing laws enacted in the reasonable
22
exercise of the State’s police power.
23
As early as in 1933 in People v. Bitdu, this Court has ruled that
religious practices cannot override laws relating to public policy. In
Bitdu, the accused, a Muslim woman charged with bigamy, raised
the defense that under Muslim religious customs she validly
divorced her first husband. At that time there was no statute
recognizing divorces and multiple marriages under Shari’a law. In
rejecting this defense, this Court quoted with approval the trial
court’s decision stating as follows:
x x x In the Philippine Islands we have a law (Act No. 2710) enumerating

the causes and conditions under which divorce may be secured and granted.
Any divorce obtained in the Philippine Islands for causes and under
conditions other than those enumerated in said law, would have no legal
effect. The habits and customs of a people, the dogmas or doctrines of a
religion cannot be superior to or have precedence over laws relating to
public policy x x x. (Emphasis supplied)
In Bitdu, the Solicitor-General urged this Court to uphold the

validity of Muslim divorces, citing the case of American Indians
whose customs and practices on marriages and divorces were, and
_______________
22 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary (2003), Vol. 1, p. 321, citing Reynolds v. United States, 98 U.S. 145
(1878).
23 58 Phil. 817 (1933).
242

still are, recognized by the United States Government. This Court

stated:
The decisions of American courts, cited by the Solicitor-General, sustaining

the validity of divorces granted to members of Indian tribes according to the
customs and usages thereof, are likewise not in point. The various Indian
tribes in the United States, were dealt with by the Government of the United
States as independent nations and treaties were made with them.
As to the suggestion of the Solicitor-General that divorces among the
Moros according to their religious practices should be recognized as valid as
a matter of public policy, because in the contrary case “there would be no
end of criminal prosecutions, for polygamy still abounds among them, and
the remarriages of people divorced under the Koran are the order of the
day,” that is a matter for the consideration of the Legislature and the
Governor-General. x x x. (Emphasis supplied)
The free exercise of religious belief is absolutely protected, but the

freedom to act according to such, religious belief is subject to the
24 25
police power of the State. As held in Reynolds v. United States
which involved the practice of polygamy:
In our opinion, the statute immediately under consideration is within the

legislative power of Congress. It is constitutional and valid as prescribing a
rule of action for all those residing in the Territories, and in places over
which the United States have exclusive control. This being so, the only
question which remains is, whether those who make polygamy a part of
their religion are excepted from the operation of the statute. If they are, then
those who do not make polygamy a part of their religious belief may be
found guilty and punished, while those who do, must be acquitted and go
free. This would be introducing a new element into criminal law. 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 sacrifices 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
_______________
24 Ibid., p. 322, citing Cantwell v. Connecticut, 310 U.S. 296 (1944).

25 See note 16.
243
VOL. 408, AUGUST 4, 2003 243

allowed. Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself. Government could exist only in name
under such circumstances. (Emphasis supplied)
Article 334 of the Revised Penal Code seeks to protect marriage as

the foundation of the family. The Constitution mandates that
“[M]arriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State.” Article 334 of the
Revised Penal Code is a reasonable exercise of the State’s police
power to protect a social institution that the Constitution declares as
“inviolable.” The religious teachings of the Jehovah’s Witnesses
cannot amend or repeal Article 334 of the Revised Penal Code on
concubinage. Escritor clearly recognized this when she promised “to
26
legalize” in the future her union with Quilapio.
Under the Revised Administrative Code of 1987, one of the
grounds for disciplinary action is “conduct prejudicial to the best
27
interest of the service.” The penalty for a first offense is suspension
of six months and one day to one year. A second offense is
28
punishable with dismissal from the service.
Escritor, however, deserves the same compassionate treatment 29
accorded to a similarly situated court employee in De Dios v. Alejo
if Escritor should end her unlawful relationship with Quilapio. In De
Dios, the Court, in deciding not to dismiss an employee because he
finally terminated his cohabitation with another woman, ruled:
In the instant case, We cannot close our eyes to the important considerations
that respondents have rendered government-service for more than thirty-
three and twenty-five years, respectively, and that there is no showing that
they have ever been found guilty of any administrative misconduct during
all those periods. In the case of respondent Alejo, it seems rather sadistic to
make her suffer the extreme penalty of dismissal from the service” after she
had taken care of her co-respondent’s four children, giving them the needed
love and attention of a foster mother after they were completely abandoned
by their errant and unfaithful natural mother.
_______________
26 Declaration Pledging Faithfulness, see note 1.

27 Section 46(27), Chapter 6, Book V of the 1987 Revised Administrative Code.
28 Section 52(20) of Civil Service Commission Memorandum Circular No. 19-99.
29 See note 3.
244

Even respondent Marfil, if to a lesser degree, is deserving of compassion.

Most importantly, respondents have amply demonstrated that they recognize
their mistake and have, therefore, actually mended their ways by totally
breaking their relationship complained of in order to conform with the
imperatives of public interest. Objectively speaking, it cannot be denied that
such separation requires a great deal of sacrifice and entails personal
difficulties that cannot be easily ignored, thus making the resolution of
respondents to give up what is most meaningful to them worthy of some
measures of liberality in the imposition of the indispensable penalty which
has to be meted to them. (Emphasis supplied)
Therefore, any initial penalty imposed on Escritor should be lifted

the moment she ends her cohabitation with Quilapio.
Given the circumstances, it would seem unduly harsh to penalize
Escritor for cohabiting for the last 23 years with a man she believes
is her husband and she knows is the father of her son. No third party
has claimed or suffered injury because of their cohabitation. On the
contrary, suspending or even dismissing her for her continued
cohabitation would only work hardship on her family. The remedy,
however, lies not with this Court but with the legislature. We can
only call the legislature’s attention to Escritor’s failure “to legalize”
her union with Quilapio, a failure that deserves legislative inquiry
and probably remedy, even as we are bound to apply the law without
fear or favor.
Accordingly, I vote to suspend respondent Soledad S. Escritor for
six months and one day without pay for conduct prejudicial to the
best interest of the service. However, the suspension shall be lifted
immediately upon Escritor’s manifestation to this Court that she has
ceased cohabiting with Luciano D. Quilapio, Jr. Moreover,
respondent Escritor is warned that her continued cohabitation with
Quilapio, during or after her suspension and while Quilapio’s
marriage with his legal wife still subsists, shall merit the penalty of
dismissal from the service.
Case remanded to Court Administrator.
Notes.—The government’s interest in molding the young into

patriotic and civil spirited citizens is “not totally free from a
balancing process” when it intrudes into other fundamental rights
such as those specifically protected by the Free Exercise clause, the
constitutional right to education and the unassailable interest of
parents to guide the religious upbringing of their children in accor-
245
VOL. 408, AUGUST 4, 2003 245

dance with the dictates of their conscience and their sincere religious
beliefs. (Ebralinag vs. Division Superintendent of Schools of Cebu,
251 SCRA 569 [1995])
Ordering a religious society or corporation to change its
corporate name is not a violation of its constitutionally guaranteed
right to religious freedom. (Ang mga Kaanib sa Iglesia ng Dios Kay
Kristo Hesus. H.S.K. sa Bansang Pilipinas, Inc. vs. Iglesia ng Dios
Kay Cristo Jesus, Haligi at Suhay ng Katotohanan, 372 SCRA 171
[2001])
——o0o——
246
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3/10/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 408

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S.

Constitutional Law; Freedom of Religion; In the United States, there is

2 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

area of constitutional interpretation than the religion clauses. The U.S.

VOL. 408, AUGUST 4, 2003 3

Estrada vs. Escritor

writings of leaders of the Reformation. But just as Protestants living in the

4 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

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Estrada vs. Escritor

6 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

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Estrada vs. Escritor

of his religion when circumstances would permit would be punished with

8 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

VOL. 408, AUGUST 4, 2003 9

Estrada vs. Escritor

modern free exercise jurisprudence. A two-part balancing test was

10 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

ing paramount interests, give occasion for permissible limitation.’ Thomas v.

VOL. 408, AUGUST 4, 2003 11

Estrada vs. Escritor

12 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

Same; Same; Same; Same; The most controversial of the education

VOL. 408, AUGUST 4, 2003 13

Estrada vs. Escritor

religion allows no interaction between the two. In fact, when Jefferson

14 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

for accommodation is buttressed by a different view of the “wall of

VOL. 408, AUGUST 4, 2003 15

Estrada vs. Escritor

policy solely on secular considerations, without regard to the religious

16 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

against discriminatory legislation. The accomplishment of the purpose of

VOL. 408, AUGUST 4, 2003 17

Estrada vs. Escritor

and Sikhs from the workplace, or employment anti-discrimination laws can

18 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

VOL. 408, AUGUST 4, 2003 19

Estrada vs. Escritor

Same; Same; Same; Words and Phrases; “ Religion” is derived from

20 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

guarantees voluntarism, although the Establishment Clause also assures

VOL. 408, AUGUST 4, 2003 21

Estrada vs. Escritor

22 SUPREME COURT REPORTS ANNOTATED

Estrada vs. Escritor

should be balanced against each other.—How the tension between the